Worcester v. Kitts

[182]

CHIPMAN, P. J.

Plaintiff brings the action to qniet his title to certain portions of section 16, township 16 north, range 8 east, Mount Diablo base and meridian, alleging that defendants claim an interest therein adverse to plaintiff, without right, etc.

Defendants answering deny plaintiff’s alleged ownership to said lands, and aver title in defendants to certain particularly described portions thereof, and pray that they may be adjudged to be the owners of the land claimed by them, and that plaintiff has no right, title,.interest or estate in or to the same. Plaintiff had judgment in his favor as to a portion, not all the lands claimed by him, but the judgment included some of the lands claimed by defendants. Defendants appeal from the judgment on the judgment-roll alone.

The judgment contains the following recital: “The above entitled cause was heard upon the plaintiff’s complaint filed Oct. 4th, 1904, and the amendment thereto filed Nov. 29th, 1904, and the amended answer to the amended complaint filed June 26th, 1905, and the Court being fully advised in the premises decrees and adjudges as follows.” The judgment then describes certain of the land mentioned in the complaint, adjudging plaintiff to be the owner thereof. “It is further adjudged that defendants and each of them are hereby enjoined from setting up or claiming any title, possession or right of possession to said property.”

It is claimed by defendants that the cause was submitted to the court, and was heard and decided upon the pleadings alone. Plaintiff denies this, and claims that the record does not show this to be the fact, and defendants cannot assume it to be as claimed by them. There is nothing in the record except the recitals of the judgment from which the fact can be determined. We think the record sufficiently shows that the cause was heard upon the pleadings.

In his original complaint plaintiff pleaded patent from the state to one Farrar and deed from Farrar to plaintiff; also patent from the state to plaintiff, but did not otherwise show title. These instruments are set out in the complaint and their execution is not denied.

The sole question in the case is, Are the state patents, under which plaintiff claims, conclusive as to the character and condition of the land? Concededly, the learned trial