Gunn v. Gunn

California Court of Appeal Dec 17, 1929 No. Docket No. 7197.Published

Before: Nourse

AI Brief

AI-generated · verify before citing

Holding. The court held that the appellant was not a party aggrieved by the decree and remanded the cause with directions to the trial court to modify the interlocutory decree to conform to the findings on file.

Issues

Whether the appellant is a party aggrieved entitled to appeal the partition decree.
Whether the complaint stated a cause of action for partition despite failing to strictly follow the terms of section 752 of the Code of Civil Procedure.
Whether the appellate court should modify the decree to define the parties' interests.

Disposition. Remanded with directions to modify the decree.

Quotations verified verbatim against the opinion

“By reason of his denials in his answer and his failure to assert any claim of interest in the property the appellant is not a party aggrieved by the decree and is therefore not entitled to urge any of his contentions on this appeal.”

“we deem it the better practice to remand the cause with directions to the trial court to modify the decree to conform to the findings on file and that, as so modified, the decree shall stand affirmed”

NOURSE, J.

Plaintiff sued for the partition and sale of certain real property. The cause was tried before the court, which made findings and entered an interlocutory decree for plaintiff. From this decree the defendant has appealed on typewritten transcripts.

The complaint alleged that plaintiff and defendant John W. Gunn “are each the owners of an undivided one-half interest in the property described.” The answer of defendant Gunn denied this allegation. On the trial this defendant’s deed of conveyance was received in evidence. The deed conveyed to the plaintiff herein an undivided one-half interest in the property. The trial court found the allegation of the complaint true and ordered judgment for plaintiff.

By reason of his denials in his answer and his failure to assert any claim of interest in the property the appellant is not a party aggrieved by the decree and is therefore not entitled to urge any of his contentions on this appeal.

(Ritzman

Ritzman,

190 Cal. 505-507 [213 Pac. 493].)

Respondent’s plea of ownership of an undivided one-half interest was equal to an averment of title in fee.

(Directors F. I. Dist.

Abila,

106 Cal. 355, 363 [39 Pac. 794].) Every estate of inheritance is a fee. (See sec. 762, Civ. Code.) Hence a tenant in common who holds his interest in fee has “an estate of inheritance” within the meaning of section 752 of the Code of Civil Procedure, entitling' him to sue in partition. Failure to allege the precise character of the estate held by plaintiff is cured by the evidence and findings showing that the pleader comes within the category of those authorized to sue for partition under the code sections. But in reference to the rul

[608]

ing on the demurrer to the complaint, since tenants in common who held the fee to realty were entitled to partition at common law under the Statutes of 31 and 32, Henry VIII (20 R. C. L., p. 743), therefore, though the complaint here did not strictly follow the terms of section 752 of the Code of Civil Procedure, it nevertheless stated a cause of action for equitable relief and the demurrer was properly overruled.

Gunn v. Gunn

AI Brief

NOURSE, J.

More from California Court of Appeal

Related research

AI Brief