Gillespie v. Gouly

HENSHAW, J.

The facts necessary for an understanding of this action will be found stated in the former opinion of

Gillespie

v.

Gouly,

120 Cal. 515, [52 Pac. 816]. The plaintiffs, sued to recover the real property as the heirs at law ot Ann Gilfeather, deceased, who was the original owner of it and who had been defrauded of it by a judgment and proceedings taken thereunder while she was insane. Upon a retrial of the cause the court found these facts to be as charged. The answer, however, had affirmatively pleaded that .these plaintiffs had no interest in the property as heirs at law of Ann Gil-feather, deceased, for the reason that Ann Gilfeather had died testate and by her will had specifically devised the prop

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erty in question to two of her sons, that is to say, to her son Dennis one half of the property, specifically devised by metes and bounds, and to her son Edward the other moiety. The court found in accordance with the allegations of the answer. It further found that while these two sons took as devisees under the will of their mother, the third plaintiff, James, was not interested in the property or in the subject-matter of the action at all. There thus resulted, at least so far as the plaintiff James is concerned, a misjoinder of parties plaintiff. The court therefrom concluded that all of the plaintiffs must fail in their action, and gave judgment accordingly in favor of defendant. This appeal is upon the judgment-roll alone, and it is contended that the court, under its findings of fact above adverted to, erred in the judgment which it gave.

The action is one, the bringing of which is authorized under section 738 of the Code of Civil Procedure. Section 381 of the same code declares that any two or more persons claiming any estate or interest in land under a common source of title, whether holding as tenants in common, joint tenants, co-partners, or in severalty, may unite in an action against any person claiming an adverse estate or interest therein, for the purpose of determining such adverse claim, etc. The plaintiffs Dennis and Edward, claiming as devisees, the common source of title being the will of their deceased mother, and seeking to remove from their title the cloud of the fraudulent deed which affected the whole land, indubitably brought themselves within the provisions of section 381 of the Code of Civil Procedure. Thus in People v.