Tewksbury v. Provizzo

Baldwin, J., delivered the opinion of the Court—Field, J., concurring.

This was an ejectment for a tract of land, being a portion of the Rancho of San Pablo, lying in the County of Contra Costa. The case was tried by the Court without a jury. The Court made a general finding that the plaintiff was seized and possessed of the premises, and was ejected by defendant, and that the plaintiff, as a matter of law, was entitled to recover; and it gave judgment of restitution, and for five hundred dollars damages. The plaintiff, on the trial, offered and read in evidence a paper purporting to be a deed of partition of the rancho of San Pablo, the parties, who were very numerous, claiming to be owners, and interested in that rancho; and the deed recites that “ it was made in order to settle all disputes touching said rancho, and make amicable partition thereof.”

The plaintiff claims the premises through a deed from one of the original owners, whose share, as allotted by the commissioners, he represents. The defendant claims possession as owner of undivided interest in the rancho, claiming that the állotment and partition does not bind him or convey to the plaintiff the title in severalty of the tract sued for. The partition was made, and it was recorded by the commissioners about twelve months after the deed. The commissioners partitioned off the land, omitting to make any partition of a portion of the tract—this being swamp land—upwards of 2,000 acres in extent.

The commissioners also allowed to one Gutierez one hundred acres *?of the land, under circumstances mentioned hereafter. Yphe^defendr-ant’s predecessor in interest was a party to this deed of partition.

Two questions are made upon which this controversy turns. The first is, what is the effect of this deed of partition, supposing it to have been regularly carried into execution—that is, is it an estoppel ? The second is,- has there been such a departure from its terms as to invalidate it, or the proceeding under it ?

As the plaintiff, on the trial, rested upon this deed without other evidence of title, it is necessary he should maintain that, by force of the .deed and the proceedings under it, he is entitled to recover the land. He does not rely upon previous possession, nor upon any deraignment of the title; but contends that this instrument contains of itself a confession of title which the parties to it cannot be permitted to contradict. The defendant offered evidence to show that the defendant was in possession previous to the execution of the deed, by way of proving a superior title in himself; and this evidence was rejected by the Court upon the ground that he was estopped by the deed. To ascertain the merits of this point, it is necessary to consider the provisions and language of the deed, which is a long and complex document. The first article provides for payment of certain expenses of litigation. The second article appoints Forbes, Cooper and Gray, 11 commissioners to make partition of the rancho in the manner hereinafter mentioned, and to that end, to make the necessary survey, map and report; the same to be filed for record among the land records of the County of Contra Costa, with this deed of the partition and release, the whole to take effect when so filed and recorded, and not before.” The third article provides for the separation from the rancho of a tract of fifty acres, to be chosen by one Martina Castro de Alvarado, etc., “ the parties of the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth parts; and Goodale and Benson hereby convey and release to said Martina and her heirs, the same to take effect as soon as the said report and map and this deed shall be filed for record.”