Schenk v. Evoy
Before: Shafter
Synopsis
Description of Land in Deed.—Where a deed conveys a given quantity of land, parcel of a larger tract, and the deed fails to locate the quantity so conveyed by a sufficient description, the grantee, on the delivery of the deed, becomes interested in all the lands embraced within the larger area, as tenant in common with his grantor. The grantee has no right to locate the quantity called for by his deed on any portion of the larger area, as against the will of his grantor, unless such right is conferred upon him by some stipulation to that effect in the deed.
Segregation of Land Sold.—Where the calls of such a deed do not identify the land with certainty, the mere fact that at the time of the delivery of the deed the grantee paid to the grantor the purchase money, raises no presumption that the grantor segregated and placed him in the possession of a particular tract as the land conveyed.
Issue in Pleadings.—The complaint charged that on a day mentioned the plaintiffs were lawfully seized and possessed and had the right of possession of a certain tract of land, and that defendants afterwards entered into and upon the said tract, and ousted plaintiffs threrefrom. The answer in response to these allegations averred, that the defendant was not guilty of the supposed trespasses and ejectment in tho complaint mentioned, nor of any part thereof: held, that the answer raised no issue.
Confession of allegation of Complaint.—The complaint in ejectment was filed on tho 27th of January, and averred that the defendants were in possession of the demanded premises. The answer was filed on the 8th day of February, and the only response to this averment was as follows: And “ this defendant further says, that he is not in possession of the lands and tenements described in the complaint, or any part thereof held, that the allegation of the complaint must be taken as confessed.
By the Court, Shafter, J. [109]Appeal from judgment in ejectment, and from order overruling motion for new trial.
Among other questions presented by the record, we are required to determine the legal effect of a deed executed by Frisbie and De Zaldo to Adolphus Germon, March 13th, 1856. Through sundry mesne conveyances, all the rights of Germon acquired by this deed passed to and became vested in Augustus Schenk, one of the appellants, on the 11th day of November, 1857. The following description of the premises conveyed is found in all of the deeds referred to :
“ Have granted, bargained, and sold, aliened, remised, released, conveyed, and confirmed, and by these presents do bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all that piece or parcel of land described as follows: Situate upon the western side of San Pablo Creek, in a valley known as the 1 Crazito Valley,’ which is a part of the tract of land known as the Sobrante claim, and situated in Contra Costa County, and State of California, bounded and described as follows: Having for the eastern boundary thereof a line following the course of San Pablo Creek, as it now runs, through the centre thereof from the northern to the southern extremity of said valley, and extending back westward from said line so as to include one thousand (1000) acres of land, and no more, on the western side of said valley; said land to be laid out, as near as possible, in a square form; all the lines) except the first mentioned line, to be straight, conforming with the cardinal points by true meridian.”
The appellants contend:
1. That the deed from Frisbie and De Zaldo to Germon, of March 13th, 1856, conveyed to the grantee one thousand acres of land, together with the absolute right of locating the same at any place in the Cruzito Valley, on the western side of San Pablo Creek.
2. That the calls of the deed referred to identified the land with sufficient certainty to enable a surveyor to survey it [110]correctly; and it is claimed as a fact that the land was so surveyed by the procurement of Schenk, in 1859 or 1860.
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