De Uprey v. De Uprey
Before: Sakdeeson
Synopsis
Complaint in Partition. — In a complaint to obtain partition of land, a general allegation that “the premises cannot be divided by metes and bounds without prejudice,” is sufficient, without an allegation of the facts upon which the plaintiff relies, to obtain a particular mode of partition.
Same.—A complaint in partition is good which is silent upon the subject of the mode of partition.
Parties to Suit for Partition.—A married woman whose husband is sued in partition is a necessary party if she claims a homestead right to or an interest in the property in dispute.
Disclaimer in Partition.—In an action of partition, a defendant cannot claim that the action be dismissed as to him, on the ground that his answer disclaims any interest in the land, unless he has made the disclaimer in absolute and unconditional terms.
Disclaimer should be Absolute.—An answer which disclaims all interest in the land in dispute, except such as the defendant may have under the homestead law, hy virtue of the dedication of the land to homestead uses hy himself and his wife, is not a disclaimer.
What mat be tried in Partition.—Under our practice, any question affecting the right of the plaintiff to a partition, or the rights of each and all of the parties in the land, may be put in issue, tried, and determined in such action.
Answer in Partition.—A defendant in partition is not entitled to have the action dismissed by reason of the force and effect of any defense which he may set up in his answer.
Facts to be found in Partition.—In an action for partition, if the Court finds that the parties hold and are in ¡possession of real property, as joint tenants or as tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, the partition should be made, although the findings may also show that the plaintiff, in his complaint, has incorrectly set forth the title or interest of the parties, or of one or more of them, in the land.
By the Court, Sakdeeson, C. J. This is an action for the partition of a certain lot and improvements in the City of San Francisco. The plaintiff obtained judgment and a decree directing the premises to be sold and the proceeds divided between the parties on the ground that a partition by metes and bounds could not be made without prejudice. The defendants appeal, and assign several errors which we will notice in the order in which they have been presented.
The action was commenced against Samuel De Uprey alone, who demurred to the complaint, and for cause of demurrer alleged that the same did not state facts sufficient to constitute a cause of action. The demurrer was overruled, which ruling constitutes the first error assigned.
The only ground urged in support of the demurrer is that the complaint contents itself with the general allegation that the premises cannot be divided by metes and bounds without prejudice and does not state the facts showing why such a partition could not be made. A complete answer to this is found in the fact that the manner in which the partition is to be made constitutes no part of the cause of action, but is merely a part of the relief. While it is proper and perhaps advisable to ask for a particular mode of partition—there being two provided by the statute—and to that end allege the facts upon which the plaintiff relies for the particular mode which he seeks; yet this is not indispensable, and a complaint which is silent upon the subject is good. No facts need be stated in the complaint except such as are found enumerated in the two hundred and sixty-fourth section, which provides for the cause of action in question and defines the facts upon which it rests; and a specification of the interest of each party interested in the land, so far as known to the plaintiff, as provided in section two hundred and sixty-five. If these sections left the question in doubt, such doubt is entirely removed by the two hundred and seventy-fifth section, which provides that: “ If it be alleged in the complaint, and be established [332]by evidence, or if it appear by the evidence tvithout such allegation in the complaint, to the satisfaction of the Court, that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the Court may order a sale thereof.” But were it otherwise, and were the theory of the appellant the correct one, we should still be of the opinion that his theory is fully satisfied by the complaint in this case. Whether a partition can or cannot be made by metes and bounds is purely a question of fact, and is the ultimate fact to be found, and therefore the only fact necessary to be averred under any system of jsleading with which we are acquainted. The constituent facts, or those which lie behind, are merely probative, and need not be averred. ■ But independent of all that has been said, it may be safely affirmed that the bare description of the premises contained in the complaint sufficiently shows that a partition by metes and bounds could not be made without prejudice. It is a city lot fronting on an alley, measuring only twenty-three feet front and extending back sixty. We think it would be difficult to divide such a lot by metes and bounds without great prejudice to the owners.
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