Braly v. Seaman

By the Court, Currey, C. J.: Ejectment for the undivided half of Fifty Vara Lot Number Five Hundred and Thirteen in the City of San Francisco.

On the 12th of May, 1848, George Hyde was the owner of the lot mentioned, and on that day conveyed it to James D. Curl and John W. Jenkins. On the 26th of December, 1850, James D. Curl conveyed the undivided half of the same lot to Robert A. Curl, who afterwards, on the 6th of February, 1865, conveyed his estate and interest therein to the plaintiff. Since the 1st of August, 1862, Joseph H. Moore has been the owner of the other undivided half of the lot, and for some time prior to the commencement of this action the defendant was in actual and exclusive possession of the lot, as the tenant of Moore. Before commencing this action the plaintiff made a proper demand to be let into the possession of the premises as a tenant in common, which demand was refused by the defendant.

It appears from the transcript of the record that on the 8th of August, 1862, Victor Seaman, who is the defendant in this action, commenced a suit in the District Court of the Twelfth Judicial District, in and for the City and County of San Francisco, against the said Robert A. Curl and several other per[615]sons, by filing a verified complaint, in which he alleged that he was then in the possession of the premises iq controversy as owner thereof in fee, and that the defendants in such suit claimed some interest or interests in said premises adverse to him; and further alleged that the claim of such defendants was without any right whatever; and further, that they had no estate, right, title or interest in the premises or any part thereof; and, in conclusion, prayed that such defendants might be required to set forth the nature of their claims, and that all adverse claims of such defendants might be determined, and that it might be decreed they had no estáte or interest in the premises and that they be forever barred from asserting any claim to the same adversely to the plaintiff in that suit. Robert A. Curl did not appear in the suit personally or by attorney; but it is claimed by the appellant that the Court obtained jurisdiction of h'is person by publication of the summons in accordance with the requirements of the statute. The Court, assuming such to be the fact, afterwards, in January, 1863, rendered a decree in the case adjudging and decreeing the pretended claim of Robert A. Curl, as well as that of other defendants, to the premises to be invalid and void ; and further, that he had no estate, right or interest in the premises or in any part thereof; and also adjudging and decreeing the title of Seaman thereto to be good and valid; and further, decreeing that said Robert A. Curl be forever barred and enjoined from claiming or asserting any estate or interest of, in or to said premises or any part thereof adverse to the title of said Seaman.