Mayne v. Jones

By the Court, Sawyer, J.: It is very clear from the affidavits, that, at the time of the commencement of the suit, the appellant, Mary Ann Cook, then an infant of about seven years of age, was not in possession of the premises in dispute, or of any part of them. Without discussing the question, it is sufficient to say, we are, also, satisfied that she has presented no case that would justify the Court in this form of proceeding in restoring her to possession. The case is not like Watson v. Dowling, 26 Cal. 125, but is within the principle of Leese v. Clark, 29 Cal. 672.

We here take occasion to call attention to an error in the report of the latter case. The word “ defendant” should be substituted for the word “ plaintiff,” in the ninth line from the bottom of page six hundred seventy-one.

Order affirmed.

[Note.—The foregoing opinion was delivered at the October Term, 1867.]

Mr. Justice Shaeier'expressed no opinion.

By the Court, Sawyer, 0. J., on petition for rehearing: "Upon some points there is much conflict in the statements of the different parties, but the affidavits and motion papers tend to show, and, we think, do show, the following facts : Some time prior to August, 1863, the plaintiff) or his gran[488]tors, had been in possession of a tract of about one hundred and fifty acres of land, including the premises in question. About that time—the early part of August—the defendants, Jones, Weygant and Michael Cook, made an arrangement to take possession, on the pretense that the former possessor was dead, or that the land had been abandoned; yet it is inanifest that they were aware of its being claimed by plaintiff. Cook was at first to be interested in the claim, but the other defendants were desirous of getting rid of him, and securing the land for themselves, whereupon Cook negotiated with the other side. It was finally settled betwee2i the defendants that Cook should have ten acres out of the hundred and fifty. Jones and Weygant had the land surveyed, took possession, and erected a house, in which Jones lived. The arrangements were completed somewhere about the 10th of August, 1863. Before, and at this time, Michael Cook, his wife, and daughter Mary Ann, were living near, not on the land. Mary Ann, the daughter, and ostensibly the moving pa2*ty in this proceeding, was at that time about seven years old. How she is about eleven. O21 the 11th day of August, 1863, in pursuance of the direction of Michael Cook, the father, and, as it was said at the time, in order that he might be a witness for the other defendants in any contest that might arise between them and the pi’ior possessors, Jones and Weygant executed a conveyance of the ten acres in controversy—Cook’s share in the entei’prise—to said child, Mary Ann, which said conveyance was not put 021 record till the Spring of 1864. Very soon thereafter defendants took possession, and after this transaction, this suit was eomme2iced, 021 the 24th of September, 1863, against said Jones, Weygant and Michael Cook, to recover the whole of said tract of larid so taken into possession. After several years of litigation plaintiff recovered, and his judgment was affirmed at the July term, 1866, of this Court. After the remittitur was filed in the Court below, the applicants in this motion, Mary Ann Cook, and two parties, claiming to be her tenants, were turned out of possession of the said