Brooks v. Calderwood

By the Court, Sawyer, C. J.: This is >an action brought under section two hundred fifty-four of the Practice Act to determine an adverse claim to Subdivisions Twenty-eight, Thirty-one and Forty of One Hundred-vara Lot Humber Seven, in the City of San Fran[565]cisco. The plaintiff alleges title and possession; that defendants set up some adverse claim, estate or interest which has no just foundation in law or equity; that such claim, although invalid, is a cloud upon his title, impairs the market value of the property and obstructs its alienation; and that one of the defendants is harrassing him by bringing suits against his tenants, and he prays the usual relief. The defendant, Calderwood, in his answer, takes issue on the material allegations of the complaint, and sets up sundry” affirmative matters of defense. The defendants, Douglass, and wife, deny plaintiff’s title to, or possession of, the premises in question, or any part thereof. They then, affirmatively set up title in themselves to Subdivision Forty, and “ disclaim any interest in, or claim to, the remainder of the premises.” Upon the trial the Court dismisssed the action as to Subdivision Forty, without prejudice to plaintiff. As to all the rest of the premise's, the Court found the issues for plaintiff*, and rendered judgment in accordance with the prayer of the complaint, and for costs. There does not appear to have been a motion for new trial. Defendants Calderwood, and Douglass and wife, appeal from the judgment. The defendant, Irving, has not appealed, and it is unnecessary to consider the judgment, so far as it affects him. Douglass and wife claim, that, because the action was dismissed without prejudice as to Subdivision Forty, to which they set up title, and they disclaimed as to the balance, costs should have been awarded them. But the plaintiff could not maintain the action, and would not be entitled to judgment at all, as to any portion of the land, unless he was in possession at the commencement of the suit. (Lyle v. Rollins, 25 Cal. 437.) And said defendants denied his allegation of possession, and put him to his proof. They might have rested on the issue of possession alone, if plaintiff* was unable to prove it, and have defeated the action as to the whole on that ground. The disclaimer in another answer of any claim to a part of the premises in question, was not inconsistent with this issue, which they made. Without proof of possession, plaintiff [566]