Hastings v. Stark

California Supreme Court Oct 15, 1868Published

Before: Rhodes

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Holding. The court held that the location of an uncertain boundary line described in a deed is a question of fact for the jury, and that a failure to object to a misjoinder of parties in the answer constitutes a waiver of that objection.

Issues

Whether the evidence was sufficient to support the jury's verdict regarding the location of the western boundary line of the McDaniel tract.
Whether the misjoinder of a plaintiff is waived if not raised in the answer.
Whether the jury instructions regarding the interpretation of deed calls and the establishment of boundary lines were erroneous.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the true position of the western line was a question of fact, to which the jury were to respond from the evidence”

“Where the misjoinder of parties plaintiff does not appear upon the face of the complaint, and the objection is not taken by answer, it is deemed waived.”

Synopsis

Appeal from the District Court, Seventh Judicial District, Solano County.

This was an action of ejectment to recover possession of seven and' one third acres of land in Solano County, being part of a grant of land made by the' Mexican Government to Juan Fillippe Peña and Manuel Cabeza Vaca, and subsequently confirmed and patented to them by the United States. The complaint was in the usual form, and the only pleading on the part of the defendants was the answer, which only put in issue the material averments of the complaint. The descriptive portion of the deed mentioned in the opinion of the Court from said Vaca to McDaniel, under which plaintiff Hastings at the trial deraigned title to the demanded premises, is as follows, to wit:

“ The point at which the boundary of this tract of land may be found is one mile and a half due north of the point where the county road crosses the water branch, or ‘ Arroyo de Agua,’ about one mile and a half east of said Manuel Cabeza de Vaca’s Rancho; thence due west to the base of the mountains; thence southerly three English miles—that is to say, following the base of the mountains in a southerly direction three English miles; thence due east three English miles; thence due north three English miles; thence west to the place of beginning, so as to include three English miles square, or nine square miles of land.”

' The “ Swan Map,” mentioned in the opinion, and which was put in evidence at the trial by the plaintiffs, is the same which is described in the statement and the opinion of this Court in Vance v. Fore, 24 Cal. 436, 443, et seq. On the trial no title whatever to the demanded premises was shown in the plaintiff Jeans. The defendants introduced testimony to prove that they were, and for a long time prior to the commencement of this action had been, in possession of the demanded premises. They also introduced in evidence at the trial a deed from H. H. Hartley, and others, under whom they sought to deraign title to the demanded premises. Said Hartley and others were grantees of another distinct parcel of said Mexican grant under a deed thereto from said Peña; but said deed from Hartley and others, which, together with said deed from Peña, were subsequent in date to said deed to McDaniel, in the descriptive portion thereof contained the following call, to wit: “Thence along the western line of the present survey of the (so called) McDaniel tract, according to the plat thereof.” Other evidence introduced at the trial tended to prove that the “plat” thus mentioned was said “Swan Map;” also, that said map had been made to delineate the external boundaries of the McDaniel purchase, as well as the internal division lines thereof, as between the owners of distinct parcels holding under McDaniel, in the course of a suit for the partition of said tract between the owners thereof; and that ever since said suit said external lines had been acquiesced in by said owners.

By the Court, Rhodes. J. : The principal question in this case is, whether the premises in dispute are included* within the calls of the deed of Yaca to McDaniel, or stated more narrowly, whether the westerly line of the McDaniel tract lies to the west of the premises in suit. The defendants contend that the evidence is insufficient to justify the verdict in this respect. This deed was before this Court in Vance v. Fore, 24 Cal. 444, where it was said, in speaking of the termination of the first course—the base of the mountains—along which the western line runs: “Reference here is not to a visible object, but to a point the exact location of which can never be determined with absolute precision. Witnesses of equal intelligence, after giving the subject an equal amount of attention, might, and probably would, differ more or less in their conclusions concerning it.” The deed being admitted in evidence, the true position of the western line was a question of fact, to which the jury were to respond from the evidence; and there being no visible call in the line, which could be precisely established, it was for the jury, and not for this Court, to say which witness more nearly approximates in his testimony to the true line. If the line is run according to the “ Swan Map,” there is no doubt that the calls of the deed will include the land in controversy; and there is testimony in the case showing that the line should be placed even further to the [126]west than in that map. Where one witness calls a certain elevation of land a mountain, and another calls it a hill, and says that the mountain is reached after passing over the hill and across a valley, the conflict in the evidence is so manifest, that the verdict upon the point to which the evidence was directed will not be disturbed by the appellate Court.

The point that the verdict is erroneous because no title was shown in Jeans, one of the plaintiffs, is answered by sections forty-four and forty-five of the Practice Act. Where the misjoinder of parties plaintiff does not appear upon the face of the complaint, and the objection is not taken by answer, it is deemed waived. (Gillam v. Sigman, 29 Cal. 639.)

The first and second instructions given at the request of the plaintiffs are susceptible of improvement in point of perspicuity, but'they are not so defective as to be calculated to mislead the jury. The deed referred to in the first instruction was that from Vaca to McDaniel, for the only controversy between the parties related to one of the calls of that deed. The instruction would be objectionable in assuming that the defendants were in possession of the premises, had there been any contest on that point; but the defendants really conceded that point by claiming the benefit of the legal presumption of title, arising from the fact of their possession.

Hastings v. Stark

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