Lawrence v. Ballou

By the Court, Sanderson, J.: The plaintiff sued as a tenant in common with the defendants. In the original or first complaint she described her interest as “fifteen acres of the Hatch Claim, situate on the Potrero Nuevo, which said fifteen acres is undivided and is to he located within” the boundaries of the Hatch Claim, etc.

The defendants, or some of them, demurred upon several grounds, one of which was founded upon the character of the plaintiff’s interest, as above alleged; it being claimed “ that her interest, if any, is imperfect, and she cannot recover until her fifteen acres shall have been located.” Upon this ground, as well as others, the demurrer was sustained. The plaintiff then amended her complaint, and sued as sole owner of the “Hatch Claim,” and demanded judgment for the whole of the “claim.-” The defendants having answered, and the case having come up for trial, counsel for the plaintiff opened with a statement in detail of the alleged title of the plaintiff", from which it appeared that her interest was derived from one Harvey A. Hatch, under a deed to Charles Brown and Harvey S. Brown, of which the premises are as follows: “This indenture, made the ninth day of December, in the year one thousand eight hundred and fifty-three, between Harvey A. Hatch of San Francisco, party of the first part, and Charles Brown and Harvey S. Brown, of the same place, parties of the second part, witnesseth: that the said party of the first part, for and in consideration of the sum of one thousand dollars, lawful money of the Hnited States of America, to him in hand paid by the said parties of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has remised, released, and quitclaimed-, and by these presents does remise, release, and quitclaim unto the said parties of the second part, and to their heirs and assigns forever, all fifteen acres of land to be hereafter located and surveyed upon a certain tract of land known as the Potrero property, in San Francisco, and within the [520]claim and bounds of the party of the first part, and which has been duly surveyed and recorded; the' sard fifteen acres are to be .of,proportionate value with, the whole of the claim of the said party,of the first part, both as,.ia location and quality.” That this dee.d was ,dply recorded.at-the time, and that the defendants also claimed and held under the. said Hatch, with notice of the plaintiff’s .rights. , ... . ..

Upon this opening.statement <?f the plaintiff’g. counsel, the defendants’ counsel, moved for, a ppnsu.it, upon.-the ground that the plaintiff", had.stated no..,title iipon which she could recover in "ejectment; and in connection that the Court had so ruled upon the’demurrer, to the original .complaint, and that the ruling had’ now, become the law of..the case, by which the Court was gtill .bound, and , must, therefore-, nonsuit the plaintiff, irrespective of tlie.qiiestion whether the.lading upon the demurrer was right .or wrong.. The-.Court-sustained the motion. ........... _ . . ,