Frisbie v. Marques

Rhodes, C. J., delivered the opinion of the Court:

' The facts in this case are similar to those in Durfee v. Plaisted (38 Cal. 80), except in one particular. In that case-[453]the plaintiff claimed title through a patent issued by the United States, by virtue of the Act of Congress of March 3, 1863, known as the Suscol Act, to Ira Austin, John B. Frisbie and others ; and it was stipulated that Frisbie, the plaintiff’s grantor, had purchased, prior to June, 1855, Vallejo’s title to the premises in controversy in that action. In this ease, a portion of the premises is included in each of several patents, one of which was issued to the plaintiff alone, and the others to him jointly with other persons; but there was no evidence, aside from the patents, to show that the plaintiff was a purchaser from Vallejo of any portion of the premises. Upon these facts the question arises, whether a patent issued under the Act of Congress above mentioned, to two or more persons, should be construed, as between them, or one of them, and a third person, as creating, presumptively, a tenancy in common, or a tenancy in severalty.

Counsel have not presented any authorities upon this question. The second section of the Act (12 U. S. Stats. 808), authorizes the purchasers from Vallejo, or his assigns, to enter the lands, which they had purchased and reduced to possession prior to the rejection of the claim of Vallejo, by the Supreme Court of the United States; but requires the entries to be made in conformity with the legal subdivisions, after the land is surveyed under the direction of the Commissioners of the General Land Office, and the section concludes as follows: “Joint entries being admissible by coterminous proprietors to such an extent as will enable them to adjust their respective boundaries.” Without the aid of this clause, two or more joint purchasers from Vallejo would be entitled to make a joint entry of the subdivisions included within the limits of their purchase; and the patent issued in pursuance of such entry, it would not be doubted, would constitute the purchasers tenants in common. The patent would vest in them the title to the land, according to their respective interests as purchasers from Vallejo or his assigns, whether it was so expressed therein or not, and they would be presumptively, as they are 'in fact, tenants in common. Our statute provides, that “ every interest in real, estate, granted or devised to two or more persons, other [454]