Cunningham v. Ashley

By the Court, Wallace, C. J.: In 1859 the administrator of the estate of John Kittleman commenced an action of ejectment against Cunningbam (who is the plaintiff in this action) and his tenants to recover the premises in controversy here, being a lot in San Francisco. The complaint of the administrator filed in that action averred that at the time of his death his intestate, Kittleman, was seized in fee as owner of -the premises; this - averment was denied by the defendants, who set up title in Cunningham, their landlord, who defended the action. The trial of the action subsequently had was upon the merits of the titles respectively claimed and relied upon by the parties, and resulted, in the year 1863, in a final judgment in favor of the defendants.

In the present action, commenced by Cunningham in the year 1868 against Henry Rice, administrator of Kittleman’s estate, Delos R. Ashley and Jesse D. Carr, to quiet his title to the premises, the defendant Ashley denied the title of Cunningham, and set up title in himself, derived to him from the heirs at law of Kittleman, and a judgment for Cunningham having been subsequently rendered in the Court below, this appeal is taken from the judgment and from an order denying a new trial.

[492]It appears that at the trial of the present action the plaintiff, Cunningham, put in evidence a grant of the premises made by the Alcalde to one Gelston, in June, 1847, and proved that the title of Gelston had subsequently vested in himself. He then read in evidence the record of the action of ejectment, and, after giving some further evidence not material to be stated, rested.

The defendant Ashley then offered to prove that the said John Kittleman died seized of the lot in controversy, and that Kittleman derived title under an Alcalde grant bearing date of December, 1846, the same title which was brought in controversy in the action of ejectment; and that this title of Kittleman had passed to and become vested in himself “by divers mesne conveyances from the heirs of said John Kittleman.” This offer was objected to upon several grounds, among them upon the ground that by reason of the judgment rendered in the action of ejectment, the defendant Ashley was estopped to allege the title of Kittleman or to deny that of Cunningham, and the Court below having thereupon excluded the evidence offered by the defendant Ashley upon this point, the propriety of its ruling in this respect is the principal question to be determined here.