Pryor v. Madigan

By the Court: By the stipulation of counsel it is agreed that as to a portion of the premises in controversy the case stands in the same category as the case of Pryor v. Downey (50 Cal. 388), and is to abide the issue of the appeal in that case. The judgment in that case having been affirmed, the judgment in this as to that portion of the property, will also be affirmed under the stipulation. And we think the judgment as to the remainder of the property must likewise be affirmed. The action is ejectment in the usual form, and in the complaint the plaintiff avers that at a specified time before the commencement of this action, he was the owner in fee of said premises, and whilst so the owner and in possession, was ousted by the defendants, who have ever since withheld the possession. In the answer the defendants admit the possession of a portion of the premises and disclaim title or possession as to the remainder. As to the portion of which possession is admitted, the answer avers [180]that the defendants “hold said last-described premises and claim the fee of the same as the heirs at law of P. N. Madigan, deceased,” and then proceeds to deraign the title of P. N. Madigan, under the sale made by Forster as administrator of Nathaniel M. Pryor, deceased, being the same sale which we held to be void in Pryor v. Downey. The averment that the defendants “claim the fee” as the heirs at law of Madigan, whose title they proceed to deraign under the administrator’s sale, is only an averment that by means of that sale Madigan acquired the title, and is in no sense a denial that the plaintiff is the owner in fee, unless the title passed to Madigan under the sale of the administrator. In other words, there is no denial that the plaintiff is the owner in fee unless Madigan acquired the title at the administrator’s sale, and as we hold the sale to be void, it results that the plaintiff’s title is admitted by the answer.

Judgment affirmed.