Everson v. Mayhew

McKinstry, J.: The complaint contains all the averments necessary to a complaint in “ ejectment.” The answer denies any right in plaintiff, and admits the possession of defendant.

The Court below found that the demanded premises were the separate property and in possession of Ann Idonia Wasson, deceased, of whom Henry Wasson is the surviving husband, and plaintiff the only child.

Upon these issues and facts, the plaintiff should recover an undivided moiety of the lands.

It is said, that, in view of other findings, the finding of ownership in Ann Idonia is to be construed a finding simply of actual possession; since Henry Wasson (defendant’s grantor), subsequently to his wife’s death, acquired the title by virtue of a certificate of the county judge. (Stats. 1867-68, p. 107.)

But there is no finding in the record that the lands in controtroversy are upon or within the “ town site ” of Red Bluff, or that the lands in controversy, or any lands, were ever entered by the county judge of Tehama “ under Acts of Congress and instructions of the Department of the Interior,” or otherwise; or any finding of other facts showing that the county judge ever acquired or held the title to the lots in dispute, or could legally convey the title therein or thereto to Henry Wasson, or to any other person. Nor is there any finding that the defendant is the owner, or entitled to the possession, or that he has any right in or to the lands, except that derived from the county judge through the certificate aforesaid.

[145]Judgment and order reversed, and cause remanded for a new trial.

Morrison, C. J., and Boss, J., concurred.