Martin v. Walker

Morrison, C. J.: Plaintiffs brought their suit in the late District Court of Marin County, for the partition of certain lands situate in said county. The complaint contains the averment that the plaintiffs are the owners, seized in fee, are tenants in common, and are in possession of said lands with defendants. The defendants in their separate answers deny that plaintiffs, or [592]either of them, are the owners of any interest in the lands sought to be divided, and claim ownership thereof in their own right, adversely to plaintiffs. The case comes before us on the complaint, answers, findings, and judgment. The following are the findings and conclusions of law in the case:

“ 1. The plaintiffs and defendant L. W. Walker are tenants in common of the tracts of land described in the complaint herein as tracts 1, 2, 3, 4, and 5.

“2. That plaintiffs have never been in actual occupancy with said defendant Walker, of any portion of said lands.

“3. That defendant Walker has been in the occupancy of the whole of said lands since before the commencement of this suit.

“4. That in April, 1878, plaintiff Martin made a demand on defendant Walker, to be let into possession of said lands with said Walker, who refused to let him into possession and denied his title.

“ 5. That plaintiff Moretti never made any demand for possession, and was never refused possession.

“ 6. That the defendants other than said Walker have no title in or to said premises, or any part thereof.

“ And as conclusions of law therefrom I find:

. “ That the plaintiffs not being in actual possession of any portion of said lands, are not entitled to partition thereof, and that the defendants recover their costs.”

The case, therefore, presents but one question on this appeal, and that is, can a tenant in common, who has never been in the occupancy of the land, maintain a suit in partition against a co-tenant, whose possession is adverse and hostile ? It is claimed, on behalf of the respondents, that he can not; that the proper remedy is by ejectment, and that, until the possession has been recovered in that form of action, he is not in a position to bring partition. In support of this view of the law, section 752, Code of Civil Procedure, is relied upon. It provides that “ when several co-tenants hold and are in possession of real property as parceners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof, according to the respective rights of the persons in