Fay v. McKeever

Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Fifteenth District Court, County of Contra Costa. Dwinelle, J.

The allegations of the complaint referred to in the opinion were as follows: “That while the plaintiff was such owner and so seized and possessed * * * of said land and premises, the said defendant did, on the day and year aforesaid, wrongfully, etc., * * * - enter into and upon the same, and oust and eject, the plaintiff therefrom, and ever since that day * * * have withheld, and still * * * do withhold, the possession thereof, etc. * * * Wherefore, the plaintiff prays judgment against the said defendant,’ etc. The defendants demurred, on the ground “ that the said complaint is ambiguous, unintelligible, and uncertain in this: that it does not appear from said complaint, or any part thereof, which one of the defendants, or that more than one defendant, did oust or eject the plaintiff from the premises described in the complaint.” The complaint described the land sued for as being the fractional south half of Section 28, in Township 1 N., Range 4-W., M. D. Meridian, and also by metes and bounds. The Court found that the plaintiff, at the date of the ouster, was the owner in fee simple and in possession “ of the premises described in the complaint, all of which is situated in Section 28, Township 1 1ST., Range 4 W.;” and that defendants ousted the plaintiff therefrom. From the evidence it appeared that a portion of the land was in Section 29 of the same township; but that all was included within the particular description by metes and bounds given in the .complaint.