Polack v. Gurnee

Ross, J. As the bill of exceptions in this cause, which consists of six hundred and thirteen pages of printed matter, most of which has no place in a bill of exceptions, contains no specifications calling in question the findings of fact made by the trial court, we must accept as conclusively established the facts set out in the findings. In view of those facts, that neither defendant Gurnee nor defendant Chapman acquired any title to or interest in the premises in controversy by virtue of the patent issued by the United States on June 1,1869, to Daniel Freinere, and mesne conveyances thereunder, was shown by this court, in the case of Chapman v. Polack, 58 Cal. 553, and by the United States Circuit Court for California, in the case of United States v. Chapman, 5 Sawyer, 528. And the reason of those cases applied to the facts now, as well as then, appearing, sustain the title of the plaintiff, Mrs. Polack, to the disputed premises.

But it is urged on behalf of the appellants, that the judgment given by the court below is unwarranted by the pleadings; and further, that the character of the action was, against the objections and exceptions of the appellants, allowed to be changed from one in equjty to an ordinary action in ejectment. In this, counsel is mista/ en. The action has always been on the equity side of the cou , and the gravamen of it has always been to determine the Cvnflicting claims of the parties to the property in question. When the action was commenced, Mrs. Polack was in possession of the property through her tenant, Susenbeth, who, [268]with her husband, J. S. Polack, were made co-plaintiffs with her. The patent under which the defendants claimed was then outstanding, and based upon it Gurnee had then pending in one of the district courts of the State an action of ejectment, to recover a portion of the premises from Susenbeth. In contemplation of law there was not, under the averments of the complaint, nor is there upon the facts found in the case, any distinction between defendants Gurnee and Chapman. They occupy the same position. One of the purposes of the action, as originally commenced, was to enjoin, pending its determination, the prosecution of the action of ejectment brought by Gurnee against Susenbeth ; and it was also sought thereby to have the patent under which the defendants claimed declared invalid; or, if valid, that defendants be decreed to hold whatever title it conveyed in trust for Mrs. Polack, and be compelled to convey it to her. But, as already said, the main purpose of the action was to obtain a decree of the court, establishing the validity of Mrs. Polack’s asserted title to the property, which was based upon certain selections made under and by virtue of the laws of the United States and of the State, and the invalidity of the title asserted by the defendants.