Dillon v. Center

Belcher, C. C. — This is an action of ejectment to recover possession of lot 1 of the northwest quarter, and lots 2 and 3 of the northeast quarter, of a certain section of land in Santa Clara County.

In the complaint it is alleged that W. H. Dillon, plaintiff’s intestate, died in April, 1877, and at the time of his death was the owner in fee and entitled to the possession of the premises described; that the plaintiff as administratrix of his estate took possession of the said premises in January, 1879, and continued to occupy the same till the seventh day of January, 1880, when she was ousted and ejected therefrom by the defendants.

The defendant, Alexander Center, alone appeared. By his answer, he denied all the allegations of the complaint, and then alleged that he and those through and under whom he. claimed had bad and held the actual possession of the lands and premises described in the complaint, and every part and parcel thereof, continuously, exclusively, and adversely to all the world for the five years next preceding the commencement of the action; and he further alleged that the. plaintiff’s cause of action was barred by the provisions of section 318 of the Code of Civil Procedure.

The case was tried by the court, and judgment rendered in favor of the plaintiff, for the possession of the three lots described in the complaint, and for damages and costs. The appeal is from the judgment and an order denying a new trial.

When the plaintiff rested her case, the defendant moved for a nonsuit as to lots 1 and 2, upon the ground that it appeared from the plaintiff’s testimony that she was in possession of those lots when the action was commenced, and it did not appear that defendant ever had possession of any part of them. The motion [564]was denied, upon the ground that a nonsuit could not be granted as to a part of the demanded premises. We think the motion might and should have been granted.

It is indispensable to a recovery in ejectment that it should appear that the defendant was, at the commencement of the action, in the possession of some part of the land sued for. The general denial contained in the answer put in issue the alleged possession of defendant, and the admission of possession contained in the special defense must be confined to that defense. (Miller v. Chandler, 59 Cal. 540.)

The lots were severable, and the only contest was as to a part of lot 3. It was unnecessary, therefore, to include in the action lots 1 and 2, and a judgment that the plaintiff recover the possession of those lots might be harmful to the defendant if an action should be commenced to recover rents and profits for them. (2 Greenl. Ev., sec. 333.)