Center v. Davis

McFarland, J. This is an action brought by plaintiff against a large number of defendants for the purpose of quieting plaintiff’s title, as against said defendants, to a certain piece of land covered by water in the city and county of San Francisco. From the answers, and statements and admissions which appear in the statement on motion for a new trial, it appears that the defendants do not deny the quantity of plaintiff’s undivided interest as a tenant in common with the defendants of a large tract of land, of which the tract described in the complaint is a part. But plaintiff contends, and his complaint goes upon the theory, that he [308]is the owner in severalty of the premises described in the complaint; and this defendants deny. The court granted a nonsuit, and entered judgment in favor of defendants; and from the judgment, and from an order denying a new trial, the plaintiff appeals.

It appears that in 1854 the grantors of the parties plaintiff and defendant were the owners of a certain tract of land consisting of certain beach and water lots in the city and county of San Francisco; and it is contended by plaintiff that there has been a partition of said tract of land by which plaintiff has become the owner in severalty of that part of said tract which is described in the complaint. The first step in the process by which said plaintiff claims that said partition was effected is a trust deed made June 7, 1854. In that deed some fifteen different persons are named as parties of the first part, or grantors, and one Joseph E. Gary is named as party of the second part. It is shown by the parol testimony introduced by plaintiff that the purpose of said deed was to effect a partition through the process of all the cotenants conveying to said Gary with the understanding that said Gary was to reconvey to each of the cotenants in severalty the share to which he was entitled. The deed itself contains this clause: “The object of this conveyance to the party of the second part is for the sole purpose of dividing the pieces or parcels of land hereinafter described, that deeds may come direct from the party of the second part to the parties of the first part, according to their respective interests.’* The defendants make several objections to the validity of this deed. They say, in the first place, that it was not signed and executed by all of the persons named therein as parties of the first part and cotenants. It is a fact that several of said parties did not sign said deed. It is claimed, however, by plaintiff that some of those not signing had no interest in the property; but this question is not necessary to be discussed here, because it is admitted that Samuel Todd was one of the tenants in common of the land of which that mentioned in the