Lacoste v. Eastland

McFarland, J. This is an action to obtain partition of certain tracts of land called lots 5 and 6 of the Soquel Augmentation rancho. The plaintiffs are Jean F. Lacoste, Joseph Dazet, and Auguste F. Delmouly. Delmouly first appeared as a minor by his guardian, but he attained his majority shortly afterward, and was personally a plaintiff, at the time of the filing of the amended complaint. The defendants are Joseph Gr. Eastland and F. A. Hihn. It is averred in the complaint that Lacoste is the owner of an undivided one-eighth of the premises, Dazet the owner of an undivided fourth, Delmouly the owner of an undivided one-half, and that defendant Eastland is the owner of an undivided one-eighth, and that defendant Hihn owns or claims some interest unknown to plaintiffs in the said interest alleged to be owned by said defendant Eastland. The court found that neither of the plaintiffs nor defendant Eastland owned any interest in the premises, hut that all the land described in the complaint was owned by defendant Hihn in severalty. The plaintiffs [675]appeal from, the judgment in favor of Hihn, and also from an order denying their-motion for a new trial.

It is doubtful if defendant Hihn in his answer sets forth his interest, or any interest, in the premises in controversy in manner as is provided for in section 758 of the Code of Civil Procedure; but, as the case seems to have been tried upon the theory that he had so set up his interest, we will consider the case as if his answer was in that respect sufficient.

The court below found that respondent Hihn had acquired title to said lots 5 and 6 by virtue of sales made under certain executions issued in a certain action entitled Hihn v. Peck et als. This last-named case was an action brought by Hihn, the present respondent, for the partition of the Soquel Augmentation rancho. That action was commenced August 14, 1860, and the final decree of partition was rendered September 14, 1864. Maria Luisa Juan was a party defendant to that action, and, in the final decree of partition, she was awarded, in severalty, the said lots 5 and 6 involved in this present action. In the final decree there was no adjudication of costs, or any allusion to costs, except that included in the following sentence of the decree: “And that the parties to this suit have until the next term of this court to file their several bills of costs in this action, and have them apportioned among the parties hereto respectively.” At the next term of court, and on December 8, 1864, a judgment in favor of Hihn against the said Maria Luisa Juan for the sum of thirty-four dollars and fifty-six cents was rendered, that being her proportion of the costs due said Hihn. Another judgment for costs due the referees in the partition suit was also entered against the said Maria Luisa Juan for a small sum of money. Executions were issued upon these two judgments; Hihn redeemed from the sale made on the judgment in favor of the referee, and he became the purchaser on the sale upon the execution in his favor, and afterward received the sheriff’s deed of the interest of said Maria Luisa Juan. But long