Davis v. Pacific Improvement Co.

MeFARLAND, J. This action was brought for a partition of land situated in the city and county of San Francisco, commonly known as South Beach block No. 26. It is averred in the complaint that the plaintiff is the owner of the undivided one-half of said property for the term of ninety-nine years; facts are averred tending to show that the defendant, the Pacific Improvement Company, is the owner of. the other undivided one-half; and it is averred that the other defendants, who are quite numerous, claim some interest in the premises. The Pacific Improvement Company averred in its answer that it is the owner of the undivided one-half of said premises, and prays for a partition as asked by the plaintiff. The defendant Lawrence merely denies the averments of the complaint, and the other defendants set up title in sever-alty to various parts of the said premises, and deny that either the plaintiff or the said improvement company have any interest in any of the premises. The -court below found by its interlocutory decree that the plaintiff was the owner of an undivided [48]one-balf interest in tbe premises in controversy; that the defendant, the Paeiñe Improvement Company, is the owner of the other undivided one-half interest; and that neither of the other defendants has any right, title, or interest in the premises, or any part thereof. All the defendants except the Pacific Improvement Company appeal from the judgment and from an order denying them motion for a new trial.

None of the parties were in possession of any part of the premises in contest except the Pacific Improvement Company, which took actual possession of all said premises in the year 1891 or 1892, and was in the actual possession at the time this suit was commenced.

The evidence showed that in 1851 the premises in contest here belonged to the city of San Francisco; that in said year one Peter Smith obtained judgment against the city of San Francisco for a large sum of money; that an execution was issued upon said judgment under which the property was sold by the sheriff to one George W. Daniels, and a deed made to him by the sheriff on the twenty-sixth day of June, 1851; that by mesne conveyances the title which Daniels received by virtue of said sheriff’s deed was vested in one David B. Eising; that Eising, on March 30, 1853, conveyed the said premises by deed to James G. Hodgdon; and that the title thus conveyed to Hodgdon afterward vested—the undivided one-half in plaintiff Davis and the other undivided half in the said Pacific Improvement Company. A great deal of the argument of appellants is to the point that the deed from the sheriff to George W. Daniels was so defective in description of the property intended to be conveyed as to be worthless as a conveyance of said block 26. In the body of the deed the expression “lot 26” was used instead of <fblock 26”; but the returns of the sheriff on the execution were introduced by plaintiff without objection, and it is contended by plaintiff that the deed, together with said returns and certain other matters put in evidence, show that the deed clearly referred to block 26. But we do not think it necessary to pass definitely upon this point, for all of the appellants who set up any right or title whatever to any of the premises in contest base their right under conveyances from said Eising, who was thus the common grantor of the appellants and the respondents. If Eising had no title, then the appellants have