Plass v. Plass

CHIPMAN, C. Action in ejectment. The trial was by the court, and at the conclusion of plaintiff’s testimony the court granted a motion for nonsuit and gave judgment for defendants, from which plaintiff appeals and comes here upon bill of exceptions.

The evidence was, that plaintiff is the son of defendant’s testator; that plaintiff’s mother, the testator’s first wife, died July 7, 1859; the defendant Catherine Plass is plaintiff’s stepmother, and the other defendant is his brother. Plaintiff testified as follows: “I was born in the state of New York on November 9, 1847; and subsequently came with my father and mother to California; my father had been here before that time; we went to reside on the tract of land first described in the complaint, and my father lived there continuously until he died in 1895.” The land referred to was acquired by plaintiff’s father by purchase October 11, 1856. The other land described in the complaint was deeded to plaintiff’s father July 3, 1863, four years after his mother died. A deceased sister of plaintiff died April 3, 1865, being then the wife of one N. C. Brooks, leaving one son who survived her, but is now dead. Brooks conveyed to one G-. A. Lamont his interest in the demanded premises December 14, 1895, and Lamont conveyed the same to plaintiff January [13317], 1896. What interest, if any, Brooks had in the premises does not appear. Petition for the probate of the will of defendants’ testator was in evidence, in which the demanded premises were claimed to be part of the estate of deceased; also order admitting will to probate, with proof thereof; it also appeared that defendants entered upon their duties as executors, and were, when the action was commenced and tried, acting as such under said will. The will devised the property to the surviving wife of deceased and the brother of the testator, “to hold the same in common and undivided” during their natural lives, and at their death to go to the testator’s sons, Charles Plass, Jr. (plaintiff), and Phillip Plass (one of defendants). A rental value was proved, which with the foregoing comprises all the evidence.

It is well settled that in an action by a tenant in common against his cotenant to be admitted into the possession, a denial in the answer of the plaintiff’s title and right of entry is equivalent to an ouster, as of the date of the commencement of the action. (Miller v. Myles, 46 Cal. 535; Phelan v. Smith, 100 Cal. 158.) The ouster is, therefore, admitted hy the pleadings.

If plaintiff has any title or right of possession, it must be by virtue of the statute of 1850, section 11 (Stats. 1850, p. 254), as a “descendant” of his deceased mother, who died while that act was in force, or, as an heir at law or devisee of his father. Clearly, he can claim no right of action in ejectment, in the latter capacity, against the executors. (Meeks v. Hahn, 20 Cal. 620; Chapman v. Hollister, 42 Cal. 462; Meeks v. Kirby, 47 Cal. 168; Harper v. Strutz, 53 Cal. 655.) Can the action be maintained upon the facts disclosed?