Reay v. Butler

McKEE, J. From a final judgment entered on the 31st of December, 1879, and from an order made and entered on the 28th of December, 1880, denying a motion to vacate and set aside said judgment, the appeal in this ease has been taken. The judgment was rendered in a proceeding of intervention filed in an action of ejectment, brought by J. W. Eeay against John Butler and P. H. .Owens, defendants, to recover possession of a tract of land “situate in the city and county of San Francisco, described as follows, viz.: Commencing at a point 8.04 shains south of the quarter section post in the center of section 7, township 2 S., range 5 W.; thence north 22.54 chains; thence east 26.80 chains-; thence running north 80% degs., east 3.08 chains; thence south 24.85 chains; -thence west 29.44 chains, to the place of beginning containing 54.30 acres, more or less, being the land immediately west of what is known as the ‘Dana Tract,’ and what was formerly the Sans Souci rancho, and located near the Lone Mountain cemetery, and adjoining Kilian’s -and Culver’s land.”

The .complaint was filed on the 20th of February, 1866. On the 2d of March, 1866, the defendants appeared, by J. P. Treadwell, their attorney, and filed an -answer in which they “deny each and every the allegation in the said complaint contained,” and aver that J. P. Treadwell was, “at and before the filing of the complaint', and still is, the owner of, and in the possession and occupation and entitled to the possession, of the land; and that they are in possession under and by license from -him and in subordination to his right and title, and not -otherwise”; and that “said Treadwell is [503]ready and willing to and does defend this action as landlord and owner of the demanded premises.”

Pending the action upon the issues raised by that answer, Treadwell, the attorney -of record for the defendants, upon the 25th of June, 1867, applied in proper person for and obtained an order permitting him, in his own behalf, to intervene in the action and on the same day he filed his complaint in intervention, in which he alleged that he was the owner and in possession of a tract of land described as “all that part of the demanded premises known as and called ‘Speck Ranch’ (and otherwise as ‘Treadwell’s Ranch’). Said ranch is situated in the city and- county of San Francisco, is within- the demanded premises, and is bounded and described as follows: “Commencing at the northwest corner of the Sans Souci property, as called for, near a shed there; thence west 7.29 chains; thence south 88 degs. 10 min., west 11.38 chains; then south 86 degs. 30 min., west 10.87 chains, on the east, south, and west by a line running south from said northwest corner 17.38 chains; thence north 15 degs., west 1.65 chains; thence to west end of the line above described as the northerly boundary line of said ranch”; that plaintiff and defendants have confederated “to trick him out of possession of said ranch, by means of a clandestine suit of ejectment,” founded on a.pretended deed or conveyance -of said ranch, made by the defendant Owens to the plaintiff, upon- which the plaintiff intends to rely in the trial of the action; that said deed is a cloud upon his title; and that the claim based upon it “is. without right, invalid, and unfounded”; therefore he asked that he be quieted in his title and possession against said claim, and that Reay, the plaintiff in the ejectment, be forever enjoined from prosecuting the action, and from commencing and prosecuting any -other action against him for the recovery of said ranch.