Phillips v. Winter

PER CURIAM. The plaintiff commenced this action to obtain a partition of certain blocks and lots of land situate in the city and county of San Francisco and known as “outside lands.” There were a large number of defendants, all of whom answered, and set out their respective claims to interests in the lands described in the complaint. Among the defendants were the minor heirs and the adult heirs, and the executrices of the will of William Winter, deceased. The minor heirs answered separately by their guardian ad litem, and alleged that said William Winter, at the time of his death, was the owner and entitled to the possession of an undivided third part of all the lands and premises described; and they prayed that the said lands be partitioned, and that the shares and interests to which they were entitled might be determined by the court, and set off in severalty to them. The adult heirs and executrices, by their answer, denied that the plaintiff and defendants were the owners, as tenants in common, of the lands and premises described in the complaint; denied that the plaintiff or the defendants, other than themselves, had any interest in the said lands and premises, or any [685]part thereof, as tenants in common or otherwise; and alleged that said William Winter, in his lifetime, and at the time of his death, was seised in fee, and was the owner in severalty, of all the said pieces and parcels of land mentioned and described in the complaint. Wherefore they prayed that it be adjudged and decreed by the court that they were the owners and entitled to the possession of all the said lands and premises, and that the relief asked by the plaintiff be denied. The case was tried, and very full findings made, by which it was determined that each of the parties to the action had a certain stated interest in the said premises; and thereupon, in accordance with the findings, an interlocutory decree of partition was made and entered, from which, and from an order denying their motion for a new trial, the adult heirs and executrices appeal.

The appellants contend that the heirs, devisees, and representatives of the estate of William Winter, deceased, were shown to be the owners in fee and entitled to the possession of all the property involved in the action, and that the court erred in awarding and setting off portions thereof to the plaintiff and the other defendants. This contention is based upon the following facts: On November 20, 1869, an action was commenced in the district court of the twelfth judicial district in and for the city and county of San Francisco, by Robert S. Randall against William Winter and others, for the partition between the parties, as tenants in common, of a tract of land described as “that certain tract of land situated in the city and county of San Francisco and state of California, known as and being the southeast quarter of section 13, township 2 south, range 6 west, according to the United States survey of the state of California, and being more particularly described as the same is delineated and shown on the map of the outside lands of the city and county of San Francisco, made under and by virtue of the provisions of order No. 800, as follows, to wit, ‘All those certain blocks of land,’ ” etc., including the blocks and lots involved in this action. The answer of Winter was filed March 4, 1870. The trial of the action was commenced August 15, 1871, and on the next day the case was' submitted to the court for decision. The interlocutory decree was entered October 13, 1871, and the final decree on December 8, 1875. By these decrees there were