Williams v. Sutton

[71] By the Court, Crockett, J.: The plaintiff deraigns title to one undivided fourth of the premises in controversy under a valid alcalde grant, and is entitled to recover the possession of the whole property as against the defendant, who has shown no title, unless the judgment in the case of Sutton v. Woods et al. shall have the effect to limit his recovery to the one undivided fourth only. Heither the plaintiff or his grantors were parties to that action, or in privity with the defendants therein; and it is conceded that his rights are unaffected hy the judgment. But it is said that Woods, Hastings, and Haskell, the defendants in the former action, who were then cotenants in common with the plaintiff’s grantors, are concluded by the judgment, and are estopped thereby from setting up title or a right to the possession, as against the present defendant, who was the plaintiff in that action; and hence that the-present plaintiff is not entitled to recover the possession of the three undivided fourths formerly claimed by them, and to which it has been argued the present defendant has the better title, as against Woods, Hastings, and Haskell. But one of the incidents of a tenancy in common holding the title, is that each of the cotenants is entitled to the-exclusive possession of the entire property, as against the whole world, except his cotenants. A person without title and wrongfully in the possession, cannot gainsay the right of each of the tenants in common to the possession of the whole. As between tenants in common and a trespasser, each tenant in common is better entitled to the possession than a wrongdoer. The former is seized per mi et per tout, and has an interest in the whole, which entitles him to the enjoyment of the entire estate as against every one except his cotenants. Is the defendant a cotenant with the plaintiff? If so he must have acquired that status by means of the judgment in the former action, in which it was adjudged that as between him and [72] Woods, Hastings, and Haskell he had the better title and the better right to the possession. But he did not thereby become vested with their title or succeed to their interest in the property. On the contrary the Court decided that they had no title, and left Sutton in possession under such claim of title as he had under the Colton grant. The judgment added nothing to his former title, but left it as it was before; and the point decided was that his was better than the title of his adversaries. I do not comprehend how all this can have the effect to convert the defendant into a tenant in common with the plaintiff’s grantors, who were not parties to the action, and were unaffected by the judgment. Hot-withstanding the judgment, the defendant, so far as it concerns the plaintiff and his rights, is as much a trespasser now as when he first entered on the lot; and I am not aware of any exception to the rule that as against a trespasser one of several tenants in common is entitled to the possession of the entire property. The judgment, it is true, estops Woods, Hastings, and Haskell from asserting title as against the defendant. But they are not asserting it in this action, nor are their rights in question here. On the contrary the plaintiff is entitled to the possession of the whole property, not on the strength of their title or right of possession, but of his own as one of several tenants in common, having a better right a,s such to the entire property than a mere intruder without title. Hor can it be doubted that the plaintiff and Woods, Hastings, and Haskell are still tenants in common notwithstanding the judgment in the former action. As already stated the judgment did not have the effect to divest whatever title the defendants in that action had, nor to transfer it to Sutton, and consequently did not disturb the relation of tenancy in common before then existing between them and the plaintiff’s grantors. The only effect of the judgment was to estop the defendants therein from asserting the title which they claimed against Sutton, the present defend [73] ant, and the Court did not attempt to interfere with the relation of a tenancy in common then existing between them and the plaintiff’s grantors. Ho question of that kind was before the Court, and of course it had no power to deal with it, if it had attempted to do so. As between the several tenants in common their relations towards each other were therefore wholly unaffected by the judgment. But it is said that if one of several tenants in common be under such disability as will preserve his rights under the Statute of Limitations, this will not save the rights of his cotenants against whom the statute has fully run; and this rule of law is invoked to maintain the proposition urged in this case that if Woods, Hastings, and Haskell .are estopped by the judgment, the plaintiff is entitled to the possession of his separate undivided interest only, and no more. But whilst fully admitting the soundness of the rule, I think it has no application to this case. The rule itself is founded on the proposition that when the statute has fully run, and has become effectual to bar an adverse title, the disseizor acquires a new title founded on disseizin. He does not acquire or succeed to the title and estate of the disseizee, but is vested with a new title and estate, founded on and springing from the disseizin; and the title of the disseizee, if not wholly extinguished, has, at least become inoperative in law, and is without a remedy to enforce it. (Arrington v. Liscom, 34 Cal. 381, and authorities there cited.) The new title thus acquired by the disseizor must of necessity correspond with that on which the disseizin operated, as he could not acquire by disseizin a greater estate than that held by the disseizee. If the latter held only an undivided interest as tenant in common with another, the disseizor would acquire by disseizin a similar undivided interest; for it was only that on which the disseizin operated and took effect. The disseizor [74] of one of several tenants in common acquiring a title by disseizin therefore -becomes himself a tenant in common with the other cotenants; and hence in an action by one or more of them against him for'the possession, the recovery is limited to the particular interest of the plaintiff, and does not include the whole property. But the reason on which the rule is founded has no application to this case. The defendant here has acquired no new title by disseizin or otherwise, but simply relies on the former judgment as concluding the defendants therein from the assertion of title as against him. But he is not a tenant in common with the plaintiff, as against whom he has neither title or right of possession, and therefore does not come within. the reason of the rule which he has invoked. Hot being entitled to the possession of any portion of the premises, as against the plaintiff, it does not concern him to inquire what may be the effect of restoring the possession to the plaintiff, as between him and Woods, Hastings, and Haskell. If the technical bar of the former judgment shall thus be practically avoided as to them, no injustice will result therefrom, inasmuch as it now appears that for more than twenty years the defendant has been wrongfully in possession without title. In my opinion the judgment ought to be reversed, and a new trial awarded. Mr. Justice Wallace, being disqualified, did not sit in this case.