Burgel v. Prisser

McFarland J. — This is an action of ejectment,— the complaint being in the usual form. Defendant, in his answer, denies that plaintiffs were either the owners or entitled to the possession of the demanded premises. The court found that the plaintiffs were the owners and entitled to the possession of the undivided five sixths of the tract of land described in the complaint as tenants in common with defendant, who is found to be the owner and entitled to the possession of one undivided sixth, and judgment was rendered that plaintiffs recover such undivided five sixths. Defendant moved for a new trial; the motion was denied; and from the order denying the motion, defendant appeals. There is a short statement on the motion for a new trial, which summarily states that there was evidence which “ proved ” certain facts. (There is some conten [72] tion by respondents that this statement is not sufficiently authenticated; but as the record shows that the statement was settled and allowed by the presiding judge, we must take it to be genuine, and sufficiently certified.) Among other facts shown by this statement to have been “proved” are these: The land in contest was owned by Charles H. Burgel, the father of plaintiffs, and was the community property of said Charles and his wife, Mary, who was the mother of plaintiffs. Charles, the father, died in 1884, and the land went by operation of law, one half to the widow, and the other half to the plaintiffs. In February, 1886, the defendant, Prisser, married the mother, Mary, and was her husband until February, 1887, when she died. The defendant was appointed her administrator in March, 1887, and was such administrator at the time of the commencement of this action and at the time of the judgment, the administration not yet having been closed. The proof of these facts was admissible under the denials in the answer. Under these facts plaintiffs are the owners and entitled to the possession of the undivided one half of the land which descended to them from their father. They are also heirs to the undivided two thirds of their mother’s half, to which they will be entitled on final distribution, if no part thereof be necessary to pay debts, etc., but pending administration, the defendant, as administrator of their mother, is entitled to possession of the undivided half which came from the mother. If the judgment had merely determined that plaintiffs were tenants in common and should be let into possession with defendant, there could have been no objection to it. It has been decided, however, that in an action like the one at bar, on account of mesne profits and other matters that may arise, “ it is proper for the court before which the ejectment suit is tried, to ascertain and settle the respective interests of the parties.” (Freeman [73] on Cotenancy and Partition; Mahoney v. Middleton, 41 Cal. 54.) The finding, therefore, that plaintiffs “are entitled to the possession of an undivided five-sixth interest in the tract of land described in their complaint” is against the evidence; and for this reason, the order denying a new trial must be reversed. The order appealed from is reversed, and the cause remanded for a new trial. De Haven, J., Garoutte, J., Harrison, J., and Paterson, J., concurred. Rehearing denied.