Emeric v. Alvarado (90 Cal. 444, 1891)

McFarland,- J.

— This is an action for the partition of a tract of land called the San Pablo Ranch, containing l7,938.59 acres. It is situated in what is now Contra Costa County, and was granted by the Mexican government, and afterwards patented by the United States, to the successors of Francisco Maria Castro, who died on the fifth day of November, 1831. The action was commenced.on November 19, 1867, in the district court of the fifteenth judicial district, in and for the city and county of San Francisco, and an interlocutory decree was rendered in that court on July 15, 1878. Several appeals were taken; and the judgment and order denying a new trial were reversed by this court, because the findings as to two or three issues were deemed defective, and furthermore, and mainly, because the decree determined rights, interests, and shares in the land only as they existed in the hands of the original tenants in common, and did not determine the present rights, interests, and shares of all the parties to the suit as they existed at the time the action was commenced. Most of the findings of the district court were approved, and the cause was remanded to the superior court (successor to said district court), with instructions to find on certain issues mentioned, and “ upon the findings heretofore made and herein approved, and those hereafter to be made under the directions of this court,” to proceed and specify in its interlocutory decree the “ rights and interests of all parties to the action,” and adjudge partition between them according to such rights and interests. (Emeric v. Alvarado, 64 .Cal, 627.) It was established by the first decree and the decision of this court that the persons denominated “ original tenants in common,” and the shares belonging to each, were as follows: Martina Castro de Alvarado, fifteen equal twenty-second parts of said rancho; Antonio Castro, Joaquin I. Castro, Juan José Castro, Gabriel V. Castro, Victor Castro, and Jesus Maria Castro, each one equal twenty-second part; and Luisa Moraga de Briones, Maria de Los Angeles Moraga de Briones, José Moraga, Guadalupe Moraga de Martinez, and Francisca Moraga, each one equal one fifth of one equal twenty-second part of said rancho. (The seven persons first above named were children of Francisco Maria Castro, and the five persons last named were children' of Francisca Castro de Moraga, a deceased daughter of said Francisco Maria Castro.) After the cause went back to the superior court, further findings were had; and that court, — Judge James G. Maguire presiding, — with great care, and in a systematic method that must have cost great labor and thought, found, determined, and stated the interests and shares not only of the said original co-defendants, but of all persons holding or claiming under them, and being parties to this action, and entered an interlocutory decree adjudging partition among the parties in accordance with the findings. The case now comes here the second time, upon numerous appeals from the interlocutory decree, and from an order denying a motion for a new trial.

There are several hundred parties ^o the action. The interests of many of the parties to the appeals are friendly as to some matters and hostile as to others, so that they are appellants as to some points and respondents as to others, thus presenting different and contradictory claims upon the same transcript. The findings of fact of the superior court number 274; many of them having numerous subdivisions, and they were all necessary to the disposition of the case. These findings, with the conclusions of law, the original findings of the district court, and the last interlocutory decree, occupy 752 pages of the printed transcript No. 13276, while there is much additional matter in the other transcripts. It is apparent, therefore, that the labor of the court below must have been very great, and that it would be impossible to give here a full statement of the whole case in detail, without exceeding all reasonable limits of an opinion. As, however, the opinion of this court delivered on the former appeal contains quite an extensive history of the case, and as the points arising on the present appeals may be grouped into a few general classes, we think that the case can be disposed of without much detailed statement of facts. There are five separate trans-scripts,—Nos. 13276, 13275, 13871, 13984, and 14006. In the present opinion rendered in No. 13276 we will consider and determine all the points made in all the appeals, and judgments will be rendered in the appeals based upon the other transcripts, according to the conclusions declared in this opinion. (The references here made to the transcript refer to transcript 13276, unless otherwise stated.)

I. Specific Tracts.

At various times, individual tenants in common, owning larger undivided interests in the ranch, undertook, by grant, bargain, and sale deeds, to convey the whole of particular parts of the ranch, described by metes and bounds, or other sufficient description, as though the grantor ownecPin severalty the particular part conveyed. The lands described in these conveyances are called “ specific tracts.” There are' more than a hundred of such tracts, and they are designated in the findings by numbers. The court below found that these specific tracts, conveyed by deeds purporting to convey the whole title, “ should be allotted and set apart in partition as a portion of the shares and interests of such co-tenants, and in such manner as to make such deeds effectual as conveyances of the whole title to such segregated parcels, if the same can be done without material injury to the rights and interests of other co-tenants who did not join in such conveyances, or those claiming under such other co-tenants, or any of them; and the tracts so conveyed are to be charged in proportion to their value to the interests in said . rancho of the said grantors.” (Folio 4123.) This finding is attacked as erroneous by some of the appellants, who contend, — 1. That such a conveyance is void; and 2. That if not void, the grantee-under it of a specific tract should take, on partition, only such a share as is equal to the undivided interest which the granting co-tenant had in such specific tract.

Upon this subject it is declared, in section 764 of the Code of Civil Procedure, as follows: “ Whenever it shall appear in an action for partition of lands, that one or more of the tenants in common, being the owner of an undivided interest in the tract of land sought to be partitioned, has sold to another person a specific tract by metes and bounds, out of the common land, and executed to the purchaser a deed of conveyance, purporting to convey the whole title to such specific tract to the purchaser in fee and in severalty, the land described in such deed shall be allotted and set apart in partition to such purchaser, his heirs and assigns, or in such other manner as shall make such deed effectual as a conveyance of the whole title to such segregated parcel, if such tract or tracts of land can be so allotted or set apart without material injury of the rights and interests of the other co-tenants who may not have joined in such conveyance.” If this section of the code controls in the case at bar, then the question under discussion must be answered adversely to the contention of appellants. But the part of the section above quoted was not enacted until 1876; and as the conveyances here involved were made prior to that time, it is contended by appellants that the said provision of the code is not applicable to this case.

Of course, if this amendment to the section was an entirely new provision, and completely changed the old law upon the subject, it would not be retroactive, and could not destroy or seriously disturb prior vested rights. But in our opinion, the law was substantially the same before the amendment as after it. From a general statutory enactment not expressing a design to change the law, there arises no necessary presumption that the law was different before the enactment. It was said at a very early date in the history of our jurisprudence that “to know what the common law was before the making of a statute, whereby it may be known whether the statute be introductory of a new law or only affirmatory of the common law, is the very lock and key to set open the windows of a statute ”; and that “ in all general matters, the law presumes the act did not intend to make any alteration.” These rules were approved by our predecessors,— the learned Justice Field delivering the opinion of the court, — in Baker v. Baker, 13 Cal. 95, 96. Statutes are frequently intended to remove all doubt and uncertainty as to some principle of law, and to state in apt, distinct, and explicit language what the law is upon a particular subject; and we think that such was the effect of the amendment which we are now considering. In the same amendment it was also enacted, for the first time, that when a co-tenant had made improvements on a part of the common land, that part should be allotted to him, on partition, without considering the value of such improvements, if the same could be done without material injury to the other co-tenants; but it is not contended that such was not the law before the amendment. In Seale v. Soto, 35 Cal. 102, decided in 1868, the lower court had ordered, in its interlocutory decree, “thatthere be set off to the said several parties such portions of said premises as will include their respective improvements, provided, always, that the rights or interests of neither of the other parties be prejudiced thereby”; and this court held, on appeal, that the order was “ equitable, just, and proper,” and “ cannot be successfully assailed.”

The decision of this court on the former appeal, if not declaring, as the law of the case, that the rule laid down in section 764 should govern, is at least strong authority to that point. Mr. Justice Thornton, who delivered the leading opinion in the case, when giving reasons for the proposition that an interlocutory decree should determine the rights of all the parties, urges, as an argument, the consideration that otherwise the provisions of section 764 could not be carried out. He quotes the section in full, and says: “We cannot see how these provisions can be carried out by the referees, unless the interests of each party is ascertained by the court, and stated specifically in the decree. And when the decree for partition is made, as it is in this case, the court must determine under which of the original co-tenants each party claims, and state it in the decree, so that the referees can perceive clearly and be enabled to execute the provisions in section 764 when inserted in the decree.” None of the other justices dissent from this part of the opinion, although Mr. Justice Boss holds that it was sufficient, in the first instance, to determine the shares and interests of the original co-tenants. The concurring opinion of Mr. Justice McKee merely fortifies the opinion of Justice Thornton as to the proper character of the interlocutory decree, and says, among other things, as follows: “ The next step in order is to ascertain and determine the respective rights and interests of each of the tenants in common, in the mode prescribed by sections 763, 765, and 799 of the Code of Civil Procedure, and adjudge partition between them according to their respective rights.” Moreover, in the findings of the district court which were then under the review of this court, there was a finding on the subject of specific tracts to the precise effect and in the identical language of the finding of the superior court which we are now considering (finding 24, folio 1826); and the superior court was directed to “ proceed upon the findings heretofore made and herein approved.” Therefore, whether or not the decision can be taken as a direct adjudication of this point, it is evident that, in the judgment of the court at that time, the true rule on the subject is that declared in section 764. And we are satisfied, upon principle and authority, that such is the correct rule.

It is clear that a deed made by one co-tenant conveying a specific part of the land of the co-tenancy is not void. That was definitely settled in Stark v. Barrett, 15 Cal. 362. In that case one of the co-tenants (Vaca) had undertaken to convey all his right, title, and interest in and to a tract containing fifteen hundred acres, being a part of the common land; and it was argued, and authorities cited to the point, that the conveyance was void because it destroyed the unity of possession, because it impaired the right of the other co-tenants to partition, and imposed additional burdens on them when seeking partition, etc. But the court, after reviewing the authorities, held definitely that such a conveyance was not void, although, as against the other co-tenants, the grantee might lose his rights on partition. And of course, where, as in the case at bar, a co-tenant undertakes to convey the whole title to a specific tract, his conveyance, under well-settled principles, operates as an alienation of at least all the right and interest which the grantor had in the specific tract; so that he comes within the rule that his conveyance is not void, as established in Stark v. Barrett, 15 Cal. 362. (Freeman on Cotenancy and Partition, secs. 204 et seq.)

Furthermore, when a co-tenant undertakes by a bargain and sale deed to grant a specific tract in severalty, although his deed will not convey the interests of his co-tenants, he is estopped, under well-settled rules, from denying, as against his grantee, that he owned a less interest than his deed purports to convey. And under equally well-settled rules, if he afterwards acquires the title of his co-tenants in the specific tract, such title will inure to the benefit of his grantee; and if, upon partition, such specific tract be allotted to him, then it happens that he does acquire his co-tenants’ title, and it passes to his grantee. But a suit in partition under our code is, in its nature and essence, equitable (Emeric v. Alvarado, 64 Cal. 619; Gates v. Salmon, 35 Cal. 593; 95 Am. Dec. 139); and the court, in its decree, proceeding to do what is “ equitable, just, and proper,” will not only allot to a co-tenant that part of the common land upon which he has valuable improvements, but will also set apart a specific tract to the share of a co-tenant who has undertaken to convey the title in fee to such tract in severalty, so that the grantee may have that which is justly his, when such disposition of the land can be made “ without material injury to the rights and interests of the other co-tenants.” (1 Story’s Eq. Jur., sec. 656 c; Freeman on Cotenancy and Partition, secs. 202-205; McKee v. Barley, 11 Gratt. 340; Campau v. Godfrey, 18 Mich. 27; Holcombe v. Coryell, 10 N. J. Eq. 392; Nichols v. Smith, 22 Pick. 319.)

There are no decisions in this state which assert a different rule. Gates v. Salmon, reported in 35 and also in 46 California, is cited on both sides. In the case as reported in 35 California, the only point decided is, that in a suit for partition, grantees of specific tracts are necessary parties to the action; and the views expressed in the opinion on the general subject are in harmony with the conclusion above stated. In the case as reported in 46 California, it is stated that the grantees of specific tracts under certain deeds acquired the interests which their grantors had at the time of the execution of the deeds; but the character of such deeds does not appear, nor, in the confused state of the pleadings and issues and parties in that case, does it appear against whom the statement is intended to apply, or between what parties the question was raised. Of course, one tenant in common cannot, as against his co-tenants, absolutely convey away the interests of the latter in any part of the common land.

In Pfeiffer v. Regents, 74 Cal. 156, a tenant in common had undertaken to grant to a stranger the right to perpetually divert water from the common land upon the several land of the grantee; and in support of that grant the respondent had cited Stark v. Barrett, 15 Cal. 362, and Gates v. Salmon, 85 Cal. 593, 95 Am. Dec. 139, and other cases in which the rule applicable to conveyances of specific tracts was discussed, and had sought to invoke that doctrine in behalf of the asserted water right. And it was in that connection that the court said that the former decisions on the subject should not be pushed further; that is, that they should not be so extended as to embrace the asserted right of one tenant in common to create an easement on the common land. The case, however, recognizes the rule as hereinbefore stated. (It may be remarked, as was said in that case, that it appears from many cases in the California reports to have been a common custom among the owners of large Mexican grants in California for individual co-tenants to convey specific parcels of the common land. The custom probably grew out of the fact that during the long periods of time necessary to complete titles, to obtain patents, and to make partitions, there could be but little beneficial use of the land, unless it were segregated into parcels by the co-tenants and their grantees.)

Our conclusion on this point is, that the court below was right in holding that specific tracts embraced in deeds purporting to convey the whole title should be allotted in severalty to the grantees therein, and charged respectively to the shares and interests of the granting co-tenants, where it could be done without material injury to the rights of the co-tenants not joining in such deeds, in manner as set forth in the findings and decree.

2. There were also quitclaim deeds of interest in specific tracts; and with respect to them the court found as follows: “ And it further appearing that various of said co-tenants sold fractional undivided interests in specific tracts out of the common land of said rancho, and executed to the purchasers deeds of conveyance, purporting to convey interests in such specific tracts to the purchasers in. fee, the interests described in such deeds should be allotted and set apart in partition to such purchasers, or their grantees, respectively, in such manner as to make such deeds effectual as conveyances of such interests, if the same can be done without material injury to the rights and interests of other co-tenants who did not join in such conveyances, or those claiming under such other co-tenants, or any of them; and the interests so conveyed, and hereinafter designated as fractional interests of specific tracts, are to be charged in proportion to their value to the interests in said rancho of the same grantors.” (Folios 4124,4125.) We see no error in this finding. The grantee in such a deed cannot expect, or legally claim, more than the deed purports to convey, —which is merely the share of the grantor in the tract. The contention of some of the appellants that such a deed should be filled by an allotment of the whole tract in severalty cannot be maintained. And where there is a covenant of warranty in such a deed, it attaches merely to the interest which the deed purports to convey. (Kimball v. Semple, 25 Cal. 441; Gee v. Moore, 14 Cal. 472; Morrison v. Wilson, 30 Cal. 344; San Francisco v. Lawton, 18 Cal. 465; 79 Am. Dec. 187; Barrett v. Birge, 50 Cal. 655; Brannock v. Monroe, 65 Cal. 491.)

II. Appeals of Maraschi et al., on Transcript No. 13275.

1. The views and conclusions above expressed on the subject of specific tracts, and the distinction between a deed purporting to convey the whole tract in severalty, and a deed purporting to convey only the grantor’s interest in the tract, are determinative against the appellants of the appeals taken from the interlocutory decree by appellants Maraschi, Ruth Ann Boyd, administratrix, Boorman, administrator, et al., and by appellants Pit-man, Gill, and Mayhew, all founded on transcript No. 13275. We have carefully examined the able brief of counsel for those appellants, in which it is argued that the grantees in certain deeds which do not purport to convey more than the interests of the grantors in certain specific tracts should have allotted to them the whole of said tracts; but we do not think it necessary to discuss that question any further. In addition to what we have before said, it is sufficient to say that, in our opinion, the law is correctly stated in section 764 of the Code of Civil Procedure.

2. And such views are also determinative against the appellants, of the appeals taken by the appellants William Meyer, Richard O’Neil, et ah, whose contention on this point has been very ably presented by their counsel.

3. The appeal of Pitman, Gill, et al., from an order denying them a new trial, based on the record in transcript No. 13984, presents no point not raised by their appeal from the interlocutory decree.

III. Specific Tract No. 41.

The court found that specific tract No. 41 should be allotted to John Davis; and appellant Emily S. Tewksbury contends that the part of the decree so allotting said tract is erroneous.

John Davis deraigns title to said specific tract No. 41 through a deed from James T. Dean; and the title of Dean came through a deed to him from Gabriel Castro and his wife, Marcelina Castro, made on August 20,1853. (Folio 2604.) This latter deed was duly executed in. every respect except this: the notary who took the acknowledgment failed to certify that the wife acknowledged it “ on examination apart from and without the hearing of her husband.” Therefore, if at the date of the deed the title to said tract No. 41 was in the wife, Marcelina, it did not pass to Dean; but if the title was then in the husband, Gabriel, it did pass to Dean. Appellant contends that the title was then in the wife, because on November 15, 1851, Gabriel Castro (under whom both parties claim) and his wife made a deed to one Jesus Acosta, which, as is contended, embraced said tract No. 41, and on the same day said Acosta executed a deed to the said wife, Marcelina, which, as is contended, also embraced said tract. (Folios 2583 et seq.) These two last deeds were without consideration, and were intended to consummate a gift from the husband to the wife. These deeds were recorded. But the court finds that Dean purchased in good faith for a valuable consideration, and without notice of said deeds.

We think that said deed from Gabriel Castro and his wife to Acosta did not convey said specific tract No. 41. In the first place, there was no description in said deed which embraced said tract. The only description, or attempted description, of land in said