BELL V. FOXEN.
BEJ.L V. FbxEN
(Owcuit Oourt, S. D. Oalifornia. May 111, 181lO.) 1.
In ejectment for land of which the several defendants had taken possession, each claiming a certain portion, where some of the defendants enter a disclaimer. and others, withplaintifl"s consent, agree to a judgment against them without costs or damages; the remaining defendants, who only plead the general issue, are, on a general verdict against them, liable for all the costs and damages. . Ejectment lies against persons who have entered on land, and claim possession adverse the true 0'Yner, though they are not personally in possessiolj. at. the commencement of the actIon.
Ejectment. and Charle8 Fernald, for plaintiff. Waldo M. York, for defendants.
Ross, J. There can, I think, be· no doubt about the facts of this case. Thellction is ejectment, and the land in controversy is a part of the Rancho La Laguna de San Francisco, which was a Mexican grant, confirmed and patented by the government of the United States. At the trial plaintiff deraigned title to the portion in dispute, which title vested in him long prior to the acts of the defendants complained of. In January of 1889 the defendants entered upon the land, asserting that the patent was Qbtainp.d by fraQ-d, and that the land was public land of the United Statesi surveyed and staked it off, each posting a notice that he claimed 160 acres thereof,and some erecting shanties and some tents upon their respective c1aims,and in one or two instances taking possession of small houses thM the plaintiff had theretofore erected upon the premises. The case shows that the action of the defendants was in pursuance ora concerted plan on their part to assail the validity of the patent under which the plaintitJ' holds, and to assert a right in themselves to the possession of the land; and, although they did not long remain in personal, physical of the land, they continued to maintain their notices and claim to it,and, when remonstrated with by the agent of the plaintiff, continued to assert the invalidity of the patent, and that the land belonged to the government, and that they were therefore entitled to the possession of and daimed 160 acres each; and.this claim was reiterated to the marshal of this district when serving the process issued in this action. The land in question is a large body of grazing land, and by these acts of the defendants plaintiff was prevented from ren'tingit for grazing purposes, which he otherwise could have done, its rental value being$1,500 per annum. In respect to some of the original defendants, namely, J. M. Birabent, Luis Birabent, William Foxen and J. W. Oliver, the action has been dismh'sedj and some of them, to-wit, Gustavus A. Davison, John T. Rice, William E. Shanklin, C. H. Mills, F. M. Tunnell, and William B. Holland have filed written consp.nt to judgment against them, without damages or costs, to which consent plaintiff in
writing has acceded. The action has also been dismissed as to the fictitious defendants. The remaining defendants pleaded only the genRral issue, and, as they were all trespassers upon the plaintiff's land, which was but a single parcel, if each is made liable for all of the damages and cosls it is a necessary consequence of their own conduct. In Greer v. Mezes, 24 How. 277, the supreme court said: "In the action of ejectment. the plaintiff will not be allowed to join in one suitsevpral and distinct parcels, tenements, or tracts of land, in possession of several defendants, each for himself. But he is not bound to bring a separate action against several trespassers on his single, separate, and distinct tenement or parcel of land. As to him, they are all trespassers, and he cannot know how they claim. whether jointly or severally, or, if severally. how much each one claims; nor is it necessary to make such proof in order to support his action. Each defendant bas a right to take defense specially for such portion of the land as he clai ms. and by doing so he necessarily disclaims any title to the residue of the lal1ddescribed in the declaration; and if. on the trial, he succeeds in establishing his title to so much of it as he has taken defense for, and in showing that he was not in possession of any of the reml,\inder disclaimed, he ,will be entitled to a verdict. He 111ay also demand a trial. and that be not complicated or impeded by the issues made with the others, or himself made liable for costs nnconnected with his separatlillitigation. If he pleads nothingbl1t the general issue, and is found in possession of any part of the land demanded. he as taking defense for the whole. How can he call on the plaintiffs to prove how much he claims, or the jury toflnd a separate verdict as to his separate holding, when he will neither by his pleading nor evidence signify bow much he claims? This WIlS a fact known only to himself, arid one with which the plliintiff had no concern, and the' jury no knowledge. If a geneml verdict leaves each olle liable for ,all the costs, it is a necessary cODseq uence of their own and no one has a right to complain." I think there was such a possession of the pre'mises by defendants as will Justify a judgment in ejectment. The actual personal presence of defendants on the land aUhe time of the institution of the action is not necessary to its maintenance. Any subjection of the property to the will and dominion of the party is sufficient. Mining Co. v. Hicks, 4 Sawy. 688; Garner v. ManmaU, 9 Cal. 268. Acts by which a claim to the possession, hostile to the true owner, is asserted and maintained, and by which he is excluded from the enjoyment of the property, fairly subjects the party committing them to the action. It results from these views that plaintiff is entitled to judgment for the possession of the premises in dispute, as against all of the defendants as to whom the action remains pending, and for damages in the sum of $1,875, and costs of suit against all of such defendants except Gustavus A. Davison, John T. Rice, William E. Shanklin, C. H. Mills, F. M. Tunnel, and William B. Holland. So ordered.
!'ICKJ,ES V. UNITED STATES.
NICKLES .". UNITED STATES.
(C(rcuf,t Court, E. D. Missouri, E. D. Msy 24,1890.)
The statute of limitations begins to run against the rigoht of the purchaser of personal property to sue for breach of warranty of title from the time that his title Is declared invalid by the court of last resort, and not from the time the mandate of such court is filed in the lower court.
STATUTE BEGINS TO RUN.
At Law. This is an action against the government under the act of March 3, 1887, (24 U. S. St. 505,) and it has been submitted for decision on an agreed statement of facts, which obviates the necessity of any special findings, as would otherwise be required by the seventh section of the act. For a proper understanding of the case, it will suffice to say that the agreed statement showll, in substance, that on September 4, 1876, Oliver A. Patton and V. M. C. Silva. who were at the time spectively register and receiver of the United States land-office for tJ:te district of Utah, seized certain lumber for and in behalf of the United States, and advertised it for sale as government property which they had the right, as agents for the government, to so seize, advertise, and ;se11. In point of fact they had no right to seize the lumber in question, as it was at the time private property, belonging to one Daniel H. Wells. On September 16, 1876, Wells brought a suit. in replevin for the prop.erty, and, under the writ issued in that case, it was restored to his (Wells') possession on the 25th of the same month. Three days there.after, September 28, 1876, Patton and Silva sold the property pursuant to advertisement, though it was then in Wells' possession, and the plaintiff in this case, John Nickles, became the purchaser at the price of .$1,016, which he then and there paid to the agents of the government. At the time of the purchase Nickles knew that Wells claimed tobe the absolute owner of the property, but he did not know the manner in which he had acquired title to the same, if that isataH material. Not being able to otherwise obtain possession of the lumber, Nickles, on October 7. 1876, brought a suit in replevin -against Wells in the territorial .court of Utah. He succeeded in that court in obtaining a judgment against Wells for the value of the lumber, but does not appear to have obtained or had the actual possession of the same at any time after hie purchase. Wells appealed from the judgment so rendered against him to the supreme court of the United States, where the judgment of territorial court in Nickles' favor was reversed and annulled on January 16, 1882. Vide 104 U. S. 444. It is sufficient to say that the decision of the supreme court of the United States in Wells v. Nickles con-elusively determined that Wells was the owner of the property in controversy at the time of the sale by Patton and Sil"a, and that Nickles acquired DO title by virtue of that sale. Though this decision was promulgated on January 16, 1882. the mandate does not appear to have .been filed in the territorial court until January 29, 1884. The present