rehearing">By the Court, Sawyer, 0. J., on petition for rehearing:

"Upon some points there is much conflict in the statements of the different parties, but the affidavits and motion papers tend to show, and, we think, do show, the following facts : Some time prior to August, 1863, the plaintiff) or his gran*488tors, had been in possession of a tract of about one hundred and fifty acres of land, including the premises in question. About that time—the early part of August—the defendants, Jones, Weygant and Michael Cook, made an arrangement to take possession, on the pretense that the former possessor was dead, or that the land had been abandoned; yet it is inanifest that they were aware of its being claimed by plaintiff. Cook was at first to be interested in the claim, but the other defendants were desirous of getting rid of him, and securing the land for themselves, whereupon Cook negotiated with the other side. It was finally settled betwee2i the defendants that Cook should have ten acres out of the hundred and fifty. Jones and Weygant had the land surveyed, took possession, and erected a house, in which Jones lived. The arrangements were completed somewhere about the 10th of August, 1863. Before, and at this time, Michael Cook, his wife, and daughter Mary Ann, were living near, not on the land. Mary Ann, the daughter, and ostensibly the moving pa2*ty in this proceeding, was at that time about seven years old. How she is about eleven. O21 the 11th day of August, 1863, in pursuance of the direction of Michael Cook, the father, and, as it was said at the time, in order that he might be a witness for the other defendants in any contest that might arise between them and the pi’ior possessors, Jones and Weygant executed a conveyance of the ten acres in controversy—Cook’s share in the entei’prise—to said child, Mary Ann, which said conveyance was not put 021 record till the Spring of 1864. Very soon thereafter defendants took possession, and after this transaction, this suit was eomme2iced, 021 the 24th of September, 1863, against said Jones, Weygant and Michael Cook, to recover the whole of said tract of larid so taken into possession. After several years of litigation plaintiff recovered, and his judgment was affirmed at the July term, 1866, of this Court. After the remittitur was filed in the Court below, the applicants in this motion, Mary Ann Cook, and two parties, claiming to be her tenants, were turned out of possession of the said *489ten acres "by the Sheriff under the writ of possession. They now seek to be restored on this motion, on the ground that said Mary Ann Cook acquired her title and possession before the commencement of the suit, and was not made a party to it.

"We have, in pursuance of the stipulation of the parties, re-examined the case since the former decision and receipt of appellant’s last brief, and we are fully satisfied that Mary Ann Cook never was in possession in any form prior to the commencement of this suit. There are such general expressions in the affidavits of herself, her mother and father, and others, as that 11 immediately after [after execution of said deed], on said eleventh day of August, 1863, deponent went into possession, to wit: on said eleventh day of August aforesaid, and afterwards, on or about the tenth day of December, A. D. 1863, deponent caused to be erected a dwelling house upon said premises,” etc., and afterwards ■resided in it by herself and tenants till ejected. There is not one word showing actual possession at the time of the commencement of the suit in all the affidavits, other than such general loose statement of possession, which usually means whatever the party using it chooses to consider it to mean. There is no act of possession, and no act indicating possession, stated. The land was not fenced off from the larger tract; there was no house on it; no use was made of it; no open act of ownership or control was performed, so far as the affidavits show. Even the deed, alleged to have been given about a month before, was not recorded before the commencement of the suit. Mary Ann Cook was hut a child, seven years old, living with her father and mother in the neighborhood, but not on the land. There is nothing to show that she ever was, in fact, in possession or ever set foot upon the land before November or December. The father states that the lot was fenced off in November, and he and the mother, and several others, state that a house was erected in December, and afterwards occupied by her and her tenants. But others, *490again, state directly the contrary, that no fence was made in November or December, and no house erected until the next year, when a small shanty was put up; and other facts and circumstances stated confirm this view, and we think the weight of the testimony is that way. Other witnesses, also, state that Jones and Weygant were in the actual occupation of the whole at the time of the commencement of the suit, and that there was no possession or occupation of any sort by said Mary Ann, or anybody acting for her. At all events, in the most favorable view for appellants, it is perfectly clear that no possession had been taken under the deeds before November or December. And that was after the institution of the suit. If, then, she acquired the interest of the defendants, such as it was, by a conveyance actually made, though not recorded before the institution of the suit, she came into possession pending the litigation, under the defendants, upon a claim of title derived from them, and not adverse to. them; and that title was, at least, but a mere possession. The Sheriff was justified in turning her out (Long v. Neville, 29 Cal. 131; Leese v. Clark, 29 Cal. 665), and the only question is, whether she presents such a case as would justify the Court in restoring her to possession in this summary proceeding. We think, clearly not. True, she has not been heard, but she came into possession, at least, subsequent to the commencement of the litigation, upon the same title as that litigated, a mere possession, which has once been defeated, and the circumstances are such as to render it extremely improbable that she has any rights at all in the premises. At all events, her rights are too doubtful to justify the Court in restoring her to possession in this summary proceeding, even if it can ever be proper to restore a party in this manner to a possession acquired pending the litigation, under the same title litigated, and through the defendants in the action. She could not have been made a party to the action to recover the land, as a party in possession, because she was not in possession ; and if it be conceded that she could properly be made a party as owner, the deed was not on record, and there *491was no possible means of discovering that she had any interest in the premises. Her father afterward assumed .in some instances to act as her guardian, and he is the only one who seems to have assumed to act on her behalf. If anybody was exercising any acts of ownership or possession on her behalf at the time, it was he, and he was a party defendant to the suit. His acts in connection with it were either performed in her name for his own benefit, or for hers. At all events he was the party acting, and having the possession in fact, if there was any, other than that of Jones and Weygant, and he was a party to the action, and so far as the present proceeding is concerned, hound by the judgment. But we think the obvious result of the affidavit is, that Jones and Weygant were the parties in actual possession. It is very manifest from the numerous instances judicially brought to our notice of late, that attempts upon similar pretexts to evade the process of the Courts, and deprive plaintiffs in actions to recover real property of the fruits of a tedious and successful litigation, are becoming very frequent. While, in a proper case, the Court will not hesitate to-control its process so that parties shall not be improperly deprived of their possession, the principle cannot be extended beyond its legitimate bounds, or to doubtful cases, without impairing the certainty and efficiency of judicial proceedings. The case now under consideration is, clearly, not one for the exercise of the power.

Ordered, that the former judgment in this case stand as the judgment of the Court, and that the petition for rehearing recently filed be denied.

Citation profile

Relationships

How this case has been treated — in progress