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he cannot, against defendant's objection, recover on another and different title. Eagan v. Delaney, 16 Cal. 85.

116. Where plaintiff claimed possession by virtue of his own possession, and also under C., who had formerly been in the actual possession of the premises, the defendants, under a general denial of the allegations of the complaint, cannot show title in a third person under whom they do not claim. Piercy v. Sabin, 10 Cal. 30.

117. In ejectment, brought solely on the prior actual possession of the plaintiff, the defendant being a mere trespasser, the latter cannot justify his act by showing the true title to be outstanding in a third person. Bird v. Lisūros, 9 Cal. 1; Plume v. Seaward, 4 Id. 94.

118. But where the plaintiff does not rely on prior possession, but on strict title, the defendant in possession, having a good, prima facie right, may set up and show the true title to be in another. Id.

119. Abandonment.—Title by possession may be destroyed by proof by the defendant of abandonment by plaintiff, or by his grantors. id.

120. The law will not presume an abandonment from the lapse of time. Patridge v. Mckinney, 10 Cal. 183.

121. But lapse of time constitutes a material element to be considered in deciding the question of abandonment. Lawrence v. Fulton, 19 Cal. 683.

122. Abandonment must be made by the owner, without being pressed by any duty, necessity or utility to himself, but simply because he desires no longer to possess the thing; and further, it must be made without any desire that any other person shall acquire the same. (Stephens v. Mansfield, ii Cal. 363.) Query: Whether a party can destroy the evidence of his possession, which has been continued for a period corresponding with the Statute of Limitations, by simple abandonment. Bird v. Lisbros, 9 Cal. 5.

123. Damages, rents and profits.—The damages which a plaintiff can recover in an action of ejectment for the use and occupation of the premises, are such as arise subsequent to the accruing of his right of possession; and when his right depends upon a Sheriff's deed he cannot recover, in this form of action, for the use and occupation for the six months intervening the sale and the execution of the deed. Clark v. Boyreau, 14 Cal. 634.

124. Such profits, when claimed in the ejectment suit, are limited to such as accrue subsequent to the ouster alleged; or in other words, the occupation of the defendant. When they are claimed in an independent suit, the record of recovery in the ejectment is, as to the title, only evidence of the right of possession of the plaintiff at the commencement of the action in which the recovery was had. Yount v. Ilowell, 14 Cal. 465.

125. Other facts necessary to recover mesne profits must be shown by evidence aliunde. 1.

126. Where damages are claimed for use and occupation prior to the commencement of the action, the complaint must state the title of plaintiff as existing at some prior date, (to be designated) and as continuing up to the commencement of the action, and the entry of defendant at some date subsequent to that of the alleged title. Payne and Dewey v. Treadwell, 16 Cal. 220.

127. In ejectment the complaint, verified, alleged ownership in plaintiffs, possession hy defendants of the premises from a designated period, and the with holding of that possession from plaintiff from that period, and that the value of the use and occupation, rents and profits of the premises during such possession was $10,000; the answer contained no specific denial of these allegations, and under directions of the Court, plaintiffs had verdict and judgment on the pleadings for $10,000 damages : Held, that the verdict and judgment must stand; and that the claim for damages resting entirely upon the uncontroverted allegations of the complaint, the Court below erred in granting a new trial, unless plaintiffs should remit all the damages except one dollar. Patterson v. Ely, 19 Cal. 28.

128. Improvements, when may be set off.

129. Where the defendant in ejectment occupied and improved the land bona fide, under color of title, the improvements made by him before the commencement of the suit constitute an equitable set-off, to the extent of their value, to the damages recovered by the plaintiff for the withholding of possession. Welch v. Sullivan, 8 Cal. 511.


130. In ejectment the value of improvements, even where defendant holds under color of title adversely to plaintiff, can only be allowed as a set-off to damages. Yount v. Howell, 14 Cal. 466. See post, § 257.

131. Verdict and finding.–Where several defendants in ejectment unite in an answer amounting to a general denial, a joint verdict is proper, though the answer concludes with a prayer for separate verdiets. To entitle defendants to separate verdiets, they should set forth with specific description the parcels which they severally occupy or claim, and thus direct the attention of plaintiff to the course of defense upon which they will separately insist. Patterson v. Ely, 19 Cal. 28.

132. Courts may impose, as a condition of allowing a verdict to stand in other respects, the remission of damages in cases where there was no evidence on the subject of damages, or where the evidence was entirely incompetent, or where the Court differs from the jury as to the effect of the evidence. But where, as in this case, the verilict for the damages was based entirely upon an admission by the record, it must stand. The admission, if good for anything, is good for the entire amount specified.

133. The finding of a jury based upon an admission of the parties by the pleadings or otherwise, is not less an assessment of damages than if the finding were made upon conflicting evidence. Id.

134. As the findings in this case-ejectment with an equitable defense imperfectly set up, tried by the Court-do not strictly find such facts as show defendant's equity as against plaintiff's claim, the judgment for plaintiff is affirmed. Verder v. Parsons, 19 Cal. 294 ; see title “Finding,” $ 180, Nos. 10, 32; also, $ 175, No. 4.

135. Judgment, extent and effect of.-In an action of ejectment to recover possession of a large tract of land, where the defendant failed to appear, and the case was submitted to the Court, who found that plaintiff had title to the whole tract, and that the defendant was in possession of a part—sixty or seventy acres--of the tract without right: Held, that it was proper for the Court to enter judgment for the plaintiff for the possession of the whole tract. Vullejo v. Fay, 10 Cal. 377.

136. Under our system, the judgment in ejectment is only conclusive of two points: the right of possession in the plaintiff, and the occupation of the defendant at the commencement of the suit. Yount v. Howell, 14 Cal. 465.

137. It is otherwise at the common law; there, the proof of title being held strictly to the date of the demise laid, the judgment was conclusive of such title. Id.

138. A judgment in favor of plaintiff, even on the title, is conclusive, at most, of the title of plaintiff only, and not of his grantor. Grady v. Early, 18 Cal. 108.

139. In ejectment against several defendants occupying different portions of the property sued for, several judgments may be entered and at different times; and this, whether upon trial or on separate findings or verdicts, or on findings by the Court, or after default. Lick v. Stockdale, 18 Cal. 219.

140. Where an amended complaint in ejectment sets up title acquired after the commencement of the suit, and a judgment by default is regularly entered, the judgment is valid. Id.

141. Nonsuit.-It is error to refuse a nonsuit to such of the defendants as were not in the possession of the premises at the commencement of the action. Garner v. Marshall, 9 Cal. 270.

142. In ejectment, upon disclaimer of possession or interest in the property, a judgment for plaintiff cannot be entered. When such disclaimer is relied upon, the only proper judgment is one of nonsuit. Noé v. Card, 14 Cal. 576.

143. Interest.-A judgment rendered for use and occupation should not draw any interest whatever. Osborn v. Hendrickson, 8 Cal. 31.

144. Juror, when incompetent.-See $ 162, No. 5.

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$ 255. When plaintiff shall not recover costs.

If the defendant, in such action, disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff shall not recover costs.

$ 256. If plaintiff's title terminates pending the suits ; what he may recover, and how verdict and judgment to be.

In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment shall be according to the fact; and the plaintiff may recover damages for withholding the property.

$ 257. When value of improvements shall be allowed as a set-off

When damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under cover of title adversely to the claims of the plaintiff, in good faith, the value of such improvements shall be allowed as a set-off against such damages.

1. In ejectment, defendant cannot have his improvements set off against the mesne protits under section two hundred and fifty-seven of the Practice Act, where the improvements were made after plaintiff's title accrued, or where the holding of the defendant is not adverse within that section. Bay v. Pope, 18 Cal. 694.

2. A defendant, who entered under a bond for a deed from the plaintiff, cannot set off his improvements against the damages for use and occupation. Kilburn v. Ritchie, 2 Cal. 145.

3. Where the defendant in ejectment occupied and improved the land bona fide, under color of title, the improvements creeted by him constitute an equitable set-off, to the extent of their value, to the damages recovered by the plaintiff for the withholding of possession. Welch v. Sullivan, 8 Cal. 165.

4. The provisions of the “Settler's Act” of 1856, requiring the party recovering in ejectment to pay the defendant the value of his improvements, it seems, are not in violation of the provision of the Federal Constitution, prohibiting States from passing laws impairing the obligation of contracts. All questions of property are within the jurisdiction of the respective States, and the individual members thereof, in forming a Government, are not considered as contractors with such Government, in the sense employed in the Constitution of the United States. Billings v. Hall, 7 Cal. 1.

5. In ejectment, the value of improvements, even when defendant holds under color of title adversely to plaintiff, can only be allowed as a set-off' to damages. Yount v. Howell, 14 Čal. 465.

6. In an action of ejectment, where no proof is introduced to show damages, it is no error to refuse to allow the defendant to prove the value of the improvements made by him on the property. 5 Cal. 319.

7. Ai common law, no allowance was ever made for improvements; and our Practice Act only permits it to the extent of being used as a set-off to the damages for withholding the property recovered. Id.

$ 258. Who, when, and how an order may be made to allow a party to survey and measure the land in dispute.

[1860.] The Court in which an action is pending for the recovery of real property, or a Judge thereof, or a County Judge, may, on motion, upon notice by either party, for good cause shown, grant an order allowing to such party the right to enter upon the property, and make survey and measurement thereof, for the purposes of the action.

$ 259. Order, what to contain, and how served ; if unnecessary injury done, the party surveying to be liable therefor.

The order shall describe the property, and a copy thereof shall be served on the owner or occupant; and thereupon, such party may enter upon the property, with necessary surveyors and assistants, and may make such survey and measurements; but if any unnecessary injury be done to the property, he shall be liable therefor.

$ 260. A mortgage shall not be deemed a conveyance, whatever its terms.

A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.

1. This takes from the instrument its common law character, and restricts it to the purposes of security. It does not, in terms, change the estates at law of the mortgagor and mortgagee; but, by disabling the owner from entering for condition broken, and restricting his remedy to a foreclosure and sale, it gives full effect to the equitable doetrine upon a consideration of which this section was evidently drawn. McIlillan v. Richards, 9 Cal. 365.

2. The two hundred and sixtieth section of our Practice Act changes this character of the instrument, and takes from the mortgagee all right to the possession, either before or after condition broken, and makes the inortgage a mere lien; but this section does not prevent the owner from making an independent contract for the possession, or from authorizing a sale of the premises, the mortgaget, consenting thereto, to pay the debt. Fogarty v. Sawyer, 17 Cal. 589.

3. The words - whatever its terms,” in this section, were intended to control the terms of grant, bargain and sale, generally employed in mortgages, and do not relate to stipulations for possession or sale. Id.

§ 261. When Court may grant injunction during foreclosure after sale on execution before conveyance.

The Court may, by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon; or after a sale on execution before a conveyance.

1. This remedy is only preventive; it is not exclusive of any other remedy. Sands v.

Pfeiffer, 10 Cal. 258. 2. The remedy by injunction to restrain the removal of fixtures, under section two hundred and sixty-one of the Practice Act, is only preventive; it is not exclusive of any other remedy. Id.

§ 262. Damages may be recovered for injury to the possession after sale and before delivery of possession, who by.

When real property shall have been sold on execution, the purchaser thereof, or any person who may have succeeded to his interest, may, after his estate becomes absolute, recover damages for injury to the property by the tenant in possession, after sale and before possession is delivered under the conveyance.

§ 263. Action not to be prejudiced by alienation, pending suit.

An action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person, either before or after the commencement of the action.

CHAPTER IV.-Actions for the partition of real property.

SEC. 264. Who may bring actions for partition.

265. Interests of all parties shall be set forth in the com


266. Lien-holders not of record need not be made parties.
267. Plaintiff shall file notice of lis pendens.
268. Summons shall be directed to all persons interested in

the property.
269. Unknown parties may be served by publication.
270. Answer of defendants, what to contain.
271. The rights of all parties may be ascertained in the

action. 272. Repealed. 273. Lien-holders shall be made parties, or a referee be

appointed to ascertain their rights. 274. Lien-holders shall be notified to appear before the

referee appointed.

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