who have or claim any interest in the property.93 And unknown parties or absentees from the state may be served by publication, upon affidavit showing such facts, the summons in such case to be accompanied by a brief description of the property.94

§ 2497. Title. In the New York practice it is not necessary to state the sources of title in the complaint.95 But a complaint in an action for partition is fatally defective, if it shows that the legal title is in a third person as trustee.96 Title may be tried in this action.97

§ 2498. Water rates. Water flowing in ditches can not be partitioned. It may be sold, and the proceeds be subject to distribution. The only partition that can be made is to order a sale, and distribution of the proceeds. In an action for partition of a water ditch, an account of the proceeds for water rates can be taken, and if one of the tenants in common holds a mortgage on the interests of his cotenants, that can be adjusted in the action, by an application of the proceeds of the mortgagor's interest towards the payment of the same.99

§ 2499. Ways - streets. Before making partition the referees may set apart a portion of the property for a way, road, or street, and such portion shall not be assigned to any of the parties or sold, but shall remain an open public way, road, or street, unless the referees shall set the same apart as a private way for the use of the parties interested, or some of them. Whenever the referees have laid out on any tract of land roads sufficient, in the judgment of said referees, to accommodate the public and private wants, they shall report that fact to the court, and upon the confirmation of their report all other roads on said tract shall cease to be public highways.100

93 Cal. Code Civ. Pro., § 756.

94 Id., § 757.

952 Van Santv. Eq. Pr. 17; Bradshaw v. Callaghan, 8 Johns. 558. 96 Stryker v. Lynch, 11 N. Y. Leg. Obs. 116.

97 De Uprey v. De Uprey, 27 Cal. 329; 87 Am. Dec. 81; Morenhout v. Higuera, 32 Cal. 289; affirmed in Bollo v. Navarro, 33 id. 459; see Sutter v. San Francisco, 36 id. 112; Kromer v. Friday, 10 Wash. St. 621.

98 McGillivray v. Evans, 27 Cal. 96.

99 Bradley v. Harkness, 26 Cal. 69; see Glassell v. Verdings, 108 id. 503.

100 Cal. Code Civ. Pro., § 764.

§ 2500. When action will lie. The action may be brought for a partition by one or more, according to the respective rights of the persons interested therein, and for a sale of such property, or a part thereof, if it appear that a partition can not be made without great prejudice to the owners.101 A mere desire of one of the tenants in common is sufficient to authorize the courts to dissolve the relations existing between them.102

§ 2501. When action will not lie. A petition for partition against an executor for a filial portion, etc., will not lie for money or other property delivered by him to a legatee for life.103 Where a tenant in common ousts his cotenant, remaining in sole possession, and subsequently purchases an outstanding title, the cotenant can not maintain an action for partition or for the benefit of the purchaser until he has regained possession, 104

§ 2502. By a tenant in common or a joint tenant, against a cotenant who has wasted the estate.

[TITLE.]

Form No. 583.

The plaintiff complains, and alleges:

I. That he is a tenant in common [or joint tenant] with the defendant, of [describe the property].

II. That [each of them] is entitled to an undivided [half] of the same.

committed great waste upon the same [cutting down many valuable forest trees or otherwise specify acts of waste], without the consent of the plaintiff.

Wherefore the plaintiff demands judgment:

2. For a partition of said premises in such manner as to compensate for such damages. 105

101 Id., § 752; and see Donnor v. Quartermas, 90 Ala. 164; 24 Am. St. Rep. 778.

102 Bradley v. Harkness, 26 Cal. 69.

103 Billups v. Riddick, 8 Jones L. 169.

104 Rozier v. Johnson, 35 Mo. 326.

105 The plaintiff can have this relief in the state of New York;

3 N. Y. R. S. (6th ed.) 599. This form is from the New York Code Commissioners' Book of Forms.

CHAPTER IV.

QUIETING TITLE.

§ 2503. For determination of claims to real property.

[TITLE.]

Form No. 584.

The plaintiff complains, and alleges.

I. That one A. B. is now deceased, and at the time of his death was seised in fee simple of certain real property in the town of bounded as ., county of

follows [description].

II. That in his lifetime the said A. B. made and published his last will and testament, whereby he devised the plaintiff all his said property.

III. That the said A. B. died on the

day of

IV. That the said property is now, and has been, for the years last past, in the actual possession of the plain

tiff [or is now, and has been, for the

........

years last past,

in the actual possession of the plaintiff, and was during the years immediately preceding that period, in the actual possession of the said deceased].

...

V. That the defendant unjustly claims an estate or interest [state what] in said property.

Wherefore the plaintiff demands judgment:

1. That the defendant be forever barred from all claim to any estate of inheritance or freehold in said property.

§ 2504. Abatement of action. The pendency of an action. to quiet title to land will not abate a subsequent action between the same parties, to recover possession of the same land in which the same facts are litigated.1

§ 2505. Action to quiet title, general nature of. The object of this action is to determine an estate held adversely to the plaintiff, to remove what would otherwise be a cloud upon his

1 Bolton v. Landers (No. 1), 27 Cal. 104.

own title.2 The true test by which the question whether a deed would cast a cloud upon the title of the plaintiff may be determined, is this: Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary, the cloud would exist; otherwise not. This action embraces every description of claim, whereby the plaintiff might be deprived of the property, or its title be clouded, or its value depreciated, or whereby he might be incommoded or damnified by the assertion of an outstanding title already held, or to grow out of the adverse pretension.*

§ 2506. Action, when it lies. Where an instrument is outstanding against a party which is void, or an unfounded claim is set up, which he has some reason to fear may at some time be used injuriously to his rights, thereby throwing a cloud over his title, equity will interfere and grant the appropriate relief." But a tax deed based upon an assessment made under an unconstitutional act of the legislature will not constitute a cloud upon title. In Massachusetts a petition will not lie on behalf of the assignee, for an insolvent debtor to compel a prior mortgagee from the same debtor, to bring an action to test the validity of a mortgage. Nor will a citizen of another state, or a foreign country, be ordered to bring an action to try his title

2 Boggs v. Merced Mining Co., 14 Cal. 279. An action to quiet title is in the nature of a suit in equity, and relief therein is subject to the maxim that he who asks equity must do equity. Benson v. Shotwell, 87 Cal. 49; and see Sneathen v. Sneathen, 104 Mo. 201; 24 Am. St. Rep. 326.

3 Pixley v. Huggins, 15 Cal. 128; Lick v. Ray, 43 id. 84; Benner v. Kendall, 21 Fla. 584.

4 Head v. Fordyce, 17 Cal. 149. On the subject of cancellation of instruments, see Cal. Civil Code, §§ 3412-3414. An action does not lie in California to quiet title to personal property. Fudickar v. Irrigation District, 109 Cal. 29.

5 Hartman v. Chipman, 21 Conn. 488; Downing v. Wherrin, 19 N. H. 91; 49 Am. Dec. 139; 1 Hemp. 692; Clark v. Smith, 13 Pet. 203; Lounsbury v. Hurdy, 18 N. Y. 515; Ward v. Chamberlin, 2 Black, 430.

6 Williams v. Corcoran, 46 Cal. 553; Willis v. Austin, Cal. Sup. Ct., July Term, 1878; Minturn v. Smith, 3 Sawyer, 142; Detroit v. Martin, 34 Mich. 170; 22 Am. Dec. 512; compare Whitney v. Port Huron, 88 Mich. 268; 26 Am. St. Rep. 291.

7 Hill v. Andrews, 12 Cush. 185; Dewey v. Bulkley, 1 Gray, 416.

8

to real estate in Massachusetts, on the petition of a party in possession. This action lies where an adverse claim is prima facie sustainable, though actually bad, as it constitutes a cloud. It may be maintained for the satisfaction upon the record of judgments, apparently liens, but in fact paid;10 for the discharge from the record of a mortgage, claimed to be satisfied;11 and for the extinguishment of a widow's prima facie claim to dower. 12 A suit for this purpose will not lie where the facts alleged, if true, would not legally affect the plaintiff's title.13 Nor will allegations of mere threats, assertions or designs to disturb the possession of the grantee avail to sustain this form of relief.14 It is not enough that the deed sought to be set aside may possibly be a cloud on plaintiff's title, but it must clearly appear that the claim set up under such deed is, in fact, in hostility to the plaintiff's title.15

§ 2507. Adverse possession.

Adverse possession which will

1.

set the Statute of Limitations running is of two kinds: Where possession is taken without color of title, but with intent to claim the fee against all comers. 2. Where possession is taken under a claim of title, founded on a written instrument or judgment of a court of competent jurisdiction.16 Actual adverse and undisturbed possession of land, for a period exceeding the time prescribed by statute for the enforcement of a right of entry, gives to the possessor a right of undisturbed enjoyment equivalent to a perfect title.17 An open, notorious, exclusive adverse possession for twenty years would operate to convey a complete title to the plaintiff, as much so as any writ

8 Macomber v. Jaffray, 4 Gray, 82; see 4 Allen, 150.

9Tisdale v. Jones, 38 Barb. 523.

10 Shaw v. Dwight, 27 N. Y. 244; 84 Am. Dec. 275. 11 Beach v. Cooke, 28 N. Y. 508; 86 Am. Dec. 260.

12 Wood v. Seely, 32 N. Y. 105.

13 Farnham v. Campbell, 34 N. Y. 480; Hotchkiss v. Elting, 36 Barb. 38; Johnson v. Crane, 40 id. 78; Butler v. Viele, 44 id. 166. 14 Madison Ave. Baptist Church v. Mission Ave. Baptist Church, 26 How. Pr. 72.

15 Hartman v. Reed, 50 Cal. 484.

16 Kimball v. Lohmas, 31 Cal. 154; see, also, Page v. Fowler, 28 id. 605.

17 Simson v. Eckstein, 22 Cal. 580; Le Roy v. Rogers, 30 id. 229; 89 Am. Dec. 88; see, also, Cal. Code Civ. Pro., §§ 323-326.