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aries of his claim, his actual possession of a part within these boundaries gives him constructive possession of the whole."

§ 2173. Deed as evidence of title. Parties and privies are bound by the recitals of a deed through which they claim title.10 After the admission of a deed in evidence in ejectment, it is necessary for the party claiming under it to show that it includes the premises in controversy.11 In California a deed made prior to the passage of the act concerning conveyances must be first recorded, in order to have priority over a subsequent deed from the same vendor to a bona fide purchaser for value without notice.12 An absolute deed from defendant in ejectment to the plaintiff gives the plaintiff a right of recovery, notwithstanding it be shown to be a mortgage, unless the defendant also show an offer to redeem or tender of the amount due.13 Under the plea of the general issue in ejectment, a deed absolute in form can not be attacked on the ground that it was intended to be a mortgage.14

§ 2174. Demise. Though the demise is a fiction, the plaintiff must count on one which, if real, would support his ́action.15 Where the right of entry is by virtue of title of the wife, the demise may be laid in the name of the husband, or in the names of both husband and wife.16

§ 2175. Description of premises. If the description of the demanded premises does not appear upon the face of the complaint to be insufficient, it is a question of fact for the court or jury whether the description in the same will apply to the land sought to be recovered.17 In California, in an action for the recovery of real property, it must be described in the complaint with such certainty as to enable an officer, upon execution, to

Plumer v. Seward, 4 Cal. 94; 60 Am. Dec. 599.

10 Holmes v. Ferguson, 1 Oreg. 220; Granam v. Meeks, id. 325; see Robinson v. Thornton, 102 Cal. 675.

11 Walbridge v. Ellsworth, 44 Cal. 353.

12 Anderson v. Fisk, 36 Cal. 625; citing Call v. Hastings, 3 id. 179; Stafford v. Lick, 7 id. 479, and Clark v. Troy, 20 id. 223.

13 Hughes v. Davis, 40 Cal. 117.

14 Davenport v. Turpin, 43 Cal. 597.

15 Lessee of Binney v. Chesapeake & Ohio Canal Co., 8 Pet. 214. 16 Woodward v. Brown, 13 Pet. 1.

17 Moss v. Shear, 30 Cal. 468; see, also, Spect v. Gregg, 51 id. 198.

identify it.18 Section 58 of the old statute, which this supersedes, required the land to be described by metes and bounds, and it was held that this section of the Practice Act is directory only; if the complaint describes the premises sufficiently otherwise to identify them according to the general rules on this subject, the plaintiff may, after verdict, take judgment, and the court can not set it aside on motion of defendant on account of this defect of pleading.19

§ 2176. Description — quantity. As respects premises claimed, less certainty of description is required now than formerly. Thus the lessor of a plaintiff on a lease for a specific number of acres, may recover any quantity of a less amount.20 But he can not recover more than is described in the complaint.21 Where the premises were described as "about fifty acres," etc., it was held that the description was sufficient.22

§ 2177. Description by designation. Where a complaint in ejectment describes the land thus: "All that certain tract or parcel of land situated in Napa county, consisting of a preemption claim of one hundred and sixty acres of land commonly known as the Soda Springs, and embracing said springs and the improvements thereto belonging, and being about five miles from Napa city in a northerly direction," it is sufficient.23

$2178. Description by lines. Monumental lines or points control such as are described by course and distance only. The intention of the parties should be ascertained by a consideration of the entire description.24 A description of real property in a complaint in ejectment, giving one of the lines bounding the premises as running due west to the source of a designated creek, is not so insufficient and indefinite as to sustain a demurrer on the ground of its alleged insufficiency. If there be in fact more than one source of the creek, that fact can not be taken advantage of by the demurrer. It can only 18 Cal. Code Civ. Pro., § 455. So in Utah. Darger v. LeSieur, 9 Utah, 192.

19 Whitney v. Buckman, 19 Cal. 300; Beard v. Federy, 3 Wall. (U. S.) 478.

20 Barclay v. Howell, 6 Pet. 498.

21 Patten v. Cooper, 1 Cooke (Tenn.), 133.

22 St. John v. Northrup, 23 Barb. 25.

23 Whitney v. Buckman, 19 Cal. 300.

24 Piercy v. Crandall, 34 Cal. 384.

be matter for proof on the trial.25 Where the complaint gave a description which embraced nothing whatever, it was held that the complaint was bad.26

§ 2179. Description by indication. By indication, a description is sufficient which indicates and identifies the premises.27 A complaint in ejectment, describing the premises as "Lot No. 1, in block No. 23, as per plot of the town of Red Bluff Land Corporation, in 1853, being on the corner of Main and Sycamore streets, twenty-five feet on Main by one hundred and fifteen feet on Sycamore, and running back to the alley," and specifying the county in which they are situated by the terms "in said county," referring to the designation "county of Tehama" in the title of the suit, sufficiently describes the premises. The description by metes and bounds required is only so far as they may be necessary to identify with certainty the property.28

§ 2180. Description by name. Where the land is described in the complaint by a certain name, it is sufficient if it can be rendered certain by evidence.29 Where the complaint in ejectment avers that the land sued for is known by the name of "La Joto," heretofore granted to the plaintiff by the Mexican government, and the patent issued thereon refers to the 25 Carpentier v. Grant, 21 Cal. 140.

26 Budd v. Bingham, 18 Barb. 494. Where a competent surveyor would have no difficulty in locating the land sued for from the description in the complaint, such description is sufficient. Ayers v. Reidel, 84 Wis. 276; Buesing v. Forbes, 33 Fla. 495; Hihn v. Mangenberg, 89 Cal. 268. The particular description of the land by courses and distances must control the general description in the same complaint when the two are in conflict. Haggin v. Lorenz, 15 Mont. 309. In case of conflict between the natural boundary, or shore line, and the line as given by courses and distances in the description of the land, the former must control. Northern Railway Co. v. Jordan, 87 Cal. 23. A description of the premises contained in a copy of a deed, which is filed with the complaint as an exhibit, but which deed is not the foundation of the action, can not be looked to in aid of the allegations of the complaint. Liggett v. Lozier, 133 Ind. 451. Insufficient description by lines. See Tracy v. Harmon, 17 Mont. 465.

27 Paul v. Silver, 16 Cal. 73; Grady v. Early, 18 id. 108.

28 Doll v. Feller, 16 Cal. 432.

29 Castro v. Gill, 5 Cal. 40; Stanley v. Green, 12 id. 148; Orton v. Noonan, 18 Wis. 447; Hildreth v. White, 66 Cal. 549.

grant, the proceedings before the land commission, and the United States court for confirmation, these recitals in the patent support the averment of title through the grant.30

§ 2181. Entry and right of possession. To entitle plaintiff to recover, he must not only have a right of entry at the time of the trial, but must have it also when the suit was brought.31 And that right of entry can not be impaired by any fraud, misrepresentation, or collusion practiced by him to obtain possession.32 But an entry upon a lot in possession of another is not complete until he has expelled the other party, and has effected an exclusive lodgment.33 An entry, with full notice of plaintiff's rights, during the temporary removal of his inclosure, can not be defended on the ground that the lands were uninclosed.34 A defendant in ejectment, entering under a deed executed by order of a court of competent jurisdiction, enters under color of title. He is not a naked trespasser, and may set up an outstanding title in a third person.35

§ 2182. Essential averments. In an action of ejectment, the material facts which are essential to be alleged by the plaintiff are: 1. The title of the plaintiff. 2. Possession by the defendant. None of the technical allegations peculiar to the old practice are necessary.36 Under our system the plaintiff is not limited to any form of complaint. He may aver seisin in fee, or some estate therein, or prior possession and ouster; but whatever is put in issue will be final and conclusive.37 Where the allegations of a complaint in the District Court are that the plaintiff was in possession, and lawfully entitled to the possession at the time he was evicted by the defendant, it was held that the complaint must be treated as

30 Yount v. Howell, 14 Cal. 465; see Budd v. Bingham, 18 Barb. 494. As to variance between the allegations and the proof respecting the premises, see Kellogg v. Kellogg, 0 id. 116.

31 Kile v. Tubbs, 32 Cal. 332; Meeks v. Kirby, 47 id. 168.

32 Depuy v. Williams, 26 Cal. 309.

33 Valencia v. Couch, 32 Cal. 339; 91 Am. Dec. 589.

34 Sweetland v. Hill, 9 Cal. 556.

35 Gregory v. Haynes, 13 Cal. 591.

36 Payne v. Treadwell, 16 Cal. 220; see, also, First Nat. Bank v. Roberts, 9 Mont. 323; Lewis v. Railway Co., 5 S. Dak. 148.

37 Stark v. Barrett, 15 Cal. 361; Caperton v. Schmidt, 26 id. 479; 85 Am. Dec. 187; Payne v. Treadwell, 16 Cal. 220.

a declaration in ejectment.38 Where the complaint alleges that the plaintiff "is the owner and entitled to the possession of the land," "that defendant is in possession of said lot of land without any right or title thereto, and against the will and without the consent of the plaintiff," that said defendant wrongfully withholds the possession of said lot of land from the plaintiff, it is sufficient. That the plaintiff is the owner is in substance an allegation of seisin in fee, in “ordinary" instead of technical language.39 Where the complaint avers: 1. That the plaintiffs are the owners in fee, as tenants in common, of the premises. 2. That the defendants are in possession of the same, and withhold the possession thereof from the plaintiffs; it is sufficient. All beyond these averments is immaterial.40 Matters of evidence, such as averments of deraignments of title, and unnecessary matters of description of demanded premises, should be stricken out of a complaint in ejectment. The complaint need not state the residence of the parties.42 Allegations that defendant's possession is "unlawful," and plaintiffs title is "lawful," are wholly unnecessary. 43 Nor is it necessary to set out the mesne conveyances 38 Ramirez v. Murray, 4 Cal. 293. A complaint in ejectment should aver seisin or right of possession at the time of the commencement of the suit, and it is not sufficient to aver it merely as of the date of the alleged ouster. Vance v. Anderson, 113 Cal. 532; disapproving Kidder v. Stevens, 60 id. 420; Salmon v. Symonds, 24 id. 260; Yount v. Howell, 14 id. 465; and see Railway Co. v. O'Brien, 142 Ind. 218.

39 Payne v. Treadwell, 16 Cal. 242, 244; followed in Garwood v. Hastings, 38 id. 216; see, also, Rhoades v. Higbee, 21 Col. 88.

40 Payne v. Treadwell, 16 Cal. 247; Haight v. Green, 19 id. 113; Ensign v. Sherman, 14 How. Pr. 439; Walter v. Lockwood, 23 Barb. 228; Sanders v. Leavy, 16 How. Pr. 308. To same effect, see Hihn Co. v. Fleckner, 106 Cal. 95; Johnson v. Vance, 86 id. 128; Halsey v. Gerdes, 17 Abb. N. C. 395; Hihn v. Mangenberg, 89 Cal. 268; Jones v. Memmott, 7 Utah, 340; Northern Pac. R. R. Co. v. Lilly, 6 Mont. 65.

41 Larco v. Casaneuava, 30 Cal. 560; Depuy v. Williams, 26 id. 313; Wilson v. Cleavland, 30 id. 192.

42 Doll v. Feller, 16 Cal. 433.

43 Payne v. Treadwell, 16 Cal. 220; Sanders v. Leavy, 16 How. Pr. 308; and see Hildreth v. White, 66 Cal. 549. The averment that the defendant "unjustly withholds" the premises is not equivalent to the allegation that he "unlawfully withholds" them, as required by the statute of New Mexico. Osborne v. United States, 3 N. Mex. 213.

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