Cadiz v. Majors , 33 Cal. 288 ( 1867 )

By the Court, Sanderson, J. :

Both parties claim title from Ignacio Castro. The plaintiff by deed from Castro to Plongeon, November 14, 1857 ; by deed from Plongeon to Anderson, January 11, 1859; from Anderson to Temple, July 18,1859, and from Temple to herself September 13, 1861. The defendant claims by deed from Castro to Dunlap, December 29, 1855, and from Dunlap to himself, November 8, 1864.

The case shows that Castro first acquired title by deed from Header, dated September 3, 1856; so at the time he conveyed to Dunlap (December 29, 1855) he had no title; but he had acquired the title before he conveyed to Plongeon (November 14, 1857). The only question seems to be whether the deed from Castro to Dunlap was sufficient to pass the title which Castro subsequently acquired from Header. The deed from Castro to Dunlap was only a quitclaim, and therefore did not pass the title which Castro subsequently acquired. (Gee v. Moore, 14 Cal. 472; Morrison v. Wilson, SO Cal. 344.)

This is an action of ejectment without any equitable defence. The only issue made by the pleadings, therefore, is as to the legal title. If the defendant claims an equitable title by reason of the agreement between Header and the Bolcoffs and his deed from Castro, it cannot avail him in this action, for the reason that it has not been pleaded.

Order and judgment affirmed.