Bayerque v. Cohen

McALLXSTER, Circuit Judge.

The demurrer filed to the bill in this case admits, so far as the present action of the court can extend, the facts alleged. Among these are the following: the legal seizin of the complainant; his peaceable possession of the premises in dispute, by himself and those under whom he holds, for upwards of seven years; that the premises had been reclaimed from the waters of the bay, prior to the admission of this state into the Union, and had been built upon and occupied by private persons, from some of whom the complainant claims; and which premises then formed a part of the city, bounded by public streets, and were above high-water mark. The demurrer also admits that those under whom complainant claims have heretofore obtained an injunction against the sale of the premises in dispute, upon the ground that the same formed no portion of the waters of the bay, and that the state held no interest in them. It further admits that such adjudication was, on appeal to the supreme court of this state, affirmed in all respects; that under a second act of the legislature of this state, directing a sale of its interest in said premises, a sale was made, and two of the defendants became the purchasers; that Jacob S. Cohen, who was agent of the state ■in the conduct of said sale, and also a defendant, is interested in the premises; that such sale was fraudulent, because no consideration was paid, and the conditions of the act of the legislature, under which said sale was made, were not complied with. Lastly, that a deed to consummate such fraudulent sale was made and delivered to the purchasers.

All the foregoing facts being admitted by the demurrer to be true, two questions arise: first, whether this court has the power to administer the relief prayed for; and, second, whether this case calls for such relief.

By the general principles of equity jurisprudence, a party who is in the peaceable and actual possession, accompanied by title, can invoke chancery jurisdiction to remove a cloud from his title. Independently of these principles, the legislature of this state has spoken upon this subject. Section 254 •of the act entitled, “An act to regulate civil proceedings in the courts of justice in this state-’ (Comp. Laws Cal. 519). declares that ••an action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an •estate or interest therein adverse to him, for the purpose of determining such adverse •claim, estate, or interest.” In Clark v. Smith, 13 Tet. [38 U. S.] 195, the principle is enunciated that, although the laws of a state •cannot affect the jurisdiction or mode of proceeding in equity in the courts of the United States, they may afford rules as to what shall be deemed a cloud upon the title, and the circuit courts of equity may remove ■such clouds. The supreme court of this state has enunciated in several cases the doctrine in regard to the removing of clouds upon title: Shattuck v. Carson, 2 Cal. 588; Guy v. Hermance, 5 Cal. 73. In this last case, the title of the plaintiff, in a contest between different parties, was passed upon and sustained. In this case, the demurrer admits seizin by complainant, accompanied by a title supported by the decision of the highest judicial tribunal in this state, and by a peaceable possession of seven years; and further admits the fraud alleged in the sale under which the deed was made to defendants. It is clear that the complainant has a standing in a court of equity, and is entitled to relief.

It has been urged by defendant’s counsel that the complainant should have set forth his title, as non constat it is legal. The answer is, that the allegation in the bill is that his seizin is legal, accompanied by title to which a reference is made, and with possession during seven years; and these allegations are admitted by the demurrer to be true. Nor am I aware that even in a court of law a pleader is bound to set forth his seizin in more special terms than is done in this bill. In Christy v. Scott, 14 How. [55 U. S.] 282. the plaintiff alleged his seizin in his demesne as of fee. Defendant demurred. The allegation in the declaration was deemed sufficient; and it being admitted by the demurrer, the court considered defendants trespassers, and estopped from denying the title of plaintiff. The allegations, admitted as they have been, are amply sufficient to sustain the bill.

On the day of the argument of this case, a paper was filed, which has not escaped the attention of the court. It seems to be a statement of the argument on the whole case. Some of the matters embraced within it are such as would be more appropriately discussed on the trial of the case, when the issues will be raised and the facts developed by testimony.

The demurrer must be overruled, and costs paid by the defendants. An order to that effect will be entered accordingly.