No. 2,371.

#### CHAS. E. BROAD *et al.,*Appellants, *v.*CHAS. BROAD, Respondent.

Complaint in Pabtition Suit. — Demvbbeb.—In a suit for partition, if the complaint fails sufficiently to state the origin, nature, or extent of the interest of the plaintiff, objection should he presented by demurrer. If not taken in that mode it is waived.

Alcalde G-bant. — Van Ness Oedinance. — Tenants in Common. — A confirmation by the Van Ness Ordinance, of the title to a lot granted by an Alcalde, inures alike to the benefit of all the tenants in common of the lot.

Common Pbopebty. — Statutoby Constbuction. — The words, “shall go,” as used in the eleventh section of the Act of 1850, defining the right of the husband and wife, mean “shall vest,” and apply equally to the descendant of the deceased husband or wife, as to the survivor.

Appeal from the Fifteenth District Court, City and County of San Francisco.

Action for a partition of the premises in controversy, and for the rents, issues and profits for the ten years next preceding.

Judgment was for defendant, and plaintiffs appealed.

The other facts are stated in the opinion-

*J. M. Seawell,*for Appellants.

On the death of plaintiffs’ mother, one hall of the premises went to them, as tenants in common with defendant. (Act April 17th, 1850, p. 254, defining rights of husband and wife, Secs. 9, 11, 12 ; Hittell’s Dig., Secs. 3571, 3573, 3574 ; *Panaudv. Jones,*1 Cal. 512*; Beard*v. Knox, 5 Cal. 252; Estate of Buchanan, 8 Cal. 507; *Smith*v„ *Sirvith,*12 Cal. 226; *Packard*v. *Arrellanes,*17 Cal. 536; 0«f v. *Be la Guerra,*18 *494Cal. 74 ; *Hart v.Robertson,*21 Cal. 348; *Morrison v. Bowman,*29 Cal. 337 ; *Jewell*v. *Jewell,*28 Cal. 235; *McLeron*v. *Benton,*31 Cal. 32 ; Civil Code of Louisiana, Arts. 2373, 2376, 2378; *Guillotte*v. *City of Lafayette,*5 La. Ann.It. pp. 381, 382 ; *Broussard*v. *Bernard,*4 La. 140, YU O. S. 217 ; *German*v. *Gay,*5 La. 361, IX O. S. 580 ; *Gale*v. *Davis’ Heirs,*2 Martin, 307, 4 Martin, O. S. 651; *Pettrie*v. *Wofford,*3 La. Ann. 561; *Duncan*v. *Bawle,*16 Tex. 478.)

*Sawyer*and *Myriclc,*for Respondent.

Tbe complaint does not state facts sufficient to constitute a cause of action. In partition, plaintiffs must set forth fully and particularly the *origin, nature,*and *extent*of their interest in the property. (Prac. Act, Sec. 255,270; *Morenhaut*v. *Higuera,*32 Cal. 295; *Bradley*v. *Harhness,*26 Cal. 77; *Dye*v. *Dye,*11 Cal. 163.)

Prom the facts as found, it will appear that the title did not pass from the Mexican Government before the conquest, nor from the Government of the United States during the lifetime of Mrs. Broad. Therefore, when it passed it inured to Broad, respondent.

The deed from Pool to respondent was a quitclaim deed of the possession only. It could convey no more. Respondent was not estopped by that deed from setting up an after acquired title from the Government, either by the Yan Ness Ordinance, or by the Acts of Congress. *(Gar-pentierv. Thurston,*24 Cal. 268; *Valentine*v. *Mahoney,*April, 1869 *;BrooJcsv. Hyde,*April, 1869; *Holden*v. *Andrews,*April, 1869; *Johnson v. Johnson,*11 Cal. 205; *Lawson and Wife*v. *Bipley,*17 La. 238. 251; *Barbel*v. *Langlois,*5 La. An. 212; *Succession of Morgan,*12 La. An. 153; *Fuller*v. *Ferguson,*26 Cal. 562; 2 *Smith’s Lead Cas., side*624-5; 2 *Smith’s Lead Gas., top*775-6; *Sparrow*v. *Kingman,*1 N. Y. 242; *Bigelow v. Finch,*11 Barb. 498.)

The title was, at the time of the death of Mrs- Broad, in the United States; the grant of the American Alcalde was but a license to occupy, and did not ripen into title until *495tbe Acts of Congress. *(Townsend*v. *Greeley, 5*Wallace, 336; *Valentine v. Mahoney,*37 Cal. 389; *McLearen*v. *Benton*Oct. 1869, not reported; *Brooks*v. *Hyde,*37 Cal. 366.)

Even if tbe title passed to Broad by tbe Yan Ness Ordinance, and during tbe lifetime of bis wife, it was a gift under tbe ordinance, and be acquired it as sucb, and it is bis separate property. *{Hubbard*v. *Barry,*21 Cal. 321; *Noe*v. *Card,*14 Cal. 576; *Hood*v. *Hamilton,*33 Cal. 698; *Wilson*y. *Castro,*31 Cal. 420; *Fuller*v. *Ferguson,*26 Cal. 546; *Bonner-?. Palmer,*31 Cal. 500.)

. Even if it is true tbat tbe real estate was common property, still tbe husband is entitled to tbe possession, management and control of it during bis lifetime. Upon tbe death of tbe mother no sucb title or interest passed to tbe children as would enable them to maintain partition as against tbe father. (1 Hittel, 3568, and 3573 before and after amendment of May 8, 1861; *Panaud*y. *Jones,*1 Cal. 512; *Scott*y. *Ward,*13 Cal. 470; *Est. of Tomkins,*12 Cal. 124; *Packard*y. *Arellanes,*1-7 Cal. 525; *Van Mare%iY. Johnson,*15 Cal. 311.

Bhodes, C. J.,

delivered tbe opinion of tbe Court, Temple, J., Wallace, J., and Crockett, J., concurring:

Tbe premises in controversy, are a portion of a lot in San Francisco, which was granted by tbe Alcalde to a person named in tbe grant. Sucb title to tbe premises in controversy, as bad passed by tbe Alcalde’s grant, vested in tbe defendant and bis wife, in 1852, as community property. Tbe wife died in 1858. Tbe plaintiffs are her children. They claim tbat they, together with their father — the defendant— are tenants in common of tbe premises ; tbat each of tbe plaintiffs bold tbe title to tbe undivided fourth, and tbe defendant tbe title to tbe undivided half of tbe premises.

If tbe complaint fails to sufficiently state tbe origin, nature or-extent of tbe interests of tbe plaintiffs, tbe objection should have been presented by demurrer. If not taken in tbat mode it is waived.

*496That an Alcalde’s grant passed a title to tbe grantee therein named, is beyond controversy in this Court. Whatever may have been the effect of the Yan Ness ordinance and its confirmation by the statute of this State, or the Act of Congress, as to a lot that had been granted by an Al-calde — whether they operated as a transfer of title, or merely as a release — it is clear that all the tenants in com- ' mon received its benefits.

The main question in the case, as both parties consider it, is whether, upon the death of the defendant’s wife, one half of'the property vested in the plaintiffs. The eleventh section of the Act of *1850,*defining the rights of husband and wife —which was in force at the death of the wife of the defendant — is as follows: “ Upon the dissolution of the community by the death of either husband or wife, one half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased. If there be no descendants of the deceased husband or wife, the whole shall go to the survivor, subject to such payment.” There is no room for construction, so far as this, question is concerned, except as to the meaning of the words “ shall go.” As related to the survivor of the community, there can be no doubt that those words mean “ shall vest.” The survivor takes one half of such title as the community held. The same words are necessarily implied in the clause of the section, which speaks of the acquisition of title by the descendants of the deceased husband or wife — that is to say, ‘£ the other half [shall go] to the descendants of the deceased husband or wife.” Those words have the same signification in each instance ; and there is nothing in the language of the Act, which would tend to assign them a meaning in the one case, different from that given in the other. They take title of the same nature, and to the same extent, as that which vests in the survivor.

The plaintiffs in this case, upon the death of their mother, became tenants in common with the defendant, of the premises in controversy ; and as already remarked, they *497all alike, in proportion to tbeir respective interests in tbe premises, received tbe benefits of tbe Yan Ness Ordinance and its confirmation.

Tbe Act of 1861, amendatory of Section 11, was passed for tbe purpose of obviating, for tbe future, many of tbe inconveniences, and perhaps hardships, which are so forcibly presented by tbe defendant. It was deemed proper to change tbe statute, so that upon tbe death of tbe wife, tbe entire common property should go to tbe surviving husband.

Judgment reversed and cause remanded, with directions to render judgment that each of tbe plaintiffs is tbe owner in fee of tbe undivided quarter of tbe premises; and that tbe defendant is tbe owner in fee of tbe undivided half of tbe premises as tenants in common.