Los Angeles daily herald., 1890-01-28
AN OLD LAND SUIT.
The Title to a Large Tract
in Long Litigation.
COL. TUFFREE VS.. c. B. POLHEMUS
Judge Clark Renders Double
Headed Opinion in a Suit or
Many Years. Standing.

Many Years Stanulng'
People generally know the ranch of
]. K. Tuffree, near the head OF Fla
centia avenue, north of Anaheim, just
above the Placentia schoolhouse. Col.
Tuffree is the son-in-law of @. B. Pol
hemus, one of the assignees of the
Stearns ranches. His father-in-law gave
him q tract of land out of Che San Juan
Cajon de Santa Ana as wedding por-
tion for his wife. For four years suit
has been pending about it, and yester-
day Judge Clark handed down the fol-
lowing decision
j. x. TUFFREE EFT UX. VS.. c. B. PoLHEMUS.
This case was tried in October, 1887
before Judge of another department of
this court whose term of Office has ex-
pired.
It was submitted to the judge of this
department for decision upon stipulation
of counsel. The action is one to quiet
title to tract of land containing about
six hundred and fifty-nine acres, lying
within the exterior boundaries of the
Rancho San Juan Cajon de Santa Ana.
The suit is brought by Caroline B.
Tuffree, and j. K. Tuffree is made party
plaintiff for the reason that he is her
husband, and for no other reason. The
undisputed facts are, that in 1868 Abel
Stearns and his wife, Acadia B. de
Stearns, were the owners of said Rancho
San Juan Csjon de Santa Ana and cer-
tain other ranchos, known as the Stearns
ranchoe, containing in all about one hun
dred and twenty thousand acres of land,
and on the 25th day of May of that year
they executed trust deed conveying to
Alfred Robinson all of said property
upon certain express trusts. The bene-
ficiarios named in said trust deed are
Samuel Brannan, Edward F. Northam
Charles B. Polhemus and Edward Mar
tin. The said Charles B. Polhemus,
who is the father of the plaintiff, Caro-
line B. Tuffree, became the owner, under
said deed, as cestui que trust of an undi-
vided one-fourth of said property. From
briefs of counsel and the transcript of
the testimony furnished I gather that
the position of plaintiff is that subse-
quent to the execution of said trust deed
there was valid verbal partial partition
of the land mentioned therein among
said named benefciaries, and an exc
cuted parole gift from said G. B. Polhe-
mus to the plaintiff, G.. B. Tuffree. OF
the correctness of the legal propositions
advanced by plaintiffs counsel, there
can be no doubt. 1t is well settled that
a parole partition by tenants in common,
if the division be fair and equal and
executed by corresponding possession,
is good.
Wildey vs.. Bonnee, 81 Miss, GA.
CRANES vs. Butts, IS ILL.,, 357.
Lanterman vs.. Williams, 55 Cal. so.
This is so, though the title of the ten
ants in common be equitable and not
legal.
Maui VS.. Ryder, 81 Penn. ST., 337.
Nor does it matter that some of the
tenants elect to hold their purparts as
before by community of possession.
McMahon vs.. McMahon, 81 Am. Del,
453.
1t is equally we'll established that a
gift. If the donee takes possession and
improves the land, is valid, even though
the gift rests wholly i'll parole.
Burlingame vs. Rowland, 10 Pac. R.
526.
The difficulty in this case is in apply
ing these rules of law to the evidence.
1t would serve no useful purpose to dis
CuSS t4o oNlucuCc III uctdlls dLu ClShIly
of the opinion that it was not sufficient
to establish the first position assumed by
plaintiff, namely, that there was valid
that there was verbal agreement by
the b nefciaries that each should select
section and improve it for the purpose
of showing the quality Of the land, and
thereby enhancing the value of the re-
mainder of the land. 1t also shows that
three of the tenants, Pelhemus, Martin
and Northam, made selections. Martin
on the Las Balsas rancho and Polhemus
and Northam on the Coyote rancho.
These sections thus selected said tenants
named took possession of, and they were
subsequently sold by the trustee. A
parol partition to be valid must be exc
cuted and must be definite and certain
The testimony shows an executory agree
ment only. 1t fails to show that the
said tenants took possession of the Sec
tions which they selected and fails to
show that all the tenants in common
acquiesced in the selections thus made. 1t
is not sufficient that there should be an
agreement that each tenant should have
the right to select a section, but it is
essential that all of the tenants in COM
mon should agree that the particular
sections selected should be held by the
tenants, selecting them in severalty, and
have been unable to find any evidence
in the two hundred pages of testimony,
and the numerous exhibits submitted to
me tending to show that the other ten
ants in common agreed that the land in
controversy should be held in severalty
by the defendant Polhemus, under whom
plaintiff claims. But while I am
of opinion that there was no
valid partition among the tenants
in common it by no means follows that
there was not gift of the land in con-
troversy to the plaintiff G. B. Tuffree,
valid as against the defendant Polhe-
mus. Counsel for defendants urge that
said defendant could not have intended
to make gift of the land for the reason
that he was not in an attitude to give
deed thereto. The evidence shows that
the said defendant was the owner of an
undivided interest equal to about thirty
thousand acres. 1t is not an uncommon
thing for an owner of an undivided in
terest in tract of land to make a con-
veyance of a certain portion of the tract
by metes and bounds, and upon partition
a court of equity will protect such grantee
If it can be done without prejudice to the
other tenants in common. Code of Civil