I concur in the judgment solely on the ground that the affidavit accompanying the complaint is defective as stated in the second part of the foregoing opinion.
Upon the question first considered in the opinion, I am unable to agree with the conclusion there reached. The act is entitled: "An act to provide for the establishment and quieting of title to real property in case of the loss or destruction of public records." The first section limits its application to instances where the public records of titles have been lost or destroyed by "flood, fire or earthquake." Section 18 limits its application, in point of time, to proceedings begun under it before July 1, 1909, afterwards extended to January 1, 1911. It is well known that it was enacted to enable persons owning lands in San Francisco, where all the public records had been destroyed by the great fire of April, 1906, to obtain title of record, which would serve as a substitute for the destroyed record of the instruments on which the title depended. By its precise terms, a part only of which is quoted in the foregoing opinion, it declares that the relief provided therein may be obtained by "any person who claimsan estate of inheritance, or for life in, and who is by himself or his tenant, or other person, holding under him, in the actual and peaceable possession of any real property" in the county. I agree that the procedure prescribed in the act should be followed closely. But with respect to the persons who may obtain its benefits, I believe that it should receive a broad and liberal construction, one that would include every person who might be benefited by the relief provided, rather than one which would exclude any such person or class of persons. The above language makes it applicable to the case of any person who claims an estate of inheritance and who, by himself or by another holding under him, is in actual and peaceable possession. The relation of landlord and tenant, in its narrow meaning, is not essential. One may be in actual possession by another holding under him, without that other person being his tenant *Page 737 in the ordinary sense and without the technical relation of landlord and tenant existing between them. One who holds a particular estate for years by grant, is, by a very common use of language, said to be holding under his grantor, although there is no obligation to pay rent in any form. In like manner, he would be holding under the grantee of the remainder. Such remainderman would be entitled to take advantage of the act to establish a record title to the remainder. If this were not so, then every landowner who may have conveyed to another an estate for years running beyond the time to which the act is extended, and who has not reserved any rent in the conveyance, is deprived of the benefits of the act.
Angellotti, J., and Sloss, J., concurred.