Baldwin, J. concurring.
The defendants apply for a rehearing upon three grounds, which were not noticed in the opinions delivered in this case: 1st. Error in overruling the demurrer to the complaint; 2d. Error in refusing to give the twenty-fifth instruction asked as to the effect of the conveyance of Ranlet, trustee to the plaintiffs, bearing date on the twelfth of October, 1853; and 3d. That the complaint does not support the judgment for the damages recovered for any period preceding the commencement of the action.
The first ground was discussed in the briefs of counsel, and should have been considered in the opinion; for, if sustained, it must lead to a reversal of the judgment. We will now supply the omission and proceed to consider it at length.
The complaint alleges “ that the said plaintiffs are the owners in fee as tenants in common, and have the lawful right and are entitled to the possession ” of the described premises, and “ that the said defendants wrongfully entered upon and are now in the wrongful and unlawful possession of said premises, and wrongfully and unlawfully withhold the possession thereof from said plaintiffs.” Then follows the prayer: “ Wherefore, the plaintiffs demand judgment that they recover and be put in possession of said premises, and that the defendants pay damages for the unlawful withholding of said premises, and for the rents and profits thereof, in the sum of $3,000.”
*243To the complaint the defendants demurred, on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer, if we understand it, is also directed to the absence of any allegations as to the damages claimed in the prayer.
The principal objection to the complaint, and the only one urged in the brief of counsel, and in the petition for a rehearing, is that its allegations of title and right of possession in the plaintiffs, and of the wrongful and unlawful possession by the defendants, are not allegations of facts but of conclusions of law.
It is usual to speak of the action to recover the possession of real property as an action of ejectment, and it is possible that with the technical designation it is sometimes thought that some of the technical allegations peculiar to the old form of the action are still necessary. But such is not the case. There is but one form of civil actions in this State, and all the forms of pleadings and the rules by which their sufficiency is to be determined are prescribed by the Practice Act. (See sec. 37.) The complaint must contain “ a statement of the facts constituting the cause of action in ordinary and concise language,” and it may be verified by the oath of the party, in which case the answer must also be verified. The system in this State requires the facts to be alleged as they exist, and repudiates all fictions. And only such facts need be alleged as are required to be proved, except to negative a possible performance of the obligation which is the basis of the action, or to negative an inference from an act which is in itself indifferent. Now, what facts must be proved to recover in ejectment? These only: that the plaintiff is seized of the premises, or of some estate therein in fee, or for life, or for years, and that the defendant was in their possession at the commencement of the action. The seizin is the fact to be alleged. It is a pleadable and issuable fact, to be established by conveyances from a paramount source of title, or by evidence of prior possession. It is the ultimate fact upon which the claim to recover depends, and it is facts of this character which must be alleged, and not the prior or probative facts which go to establish them. It is the ultimate facts—which could not be struck out of a pleading without leaving it insufficient—and not the evidence of those facts, which must be stated. It is sufficient, therefore, in a complaint in ejectment for the plaintiff to aver in respect to Ms title, that he is seized of the premises, or of some estate therein in fee, or for life, or for years, according to the fact. The right to the possession follows as a conclusion of law from the seizin, and need not be alleged.
*244The possession of the defendant is of course a pleadable and issuable fact, and the only question of difficulty arises from the supposed necessity of negativing its possible rightful character. That negative allegations, which are not required to be proved, may in some actions be necessary, may be admitted; but is there any such necessity as to the possession of the defendant in- an action of ejectment? It seems to us that the substance of a complaint in ejectment under our practice is this: “A owns pertain real property, or some interest in it; the defendant has obtained possession of it, and withholds the possession from him.” If the defendant’s holding rests upon any existing right, he should be compelled to show it affirmatively, in defense. The right of possession accompanies the ownership, and from the allegation of the fact of ownership—which is the allegation of seizin in “ ordinary language ”—the right of present possession is presumed as a matter of law. We do not think, therefore, any allegation beyond -that of possession by the defendant is necessary, except that he withholds the possession from the plaintiff. The allegation that the possession is “ wrongful or unlawful ” is not the statement of a fact, but of a conclusion of law. The words are mere surplusage, and though they do not vitiate, they do no good.' The withholding of the possession from one who is seized of the premises, is presumptively adverse to his right, and wrongful. It is by force of this presumption that the plaintiff can rest, in the first instance, his case at the trial upon proof of his seizin, and of the possession by the defendant. From these facts, when established, the law implies a right to the present possession in the plaintiff, and a holding adverse to that right in the defendant.
Where the plaintiff has been in possession of the premises for which he sues, it will be sufficient for him to allege in his complaint such possession, and the entry, ouster and continued withholding by the defendant. Such allegations are proper when they correspond with the facts, but they are not essential, as is thought by many members of the Bar. In this State, the possession does not always accompany the legal title. The statute authorizes a sale and conveyance of land held adversely by third persons; and the legal title is frequently held by parties who never had the possession.
In the Courts of New York—and it is well known that the Practice Act was taken principally from the code of procedure of that State— there was at one time some conflict of opinion as to what were sufficient allegations in a complaint in ejectment under the code. It is now, how*245ever, settled by the Supreme Court of that State substantially in accordance with the views we have expressed. In Ensign v. Sherman, (14 How. Prac. 439) the plaintiff averred in her complaint that she had lawful title as the owner in fee simple to the real estate in controversy, which was described; that the defendant was in possession of it, and unlawfully withheld possession thereof from her, and on demurrer the complaint was held sufficient. Walter v. Lockwood (23 Barb. 228) is to the same effect.
In Sanders v. Leavy (16 How. Prac. 308) the complaint was similar to the complaint in the cases cited, and was demurred to on the ground that it did not state facts sufficient to constitute a cause of action; because first, it did not allege that the plaintiff or his grantor was ever in possession; and second, it did not allege that such possession was disturbed, and they were evicted by the defendant, his grantors or predecessors. And it was contended on the argument, as in the case at bar, that the allegations as to the plaintiff’s title and the defendant’s possession were not averments of facts, but of conclusions of law; but the Court held the complaint sufficient, and gave judgment against the demurrer. “ To recover real estate,” said Mr. Justice Ingraham, in delivering the opinion, “ what is it necessary for the plaintiff to prove ? Two things: first, that he is the owner of the property; secondly, that the defendant withholds from him the possession without right. Both facts are plainly averred in the complaint.” The designation of the withholding of the possession by the defendant, in the cases cited, as unlawful, is not considered as constituting any valid ground of objection. In Sanders v. Leavy the attention of the Court was specially directed, in the argument of counsel, to this mode of characterizing the act. For the reasons we have abeady stated, we consider it unnecessary to give it any character by special designation; for, being against one who is seized of the premises, it is presumptively adverse and wrongful. To allege that it is unlawful, is merely to state that which follows under the circumstances as a conclusion of law from the act itself.
The decisions of this Court in respect to the necessary allegations of a complaint in ejectment, have not been uniform, and, perhaps, on no one subject of pleading is there so much embarrassment felt by the profession in consequence. In Gladwin et al. v. Stebbins (reported as Goodwin et al. v. Stebbins, in 2 Cal. 105) the complaint averred that the plaintiffs were “ lawfully entitled to the possession of the premises,” and the Court held, Mr. Justice Heydenfeldt delivering the opinion, that *246the allegation was of a material fact, and therefore sufficient. In this respect we think the opinion cannot be sustained. The averment is clearly a mere statement of a conclusion of law. In Payne et al. v. Treadwell (5 Cal. 310) the complaint alleged, that the plaintiffs had “ lawful title as owners in fee simple of the premises,” and “ that the defendant is in possession and unlawfully withholds the same; ” and on demurrer the Court held the complaint insufficient. “ Notwithstanding,” said Chief Justice Murray, in delivering the opinion, “ our statute has dispensed with the old form of pleading, and it is no longer necessary to allege a fictitious demise, etc., still, I apprehend that facts sufficient must be pleaded to show the plaintiff’s right to recover, and it will not do to state conclusions of law in place thereof. The allegation, that the defendant is in possession, and unlawfully withholds the premises, is insufficient; it is a conclusion of law drawn from the character of defendant’s possession, the circumstances of which should be stated.”
The decision, as is apparent, does not relate to the allegation as to the plaintiff’s title, notwithstanding the general observations of the Chief Justice; it applies only to the allegation as to the withholding of the possession by the defendant. So far as this was alleged to have been unlawful, the allegation was of a conclusion of law. But the giving of a certain character to the withholding, as unlawful, did not change the material fact, that the possession was withheld; and this, as we have ■ seen, taken in connection with the previous allegations of title in the plaintiff, and possession by the defendant, was sufficient. A more particular statement of “ the circumstances ” of the defendant’s possession or withholding, is not necessary under our system of practice. The . decision, in this respect, has tended to produce inconvenience to practitioners, and prolixity in pleading, and we have no hesitation in overruling it.
In Gregory v. Haynes et al. (October term, 1859, No. 2,148) it was held, that the findings by the Court below—that one of the defendants and not the plaintiff was the owner, and entitled to the possession of the property in controversy, and that the defendants did not unlawfully detain the same from the plaintiff—would not support the judgment, and the decision was based upon the ground, that the ownership and right of possession were not facts, in the legal sense of that term, but conclusions of law. We have had great doubt of the correctness of this decision, ever since it was rendered; and upon the examination which we have given to the subject, in considering the case at bar, we are *247satisfied that we erred, and are glad we have an opportunity, at so early a day, of correcting our error. The fact was found, that one of the defendants was the owner of the premises in controversy, and that fact alone was sufficient to support the judgment against the plaintiff, nothing else having been found to qualify the right to the possession which accompanies the title. The balance of the findings might have been treated as surplusage. The claim of the plaintiff having been thus disposed of, it was unnecessary to find as to the character of the defendants’ detention of the premises.
In Boles v. Johnston et al. (January term, 1860) the opinion states that the substantial averments of the complaint were only that the plaintiffs were the owners of the property in question, and that the defendant was in possession of it. It does not state that there was any averment that the possession was withheld from the plaintiff. If such averment were in fact made in the complaint, the decision cannot be sustained.
It follows, from the views we have expressed, that the complaint in the case at bar is sufficient. It avers that the plaintiffs are the owners in fee, as tenants in common, of the premises; that the defendants are in possession of the same, and withhold the possession thereof from the plaintiffs. Whatever is alleged beyond these averments is immaterial, and may be stricken out. The facts essential to a good complaint are stated, and the additional allegation of lawful right and title in the plaintiff, and the designation of “ wrongful ” and “ unlawful ” applied to the possession and withholding of the defendant, though unnecessary, do not vitiate the pleading; and the demurrer was properly overruled.
The second ground upon which a rehearing is asked, was not taken on the argument or in any of the briefs of counsel. It is too late to urge it now for the first time, after the case has been fully considered upon the points to which the attention of the Court was called, and a decision has been rendered.
The third ground urged for a rehearing was also not presented before, and is now taken in the petition for the first time. The objection taken on the argument was to the alleged error of the Court in the charge to the jury, and the admission of evidence as to the value of the use and occupation of the premises from October 12th, 1853 ; and the point of the objection was, that a recovery for such use and occupation beyond three years was barred by the Statute of Limitations; and we held that the point was not so presented -by the record that we *248could consider it. It is undoubtedly true that, under the complaint, damages for any period preceding the commencement of the action cannot be recovered. Where such damages are claimed, the complaint must state the title of-the plaintiff as existing at some prior date, (to be designated) and as continuing up to the commencement of the action, and the entry of the defendant at some date subsequent to that of the alleged title. In the present case, we have no means of determining the manner in which the damages were made up by the jury, or whether any damages for the period preceding the commencement of the action were found. According to the testimony of one of the witnesses, Middleton, the value of the rents for the period intervening the commencement of the action and the trial, exceeded the amount of the verdict. The objection to his testimony was too general to be regarded. It states no ground, and we have frequently decided that to entitle an objection to the admission of evidence to notice, its point must be particularly stated. (Kiler v. Kimball, 10 Cal. 267; Covillaud v. Tanner, 7 Cal. 38; Practice Act, sec. 189.) No specific exception was taken to the charge of the Judge on the subject of damages. The general exception to all the charge, followed by a specification of the portions to which the exception was particularly directed, did not cover errors not designated at the time.
Rehearing denied.