concur in the judgment of reversal. The first thing necessary to be done by a court in which an action of partition has been commenced is to obtain jurisdiction of the persons of those who claim to be entitled to the land sought to be partitioned. Having obtained jurisdiction by any of the modes prescribed by law for that purpose, the parties of whom jurisdiction has been obtained are required to answer as to the nature and extent of their respective interests; and if any of the answers made raise issues of adverse claims for any parts of the land, the court must then proceed to try and determine such issues. As in an action for the settlement of partnership affairs, the first inquiry is whether the parties to the suit are partners, so in an action of partition the first inquiry must be, whether all the parties to the action are tenants in common; and that inquiry can only be reached after the final determination of the rights asserted by adverse claimants to any parts of the land; for the issues raised by the assertion of such rights are in the nature of issues of law, and must be decided before any steps can be taken in the proceeding for partition. It is only after their decision that the court can know who are entitled to partition.
And having disposed of those issues, and ascertained who are the tenants in common, between whom the land is to be parti*629tinned, the next step in order is to ascertain and determine the respective rights and interests of each of the tenants in common in the mode prescribed by sections 763-765, and 799, of the Code of Civil Procedure, and adjudge partition between them according to their respective rights.
The ascertainment and determination of these things in the order named are essential to the validity of an' interlocutory decree in a partition proceeding. (Code Civ. Proc. ch. 4.) And such, has been the procedure followed in such actions by courts of chancery from the time when the English court of chancery (by judicial construction of statutes 31 and 32, Henry VIII., which made joint tenants and tenants in common accountable to each other) assumed jurisdiction of actions of partition, upon the ground that under that statute tenants in common of real property held possession as trustees for each other. Before that statute partition at common law was not enforcible against either joint tenants or tenants in common. By the passage of that statute they were placed upon the same footing, as to partition, with coparceners, and partition was .enforced against them by a writ of partition; and concurrent jurisdiction of such actions was exercised by courts of law and courts of equity until the Writ of partition was abolished by statutes 3 and 4, William IV-, and thereafter the only mode of enforcing partition was by bill in chancery.
The procedure in chancery in actions of partition has been substantially embodied in the provisions of chapter 4 of the Code cf Civil Procedure. In some circumstances it differs: in chancery, partition proceedings were suspended until the issues raised by adverse claimants to any portions of the land were tried and determined by actions of ejectment in the courts of law. The same legal effect follows the raising of such issues in a partition"proceeding in this State, under the Code; only, instead of sending the parties to a court of law to litigate the questions of title between them, the court in which the proceeding is pending has jurisdiction to tiy and determine all issues, whether at law or in equity, and must determine them as part of the proceeding itself. (Code Civ. Proc. § 759; De Uprey v. De Uprey, 23 Cal. 352; Morenhaut v. Higuera, 32 Cal. 294; Gates v. Salmon, 35 Cal. 597), and until those issues are dis*630posed of, and -the tenants in common of the property are ascertained and enumerated, and their respective interests and rights have been ascertained and determined, the case cannot be considered as tried. Section 760 of the Code of Civil Procedure is not in conflict with these views. That section provides:—
“Whenever from any cause it is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition, in the first instance, among all the parties in interest, the court may first ascertain and determine the shares or interest respectively held by the original co-tenants, and thereupon adjudge and cause a partition to be made as if such original co-tenants were the parties and sole parties in interest, and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof, as they may desire.”
The thing to be observed is, that the authority of the court “to adjudge and cause a partition to be made between the original co-tenants, as if they were the parties and the only parties in interest, or to the action,” is made to depend upon the fact that it will be made “ impracticable or highly inconvenient to make a complete partition, in the first instance, between all the parties in interest.” But who are all the parties in interest? That must be ascertained and determined before it can be decided whether a complete partition in the first instance between the parties is impracticable or inconvenient. But how shall it be ascertained and determined before the issues made by the answers of adverse claimants are finally disposed of? The ascertainment of those who are “the parties in interest,” or tenants in common of the land, is therefore a fact which lies at the threshold of every action of partition, and at the foundation of every one’s right to partition; and whether it would be impracticable or highly inconvenient to make partition between them, in the first instance is also necessarily connected with the fact. Both are judicial questions, and the latter cannot be determined if the court has not ascertained and does not know who are the parties entitled to partition.
*631That has not been done in this case. Issues of law between adverse claimants of parts of the ranch sought to be partitioned have never been heard and decided. It has never been found who are the tenants in common of the ranch, and what are their respective interests and rights therein, or whether it would be to their prejudice, or impracticable or highly inconvenient, to make partition between them.
It may be, after it shall have been ascertained who are owners of the ranch, and what are their respective interests therein, that the court may find it neither impracticable nor inconvenient to make partition between them. If so, it would plainly be the duty of the court to decree partition in the first instance between them, without the necessity of double investigations, double interlocutory decrees, double commissioners, double reports, double confirmations of reports, and without the burden of costs and expenditures which such an elaborate judicial proceeding would entail.
I therefore think the interlocutory decree should be reversed, because the court has not heard and determined the issues raised in the proceedings by the answers of adverse claimants to portions of the ranch; because it has not been ascertained who are the tenants in common of the ranch; and because the respective rights and interests of the tenants in common have not been found. The court below should be directed to proceed to hear and decide these things upon the evidence already taken in the case, and such other evidence as may be given by the parties.
Boss, J., dissenting. — I dissent from the judgment, and am of the opinion that the interlocutory decree appealed from should be affirmed. Except with respect to the construction of section 760 of the Code of Civil Procedure and to the findings in relation to taxes and judgments for taxes, I agree with the conclusions reached, and with much that is said in support of them in the opinion of Mr. Justice Thornton. I do not agree to the conclusions reached in the opinion in regard to the findings just alluded to, nor am I able to agree with my associates in their construction of section 760 of the Code of Civil Procedure. By them it is held that under no circumstances can any interlocutory decree in partition be made until the interest of each *632and every owner is first ascertained and determined. In the absence of the above-cited statutory provision, that would undoubtedly be so. But the legislature has seen fit to declare that “whenever from any cause it is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition in the first instance, among all the parties in interest, the court may first ascertain and determine the shares or interest respectively held by the original co-tenants, and thereupon adjudge and cause a partition to be made as if such original co-tenants were the parties and sole parties in interest, and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted, as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof, as they may desire.” (Code Civ. Proc. § 760.)
It seems to me that the view taken by my associates in effect nullifies this provision of the statute.
McKmsTBY, J., being disqualified, took no part in the decision.