This is an action of ejectment to recover a parcel of land in Santa Clara County.
When the first purchase was made, in 1856, the whole purchase-money (nine hundred dollars) was paid by the defendant, John Tully. Under this purchase, John Tully
Under this purchase of 1856, no title whatever was acquired. The land bought was at that time supposed,both by John Tully and his grantor, to be public land. This was not so. The land was part of a Mexican grant formerly made to Antonio Chaboya, to whom a patent including the premises was regularly issued by the United States in November, 1858. In February, 1861, John Tully acquired by a proper conveyance the true title to this land from the vendees of Chaboya, paying from his own funds therefor the sum of four thousand four hundred dollars.
The history of the possession is correctly given in a dissenting opinion herein drawn up by Justice McKee. It appears that John Tully has been in the exclusive possession of. this land, claiming the same as his own for about twenty-four years prior to the commencement of this suit;, and since the purchase of the true title in 1561, plaintiff has never offered to pay to defendant any portion of said sum of four thousand four hundred dollars, and has never requested defendant to convey to him any portion or interest in the premises nor has he ever attempted or offered to enter into possession of this land, or claim any right to the possession thereof, until one year next before the commencement of this action.
In this action, which is ejectment, the paramount legal title usually prevails. This legal title is with defendant, and must prevail, unless the defendant is prevented by law from availing himself of it.
It is urged on behalf of plaintiff that he is so prevented, that he is estopped from using such title, because, when he acquired this title in 1861, he was in possession as tenant in common with plaintiff. We do not think he was really so in possession. The plain
We think the judgment and order should be affirmed, and it is so ordered.
Myrick, J., Morrison, C. J., and Sharpstein, J., concurred.