I dissent. I do not think that under section 752 of the Code of Civil Procedure an action for the partition of land can be maintained by one who has not title, but has a mere asserted right to compel some one who has title to convey it to the plaintiff. He should establish his claim against the one whom he asserts to be his trustee, and settle accounts with him, before bringing the other co-tenants into litigation; at least he should be able to aver that he has *531title to an estate of inheritance, for life or for years, in the land. And title within the meaning of the said section of the code is, “ the means whereby one holds that which he hath,” not the right to get that which he hath not. And it has never been held by this court, to my knowledge, that such an action can be maintained. To allow it would be to invite complicated and unnecessary confusion. Of course, when the owner of an undivided estate rightfully commences an action for partition, all persons claiming liens or equitable rights on or in the estates of other co-tenants are properly made-defendants from necessity. Otherwise, one tenant in common, by keeping his share covered by liens and trusts, could deprive his co-tenants of their right of partition. And to this extent only have the decisions gone.
I think, also, that, on the merits of the contest between plaintiff and the defendant Sutro, the judgment should have been for the defendant, and therefore should be reversed.