Coryell v. Cain

Citations

• 16 Cal. 567

Syllabus

<p>A complaint in ejectment should not set out the mesne conveyances through which plaintiffs deraign title. These are matters of evidence, not of pleading, and should be stricken from the complaint, on motion.</p> <p>In this case, the complaint should only have averred that on some day designated, plaintiffs were possessed of the land, describing it; that while thus possessed, defendant entered upon the same and ousted them, and has ever since withheld the possession from them, to their damage, specifying such sum as might cover the value of the use and occupation from the date of the ouster.</p> <p>A demurrer overruled by consent of parties cannot be considered.in the Supreme Court.</p> <p>The fact that a complaint in ejectment, in addition to describing the premises by metes and bounds, also designates them as one-half of a certain pre-emption claim taken up by one Morris—from whom plaintiffs traced title—in 1850, and surveyed by the County Surveyor, and recorded in conformity with the statute, does not make it essential to plaintiffs’ recovery, as against a defendant in possession, that they should allege in their complaint, and on the trial prove such facts as will bring them within the provisions of the pre-emption laws of the United States, or the Possessory Act of this State. The designation of the property as part of a pre-emption claim does not preclude the claimants from relying upon any other source of title than the United States or the State.</p> <p>The general rule that, in ejectment, the claimant must recover upon the strength of his own title, and not upon the weakness of his adversary’s, and that his action will be defeated if defendant shows title out of him, and in a third party, has in this State been qualified and limited.</p> <p>In this State, although the larger portion of the mineral lands belong to the United States, yet defendant cannot defeat an action for mining claims; water privileges and the like, by showing the paramount title of the