De Uprey v. De Uprey

Citations

• 27 Cal. 329

Syllabus

<p>Complaint in Partition. — In a complaint to obtain partition of land, a general allegation that “the premises cannot be divided by metes and bounds without prejudice,” is sufficient, without an allegation of the facts upon which the plaintiff relies, to obtain a particular mode of partition.</p> <p>Same.—A complaint in partition is good which is silent upon the subject of the mode of partition.</p> <p>Parties to Suit for Partition.—A married woman whose husband is sued in partition is a necessary party if she claims a homestead right to or an interest in the property in dispute.</p> <p>Disclaimer in Partition.—In an action of partition, a defendant cannot claim that the action be dismissed as to him, on the ground that his answer disclaims any interest in the land, unless he has made the disclaimer in absolute and unconditional terms.</p> <p>Disclaimer should be Absolute.—An answer which disclaims all interest in the land in dispute, except such as the defendant may have under the homestead law, hy virtue of the dedication of the land to homestead uses hy himself and his wife, is not a disclaimer.</p> <p>What mat be tried in Partition.—Under our practice, any question affecting the right of the plaintiff to a partition, or the rights of each and all of the parties in the land, may be put in issue, tried, and determined in such action.</p> <p>Answer in Partition.—A defendant in partition is not entitled to have the action dismissed by reason of the force and effect of any defense which he may set up in his answer.</p> <p>Facts to be found in Partition.—In an action for partition, if the Court finds that the parties hold and are in ¡possession of real property, as joint tenants or as tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, the partition should be made, although the findings may also show that the plaintiff, in his complaint, has incorrectly set forth the title or interest of the parties, or