Grant v. Murphy

Citations

• 116 Cal. 427
• 48 P. 481
• 1897 Cal. LEXIS 566

Syllabus

<p>Partition—Interlocutory Decree—Sale—Interest of Deceased Co-tenant—Contest of Heirs in Probate Court.—As a general rule, all the parties in an action for partition are actors, and each party may set up in his pleadings his interest in the premises and have it ascertained and adjudicated, and such adjudication must appear in the interlocutory decree, in order to its validity, whether there is to he a strict partition, or the case is one where the premises cannot be divided and must be sold; but where the heirs of a deceased cotenant are contesting his estate in the probate court, which cannot be ousted of jurisdiction of such contest, and the interest of the deceased cotenant has been definitely ascertained, and the premises must be sold in order to effect a just division, it is proper to make a decree of sale, leaving the rights of the contesting claimants to be determined in the court having jurisdiction thereof, and such decree is warranted by the general law of partition, and not violative of any provision of the code.</p> <p>Id.—Construction of Code— Jurisdiction—Determination of Hostile Claims.—Sections 759 and 774 of the Code of Civil Procedure, so far as applying to the determination by the court of questions of title, as between hostile claimants to any share or parcel, or to the proceeds of the sale thereof, are to be construed as limited to the determination of issues over which the court in which the partition proceedings are pending has jurisdiction, and not as applicable to the determination of hostile claims to the estate of a deceased cotenant, over which the probate court has exclusive jurisdiction.</p> <p>Decisions—General Expressions—Limitation to Pacts and Questions Involved.—General expressions employed in the decision of a particular case are to be taken as pertinent to the facts then before the court and the questions there involved, and not as applicable to and determinative of a question not then in contemplation.</p>