Schenk v. Evoy

Citations

• 24 Cal. 104

Syllabus

<p>Description of Land in Deed.—Where a deed conveys a given quantity of land, parcel of a larger tract, and the deed fails to locate the quantity so conveyed by a sufficient description, the grantee, on the delivery of the deed, becomes interested in all the lands embraced within the larger area, as tenant in common with his grantor. The grantee has no right to locate the quantity called for by his deed on any portion of the larger area, as against the will of his grantor, unless such right is conferred upon him by some stipulation to that effect in the deed.</p> <p>Segregation of Land Sold.—Where the calls of such a deed do not identify the land with certainty, the mere fact that at the time of the delivery of the deed the grantee paid to the grantor the purchase money, raises no presumption that the grantor segregated and placed him in the possession of a particular tract as the land conveyed.</p> <p>Issue in Pleadings.—The complaint charged that on a day mentioned the plaintiffs were lawfully seized and possessed and had the right of possession of a certain tract of land, and that defendants afterwards entered into and upon the said tract, and ousted plaintiffs threrefrom. The answer in response to these allegations averred, that the defendant was not guilty of the supposed trespasses and ejectment in tho complaint mentioned, nor of any part thereof: held, that the answer raised no issue.</p> <p>Confession of allegation of Complaint.—The complaint in ejectment was filed on tho 27th of January, and averred that the defendants were in possession of the demanded premises. The answer was filed on the 8th day of February, and the only response to this averment was as follows: And “ this defendant further says, that he is not in possession of the lands and tenements described in the complaint, or any part thereof held, that the allegation of the complaint must be taken as confessed.</p>