Klumpke

The action was brought to quiet title to a tract of land in San Mateo County and, at the trial, on motion of plaintiff, was dismissed as to all the defendants except Barclay Henley who, in accordance with his claim, was found by the court to be the owner of an undivided one-third of the property. The principles of law applied by the trial court and upon which respondent relies are, as substantially stated by him, the following: First: The plaintiff must rely exclusively on the strength of his own title and not on the weakness of that of his adversary. Or, as is stated in Shroder v. Aden etc. Co., *Page 37 144 Cal. 628 , [ 78 P. 20 ]: "This is in the nature of a suit to quiet title and in such a case the plaintiff must obtain judgment on the strength of his own title, and if it be shown he has no title, it becomes immaterial to inquire into the defendant's rights." Second: Each party is an actor in the suit, a cross-complaint being unnecessary, and a decree quieting his title is awarded to the one establishing his case. ( Wilson v. Madison, 55 Cal. 5 ; Miller v. Luco, 80 Cal. 257 , [ 22 P. 195 ].) Third: The status of cotenancy like other conditions is subject to the presumption…

The petition for a transfer of the cause to this court after hearing and determination in the district court of appeal for the third appellate district is denied. The affirmance of the judgment and order appealed from may properly rest on the following positions stated in the opinion of the district court: 1. That Henley had shown himself to be the owner of an undivided one-third interest in the premises; and, 2. That the plaintiff had failed to show, as against Henley, the acquisition of that one-third interest by prescription or otherwise. The opinion goes further, however, and declares that even if Henley had not acquired title by a valid foreclosure, the plaintiff would be required to pay the mortgage debt as a condition to having his title quieted against the outlawed mortgage. The doctrine invoked is well settled ( Burns v. Hiatt, 149 Cal. 617 , [ 117 Am. St. Rep. 157 , 87 P. 196 ], and cases cited), but it has no application to a plaintiff who is not the original mortgagor and does not claim under such mortgagor. ( Marshutz v. Seltzor, 5 Cal.App. 140 , [ 89 P. 877 ].) This is the position of the plaintiff here. He does not assert title as successor to William C. Moreno or…