Caldwell

This is an appeal by plaintiff from a judgment and order denying a new trial. The action is ostensibly an action for partition, but in reality, so far as the defendant-respondents are concerned, it is an action to quiet title, and the sole issue in the action as 'between the plaintiff and these defendants is as to the title of the property in question.

• The facts are as follows: The Regents of the University of California purchased‘the property in question at a foreclosure sale made under a foreclosure decree in a foreclosure action wherein the mortgagor was served with summons, appeared, and answered. No appeal was taken, and upon the period of redemption expiring the Regents took possession of the property, fenced it, and ever since have had possession. Just two days before the expiration of five years from the date of the foreclosure sale the mortgagor quitclaimed the property to the plaintiff, who, on the last day of the five years filed a complaint against the Regents to quiet title. The plaintiff never served summons in this action to quiet title, and after about twenty months it was dismissed for want of prosecution. The plaintiff appealed from the order of dismissal and…