Geary

Plaintiff brought this action seeking to partition three parcels of real property. The lower court entered a judgment of dismissal upon the ground that the action could not be maintained under the provisions of section 752 of the Code of Civil Procedure by the plaintiff, a remainderman out of possession, while the holder of tlie life estate was in possession. Plaintiff appeals upon the judgment-roll.

The action is one for the partition of three parcels of real property in Monterey County, containing more than ten thousand acres of land, possession of all of which, as alleged in the complaint, is held by the defendant Josefa Boronda de Espinosa as life tenant. The entire remainder in fee is held by the plaintiff and fifteen of the defendants, as tenants in common, subject to certain leases and mortgages of individual interests of certain of the remaindermen in the property.

A general and special demurrer to the complaint was interposed by one of the defendants and overruled. Thereupon the life tenant and all of the defendant remaindermen answered. The answer of the holder of the life estate, Mrs. Espinosa, alleges her ownership in fee simple of thirty acres of the property, but…