Mondine

pro tem.—The complaint in this action is in the ordinary form to quiet title. The defendants in their answer assert ownership of an undivided one-half of the property, and by way of cross-complaint they demand a partition thereof, or, if the same cannot be had without material injury, then that it be sold and that the proceeds be divided; they also ask for an accounting of the rents collected by plaintiffs. Plaintiffs had judgment and defendants appeal.

• The property was at one time owned by the defendant Labaig and one Bertrand Payot as cotenants. In 1902 the premises were sold for a delinquent street assessment, and Payot became the purchaser at such sale and received the tax deed therefor. The trial court expressly found, however, that this deed was void and of no effect. By his last will Payot, assuming apparently that he owned the whole property, devised the same to plaintiffs, and it was so distributed in the decree of distribution in the estate of Payot in March, 1905.

[1] In their answer to the cross-complaint plaintiffs, in attempting to allege ownership by occupancy and adverse possession, allege that such possession was “under claim of right” instead of “under claim…