Simmons

For a proper understanding of the controverted questions involved in the case it is deemed advisable to make a somewhat extended statement of the pleadings and proceedings presented by the record. In doing so no substantial departure is made from the admirable recital contained in the brief of the learned counsel for appellant.

The action was brought for the partition between plaintiff and the Rowe estate of certain real estate in San Francisco and also to have it decreed that appellant “has no equitable title to any interest or share in or of said real estate or any portion thereof,” and to require him “to make, execute and deliver any conveyance that may be necessary to properly perfect the title thereto of said plaintiff and said estate of Wm. B. Rowe, Deceased.”

The lower court found in favor of plaintiff and the Rowe estate and made its interlocutory decree accordingly. From this, and from the order denying his motion for new trial, Philip Simmons, who was adjudged to have no interest in the property, has appealed.

The complaint, in appropriate phraseology, alleges that on and prior to February 20, 1868, the plaintiff, Alonzo R. Simmons, and William B. Rowe and Joseph…