Allen

—This action is prosecuted by the plaintiff against a large number of defendants, including one R. C. De Boom, to quiet its title to a large tract of land, being part of the Rincon de las Salinas, or Bernal Rancho, situated in the city and county of San Francisco. .

De Boom alone answered, and after denying the material allegations of the complaint, alleged that he is the owner in fee, and in the possession and entitled to the possession, of a large number of lots and blocks, being a portion of the land described in the complaint, and after describing the portion so owned and possessed by him, alleged “that said plaintiff, as defendant is informed and believes, and accordingly alleges, claims an estate or interest in the lands described, adverse to said defendant; and this defendant alleges that the claim of said plaintiff is without any right whatever, and that said plaintiff has no estate, right, title, or interest in or to said lands, or any part thereof”; and after praying that plaintiff take nothing by its complaint, prayed “that it be ordered, adjudged, and decreed that this defendant is the owner in fee and entitled to the possession of the land hereinbefore described, and…

dissenting.—I am unable to concur with my associates in the conclusion they have reached. If the issues tendered by the plaintiff had been tried, and found in favor of the defendant, and judgment entered accordingly, defendant would have had all the relief which he could get under the allegations of his answer. The judgment in either case would have been only an estoppel, and would, as a matter, of fact, have amounted to nothing more, even though, in terms, it had declared the defendant to be the owner. In either view it would have settled the question of title as between the parties, and could have had no further effect. Affirmative relief means relief which the defendant would not get by a judgment that plaintiff’s allegations are all untrue. The answer shows that defendant is in possession of the demanded premises. In other words, the action, under our decisions, is really ejectment. A judgment for defendant would constitute a perpetual bar, and the so-called affirmative relief would be nothing more or other.

I am utterly at a loss to comprehend how the fact that the plaintiff might desire to dismiss the action—and if he does, the cloud would remain on defendant’s title—can…