Chipman

The demurrer to the " equitable defense,” so called, was properly sustained.

First. If the defendant had a "perfect legal title,” he would have a defense to the ejectment at law, and need not go into equity to assert it. But the answer does not allege that Luis Peralta (from whom defendant deraigns), had “ a perfect legal title in fee,” but only that the Supreme Court of the United States had so decided in proceedings to obtain confirmation of the grant under the act of 1851, “ to ascertain and settle private land claims in California.” By *314 that act the duty was not imposed on the Commission or the United States Courts to determine the precise character of the titles presented, but to determine whether claims should be declared valid; reference being had to “the treaty of Guadalupe Hidalgo, the law of nations, the laws, usages and customs of the government from which the claim was derived,” etc. (Section 11.)

The court below found that the plaintiff Caroline is the owner in fee of an undivided half of the premises as a tenant in common with persons other than the defendant, and held that, as such tenant in common, she was entitled to the possession of the whole of the…