Watson

— I dissent. The deed executed in quadruplicate in April, 1870, by Watson, Sullivan, and the Davis heirs contains a distinct declaration, —a solemn admission by Watson that Sullivan was at that time the owner of the equitable interest here in controversy. The conduct of Watson and of all parties to these transactions was for many years consistent with that declaration, and inconsistent with any serious claim of ownership on the part of Watson. The holder of the legal title, with knowledge of that admission, bought in the equity and transferred both to Sutro.

I do not think that Watson should now be heard to deny the truth of a solemn admission upon which others have acted.

*505 The following is the opinion above referred to, rendered in Bank on the 7th of June, 1890:—

Thornton, J.— On the twelfth day of January, 1870, John H. Baird, the plaintiff, W. C. Watson, E. L. Sullivan, and nine other persons, tenants in common of the tract hereinafter mentioned, conveyed to David W. Connolly, by deed bearing date the day just named, a certain parcel of land situate in the city and county of San Francisco, known as the Byfield tract. The consideration named in the deed was one dollar. It…

have heard this case the second time, and upon a further examination of the record and the briefs of counsel, we feel constrained to adhere to the reasoning of the former opinion and the conclusion therein reached.

The order appealed from is therefore affirmed.

McFarland, J., and Fox, J., dissented.

—I concur. An equitable estate may be one of inheritance. If so, and the title is one under which the party holding it is entitled to possession, I am of the opinion that he may maintain an. action for. partition.

I dissent. I do not think that under section 752 of the Code of Civil Procedure an action for the partition of land can be maintained by one who has not title, but has a mere asserted right to compel some one who has title to convey it to the plaintiff. He should establish his claim against the one whom he asserts to be his trustee, and settle accounts with him, before bringing the other co-tenants into litigation; at least he should be able to aver that he has *531 title to an estate of inheritance, for life or for years, in the land. And title within the meaning of the said section of the code is, “ the means whereby one holds that which he hath,” not the right to get that which he hath not. And it has never been held by this court, to my knowledge, that such an action can be maintained. To allow it would be to invite complicated and unnecessary confusion. Of course, when the owner of an undivided estate rightfully commences an action for partition, all persons claiming liens or equitable rights on or in the estates of other co-tenants are properly made-defendants from necessity. Otherwise, one tenant in common, by keeping his share covered by liens and trusts, could deprive his…