Luco

Appellant and several other plaintiffs brought this action against respondent and several other defendants for partition of a tract of land known as the rancho mission (or ex-mission) of San Diego, a patent to which issued from the United States of America to Santiago Arguello, or his legal representatives, on the first day of September, 1876. The original complaint, which was filed August 8, 1882, contained all the allegations required by chapter 4, part 2, title 10, of the Code of Civil Procedure. On December 13, 1886 (after the cause was reversed on the former appeal, 70 Cal. 339 ), plaintiffs, by leave of the court, filed an amendment to the complaint, inserting between paragraphs 21 and 22 thereof the following: “ Plaintiffs allege that the pi aim tiff Juan M. Luco owns an undivided equitable interest in the said rancho of ex-mission of San Diego by reason .that on and before the third day of February, 1869, said *411 Agustín Olvera was the owner and in possession of an undivided share or interest of more than one half of said rancho, and that on said day the said Agustín Olvera made and entered into a contract, in writing, with the said Isaac Hartman, now deceased, in the…

I dissent from the judgment, and concur in the foregoing opinion of Chief Justice Beatty.

I dissent from the judgment of reversal, and adhere to former opinion.

The following is the opinion above referred to by Mr. Justice" McFarland, rendered in Bank on the 27th of June, 1888: —

This is an action for the partition of the rancho mission (or ex-mission) of San Diego. There was originally a great many parties, both plaintiff and defendant, to the action; but as the interlocutory decree was satisfactory to all the parties except the plaintiff Luco and the defendant De Toro, it was stipulated that a final decree should be entered, with permission to said Luco and De Toro to further litigate between themselves. The case was thus ended as to all the other parties; the only question left being whether Luco or De Toro was entitled to a certain specific segregated tract of 5,053 acres of the rancho. This tract was set apart to Luco upon the theory that a commissioner’s deed to him, in pursuance of a decree of the superior court of San Francisco, passed the legal title. This decree was in an action *425 brought by- Luco against one Carlos Olvera, as executor of the estate of Agustín Olvera, deceased, to compel the execution of a deed for the land in controversy according to…

I dissent. There was nothing in the contract between Olvera and plaintiff’s assignor, Hartman, to distinguish it from any other ex-ecutory contract to sell land. A right of action to enforce specific performance of Olvera’s contract to convey accrued, if ever, upon the issuance of the patent in September, 1876, and was barred in four years. This action — as between Luco and De Toro — is, in effect, nothing more nor less than an action on that contract,—to specifically enforce it, —■ and it was not commenced until more than six years after the statute had begun to run, and two years after the bar had attached.

As to other points discussed in the opinion of the court "I express no opinion.