Burnett

This is an action to recover certain lots of land in the city of Sacramento. The defendant, Tolies, denied the general allegation of title in plaintiff, and, also, denied that he was in possession. He then, as a cross-complaint, and for the .purpose of affirmative relief, affirmatively set up title in himself, alleging that he had by certain conveyances obtained all the title which the plaintiff ever had in the lands in question; that his codefendant, Scott, was wrongfully in possession, and wrongfully withheld possession from him, and prayed for a judgment for the possession, and as against plaintiff, a judgment upon his title enjoining plaintiff from setting up any title against him, and for general relief. The cause having been tried by the court, the issues were determined in favor of the plaintiff and a judgment for possession of the premises rendered against the defendants. It is now claimed that there is no evidence tending to show that defendant, Tolies, -was in possession himself; that, as landlord, he is not a proper party, and not being personally in possession the judgment should have been in his favor. For the- purposes of this decision, it may be assumed that this…