Center

I adhere to my opinion formerly given in this case. If the full case were before us, I would concur in the opinion of Justice McKinstry. I say this upon a full examination of all the points discussed by him.

On December 30, 1884, the following opinion was rendered in Bank:

Thornton, J. J.—This action was brought to annul a patent purporting to have been issued by the State of California to W. F. Montgomery and others, and their associates and assigns, and to declare the claims of defendants invalid. It is averred in the complaint that the patent was issued without authority of law, and is a cloud on the title of the state. The action was commenced on the 4th of December, 1875, against John Center, J ames T. Boyd, W. F. Montgomery, F. O. Carter, W. Bryant, F. W. Sampson, and fifty-seven other defendants, the latter being sued by fictitious names. There were several demurrers to *568 the complaint, all of which were overruled. Answers were then filed by defendants Center, Boyd, Bryant, Carter and others, by which issues were joined on most of the material allegations of the complaint. These answers were filed prior to March 20, 1878.

Subsequent to the commencement of the action,…

The action was treated by the court below as an action “to quiet title,” under section 738 of the Code of Civil Procedure, and may properly be said to be such an action. The absolute ownership of the lands by the plaintiff is averred, and it is alleged that the defendants claim rights under the acts of the legislature, and a certain instrument purporting to be a patent, which are mentioned in the complaint. Besides the prayer for general relief, there is a special prayer that defendants be summoned to answer the premises, and that the court decree to be invalid all claims of defendants under or by virtue of the alleged legislative grant or patent.

Section 254 of the act known as the practice act, reads :

Under that section the owner in possession, on knowledge of the assertion of an adverse claim, could require the nature and character of the adverse estate or interest “ to be produced, exposed, and judicially determined.” (Curtis v. Sutter, 15 Cal. 263 .) “ There was no difficulty in so conducting a suit, under the statute, as fully to protect the legal rights of the parties, and at the same time to secure the beneficial result afforded by a court of equity in bills of…