W. S. ROSECRANS v. F. H. ELLSWORTH, 52 Cal. 509

The Court erred in not striking out the petition of intervention. The practice of intervention pertains only to causes in equity, and not to actions at law. It is intended to supply the place of the ancient chancery practice, by means of which all persons interested in the subject-matter of the suit could be brought before the Court, and their interests adjudicated. * Indeed, it is impossible to conceive a case where the action only involves the strict legal title to a chose in action, a chattel, or a tract of land, in which an intervention would be proper. The reason is obvious.

If one who ought to have been made a party in such action has not been, the plaintiff suffers the consequences in failing to obtain the judgment he expected. Or he may amend and make such person a party, and in any event the-judgment of the Court cannot bind the person seeking to intervene. It is true that our position has never been directly sustained by the decisions of this Court; but all of the cases in which interventions have been allowed have been equitable or gttcm-equi-' table proceedings. (Stick v. Goldner, 38 Cal. 609; Horn v. Volcano Water Company, 13 Cal. 70; Montgomery v.

Tutt, 11 Cal. 307.) V E. & F. H. Howard, for Respondent Rubio. Rubio having sold and conveyed part of the land in controversy by a warranty of title, was in the condition of an indemnifier, and could therefore intervene. (Dutill v. Pacheco, 21 Cal. 442; Stick v. Goldner, 38 Cal. 610.) Rubio had a right to intervene, because he still retained an interest in the lands alleged to have been conveyed to Rosecrans. (Horn v. Volcano Water Company, 13 Cal. 70; Greedkhold v. Harris, 24 Cal. 154.) Bremson & Eastman and Graves, for Respondent Ellsworth.

By the Court : The action is ejectment for a tract of land containing forty acres, both the plaintiff and defendant claiming title under conveyances from one Rubio; that to the plaintiff being prior in date and first recorded, and including in addition to the forty acres a further quantity of twenty acres. The twenty acres are not in controversy between the plaintiff and defendant, the latter asserting no claim of any character thereto.

But Rubio filed an intervention setting up title to the twenty acres adversely to the plaintiff, and praying that his title be quieted as against him, and that his deed to the plaintiff be adjudged to be null and void. Waiving the question whether in any case there can be an intervention in an action of ejectment under sec. 387 of the Code of Civil Procedure, it is quite clear that Rubio does not bring himself within its terms. It provides that any person may intervene “ who has an interest in the matter in litigation, in the •success of. either of the parties, or an interest against both.

An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, •either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant.” The matter in litigation between the plaintiff and defendant was the forty acres, in which Rubio had no interest whatever and to which he asserts no claim •as against either. ■ It is contended, however, that by reason of the quitclaim •deed from Rubio to Gibson, and the covenant executed at the •same time, and of the deed from Gibson to the defendant, accompanied by a covenant to him to pay a sum of money if he •should be evicted from said premises by process of law, Rubio had an interest in common with the defendant to defeat a recovery by the plaintiff, and was therefore entitled to intervene.

But .those conveyances and covenants related only to the forty acres in controversy, and had no relation whatever to the remaining twenty acres claimed by Rubio and which were not involved in the action between the plaintiff and defendant.

The covenant from Rubio to Gibson is in the nature of a penal bond, with a condition annexed, to the effect that if Rubio should thereafter acquire a title to the forty acres, and if Gibson, on or before the happening of that event, should have paid to Rubio six hundred dollars in gold coin, and if Rubio should thereupon execute and deliver to him- “ a good and sufficient conveyance and warranty deed ” of the land, then and in that event the obligation was to be void; otherwise to remain in force.

But there is no averment in the complaint of intervention, nor does it appear in proof that the six hundred dollars has ever been paid or tendered, and •non constat that it ever will be. If it be assumed that the covenant or parol bond is in legal effect a conditional covenant for further assurance, and runs with the land, yet, in the absence of any showing that the six hundred dollars has been paid or tendered, Eubio is under no obligation to convey.

The case as presented in the record before us shows no interest in Eubio in the forty acres which entitled him to intervene in respect thereto ; and the twenty acres not being involved in the litigation, it is clear he could not litigate his title to it in this action. The motion to strike out the intervention ought, therefore, to have prevailed, and the judgment in favor of Eubio cannot be supported. We discover no other error in the record.

Judgment reversed as to the intervenor Eubio, and cause remanded, with an order to the Court below to strike out the intervention, and in other respects the judgment and order denying the motion for a new trial are affirmed.