OWEN TULLY, Appellant, v. JOHN TULLY, Respondent, 71 Cal. 338

Thornton, J. This is an action of ejectment to recover a parcel of land in Santa Clara County. When the first purchase was made, in 1856, the whole purchase-money (nine hundred dollars) was paid by the defendant, John Tully. Under this purchase, John Tully took and received from hie vendor and grantor the exclusive possession of the land in suit. In pursuance of this purchase, the deed was made by procurement of John Tully to the plaintiff, Owen Tully, and himself. Under this purchase of 1856, no title whatever was acquired.

The land bought was at that time supposed,both by John Tully and his grantor, to be public land. This was not so. The land was part of a Mexican grant formerly made to Antonio Chaboya, to whom a patent including the premises was regularly issued by the United States in November, 1858. In February, 1861, John Tully acquired by a proper conveyance the true title to this land from the vendees of Chaboya, paying from his own funds therefor the sum of four thousand four hundred dollars. The history of the possession is correctly given in a dissenting opinion herein drawn up by Justice McKee.

It appears that John Tully has been in the exclusive possession of. this land, claiming the same as his own for about twenty-four years prior to the commencement of this suit;, and since the purchase of the true title in 1561, plaintiff has never offered to pay to defendant any portion of said sum of four thousand four hundred dollars, and has never requested defendant to convey to him any portion or interest in the premises nor has he ever attempted or offered to enter into possession of this land, or claim any right to the possession thereof, until one year next before the commencement of this action.

In this action, which is ejectment, the paramount legal title usually prevails. This legal title is with defendant, and must prevail, unless the defendant is prevented by law from availing himself of it. It is urged on behalf of plaintiff that he is so prevented, that he is estopped from using such title, because, when he acquired this title in 1861, he was in possession as tenant in common with plaintiff. We do not think he was really so in possession. The plaintiff, though apparently tenant in common, really was not.

He was a mere trustee of defendant for such title as was acquired by the purchase and conveyance made in 1856. The defendant, as appears from the above statement, paid the whole, purchase-money upon the purchase of 1856, and caused the deed thereon to be made to plaintiff and himself. The plaintiff’s tenancy in common amounted only to holding the legal title in trust for defendant, which title the defendant had the undoubted right, when he made the purchase in 1861 and received a conveyance thereunder, to have had conveyed to him by plaintiff.

Plaintiff, being a mere naked trustee for defendant, would not, in offering to pay one half of the purchase-money under the purchase of 1861, be entitled to have any portion of the true title then purchased conveyed to' him. Equity would not clothe plaintiff with any such right. His being trustee for the defendant would rebut such equity. Under these circumstances, though the action is ejectment, we must hold that defendant is not estopped from availing himself of the true title to protect his possession. We think the judgment and order should be affirmed, and it is so ordered. Myrick, J., Morrison, C.

J., and Sharpstein, J., concurred.