section 325. (Ball v. Nichols, 73 Cal. 193.) The plaintiff may recover upon an equitable title. (Reynolds v. Lincoln, 71 Cal. 183; Landregan v. Peppin, 94 Cal. 466, 467; Rough v. Simmons, 65 Cal. 227; Heeser v. Miller, 77 Cal. 192; Castro v. Barry, 79 Cal. 443, 446, 447; McKinnie v. Shaffer, 74 Cal. 614.) A title acquired under the statute of limitations may be quieted. (Hayes v. Martin, 45 Cal. 559.) Possession is adverse if it is hostile to the opposite party, though it may be in subordination to the paramount proprietor. (Page v. Fowler, 28 Cal. 605; McManus v. O'Sullivan, 48 Cal. 7; Lord v. Sawyer, 57 Cal. 65.) A parol gift followed by possession in the donee and valuable improvements confers an equitable title. (Frame v. Frame, 32 W. Va. 463; Burlingame v. Rowland, 77 Cal. 315; Pomeroy's Specific Performance, sec. 130; Freeman v. Freeman, 43 N. Y. 34; 3 Am. Rep. 657; Moore v. Pierson, 6 Iowa, 279; 71 Am. Dec. 409.) A partition of realty may be made by parol, followed by exclusive possession. (Grimes v. Butts, 65 Ill. 347; Nichols v. Padfield, 77 Ill. 253; Hazen v. Barnett, 50 Mo. 506; Buzzell v. Gallagher, 28 Wis. 678.)

Stephen M. White, and Bicknell & White, for Defend

ants.

The statute of limitations does not run against the owner of a Mexican grant until the issuance of the patent. (Gardiner v. Miller, 47 Cal. 570; Hartman v. Reed, 50 Cal. 485; Anzar v. Miller, 90 Cal. 342.) An equitable title must be fully pleaded. (Waterman on Specific Performance, secs. 88, 89; Daniel v. Collins, 57 Ala. 625; Light Street Bridge Co. v. Bannon, 47 Md. 129; Jones v. Jones, 49 Tex. 683.) The remedy for breach of a parol contract of agreement is exclusively in equity. (Frame v. Frame, 32 W. Va. 463.) A parol agreement for partition creates only an equity, which must be pleaded. (Gates v. Salmon, 46 Cal. 361.) The statute of frauds prevents the enforcement of a verbal agreement of partition. (Freeman on Cotenancy and Partition, sec. 397; Den v. Longstreet, 18 N. J. L. 414; Duncan v. Sylvester, 16

Me. 388; Chenery v. Dole, 39 Me. 164; 1 Washburn on Real Property, 685; 3 Parsons on Contracts, 393; Brown on Statute of Frauds, 4th ed., sec. 71.) A parol partition, to be valid, must be followed by several possession. (Buzzell v. Gallagher, 28 Wis. 681; Lanterman v. Williams, 55 Cal. 60; Long v. Dollarhide, 24 Cal. 218.) An unexecuted parol agreement between joint proprietors is not binding, and either party may rescind the agreement. (Woodbeck v. Wilders, 18 Cal. 131.) Plaintiff's entry was permissive, and their possession not hostile. (1 Am. & Eng. Ency. of Law, sec. 19, p. 251, and note; First Nat. Bank v. Guerra, 61 Cal. 113; Frink v. Alsip, 49 Cal. 103, 105; Mauldin v. Cox, 67 Cal. 394; Brown v. Clark, 89 Cal. 202.)

GAROUTTE, J.-This action was brought to quiet title to a tract of land containing six hundred and forty acres. The complaint is in the usual form, and contains the additional allegation that plaintiff, Mrs. Tuffree, had been in the open, notorious, peaceable, continuous, and adverse possession of the tract for more than fifteen years. The answer denied the allegations of the complaint, and alleged that by a tripartite indenture, executed in 1868, between Abel Stearns and his wife, of the first part, Alfred Robinson, of the second part, and Samuel Brannan, E. F. Northam, Charles B. Polhemus, Edward Martin, and Abel Stearns, parties of the third part, they, Stearns and wife, conveyed to Robinson certain lands, including the lands here involved. The lands so conveyed were several Mexican grants, containing more than one hundred thousand acres. The deed was made to Robinson, in trust, to hold possession, and sell and convey upon such terms and in such quantities as he might see fit, with the consent of the parties of the third part.

In the findings of fact the trial court declared: "That about the time of the execution of the indenture the beneficiaries (parties of the third part) did enter into a verbal agreement that they would each select a section

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า

from among the lands, and that these selections so made should be owned by the persons selecting in severalty, their object being to demonstrate, by planting and cultivating, the productiveness of the soil." The court further found that under such agreement Polhemus made a selection of the land here in dispute; that this selection was made in the year 1872, and Polhemus verbally stated to his daughter, plaintiff Tuffree, that he gave her the land; and she, relying upon such statements and representations, with his consent and approval, took possession thereof with her husband, cultivated and improved the same, and has been living thereon since that time. The court further found that neither Robinson nor any of the parties of the third part, except Polhemus, knew that Mrs. Tuffree was holding and claiming the land under the gift from Polhemus, nor did they know that Polhemus had selected this particular land under the agreement aforesaid. At this time Polhemus owned one-fourth of all the land conveyed to the trustee, Robinson. During all the time since 1872 plaintiffs have cultivated the land, and have made improvements thereon to the value of seven thousand dollars, with the knowledge of the trustee and the parties of the third part; and during said time plaintiff, Mrs. Tuffree, has claimed said land, and asserted that she owned the same under an agreement with her said father, Polhemus. The court further found: "That the trustee had paid the taxes, and the premises constituted a portion of a Mexican grant, and that a patent therefor had issued on the 21st of May, 1877."

As conclusions of law the court declared that there was an executed parol gift from Polhemus to Mrs. Tuffree, and that such gift vested in her all the title to said property held by Polhemus, but not the title of his cotenants. The court also concluded that there was no executed parol partition of the lands, nor any part of them, and that the plaintiffs were entitled to judgment against Polhemus, and that the defendants, other than Polhemus, were entitled to judgment against the plain

tiffs. Both parties appeal from the judgment, so far as it is against them, and also from an order denying their respective motions for a new trial; and cross-appeals are now before us as upon the one transcript.

1. Did the plaintiff, Mrs. Tuffree, secure title to this property by adverse possession for the requisite period? Without a consideration of the evidence as to the character of her possession, we are prepared to say that she has not shown herself to be in a position to successfully plead the statute of limitations. This land constituted a portion of a Mexican grant, a patent to which was not issued until May 21, 1877. The statute of limitations did not commence to run until the date of the patent. (Anzar v. Miller, 90 Cal. 342.) In some of the earlier cases it has been intimated that possibly the statute might run before confirmation and issuance of patent, where a "perfect grant" existed; but, when invoking the statute of limitations, it would seem to be somewhat of a misnomer to term any Mexican grant a "perfect grant" until confirmed by commission or court, and a patent issued upon such confirmation. Especially would this seem to be so in view of Botiller v. Dominguez, 130 U. S. 238, where it is held that every grant, however perfect, must be submitted to and confirmed by the proper authorities before any valid title vests. But in this case, if the principle were otherwise, Mrs. Tuffree would not be benefited; for the burden would still be upon her to show the existence of a "perfect grant" prior to the issuance of the patent, and this she has not attempted to do. Since the issuance of the patent she has not obtained title by adverse possession, for she has paid no taxes upon the land. Neither does it appear that Polhemus paid the taxes for her benefit, or at all; for the court has found that Robinson, the trustee, paid the taxes. As an element in the creation of her title, it was all-important that she should have paid the taxes. This she has not done, nor does the fact that Polhemus promised to pay them for her, extricate her from the difficulty. Polhemus is one of the parties against whom

she is invoking the statute, and she certainly should not have relied upon his promises. We conclude that Mrs. Tuffree has no title by virtue of the statute of limitations.

2. Defendants insist that, inasmuch as plaintiff's title is purely equitable, her remedy is an action for specific performance, and that an action to quiet title cannot be maintained; and further contend that, if this conclusion be erroneous, still under any circumstances the facts showing her equitable title should be set out by her complaint. We do not deem it necessary to determine whether or not the allegations of the complaint are sufficiently broad to justify proof of an equitable title in Mrs. Tuffree, for the evidence showing her equitable title was admitted without objection; and it is now too late to attack the sufficiency of the pleading in this particular.

3. There are cases in this state holding that the possessor of an equitable title cannot bring an action to quiet such title against the holder of the legal title (Von Drachenfels v. Doolittle, 77 Cal. 295; Nidever v. Ayers, 83 Cal. 39; Bryan v. Tormey, 84 Cal. 126; Harrigan v. Mowry, 84 Cal. 456); and this is the general doctrine. (Frost v. Spitley, 121 U. S. 552.) But, as this court in the past has had occasion to remark, section 738 of the Code of Civil Procedure is broad in its terms; it possesses no limitations or restrictions; and we see no reason why it does not vest in the holder of an equitable title the right to come before the court and have his equities declared superior to any and all opposing equities. If there are outstanding and antagonistic equities, we know of no sound policy which would deny claimants thereunder an adjudication upon them by virtue of the provisions of this section of the code. In Watson v. Sutro, 86 Cal. 500, it was held that the equitable interest was entitled to have his interest set aside in partition, and we repeat with approval what is there said as to this class of estates: "In fact, in most cases in this state the difference between equitable and

owner of an