
    [S. F. No. 723.
    Department Two.
    October 8, 1897.]
    ADOLPH MAYER, Appellant, v. HENRY MAYER et al., Respondents.
    PARTITION—CONVEYANCE TO DEFENDANT PENDENTE LITE—FINDING.—In an action for partition, in which the evidence showed that one of the defendants, pendente lite, had acquired all the title of the plaintiff in the land sought to be divided, a finding that the plaintiff had no right or interest in the premises is a finding of the ultimate fact proved by the deed from him, 'and is sufficient to sustain a judgment dismissing the action.
    Id.—Finding against Fraud or Undue Influence—Evidence.—A specific finding that such deed was not procured by fraud or undue influence is not necessary, where no evidence tending to show such facts was offered by the plaintiff.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge.
    
      The facts are stated in the opinion of the court.
    T. Z. Blakeman, for Appellant.
    Knight & Heggerty, George D. Collins, Walter S. Hinkle, and W. S. Goodfellow, for Respondents.
   TEMPLE, J.

This is an action for partition of certain land in San Francisco. Since the action was commenced, the defendant Henry Mayer has acquired all the right and title of the plaintiff in the premises sought to be divided. Hpon this matter the evidence is not conflicting. The court found that plaintiff is not the owner of any interest in the property, and dismissed the action, and the plaintiff appeals.

The only point in the appeal requiring notice is the contention that there is no finding as to the affirmative defense as above indicated; and, further, that the law gave plaintiff a replication, to the effect that the deed was procured by fraud and undue influence, and there is no finding upon such potential issues.

No new issue was raised by pleading the conveyance from the plaintiff, and the only occasion for specially pleading it arose from the fact that it is new matter occurring after the commencement of the action.

The finding that plaintiff has no right or interest in the premises is a finding of the ultimate fact proven by the deed.

Plaintiff put in no evidence tending to show fraud or undue influence, therefore no findings were required upon these possible issues. The law gives plaintiff the benefit of all possible replications if he wishes to avail himself of them. If he does not avail himself of the privilege they are waived; and neither the court nor the defendant need concern themselves about them.

The judgment is affirmed.

McFarland, J., and Henshaw, J., concurred.  