
    [No. 11644.
    In Bank.
    October 11, 1889.]
    JAMES SMITH et al., Appellants, v. WILLIAM MATTHEWS, Executor, etc., of Henry P. Irving, Deceased, Respondent.
    Pleading — Correcting Mistake in Deed — Quieting Title. — A complaint, although insufficient for the purpose of correcting a mistake in a deed, may, if it states facts sufficient to constitute such a cause of action, be considered as a complaint to quiet title to the portion of the land erroneously included in the deed.
    Statute of Limitations—Plaintiff in Possession Claiming Ownership. — The right of a grantor to have his title quieted as to land included in a deed by mistake, as against the claim asserted by the defendant under the deed, cannot become barred while the grantor remains in the actual possession of the land, claiming to be the owner thereof, and the actual owner, as against the defendant, of all interest therein except the mere naked title.
    Appeal from a judgment of the Superior Court of Alameda County.
    The facts are stated in the opinion of the court.
    
      Mich. Mullany, Aylett R. Cotton, and W. H. II. Hart, for Appellants.
    
      William Matthews, and George Revision, for Respondent.
   Works, J.

This case was affirmed on a former hearing, and a rehearing granted. The only question in the case is as to the sufficiency of the complaint. The complaint seems to have been regarded and. treated by the parties, by the court below, and by this court on the former hearing, as one to correct a mistake in a deed conveying real estate. So treated, the complaint was clearly bad, on the grounds stated in the former opinion. But on further consideration, and by sorting out a few simple and proper allegations from a mass of irrelevant and surplus matter that never should have been in it, and which has only tended to confuse the real questions involved, and which has so far resulted in the appel¡ants’ defeat, we have concluded that while the complaint is bad as one to correct a mistake, it states facts sufficient to constitute a cause of action, to quiet title. If attorneys could be induced to plead, as required by section 426 of the Code of Civil Procedure, by stating “the facts constituting the cause of action in ordinary and concise language,” instead of loading their pleadings with a detailed history of their case and the evidence by which their cause of action is to be established, they would save themselves and the courts a great deal of unnecessary labor, materially simplify the practice, save much expense to their clients, and sometimes avoid a decision against them, because of the extreme difficulty of understanding what their cause of action is.

Looking at the evidence pleaded in this complaint, in addition to the allegations of fact, it proves, if properly detailed in the complaint, that the plaintiffs’ grantor attempted to convey certain lands to the defendant’s grantor; that by a mistake in locating one of the monuments, too much land was included in the deed; that the land thus improperly included in the deed was never taken possession of by the defendant, or any of his grantors, but has for many years, and ever since the conveyance, remained in the actual possession of the plaintiffs and their grantors. The right of the plaintiffs to have their title to the land quieted, as against a claim asserted by the defendant under this deed, was not barred, and could not.be, while the plaintiffs and their grantors remained in the actual possession of the land, claiming to be the owners thereof, and the actual owners, as against the defendant, of all interest therein except the mere naked title. (Day v. Cohn, 65 Cal. 508; Barroilhet v. Anspacher, 68 Cal. 121; Love v. Watkins, 40 Cal. 563; 6 Am. Rep. 624.) We think, therefore, that the complaint states a cause of action to quiet title. Instead of pleading the evidence, it would have been much better if counsel for appellants had set up the facts and allowed the defendant to plead the statute of limitations; hut this violation of good pleading has not rendered their complaint wholly bad. There were other objections to the complaint in the demurrer, but none of them are well taken,-, and they have not been pressed in this court.

Judgment reversed, with instructions to the court be-' low to permit the plaintiffs to amend their complaint if they so desire; but if not amended, to overrule the demurrer thereto, and proceed in accordance with this opinion.

Sharpstein, J., and Fox, J., concurred.

Beatty, 0. J., concurred in the judgment.

McFarland, J.—I dissent.

I do not think that the complaint avers that - plaintiffs have been in possession of the land in contest since the execution of the deed,, On the contrary, I think there is a marked attempt to avoid making such an averment. And that being so, it follows clearly that the alleged cause of action- was barred long before the suit was commenced. I think that the judgment should be affirmed.  