[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]          Rehearing (Denied, Granted) 50 Cal. 376 at 382.

         Appeal from the District Court, Third Judicial District, County of Santa Clara.

         The rancho Rincon de los Esteros, granted by the Mexican nation to Domingo Alviso, was, after his decease, confirmed to his children, Rafael, Estefana, Maria de Jesus, and Magdalena. On the 19th day of January, 1863, said children, and James Lick, and William Welch, owned, as tenants in common, the southerly half of the rancho. Madeline Pacheco, the mother and guardian of the children, on the 1st day of August, 1854, conveyed to defendants Deray and Michelot, a tract of land, being part of the rancho, described as bounded on the southwest by the road leading from San Jose to Alviso, in length forth rods; thence lying northeast, a square plot, measuring on each of the four sides forty rods, and containing ten acres. The children were then minors. The grantees entered into possession under the deed, and planted the tract to grapevines, and improved, as stated in the opinion. In 1862 the road mentioned in the deed was vacated, and a new road laid out from San Jose to Alviso, leading across the vineyard, about sixteen rods easterly from the old road. Soonafter the change of roads, Deray, who had acquired Michelot's interest, was advised that his title was not good, and applied to Rafael and Estefana, who had attained their majority, to sell him the tract which he occupied as a vineyard. They agreed to do so, and, on the 19th day of January 1863, gave him the conveyance mentioned in the opinion. This deed recited a consideration of four hundred dollars, and " granted, bargained and sold, conveyed and confirmed" to Deray " all of their right, title, claim, interest and demand in and to" the land described in the deed. The plaintiff Estefana Wade, was the wife of the plaintiff Charles, and the same person as Estefana Alviso. The deed of the tenants in common to Wright recited that they were tenants in common, and that they had agreed to partition, and that it was made to effect the partition, and that the land was conveyed to Wright in trust to convey to each of the co-tenants the tract which had been allotted to him by the agreement to partition. This deed was dated the 26th day of October, 1865. The final survey of the rancho had been approved, but no patent had issued by the United States. The court rendered judgment for the defendants, and the plaintiff appealed.

         COUNSEL

         By the deeds to Wright, and from Wright to Estefana, she acquired all the estate in the land not conveyed to Deray by her previous deed to him. In the old deeds of partition, it was merely agreed that one should enjoy only a particular part, but now parties convey to each other the different estates which they take in severalty. (Cruise's Dig., Title 32, Ch. 6, Sec. 14.)

         The conveyance made by Estefana and Rafael to Deray was a mere release of their interest, and he became a tenant in common with the other owners. The subsequent conveyance to her by Wright vested her with the interest of the other tenants in common, which right she has not parted with.