[198] tion in any after *litigation. If it does no good in the complaint, it certainly cannot harm it. And it may be found of benefit in future litigation. At the worst, it can, for the present, be regarded only as surplusage.

The defendants say: "Suppose the lines of the rancho should finally be settled altogether different from and so as to embrace a part only of the land partitioned in this suit?" This supposition is made in connection with the difficulty the defendants find in the partition of the rancho independently of the tract of 1,500 acres. I have but one remark to make on this subject, in addition to what I have already said, and that is, that the supposition of the defendants is wholly inadmissible. It is not supposable, in this case at least, that the lines of the rancho, or that part of the rancho sought to be partitioned, will be settled in any manner different from the lines as claimed in this suit. The question has not been raised as to the boundaries of the rancho either in the complaint, or in the answer, or at the trial, or in any part of the proceedings, until, without any basis whatever for it, the point is started by the counsel for the defendants in their argument on this appeal. It is barely necessary to suggest, that an argument based on a bare supposition is entitled to no weight. The lines and boundaries of the rancho are fixedits limits are well known and defined; so far as those limits. are concerned there is no open and unsettled question. The authorities cited by the defendants have no application, and I shall not take the trouble to review them. If we are entitled to a partition of the land in question, it is no answer to our application that we may, perhaps, at some future time ask for the partition of some other and additional tract.

John Satterlee, Horace Hawes, S. Heydenfeldt, Crockett & Crittenden, also, for Respondents. The argument of these gentlemen, as also most of that of Mr. Bennett, was addressed to points not considered in the opinion of the Court.

NORTON, J. delivered the opinion of the Court-FIELD, C. J. and COPE, J. concurring.

The deed, under which the plaintiffs claim title to the premises which they ask to have partitioned, conveys the undivided

half of the tract of land called the Rancho of San [199] Lorenzo. It also contains a provision that the grantees shall have a right to an immediate partition, and may divide the premises by a line running east and west or north and south, and upon such division shall take the west half in the one case or the north half in the other. At the time this action was brought, the boundaries of the rancho had not been definitely settled in the proceedings instituted to obtain a patent. This provision for a right to select a definite half contained in the deed, and the uncertainty of the boundary, have occasioned an embarrassment in the proceedings which will require the judgment to be reversed.

The plaintiffs state in their complaint that the United States Surveyor-General has made a survey which cuts off about 1,500 acres from the south side of the rancho, which belongs to the rancho according to the decree of confirmation made by the Board of Land Commissioners, and they ask that a partition be made of the rancho as surveyed by the United States Surveyor-General, and that the north half as so surveyed be allotted to them, excluding from the partition the said 1,500 acres, and leaving that portion to be hereafter partitioned. The decree of partition has been made as asked by the plaintiffs. The interlocutory decree did not direct a simple partition of the rancho into two equal parts, but adjudged that the plaintiffs were entitled to the nothern half pursuant to a selection made by them under the terms of the deed, and directed a partition to be made of the rancho, as surveyed by the United States Surveyor-General, by a line running east and west, and that the north half be allotted to the plaintiffs, and that the 1,500 acres be unaffected by the partition, but be left to be hereafter partitioned. The Commissioners made the partition and allotment as directed by the interlocutory decree, and the final decree is the same. It is obvious that the plaintiffs cannot claim and hold the northern half as a strict right under the deed, and at the same time have a right to a portion of the rancho to be hereafter set off to them on the extreme south side of the rancho. This does not depend upon the question whether, upon a partition of a tract of land between two parties owning each an undivided half, the portions allotted to each must in

all cases be in one body, but results from the fact that [200] in this *case the decree is based upon the right claimed by the plaintiffs to a specific part of the rancho. The Court below decided that it was bound by the provisions of the deed to set off to the plaintiffs the portion selected by them. But the provision of the deed is explicit that if the grantees elect to divide by a line running either east and west, or north and south, they must take their portion on one side and not on the other. They have elected, and the Court has decreed that they are entitled to the portion lying north of a line running east and west, and this necessarily excludes them from any portion lying south of that line.

Five briefs have been filed on behalf of the respondents by different counsel, in one of which it is said the respondents are content to take the portion allotted to them and waive any claim to the 1,500 acres, and consent that the decree be amended to that effect. Such a statement made in a brief by one of the several counsel, and not the attorney of record, and not being filed as a stipulation, would hardly authorize this Court to make a modification of the judgment. The Court has a right to modify a judgment on appeal in the respect mentioned in the notice of appeal. In this case, the appeal is from the whole judgment, and every part, but no particular portion is mentioned as specially appealed from. The plaintiffs have not appealed, and we should not be authorized to make such a modification in the decree to their prejudice. They have elected to take a certain portion of the rancho with the right to have a further portion hereafter set off to them; that is, they have asked to have the north half of so much of the rancho, as is included in the survey of the Surveyor-General, now set off to them in case they can hereafter obtain the half of the residue of the rancho. Possibly, they would not have asked or acquiesced in a decree giving them less than one-half of the entire rancho. But if we might make such a modification of the decree, there remains another objection equally fatal. The partition is not made of the rancho as described in the deed under which the plaintiffs hold, but as it has been surveyed by the United States Surveyor-General. But this survey does not appear to be a final survey. It is, therefore, not binding upon the parties to this

action. It may be probable that either this survey will become final or that some other survey *will carry [201] the boundary further south and embrace more land, and that hence, the defendants will not be injured but may be benefited by allowing the present partition to stand, but it is possible the ultimate survey and patent may fix the southern boundary still further north; in that event, the defendants would by this partition be deprived of a portion to which they are entitled-that is, a line dividing the rancho into equal parts as its bounds may ultimately be fixed would run north of the line now fixed. There is no authority for the plaintiffs or the Court to take notice of and make partitition according to that survey. Either a partition should be delayed until the survey becomes final or the patent issues, or it should be made according to the boundaries, as they may be ascertained in this proceeding, from the description given in the grant to DeSoto.

Many other objections have been taken in this case, as well to the sufficiency of the allegations of the complaint as to the title of the plaintiffs, depending upon the construction of the will of DeSoto. The conclusion we have arrived at on the point we have been considering has obviated the necessity of deciding upon those other objections, and we deem it appropriate, on account of the importance of some of them, to say that no inference is to be drawn as to our opinion in regard to them from our not having noticed them in this opinion.

The judgment is reversed, and the cause remanded for further proceedings.

On application by appellants for a modification of the opinion, NORTON, J. delivered the opinion of the CourtFIELD, C. J, concurring

We are asked to modify our opinion in this case so far as it "confers or may be construed to confer on the Court below any power or authority to ascertain or settle, for the purposes of this partition, the boundaries or extent of the San Lorenzo Rancho."

No modification of the opinion is necessary. The situation of lands in this State is rendered peculiar by the necessity of having patents issued by the United States for all tracts held

by private owners and the uncertainty that must in [202] the meantime exist as to the exact boundaries as they may be ultimately fixed in the patent. If any objection to the making of a partition exists in any case on this account, it should be presented in the answer and the necessary facts set forth, whereupon the Court could determine the necessity and its authority to dismiss the complaint or to stay proceedings until the boundaries should be settled by the proceedings instituted to obtain the patent. In the present case, this objection was not raised to proceeding in the action, and the fact that there were any proceedings pending for a patent only appears incidentally. After this case is returned to the Court below, either party will have an opportunity to apply to that Court for leave to amend the pleadings, or by a petition to present the necessary facts to show the propriety of a stay of proceedings, and if granted, then upon the boundaries becoming fixed by the proceedings before the United States tribunals, to bring the proper facts into the case by amendment or supplementary pleadings.

The application to modify the opinion is, therefore, denied.

TOUCHARD et al. v. KEYES.

EXECUTOR OF COTENANT MAY UNITE IN ACTION.-Tenants in common can unite in this State by statute in an action for the possession of real property, and the executor of a deceased tenant in common can unite with the cotenants of his testator in such actions.

'ALCALDE'S RECORDS.-The books of record of deeds, mortgages, and other instruments, kept by Alcaldes previous to the organization of the State Government, which were transferred to the custody of the County Recorder by the Act of April 13th, 1850, entitled "An Act concerning the Transfer of certain Records, Conveyances, and Papers," have been placed by the twenty-first section of the Act of March 26th, 1851, entitled "An Act concerning County Recorders," upon a footing with other records kept by the County Recorders; and certified copies of instruments found therein are admissible in evidence under the same circumstanos as

1 Cited as authority in Goller v. Fett, 30 Cal. 484; Reynolds v. Hosmer, 45 Cal. 631. • Commented on in Davis v. Davis, 26 Cal. 45; and in Garwood v. Hastings, 38 Cal. 219.