By the Court, Rhodes, C. J.:
Action to recover possession of Rancho Laguna de la Merced. The title was confirmed to the seven heirs of Francisco de Haro as tenants in common, and the plaintiffs and all the defendants who set up title, claim under them. It is conceded that the interests held by Josefa and Alonzo—one [49]*49undivided seventh, each—passed to Mahoney, and it appears that three eighths of the interest of Candelaria vested in the plaintiffs, and that the "remainder of her interest vested in the defendants, or some of them.
Prudencio conveyed his interest in the rancho—one seventh—to Mahoney, June 14th, 1860, and the déed was recorded in San Francisco, July 2d, 1862, and in San Mateo, July 3d, 1862. The rancho consists of one body of land, and is situated partly in each of those counties. Prudencio also conveyed the same interest to Pichoir—under whom some of the defendants claim—June 28th, 1862, and the deed was recorded in San Francisco on the same day, and in San Mateo, July 2d, 1862. The Court found that Pichoir, before he paid any part of the purchase money, had notice in fact of the prior conveyance to Mahoney.
Carlotta conveyed her interest—one seventh—to Mahoney, March 3d, 1860, and the deed was recorded in San Mateo, April 16th, 1860, and in San Francisco, July 2d, 1862. She also conveyed the same interest to Spear, June 28th, 1862, and the deed was recorded in San Francisco on the same day, and in San Mateo, July 2d, 1862. Some of the defendants claim under this deed. The Court found that Spear, before he paid the purchase money, had notice in fact of the prior deed to Mahoney, and had also constructive notice by means of the record of a deed in San Mateo County. The-question presented in regard to the conveyances of the interests of Prudencio and Carlotta,- being quite similar, will be considered together.
It is admitted by the defendants’ counsel, that Spear and Pichoir, in making their respective purchases and taking their conveyances, were mere trustees; that the purchases were negotiated and conveyances procured through the agency of Parsons & Thorne, and that Thorne had notice of [50]*50the prior deeds to Mahoney. Notice to Thorne, it is admitted, was notice to his principals. But it is insisted by the defendants that Wohler, who claims a portion of the interests conveyed to Spear and Piehoir, is not chargeable with the notice to Thorne, because Thorne was not his agent. Spear and Piehoir conveyed to Borel, in trust for Wohler, a certain portion of those interests, by deed dated July 14th, 1863, and the deed was recorded August 7th, 1863. The Court found, as appears from the sixteenth finding, that the defendants, except one who is named, had both actual and constructive notice of the prior conveyances to Mahoney. It will be observed that the conveyances to Mahoney, were recorded both in San Mateo and San Francisco Counties, prior to the execution of the deed to Borel. As Spear and Piehoir had notice of Mahoney’s deeds, they took no interest in the land under their deeds, and of course could not convey any interest to Borel, except by the aid of the Registry Act. Their conveyance to Borel, standing by itself, passed no title, and the only mode in which it could have been made effectual, was by recording it before the deeds of Mahoney were recorded. The accumulation in this Court of cases waiting decision, forbids the discussion, at any considerable length, of this interesting question, or a review of the authorities bearing upon it. Our conclusion is, that Borel, having purchased from Spear and Piehoir, after the deeds of Mahoney were recorded, had constructive notice of those deeds, although the deeds to Spear and Piehoir were first recorded; that because of such notice, he is not a purchaser in good faith, and that therefore the deeds to Mahoney will take precedence over the deed to Borel. (See Flynt v. Arnold, 2 Met. 619; Jackson v. Post, 15 Wend. 588; Van Rensselaer v. Clark, 17 Wend. 25. The question whether Wohler had actual notice of the conveyances to Mahoney, need not be discussed.
Was the judgment recovered by Briones and wife, against [51]*51Natividad and Paul Tissot, her husband, void? It is therein recited that “ this cause having been brought on to be heard upon the complaint of the plaintiffs, and the confession and answer of the defendants under oath filed herewith, by which it appears that there was due to the plaintiffs at the date of the commencement of said suit,” etc. The judgment contains no recital in respect to the issue or service of summons, nor does the roll contain an appearance, answer, or .demurrer on the part of the defendants. The record being silent as to the issuing and service of process, it will be presumed that process was duly issued and served on the defendants. (Hahn v. Kelly, 34 Cal. 391.) The Court having acquired jurisdiction of the defendants, as must be presumed, and there being no question as to its having had jurisdiction of the subject matter of the action, the judgment is not void.
There is as little ground to question the validity of the judgment of Palmer against Rosalia and her husband, Charles Brown, as of the judgment last mentioned. There is nothing in the judgment roll tending to prove that Rosalia was not served with process, and it will be presumed, as the defendants on this point contend, that the process'was duly served on her. There is no legal evidence in the record in this cause to justify the finding that she was not served. The plaintiffs, to show the want of service, rely on the failure of the judgment roll in that case to directly show the service; but that is manifestly insufficient and does not tend to sustain the finding. Were the finding sustained by the evidence, there is still enough in the ease to give the Court jurisdiction of Rosalia, for the appearance of herself and husband in the action, was entered by an attorney of that Court.
The judgment in that case, ordered the Lake House tract to be sold, in satisfaction of the amount found due on the mortgage. The tract was accordingly sold, and was con[52]*52veyed by the Sheriff to the purchaser. What interest passed to the purchaser by that conveyance? Throwing out of consideration any possession which Brown may have had—as it is of no moment in the controversy between the holders of the title—it is apparent that the only title which passed, was the undivided seventh of the interest in that tract, which was held by Rosalia. The purchaser took her position in respect to the tract, and until a partition shall be made, he and his assigns will hold the same right to the possession, that she would have enjoyed, had her interest therein not been sold. Whether there are any legal or equitable reasons, why Rosalia’s interest in the whole rancho, shall be set off so as to include the Lake House-tract, is a question that will not arise except on proceedings for partition; but in the meantime, the purchaser at the foreclosure sale and his assigns, succeeded only to such right of- possession as she held at the time of the sale. It appears from the evidence, that Rosalia’s interest in all the rancho, except the Lake House tract, vested in Mahoney, and that one half of her interest in the latter tract which passed at the foreclosure sale also vested in Mahoney, and the other half vested in Middleton. The decision of the Court in respect to that interest, was in accordance with the, evidence, and is correct.
There is a further question in respect to the Lake House tract, arising upon this state of fact.
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By the Court, Rhodes, C. J.:
Action to recover possession of Rancho Laguna de la Merced. The title was confirmed to the seven heirs of Francisco de Haro as tenants in common, and the plaintiffs and all the defendants who set up title, claim under them. It is conceded that the interests held by Josefa and Alonzo—one [49]*49undivided seventh, each—passed to Mahoney, and it appears that three eighths of the interest of Candelaria vested in the plaintiffs, and that the "remainder of her interest vested in the defendants, or some of them.
Prudencio conveyed his interest in the rancho—one seventh—to Mahoney, June 14th, 1860, and the déed was recorded in San Francisco, July 2d, 1862, and in San Mateo, July 3d, 1862. The rancho consists of one body of land, and is situated partly in each of those counties. Prudencio also conveyed the same interest to Pichoir—under whom some of the defendants claim—June 28th, 1862, and the deed was recorded in San Francisco on the same day, and in San Mateo, July 2d, 1862. The Court found that Pichoir, before he paid any part of the purchase money, had notice in fact of the prior conveyance to Mahoney.
Carlotta conveyed her interest—one seventh—to Mahoney, March 3d, 1860, and the deed was recorded in San Mateo, April 16th, 1860, and in San Francisco, July 2d, 1862. She also conveyed the same interest to Spear, June 28th, 1862, and the deed was recorded in San Francisco on the same day, and in San Mateo, July 2d, 1862. Some of the defendants claim under this deed. The Court found that Spear, before he paid the purchase money, had notice in fact of the prior deed to Mahoney, and had also constructive notice by means of the record of a deed in San Mateo County. The-question presented in regard to the conveyances of the interests of Prudencio and Carlotta,- being quite similar, will be considered together.
It is admitted by the defendants’ counsel, that Spear and Pichoir, in making their respective purchases and taking their conveyances, were mere trustees; that the purchases were negotiated and conveyances procured through the agency of Parsons & Thorne, and that Thorne had notice of [50]*50the prior deeds to Mahoney. Notice to Thorne, it is admitted, was notice to his principals. But it is insisted by the defendants that Wohler, who claims a portion of the interests conveyed to Spear and Piehoir, is not chargeable with the notice to Thorne, because Thorne was not his agent. Spear and Piehoir conveyed to Borel, in trust for Wohler, a certain portion of those interests, by deed dated July 14th, 1863, and the deed was recorded August 7th, 1863. The Court found, as appears from the sixteenth finding, that the defendants, except one who is named, had both actual and constructive notice of the prior conveyances to Mahoney. It will be observed that the conveyances to Mahoney, were recorded both in San Mateo and San Francisco Counties, prior to the execution of the deed to Borel. As Spear and Piehoir had notice of Mahoney’s deeds, they took no interest in the land under their deeds, and of course could not convey any interest to Borel, except by the aid of the Registry Act. Their conveyance to Borel, standing by itself, passed no title, and the only mode in which it could have been made effectual, was by recording it before the deeds of Mahoney were recorded. The accumulation in this Court of cases waiting decision, forbids the discussion, at any considerable length, of this interesting question, or a review of the authorities bearing upon it. Our conclusion is, that Borel, having purchased from Spear and Piehoir, after the deeds of Mahoney were recorded, had constructive notice of those deeds, although the deeds to Spear and Piehoir were first recorded; that because of such notice, he is not a purchaser in good faith, and that therefore the deeds to Mahoney will take precedence over the deed to Borel. (See Flynt v. Arnold, 2 Met. 619; Jackson v. Post, 15 Wend. 588; Van Rensselaer v. Clark, 17 Wend. 25. The question whether Wohler had actual notice of the conveyances to Mahoney, need not be discussed.
Was the judgment recovered by Briones and wife, against [51]*51Natividad and Paul Tissot, her husband, void? It is therein recited that “ this cause having been brought on to be heard upon the complaint of the plaintiffs, and the confession and answer of the defendants under oath filed herewith, by which it appears that there was due to the plaintiffs at the date of the commencement of said suit,” etc. The judgment contains no recital in respect to the issue or service of summons, nor does the roll contain an appearance, answer, or .demurrer on the part of the defendants. The record being silent as to the issuing and service of process, it will be presumed that process was duly issued and served on the defendants. (Hahn v. Kelly, 34 Cal. 391.) The Court having acquired jurisdiction of the defendants, as must be presumed, and there being no question as to its having had jurisdiction of the subject matter of the action, the judgment is not void.
There is as little ground to question the validity of the judgment of Palmer against Rosalia and her husband, Charles Brown, as of the judgment last mentioned. There is nothing in the judgment roll tending to prove that Rosalia was not served with process, and it will be presumed, as the defendants on this point contend, that the process'was duly served on her. There is no legal evidence in the record in this cause to justify the finding that she was not served. The plaintiffs, to show the want of service, rely on the failure of the judgment roll in that case to directly show the service; but that is manifestly insufficient and does not tend to sustain the finding. Were the finding sustained by the evidence, there is still enough in the ease to give the Court jurisdiction of Rosalia, for the appearance of herself and husband in the action, was entered by an attorney of that Court.
The judgment in that case, ordered the Lake House tract to be sold, in satisfaction of the amount found due on the mortgage. The tract was accordingly sold, and was con[52]*52veyed by the Sheriff to the purchaser. What interest passed to the purchaser by that conveyance? Throwing out of consideration any possession which Brown may have had—as it is of no moment in the controversy between the holders of the title—it is apparent that the only title which passed, was the undivided seventh of the interest in that tract, which was held by Rosalia. The purchaser took her position in respect to the tract, and until a partition shall be made, he and his assigns will hold the same right to the possession, that she would have enjoyed, had her interest therein not been sold. Whether there are any legal or equitable reasons, why Rosalia’s interest in the whole rancho, shall be set off so as to include the Lake House-tract, is a question that will not arise except on proceedings for partition; but in the meantime, the purchaser at the foreclosure sale and his assigns, succeeded only to such right of- possession as she held at the time of the sale. It appears from the evidence, that Rosalia’s interest in all the rancho, except the Lake House tract, vested in Mahoney, and that one half of her interest in the latter tract which passed at the foreclosure sale also vested in Mahoney, and the other half vested in Middleton. The decision of the Court in respect to that interest, was in accordance with the, evidence, and is correct.
There is a further question in respect to the Lake House tract, arising upon this state of fact. While Middleton was the owner of the interest which passed at the foreclosure sale, he conveyed a specific parcel of the land to Daniel Green. Subsequently Le Roy, claiming one undivided seventh of the entire rancho, commenced an action of ejectment against Green and others, to recover the possession of the rancho. It was adjudged in the action, that he was the owner of one seventh of the rancho; and he had judgment for the possession of the same against Green and other defendants. After the recovery of the judgment, Le Roy conveyed all Ms interest in the rancho to Mahoney. The [53]*53interest which Green took under the deed, was the undivided seventh of the parcel described in the deed—that is to say, the title thereto which Rosalia held previous to the foreclosure sale. The judgment rendered against him, while he was thus the owner of the one seventh of the specific parcel described in the deed, operated by way of estoppel, so as to preclude him from setting up such title against Le Roy or his privies in estate. A judgment in ejectment, does not transfer to the successful party, the title of the adverse party, but if presented in the proper mode, whenever such adverse title is drawn in issue, it shuts out all proof of such adverse title. Its effect bears a closer resemblance to an extinguishment, than a transfer of the adverse title. The judgment awards the possession to the prevailing party, because he had title at the commencement of the action, and because the losing party had no title, or not such title as would authorize him to withhold the possession; but it neither directly nor indirectly transfers the title. The conveyance of Le Roy' to Mahoney passed to the latter only such interest as Le Roy had before the commencement of that action; and Mahoney, by virtue of the privity in estate thus created, can avail himself of the judgment of Le Roy against Green, as a bar or by way of estoppel, as the case may require, whenever the title of Green is set up against him.
Borel was not shown to be in possession of any portion of the rancho. It has been held, from an early date, in this State, that ejectment cannot be maintained against a person who is not in possession. (Dutton v. Warschauer, 21 Cal. 609; Hawkins v. Reichart, 28 Cal. 534; Dimick v. Derringer, 32 Cal. 488.) The judgment, therefore, as to him, is erroneous.
The defendants complain of the findings and judgment, because they determine the amount of interest held by the plaintiffs, and they say that this course was both unnecessary and improper. The plaintiffs would be entitled to a recov[54]*54ery—so far as it depended on the issue of title—upon a finding, that they held an interest in common with others in the premises. But it is not improper to find the extent of such interest. The parties may be tenants in common, and if such be the fact, they are entitled to the rents and profits in proportion to their respective interests in the premises; and in order to determine their rights in that respect, when the plaintiffs shall be admitted into possession with the defendants, it would not be improper to determine the extent of their interest. In a controversy of this character, when the Court is finding whether the plaintiff has any interest in the premises, there is no reason why the Court should not find and determine the amount of such interest. But the Court in this case erred in finding the amount of Mahoney’s interest, and the length of time during which the plaintiffs had held their interests. The interest of the plaintiff, Sharp—an undivided interest of two hundred acres—was derived from Mahoney, and should be deducted from the amount of interest adjudged to be held by Mahoney. Mahoney also conveyed to Thomas I. Bergin an undivided interest of twenty acres; to John B. Felton and Benjamin S. Brooks an undivided interest of eight acres; and Susan M. Green a like interest; and to Alonzo de Haro an undivided interest of seventy acres in the rancho; and those interests should be deducted from the interest found in Mahoney.
The Court recited in the judgment, that the plaintiffs had been, for over three years next prior to the commencement of the action, the owners of the respective interests therein mentioned; but it does not appear how long before the commencement of the action Sharp acquired his interest, and it is shown that three eighths of the interest of Candelaria was conveyed to Mahoney five months before the commencement of the action, and that Le Boy conveyed his interest to Mahoney six months before the commencement of the action.
[55]*55The recovery included the whole rancho, but Mahoney testified that at the commencement of the action he was in possession of about three hundred acres of the rancho. He cannot maintain the action as to the portion of which he had -possession; nor should there be a recovery against any of the defendants, except as to the respective parcels in their possession. The error, however, in rendering judgment against a defendant, for land not in his possession, would be immaterial, were it not for the rule permitting the plaintiff to offer the judgment in evidence, in a suit for the recovery of damages and mesne profits.
Judgment as to Borel reversed, and cause remanded for a new trial.
Judgment as against the other appellants reversed and cause remanded for a new trial, unless the respondents shall, within twenty-five days after the filing of this opinion, release to the ajDpellants last mentioned, all claims for damages and rents and profits, and consent that the judgment be modified in accordance with this opinion.
Release was filed and judgment was modified. (See order of Court.)
Mr. Justice Crockett and Mr. Justice Wallace, being disqualified, did not participate in the decision of this case.