Field, C. J.
delivered the opinion of the Court—Baldwin J. and Cope, J. concurring.
This is an action of ejectment, to recover the possession of a fifty vara lot, situated in the city of San Francisco; and the facts upon which it arises may be briefly stated as follows: In 1843, Noé, the elder, received a grant of the lot from a Justice of the Peace of the jurisdiction of San Francisco. At the time Noé was intermarried with Guadalupe Garduña. In 1848, Guadalupe died, leaving six children as the issue of the marriage—. all of whom, with one exception, are still living. After her death, Noé sold the property in parcels—part in 1849, to one [596]*596Gurley, and part in 1856, to the defendant, Leon—for its full value, and executed deeds to them. Noé entered into the premises under his grant, and remained in their occupation until he gave the conveyances named, with which he delivered to the grantees possession of the parcels respectively sold to them. Leon, and the parties claiming under Gurley, compose the defendants; the plaintiffs consist of the five surviving children of Guadalupe, Noé himself, as heir of the deceased child, and parties who have acquired a half interest in the claim of the other plaintiffs to the property.
The plaintiffs rely for recovery upon two grounds: 1, that the land granted to Noé constituted property of the community existing at the time between himself and wife; and, 2, that as community property, one undivided half vested absolutely in the children, upon the death of the wife, and was not subject to the disposition of the surviving husband.
On the other hand, the defendants controvert both of these grounds, insisting that the land was the separate property of the husband, Noé; and if this were otherwise, and it belonged to the community, that still the property was subject to his disposition after the death of his wife.
It is conceded by the counsel of the plaintiffs, and such was clearly the law in force in California at the time, that if the lot were the separate property of the grantee, his absolute power of disposition was not in any respect affected by the death of his wife. His sales, in that event, were valid, and judgment must pass for the defendants. The character, then, of the property, whether the separate property of the husband, or the community property of husband and wife, is the first question for consideration ; and upon its solution will depend the necessity of examining the other positions taken by the parties.
By the Mexican law in force at the time must the question be determined. By that law, as we have stated in Scott v. Ward, (18 Cal. 458,) all property acquired by husband and wife during the marriage, and while living together, whether by onerous or lucrative title, and that acquired by either of them by onerous title, belonged to the community; while property acquired by either of them, by lucrative title solely, constituted the separate property of the party making the acquisition. By [597]*597onerous title, was meant that which was created by a valuable consideration, as the payment of money, the rendition of services, and the like, or by the performance of conditions, or payment of charges to which the property was subject. “Thus, we call onerous,” says Escriche, in defining the term, “the disposition which is made on condition that he who accepts shall do, give, or pay, something,” (Diotionario, Tit. Oneroso,) and onerous title, says the same author, “ is the cause, in virtue of which we acquire a thing by payment of its value in money, in another thing, or in services, or by means of certain charges and conditions, to which we subject ourselves, as purchase, exchange, renting, and dowry.” By lucrative title was meant that which was created by donation, inheritance, or devise. The inquiry then arises, whether the premises conveyed by the grant to Noé were held under a lucrative or onerous title—in other words, whether they were acquired by donation, or by the performance of conditions of such a nature as to constitute a valuable consideration to the government.
The grant in question was issued upon the petition of Noé, in which he requests the officer, in the exercise of the authority vested in him, to concede the property, stating that he (Noé) required the same in order to erect a house. And the officer, in consideration of the petition and by virtue of his authority, makes the concession. The request made in the petition is not to purchase the lot, but that it be conceded to the petitioner, and the officer grants the favor which was requested. Both parties appear to have treated the matter as a donation—sought on the one hand and accorded on the other—not as a contract of sale and purchase. To the grant certain conditions are attached, which are supposed to change the character of the transaction from that of donation into one of sale. The first condition provides that within one year from the date of the grant, the premises shall be fenced, and a house constructed thereon; the second, that the petitioner shall hold the premises subject to the existing municipal laws and regulations, and those which may be subsequently established; the third designates the penalty for non-fulfillment of the first condition, and the consequences of nonconformity with the second; and the fourth requires the payment of the municipal fees established by law. It is only upon [598]*598the first and fourth conditions that the plaintiffs rely as giving character to the transaction.
At the civil law, as at the common law, donations may be accompanied with conditions, the performance of which may be required for the possession or enjoyment of the property donated. Thus, as we observed in Scott v. Ward, a gift of fruits would not lose its character as a gift because accompanied with the condition that the donee should gather them; nor would a gift of land be less a donation because the beneficiary was required to measure off the specific quantity given, and to designate it by metes and bounds. When the donation is solicited for specific purposes, it may be accompanied with conditions limiting the property to such purposes without changing the character of the act, even when the conditions impose the discharge of expensive and burdensome duties. Thus, if one should solicit a gift of land in order that he might construct a church or college thereon, and the land should be granted on condition that such church or college be erected, the gift would be none the less a donation for the presence of the condition.
The reason is obvious, and founded on the distinction existing between the inducement or motive for an act and the consideration or price for it. The erection of the church or college, in the case supposed, and the consequent benefit to the community generally, would constitute the inducement to the act, while a consideration in the nature of a price would be entirely wanting. In the present case, the donee solicited the premises for the purpose of erecting a house. This purpose is expressed in his petition, and he and his wife and heirs are estopped from denying that he desired it for that purpose. (Caldwell v. Hennen, 5 Rob. La. 20.) It must be taken, then, as true that such was the case. The premises were not, therefore, the less gratuitously given or the less valuable to him, because granted subject to the condition of their appropriation to that end. The house and fence were to be built for the benefit of the donee, and not for the government. There was, therefore, no consideration in the performance of these acts, moving to the government, which can be regarded in the nature of a price, which is essential in all contracts of sale. The condition requiring the construction of a house within a year, was very generally annexed to grants made under the [599]*599Mexican Government in California, whether the grant embraced a city lot or leagues of land. The performance of the condition was exacted in furtherance of the general policy of the republic to induce settlements, and not as a price to the government upon any notions of a sale.
The decisions of the Supreme Court of Texas are cited by the counsel of the plaintiffs in support of the views advanced by them. These decisions are undoubtedly in their favor. Thus, in Yates v. Houston, (3 Texas, 433,) which was the first case involving a consideration of the point, it was held that land granted to a married man, under the Colonization Law of 1823, was to be regarded as community property upon two grounds: 1st, that the Commissioner’s fees, office fees, stamp paper, surveying fees, etc. wore required by law before the title issued j and, 2d, that the condition of cultivation annexed to the grant was onerous. The amount fixed as fees by the Political Chief of Texas, on the issuance of title, was one hundred and sixty-five dollars, and the Coui't was of opinion that when the payment of so considerable a sum was required as an indispensable condition, “the grant could not be justly regarded as a pure donation.” The second ground was based upon a consideration of the general object of the Colonization Law of 1823—the settlement of the country. The settlement required the labor of one or both of the spouses, and as by the general principles of the law in force at the time, the product of such labor belonged to the community, it was held that the land granted upon the condition of settlement became, by virtue of the services to be rendered, common property of the husband and wife. “ The object of the government in the Law of Colonization,” said the Court, “was to settle the vast wilderness of a remote frontier, with a reputable, hardy, and industrious, population. Agriculture, industry, and the arts, were to be promoted, and to accomplish this, grants of a large amount of land were offered to immigrant families, but not gratuitously, not simply on the ground that they would introduce themselves into the country, but that they should cultivate the lands, and within two years from the date of the concession. The inquiry then arises, by whom is this to be accomplished ? ”
“Are we to suppose that the husband is the sole cultivator? that fields are to be opened, and lands stocked with cattle, without [600]*600the assistance of his partner, and the expenditure of their joint funds ? And, in fact, it seems immaterial whether the whole of the labor and money be bestowed and expended by the husband or not, provided such was the necessary condition and charge by which title could alone be originally acquired, or subsequently preserved. By the principles of the law then existing, the results of the labor of the partners, and of each one of them, became common property. It is of no consequence whether one contribute more than the other to the acquisition, or whether it be procured by the labor and traffic of one alone, it is common to both by virtue of the subsisting partnership, through which their acquisitions are reciprocally communicated.”
The error, as we conceive, of this decision consists in regarding the fees paid to the officers, and the services rendered in settling upon the land, as constituting a valuable consideration in the nature of a price to the government. The fees incurred in making the survey and in issuing the title papers were altogether incidental to the grant and formed no part of its consideration, and the services rendered in the settlement were directly for the benefit of the grantee, and only collaterally and remotely for the benefit of the government. (Chew v. Calvert et al. 1 Walk. Miss. 60.) Agricultural lands solicited under the colonization laws were supposed, to be for use and cultivation by the petitioner, and the grant to him was only subject.to their appropriation to that end. Such limitation could not affect the character of the grant as a donation and convert it into a purchase. The government, in fact, said to the petitioner, if you want the lands for use and cultivation, you may have them for that pur; pose; in other words, we will give them to you if you will use them. Conditions which require the performance of services are not onerous in the sense of the Spanish law, so as to convert the transaction into one of contract, when they are rendered by the grantee for his own benefit; they are only so when rendered for the benefit of the grantor, or parties other than the grantee. They do not differ in that respect from the payment of money, which it would be absurd to say could be made by the grantee to himself. Provisions like these, attached to colonization grants and' to the grant of iSToe, take from them, it is true, their character as pure donations, and render them donations upon condi[601]*601tions. .But it is not essential to a donation, as counsel for the plaintiffs appear to consider, that it should be unaccompanied, with conditions requiring labor and charges; that in other words, it should be a pure and simple gift.
“ Men are sometimes induced," reads the sixth law of the fourth title of the fifth Partida, “to make donations, from certain causes or particular reaso.ns, without which they would not have made them; as, where one man gives another a sum of money, or an estate, expressly declaring at the time he makes the donation, that he gives it, in order that the donee may by that means be always provided with a horse and arms for his service; or where he makes the donation to any artificer, and declares openly that he makes it for certain work or service which the donee was to render him. Wherefore, we say, that if the person who receives a donation in the manner above mentioned, complies with the agreement or condition, or does that for which it was given, the donation will be valid in every respect ; but if he should not comply therewith, or faithfully execute that for which it was given, he may be compelled to comply with what he had promised, or to abandon the donation which had been made to him. We likewise say, that if one man give another a vineyard, or garden, or an estate, or any other thing whatever, declaring expressly at the time he made the donation, that he gave the thing with the intention that a certain portion of the fruits arising from it should be given to another person for his maintenance, or to redeem him from captivity, or for any other like purpose, if the donee comply with the object for which it was given, the donation will be valid; and if he should not, the donor may revoke it. And donations of the kind mentioned in this law, are called in latin, sub modo; which means, in common speech, a donation made for a certain purpose.—So otra manera."
The decisions of the Supreme Court of Texas are in direct conflict with- those of the Supreme Court of Louisiana. Thus, in Gayoso de Lemos v. Garcia, (1 Martin, N. S. 333,) where it was argued that a grant of land by the King of Spain to the father of the plaintiffs during marriage, entered into and made a part of the community subsisting between husband and wife, the Court said: “ Whatever support the argument may derive from [602]*602the practice which we believe has prevailed in some parts of the State, to regard lands granted by the sovereign as property common to both spouses, it is certain that it is not only unsupported by authority, but that the law most positively says it shall not be common to both, but that it shall belong exclusively to the individual to whom the King grants it.” (Novissima Recop. Liv. 10, Tit. 4, Leyes 1, 4, y 5, Febr. 1.)
The law to which reference is thus made, and upon which the decision appears to rest, provides that whatever is given by the King, or another, to both husband and wife, shall belong to them jointly, and that which is given to one of them shall belong to the individual to whom it is given, and this law is held by the commentators to apply to all cases coming within its letter, except those where the King gives in remuneration of services rendered by the husband in the field, when supported at the expense of the community. This law cannot be considered as applying to pure donations merely, and not those which are re mutt eratory, because, as says one of the commentators, “it is not to be believed that the King, as a "faithful administrator of the public revenues, makes donations of them with no other object than that of exercising his liberality; on the contrary, the experience of every day shows that Princes practice those liberalities only with those who have distinguished themselves by their services to the crown.” (Llamas y Molina, Comentario, Ley 77, de Toro, Sec. 24, Vol. 2, p. 512.)
In Frique v. Hopkins et al. (4 Martin, N. S. 214,) it was also insisted that the land granted to the ancestor of the plaintiffs by the King of Spain, was common property, but the Court affirmed the ruling in Gayoso v. Garcia, and held that the land was the separate property of the individual to whom it was granted. To the position that the object of the grant under the Spanish Government was to encourage the settlement of the country, and that, to carry that object into effect, the land should be considered as given to both husband and wife, the Court, in its opinion, said: “To this it might be answered, and with great force, that if the government were of that opinion, it is strange they did not at once say so, and by making the concession in the name of both, place the matter beyond doubt; and not by granting it to one of the spouses, leave it to the operation of a [603]*603positive law, which repelled the idea. But if we could enter into political considerations, in order to ascertain whether they could repeal statutes, we would, in this case, be led to the examination of a nice and refined question of policy, in relation to the effect on national prosperity, of giving to the wife a distinct interest in the property acquired during marriage; one on which men would be found to differ, according to their education and particular modes of thinking. Some nations, whose fate has been as prosperous as those of any community, with whose history we are acquainted, proceed on an entirely opposite principle, and act on the idea, that domestic felicity, and consequently public happiness, are best promoted by considering the acquisitions made during coverture, as belonging to the husband alone.
It is true, that Spanish law viewed this matter in a very different light, but the same law makes a positive exception in respect to donations, and the political consideration is surely not so clear as to authorize us to make a distinction where the legislator has made none. On the contrary, it may be as readily conceived that those to whose care the colonization of this country was intrusted, thought strangers might be invited into it, and settlements formed with as much facility by giving all the land to the husband, as by giving it to the husband, wife, and children. The father, as head of the family, had a right to select his place of residence; the wife was bound to follow him. It was natural he should go to that place where the most advantages were conferred on him; where he knew, in the event of losing his life, from the perils and sufferings of a first settlement, that the objects which induced him to come there would go to his children, and not be divided with those of another bed, in case his wife survived him and married a second time.
But whether these views be correct or not, we feci satisfied that the reasoning which might be opposed to them, is not of sufficient weight to allow us to decide contrary to the express and positive provisions of the law.
Nor do we think that the circumstance that these lands being, in general, waste and uncultivated, makes any difference in the right of property. The augmentation of value given by the common labor makes a part of the acquets and gains, and the wife has a right to the one-half the value of the improvements, [604]*604as she would if they had been made on any other property belonging to the husband, but her right in the ameliorations made on this property is quite distinct from a right to the property.” (Febrero, 2, Lib. 1, Cap. 4, Sec. 4, Nos. 74, 75; Civil Code, 338, Art. 70.) To the same effect is the decision in Heirs of Rouquier v. Executors of Rouquier, (5 Martin, N. S. 98.) In Frique v. Hopkins et al. the grant was of a town lot, but in the other two cases, the grants were of rural property.
To these Louisiana decisions the counsel of the plaintiffs reply, that the grants, upon which they were made, do not appear to have been accompanied with any conditions, precedent or subsequent; that no reference is made to any such conditions cither in the arguments of counsel or in the opinions of the Court, and that it is impossible to believe thát had they existed, the fact would have escaped notice; that the decisions do not, therefore, impair the force of the Texas cases, where the grants were upon conditions which imposed labor and charges, and upon the nonperformance of which the land granted was liable to forfeiture.
It is true, there is no direct mention in the decisions cited, of any conditions to the Louisiana grants, and for the reason, it is probable, that little importance was attached to their existence. But in point of fact, such grants were accompanied by conditions, necessarily attached to them by force of the laws and regulations on the subject existing at the time. All Spanish grants in Louisiana were- governed by the code of the Indies, or the regulations of O’Reilley, the instructions of G-ayoso de Lemos, or the regulations of the Intendente Morales. The law of the Indies required settlement and improvement within a specified time, under penalty of forfeiture. (Recop. de Indias, Lib. 4, Tit. 12, Law 3; Lib. 4, Tit. 2, Law 11; 2 White’s Recop. 50, 51.) The regulations of O’Reilley required the grantee to clear and inclose, within three years, the entire front of his land, unless the same were situated on the borders of the Mississippi, in which case, he was required, within the like period, to erect mounds sufficient for the preservation of the land, and ditches necessary to carry off the water, and to keep roads in good repair, with bridges over the ditches crossing the same, and also, to clear the entire front of his land to the depth of two arpens; and a failure to comply with these conditions caused the lands to [605]*605revert to the sovereign. • (2 White’s Recop. 229; Regul. Arts. 2, 6.) The instructions of G-ayoso required the grantee to commence an establishment upon his land within one year, and to put under labor ton arpens in every hundred within the third year, under the pain of absolute loss of the land. (2 White’s Recop. 233, Instru. 14.) By the regulations of the Intendente Morales, the grantees were obliged, under the like penalty, to clear and put in cultivation, within three years, the entire front of their lands, to the depth of two arpens, and those who obtained concessions on the bank of the Mississippi were also required, in the first year of their possession, to construct levees sufficient to prevent the inundation of the waters, and canals sufficient to carry off the water when the river was high, to make and keep in order a public highway thirty feet in width, and to construct bridges of fifteen feet over the canals at the crossings of the roads. (2 White’s Recop. 235.) The conditions thus attached by the provisions of the law and regulations, to which we have referred, were, of course, more or less burdensome, according to the situation of the land. In numerous instances, where the land was situated upon the Mississippi, the labor of making and keeping in repair the levees, canals, roads, and bridges, was so great, that the parties abandoned their grants. In Pontalba v. Copland, (3 La. Ann. 86,) the Court says: “ It is a historical fact, that during the colonial existence of Louisiana, grants of land were frequently relinquished by the grantees, for the purpose of avoiding the charges which they imposed, and that the lands thus granted were reunited to the general domain.” In Boissier et al. v. Metayer, (5 Martin, 678,) the grant was issued in 1789, when the regulations of O’Reilley were in force, and the Court refers to the “ reservation made in every provisional grant, that the grant should be null if the grantee failed to execute its conditions.” In the Fremont Case, Chief J ustice Taney, in speaking of grants in Louisiana and Florida, says: “ These grants are almost uniformly made upon conditions of settlement, or some other improvement, by which the interest of the colony, it was supposed, would be promoted.” >
What we have said is sufficient, we think, to show the error of the counsel of the plaintiffs in supposing, that the grants in Louisiana were without conditions as burdensome upon the [606]*606grantees as any conditions attached to the grants in California, issued under the colonization law of 1824, and the regulations of 1828. The conditions in the former cases imposed heavy charges, but the grants were not the less, on that account, treated as donations, and the land as the separate property of the consort to whom it was given. Labor or expenditures, incurred for the preservation or improvement of separate property, did not, under the Spanish law, operate to change its character. They only created a charge against the same, which was allowed in the liquidation of the community. The buildings and other improvements went with the property to the separate owner, and their cost only was allowed to the community. The character of the land, either as separate or common property, was determined by the terms of the grant, whether made to one of the spouses, or to both, and the title continued in the direction it originally received, without reference to expenditures subsequently incurred. The illustrations given in the brief of the counsel of the defendants, place the general doctrine of the Spanish law in a very clear light. Thus, if land sold before marriage, subject to a right of redemption, be redeemed after marriage, with funds of the community, the property belongs to the consort who was the original owner, and not to the community; but the latter, upon its settlement, will be a creditor of the owner for the amount expended in the redemption. (Escriche, Verb. Bienes Gananciales.) So, also, if one of the consorts exchange his or her separate property for other property of greater value, and pays the difference with funds of the community; or if, in partition of an undivided interest in property, ho or she receives a more valuable share than an equal portion, and pays the difference with the common funds, the property received is separate property, and a charge for the difference paid exists against it in favor of the community. (3 Sala Mejicana, 59, No. 26.)
The cases of Barbet v. Langlois, (5 La. Ann. 212,) Succession of Morgan, (12 Id. 153,) and Lawson & Wife v. Ripley, (17 La. 238 —251,) are instances of the application of the doctrine of the Spanish law. Those cases, it is truOjWere decided upon the provisions of the code of Louisiana, but those provisions were in accordance with the previous rule of the Spanish law. In Barbet v. Langlois, the plaintiff claimed, as heir of her deceased husband, [607]*607an undivided half of a tract of land, purchased by him during the marriage. At the time of the marriage, the husband possessed a tract fronting on the Bayou Plaquemine, and by virtue of the Act of 1811, revived in 1820, he was entitled to a preference in purchasing vacant land adjacent to his own tract, to a depth of forty arpens. This preference he asserted after marriage, and purchased the land in question. The Court considered the cause of the privileged acquisition as existing before the marriage, and held the land to be separate property. “The only right of the community,” said the Court, “ was to a reimbursement of the money paid for it, if it was paid out of the funds of the community.” In Lawson & Wife v. Ripley, the husband owned certain property at the time of his marriage. The purchase was made before marriage, but not entirely paid for, and the deed was taken afterward. The Court said: “If the husband owed any part of the price, and paid it during the marriage out of the common funds, this may be a charge against him in favor of the community, but he is, nevertheless, entitled to the land as his separate property.”
So, too, in the present case, whatever was expended by the community, existing between Hoé and his wife, in performing the conditions attached to the grant, constituted only a claim in its favor against the separate estate of Hoé. That claim in no respect affected the separate character of the property granted. That character was impressed upon it by the terms of the grant itself, by the fact that the grant was made to himself alone. The subsequent improvements by the community, made for the preservation of the property, could have had no greater effect upon the title, than the payment of money by the community for the preservation of property already vested in one of the spouses. Such payment, as we have seen, had no operation upon the direction of the title.
There is nothing, then, in our judgment, in the conditions attached to the grant to Hoé, which changes the nature of the transaction from one of donation into one of sale.
Hor do we perceive anything in the requirement contained in the fourth condition for the payment of the municipal fees established by law, which changes the character of the grant, and takes it out of the catagory of donations. Those fees were im[608]*608posed as a tax for the purpose of raising municipal funds for the Ayuntamiento, and not as a consideration in the nature of a price for the lot. The tax was laid in pursuance of the 3d Section of the Act of the Territorial Deputation of California, passed in August, 1834, which provides that “ for the grant of a house-lot for building on, the parties interested shall pay six dollars and two reals for each lot of one hundred varas square, and in the same manner, for a larger or smaller quantity, at the rate of two reals for each vara front.” Noé paid the one hundred reals for his fifty vara lot—twelve dollars and a half—and this payment the learned counsel of the plaintiffs regard as a pecuniary-consideration for the grant, and as conclusive of the point that the transaction was one of sale. There would be much force in the position, if the section cited were considered by itself, independent of other sections and the general object of the Act; hut when the entire Act is considered the position will be found without support. The object of the Act was to provide municipal funds for the Ayuntamientos of California; and for that purpose taxes were authorized upon ships, packages landed, clothing stores, and the like, and also upon lots granted, according to their extent; and it is to a tax of this nature, that the 3d Section refers, when it provides that for every grant of a lot, two reals for each vara front shall be paid. It would appear from the brief of counsel that the term translated as fees, is in the Spanish derecho. If this be so, it is only a confirmation of what we consider as otherwise sufficiently clear. The term, derecho, is defined by Febrero, in his last volume, as “the impost laid upon goods or provisions, persons or lands, by way of tax or contribution.” It is clear that the exaction of the fees received, as municipal taxes merely, could not have had any effect on the general character of the grant as a donation. A tax upon the transfer of property, cannot, of course, affect the nature of the transfer; nor can a tax upon property, at the time of its transfer, have a greater or different operation than a tax upon the same property after the title has vested. The tax, in the present case, only differed in the application of its proceeds.to the purposes of the Ayuntamiento, from that general tax upon the transfer of land, which constituted an important branch of the revenues of the Spanish crown and Mexican Republic. (See Hoen v. Simmons, 1 Cal. 122.)
[609]*609The conclusions, to which we have thus arrived, render it' unnecessary to consider whether the husband, upon the death of the wife, possessed any power to dispose of community property, as the question, from the views we have expressed, is immaterial to the determination of the present case.
It only remains to notice the position of the plaintiffs, that they are entitled, in any event, to judgment against the city and county of San Francisco, upon the disclaimer and consent contained in their answer. A disclaimer of possession or interest in real property is not a proper proceeding in an action of ejectment; it is only proper in actions brought to determine estates or interests asserted against parties in possession by parties out of possession. Thus, had the plaintiffs been in possession, and brought their action to determine an interest claimed adversely to them by the city and county, the disclaimer would have been a proper basis for a judgment. But such is not the present case. This is an action of ejectment, and the disclaimer only amounts to a denial of having any possession of the premises at the commencement of the action, or of having asserted any claim to them. If the plaintiffs relied upon such a disclaimer, they should have entered a nonsuit as to the city and county. A judgment in ejectment cannot be entered against a party unless he was in the possession, actual or constructive, of the property at the commencement of the suit. (Garner v. Marshall, 9 Cal. 268.) It is upon such possession, wrongfully detained, that the action rests. For past possession without right, trespass may lie, but not ejectment.
The case, then, amounts to this: the plaintiffs have not established any right to the possession of the premises, and the city and county of San Francisco admit that they were never in possession, and that they do not and never have asserted any right to the same. Upon this admission, taken as true, no judgment but one of nonsuit could be entered. A judgment for the possession would be in the face of the admitted fact, which itself precludes such recovery.
Judgment affirmed.