It may be, however, that the Sheriff's return to the writ of possession issued in the forcible entry and detainer case of Conroy and Roche against Duane and others, and also, as authority for the writ, the judgment roll in the action, were admissible for the purpose of showing the fact of possession of the premises by Conroy and Roche. But, if admissible at all, it was only for that purpose. The facts detailed in the findings concerning that action have no place there.

We think the order should be reversed, and the cause remanded for a new trial. So ordered.

MORRISON, C. J., MYRICK, J., MCKINSTRY, J., and SHARPSTEIN, J., concurred.

THORNTON, J., concurred in the judgment.

The following is the opinion of the Court in Department One, referred to in the foregoing opinion:

Ross, J.:

This is an action of ejectment brought by the plaintiff against James Roche, Henry Conroy, H. S. Slicer, D. W. Douthitt, and two fictitious defendants, to recover a piece of salt-marsh land, situated within the confirmed limits of the City of San Francisco. The complaint, which is not verified, is in the usual form in such actions, and alleges that on the 1st of April, 1872, plaintiff "was the owner, and seized in fee, and possessed and entitled to the possession," of the demanded premises, and that defendants on that day ousted plaintiff therefrom, etc. The answer contained, first, a general denial, putting in issue all of the allegations of the complaint. In addition, it set up that on the 29th of September, 1871, plaintiff commenced an action in the Fourth District Court against James Roche, Henry Conroy, and D. W. Douthitt, to quiet his alleged title to, and to remove a cloud from, a portion of the land in controversy in the present action; that issue was joined in that action, a trial had upon the merits, resulting in the entry on the 1st of October, 1873, of a judgment decreeing that plaintiff "was only entitled to the reversionary interest of the State of California, after the expiration of ninetynine years from the 26th of March, 1851, to the following por

tion of the land described in said action and in this action" (describing it); and further decreeing "that, as to the remainder of the lands described in the complaint, and as to the other defendants, that the said action be dismisssd." The answer further set up that, pending the action in the Fourth District Court, Henry Conroy conveyed all his interest in the land then in question to H. S. Slicer, and "that there was no formal substitution of Slicer as a defendant therein, but that the same was defended by Conroy in the interest of Slicer."

The answer further averred, that for more than twenty years before the commencement of this action, defendants had been in the adverse possession of the premises.

A supplemental answer was filed, in which it was alleged that the plaintiff appealed to this Court from the decree rendered in the Fourth District Court case, and that decree was, on the 18th of October, 1875, affirmed by the Supreme Court.

The foregoing is the substance of the pleadings in the case, upon which it was tried.

At the trial a good deal of evidence was introduced upon which the Court made findings, the material portions of which are as follows:

First. That the land in controversy is salt-marsh and tide land, and is known and numbered as Potrero Block, No. 169, upon the official survey of the city, as it existed prior to 1866.

Second." That on the 28th day of August, 1868, and long prior thereto, H. F. Williams and his predecessors were and had been in the actual and peaceable possession of said block of land, claiming to own the same; and that on the said 28th day of August, 1868, the said Williams, by deed duly executed, and for a large consideration, sold and conveyed said block of land to defendants, James Roche and Henry Conroy, and that they thereupon entered into the actual possession thereof; and that they and their grantors have been in the actual possession thereof, except when interrupted by intruders, since that time, and are now in such possession; that about the time above named, R. C. Page, George W. Dent, and Frederick T. Dent conveyed to said Conroy and Roche, and that they claimed some interest in said land.” Third. That on September 30th, 1871, the Board of Tide Land Commissioners, as constituted under the Act of April 1st,

1870, sold and conveyed the said block of land to Conroy and Roche, and that subsequently, and before the commencement of this action, Conroy and Roche conveyed to Douthitt an undivided third interest in the land, and that on the 8th of November, 1871, Conroy conveyed his interest to Slicer.

Fourth. The fourth finding states the facts respecting the Fourth District Court action of plaintiff against Roche and others mentioned in the answer and supplemental answer.

The fifth and sixth findings are as follows:

Fifth.—That in August, 1868, while the defendants, Conroy, Roche, and Douthitt, were in the actual and peaceable possession of said land under their deed from Williams and others, one C. P. Duane and others unlawfully and forcibly took possession of said premises from said Conroy, Roche, and Douthitt; and thereafter said Knight, the plaintiff herein, forcibly entered upon a portion of the premises, being the same described in the fourth finding, and ejected the said Duane and others from said portion of the premises; that thereupon said Roche, Conroy, and Douthitt, defendants, erected on the block a building, and have been in possession thereof ever since. That in February, 1869, the defendants, Henry Conroy and James Roche, commenced an action of forcible entry and detainer against said C. P. Duane and others, in the County Court of the City and County of San Francisco, for the purpose of recovering the possession of the said block of land; and such proceedings were had that a trial was had before the Court upon the merits in March, 1869; and that on the 25th day of March, 1869, the said Court rendered judgment for plaintiff and against said defendants. That thereafter said defendants duly appealed said cause to the Supreme Court of the State, and that long before the commencement of this action, said judgment was duly affirmed by said Supreme Court, and that long before the commencement of this suit, to wit, in the year 1873, a writ of possession was duly issued out of said Court, in favor of said Conroy and Roche, and upon said. judgment, and that they were by the Sheriff of said city and county duly placed in the actual possession of said land as provided by law, and that they and their grantees have been in such possession of all the land in dispute ever since.

Sixth. That said land, except a small portion thereof (as de

scribed in the decree in the case of Knight v. Haight et al., as mentioned in the fourth finding) is above the ordinary highwater mark, and that said land (except the portion described in said decree) is not included within the boundaries of the redline, as indicated upon the red-line map, as provided for by the Act of March 26th, 1851."

Upon these findings judgment was rendered in favor of the defendants.

1. It has been repeatedly held here that when findings are made, there must be a finding upon all of the material issues in the cause, and, further, that the findings must support the judgment. (Baggs v. Smith, 53 Cal. 88; Shaw v. Wandesforde, id. 300; Taylor v. Reynolds, id. 687; O'Connor v. Frasher, id. 435.) Applying these rules to the findings in the present case, their insufficiency becomes manifest. There is no finding, one way or the other, as to the plaintiff's alleged ownership or possession of the premises in question, nor as to the alleged ouster. Nor do the probative facts found, necessarily determine those issues.

2. Whatever the evidence may show, the findings do not establish title in defendants. It does not appear from them that Williams or any of his predecessors, or Page, or either of the Dents, ever had any title to or interest in the property.

The Court having found as a fact that the land in controversy, with the exception of a small portion, is above the ordinary highwater mark, it follows necessarily that the conveyance from the State Tide Land Commissioners conveyed no title to that portion, at least, that is above the ordinary high-water mark. (Act of April 1st, 1870, Stat. 1869–70, p. 541; Tripp v. Spring, 2 Pacific C. Law J. 29.)

3. Assuming that the judgment and the action of Knight v. Roche et als. may be a bar to the present action—a point we do not decide-it is clear it cannot be, as it is made to appear in the pleadings and findings. It there appears that the plaintiff, in the Fourth District Court action, only sued to quiet title to a portion of the land involved in the present suit; that, by the judgment, it was decreed that he was "entitled to the reversionary interest of the State of California, after the expiration of ninety-nine years from the 26th of March, 1851," to a portion

of the premises involved in that action, and that "as to the remainder of the lands described in the complaint, and as to the other defendants, that the said action be dismissed."

If this judgment can be held to be a bar to the present action as to any of the land described in the complaint, it is perfectly plain that it cannot be such a bar to all of it; for it does not appear that the same title was in issue, and it does appear that a portion of the land here in question was not embraced in the complaint or decree in the former action.

4. It is difficult to understand why the facts relating to the forcible entry and detainer action of Conroy and Roche against Duane and others were incorporated in the findings; or upon what principle the judgment roll in that action and the Sheriff's return to the writ of possession thereupon issued, were admitted in evidence, since it nowhere appears that the plaintiff was a party to the action or had any connection with it. In our opinion, both were inadmissible, and the Court erred in receiving them. The presumption of error that is indulged from their erroneous admission is strengthened by the fact that the Court deemed the matter of sufficient importance to incorporate the facts respecting it in the findings.

Judgment and order reversed, and cause renianded for a new

trial.

MCKINSTRY, J., and MCKEE, J., concurred.

[No. 6,417.-In Bank.]

DAVID GOODALE ET AL. v. THE FIFTEENTH DISTRICT COURT.

RECEIVER-PARTITION - JURISDICTION — CERTIORARI EQUITY CASE

DEF

1 INITION. A Suit for partition is an equity proceeding. It is, therefore, competent for the Court in such actions, in some cases, to grant a receiver; and whether in a particular case the power of the Court has been properly exercised, cannot be determined upon certiorari. ID.-ID. - ID.-ID. — MYRICK, J., did not agree to the proposition that the appointment of a receiver in a partition suit could not in any case be reviewed by this writ; but concurred, on the ground that the facts upon which the order was made did not appear, and it therefore did not appear that the Court had exceeded its jurisdiction.

1. Shimmings v. Fifteenth Dist. Ct. 57 Cal. 148,