plaintiff against the defendants Sudden, Goodall, Nelson, and Wensinger, for $10,000 as damages, sustained by the breach of the covenant sued upon, and the additional sum of $6,520 interest.

McAllister and Bergin, and Fox and Kellogg, for the appellants.

Garber, Thornton, and Bishop, and Craig and Meredith, for the respondent.

By Court, PATERSON, J. It was decided in Coburn v. Ames, 52 Cal. 385, 28 Am. Rep. 634, that the wharf and chute were not on the demised premises, were not affixed or appurtenant thereto, and therefore were not "improvements" within the meaning of that term as used in the lease. The court held that the plaintiff had no such right to the possession of the land below the line of high water as to enable him to maintain ejectment, and the judgment of the lower court was modified accordingly. Pending the appeal in that case, a receiver was appointed in the trial court to take possession of the property, collect tolls, and manage the wharf and chute. After judgment was modified in accordance with the order of this court, the receiver, under directions from the court in which he was appointed, paid over all the money in his hands to the plaintiff. The defendants, among whom were Goodall and Nelson, defendants herein, again appealed to this court, and it was held that as the plaintiff was not entitled to the possession of the wharf and chute, he was not entitled to all of the profits derived from the use of them pending the litigation. The cause was accordingly again remanded for the adjustment of the accounts: Coburn v. Ames, 57 Cal. 204.

This action was commenced on November 25, 1875. The lease which is made the basis of this suit contained a covenant that Brennan, the lessee, at the expiration of said lease, would surrender to Coburn and Clark (the lessors or their assigns), with such improvements as shall have been erected or made thereon, but there was nothing in the covenant providing in terms that the lease should be binding upon the assigns of the lessees.

The defendants are all assignees of undivided parts amounting to five eighths of the whole interest in the lease, viz.: Sudden one fourth, Goodall one eighth, Nelson one eighth, and Wensinger one eighth.

The action as to defendant Fake, who owned one quarter, was dismissed. The other defendant, O'Farrell, who owned one eighth, died pending the action, and his representative has never been substituted. Judgment was rendered against the defendants Sudden, Goodall, Nelson, and Wensinger for $10,000, with interest thereon from commencement of suit,$6,520,-total $16,520,-and costs of suit.

It is claimed that these four defendants, if liable at all under the covenant to surrender (which is denied), are liable only in respect of their privity of estate, and that such liability is several and proportionate to the interest acquired by each of them. To this proposition we cannot assent. There are some authorities to that effect, but the weight of opinion, we believe, is contrary thereto, and with better reason it is held that while assignees of a lease hold as tenants in common, they are jointly and severally liable on covenants to repair and to deliver up at the end of the term. These covenants, which are connected with the estate, run with the land, and vest in point of benefit and liability in the assignee, while the personal privity of contract between the lessor and lessee remains unaffected by the transfer: 1 Washburn on Real Property, 329, 435; 2 Platt on Leases, 351; Taylor on Landlord and Tenant, 7th ed., sec. 530, note; Hayes v. Morrison, 38 N. H. 95; Fitch v. Johnson, 104 Ill. 117.

The authorities cited, which relate to questions concerning the apportionment of rent, are not applicable, as payment of rent is an exception to the rule: Freeman on Cotenancy, sec. 346.

The demurrer was properly overruled, if our view of the liability of tenants in common, assignees of the whole of the demised premises, though in unequal proportions, is correct, i. e., that they are jointly and severally liable on all covenants and obligations of the assignors, except perhaps the payment of rent. The possession of one of the tenants is the possession of all. There is no unity of interest, title, or time as in joint tenancy, but as to unity of possession they are identical. So far as enjoyment of possession goes, they are all equal, whatever may be the difference in shares held by each. If they are not jointly and severally liable, one tenant in common owning a small undivided interest might prevent the delivery of the property in its entirety, which the lessor is entitled to under his contract, with or without an express covenant therefor. We see no hardship in this rule, for the

assignees in possession, upon authority and in reason, stand in the shoes of the lessee; and so long as they occupy such relation to the lessor and his property, they are bound by the terms of the contract with the lessee and the obligations implied therefrom by law. While one of the tenants in common remains, the unity of possession is undivided; and as to those at least who continue in possession by themselves or by agents, the unity of obligation flows from unity of possession.

There is nothing in the judgment which will prevent the four defendants against whom it was entered from enforcing contribution from Fake and the representatives of O'Farrell, if the right to contribute exist.

The evidence is sufficient, we think, to sustain the finding that the defendants continued in possession of the five-acre tract from the expiration of the lease to the time this action was commenced. This tract or parcel, as described by the court in its findings, is "commonly known as Pigeon Point shipping point, and used for the purpose of handling and shipping freight, and lying above and bounded on one side by ordinary high-water mark." As between these defendants and this plaintiff, the grant of the wharf franchise by the board of supervisors to Templeton and Moore in 1870 is immaterial. It was the duty of the defendants to deliver to plaintiff the possession of the five-acre tract. We think there was evidence sufficient to warrant the court below in finding that Ames did not deprive the defendants of possession. There was evidence tending to show that defendants were using the name of Ames as a disguise for their own possession. Furthermore, there seems to be no longer any doubt that orders like that of the district judge made in the case referred to September 27, 1872, putting plaintiffs in the possession of the land during the pendency of the action for condemnation, are void: Sanborn v. Belden, 51 Cal. 266; San Mateo Water Works v. Sharpstein, 50 Id. 284. With respect. to the possession which it is claimed Coburn secured by virtue of the writs of restitution served in the case of Templeton and Ames v. Coburn and Clark, it is sufficient to say that the evidence is conflicting as to the fact of possession. The return of the officer upon the writ was only prima facie evidence of the fact stated: Pol. Code, sec. 4178. Plaintiff testified that he had no actual possession; that the moment the sheriff left "they just jumped right in and took possession again."

It is claimed by appellant that the ejectment suit of Loren

Coburn, as plaintiff, v. Josiah P. Ames, Ellen Templeton, administratrix of the estate of Horace Templeton, Charles Goodall, Christopher Nelson, and George C. Perkins, defendants, commenced on the sixteenth day of January, 1885, and the findings and judgment therein, establishes an election by Coburn to treat Goodall and Nelson as trespassers, dissolves all their relations with him as assignees of said lease, and adjudicates facts which are inconsistent with the claim of plaintiff in this action. In that case all claim for damages, the findings therein show, was expressly withdrawn by plaintiff. If this had not been done, there is no question that the judgment would be conclusive on the question of damages, as it was made an issue in the case. "An adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have litigated, and have had decided as incident to or essentially connected with the subject-matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and of defense": Freeman on Judgments, sec. 249. When, however, the record on its face shows that the issue was withdrawn from the consideration of the court, the presumption that it was adjudicated no longer applies. The right to recover possession, and the right to recover mesne profits, were not necessarily united in the action in ejectment. The right to join causes of action for both is a mere privilege granted by statute.

That the record in that case is not an estoppel as to the time of ouster is equally clear: Yount v. Howell, 14 Cal. 465; for if the question of mesne profits may be considered out of the case by virtue of the finding of a withdrawal thereof, then there were but two other questions which could have been material in that action of ejectment, viz., right of entry by plaintiff, and wrongful possession of defendant, on the day suit was commenced.

Appellant claims further that the bringing of the suit in ejectment was an election of a remedy inconsistent with this action, and concludes him from maintaining the latter. The rule stated in the syllabus, taken from Jones v. Carter, 15 Mees. & W. 718, is doubtless correct: "The service by lessor upon lessee of a declaration in ejectment for the demised premises, for a forfeiture, operates as a final election by the lessor to determine the term; and he cannot afterward (although there has not been any judgment in the ejectment) sue for rent due,

or covenants broken, after the service of the declaration." That was an action of covenant in a mining lease, in which breaches were alleged, the first for non-payment of rent, and others for violation of covenants requiring defendants, during the continuance of the demise, to keep six men searching for mineral for certain periods in each year, for keeping legible accounts of ore extracted, etc.; but the principal question related to rent. The case before us, however, is not for rent, or for damages caused by a breach of covenant subsequent to the commencement of the ejectment suit. The plaintiff's right to recover both possession and damages arose immediately upon the failure of the defendants to deliver at the expiration of the lease, and in both actions the defendants are treated as wrongfully in possession, and charged with a continuous wrongful withholding from the time the covenant was broken down to the commencement of the action.

There was evidence to support the finding of the court that Wensinger and Sudden continued in possession of the tract from the expiration of the lease to the commencement of the action. It is not for the appellate court to say that the court below ought to have believed certain witnesses rather than the one on whose testimony the finding is based. There are circumstances tending to corroborate plaintiff's testimony and claim that Scotty held possession for and as agent of Wensinger and Sudden. Coburn failed to obtain possession under the written surrender executed by Sudden to him, and of course, if such failure was due in any degree to the act or neglect of Sudden, it was inoperative: Kower v. Gluck, 33 Cal. 406.

It is claimed that the court erred in allowing, against the objection of defendants, evidence as to profits derived from che wharf and chute; that such was improper data for the assessment of damages, and it will be presumed that injury resulted from the admission of such evidence. The court evidently did not hold that the defendants were bound to deliver the wharf, nor was the amount of profits derived from the wharf and chute taken as the measure of damage; otherwise a much larger sum would have been fixed by the court as the damage suffered by plaintiff. In determining the amount of damage sustained by plaintiff, we think that the question of profits derived from the wharf was a proper subject of inquiry, providing it was not taken as the measure of damage.

If it be true that the defendants were wrong-doers in refusing to deliver possession to plaintiff, the question is, How

AM. ST. REP., VOL. I.—6