Opinion
Appeal from the County Court, County of Santa Barbara.
The plaintiff was the widow of Manuel Fierro, the grantee in Exhibit A., mentioned in the opinion. Dominguez, the grantor in Exhibit A., was in possession of the demanded premises when the deed was given. The plaintiff recovered judgment in the Court below, and the defendant appealed from the judgment, and from an order denying a new trial.
COUNSEL:
Charles E. Huse, for Appellant, cited Hodgkins v. Jordan , 29 Cal. 577; Polack v. McGrath , 25 Cal. 132; McMinn v. Bliss , 31 Cal. 132; McIvoy v. Igo , 27 Cal. 375; Valencia v. Couch , 32 Cal. 340; Thompson v. Smith , 28 Cal. 527.
A. Packard, for Respondent, argued that the document referred to in the opinion was admissible to show the plaintiff's possession.
OPINION By the Court:
This is an action of forcible entry and detainer. The plaintiff offered in evidence the document marked " Exhibit A," and the defendant objected to its introduction, on the ground that it was irrelevant and immaterial; but the Court overruled the objection, and admitted the document in evidence, and, on the defendant's motion to strike it out, held that it was " only a memorandum of agreement, showing change of possession of the tract in dispute," and denied the motion. The document is a deed of conveyance, made by Francisco Dominguez, to Manuel Fierro, of a certain house, together with all the rights of possession which the grantor then had in a certain tract of land described, or attempted to be described, in the deed. The deed conveys to the grantee therein named, all the right and title in the land which the grantor then held. If the grantor had the title or possession, or the right to the possession of the land, the deed transferred the right to the same to the grantee; but it did not show, nor tend to show, any actual possession in the plaintiff, nor any actual change of possession from the grantor to the grantee. The right of possession cannot be put in issue or tried in this action. The Court erred in admitting the deed in evidence.
Judgment and order reversed, and cause remanded for a new trial.