Opinion
[Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 51 Cal. 198 at 202.
Appeal from the District Court, Tenth Judicial District, County of Colusa.
Ejectment to recover lots five and six in block thirty-five, in the town of Colusa, county of Colusa. The town of Colusa is on a grant of eleven leagues made by the Mexican nation to Manuel Jimeno. Jimeno conveyed the grant to Thomas O. Larkin and John S. Missroon, on the 30th of August, 1847. The United States confirmed the Jimeno grant, and patented it to Larkin and Missroon, on the 18th day of July, 1862. Both parties claimed under Larkin and Missroon. The plaintiff, after introducing in evidence the patent to Larkin and Missroon, offered in evidence a certified copy, from the office of the recorder of Colusa, of the deed from Jimeno to Larkin and Missroon. The deed was in Spanish. Counsel for defendant objected to the deed for several reasons, but the court overruled them. The plaintiff next offered in evidence a deed from Larkin and Missroon to Washington Seawell and S.C. Hastings. The land conveyed by the deed was described as follows: " An undivided two-thirds part of the following described tract or parcel of land, to wit: two Spanish leagues (ordos sitios de ganado mayor) of land on the west bank of the Sacramento River, part of the land formerly known as the Colus tract, including the town of Colusa, being part of the eleven Spanish leagues granted by Don Manuel Micheltorena, formerly governor of Alta California, to Don Manuel Jimeno, then a citizen of Mexico, November 4, 1844, sold by said Jimeno to said Larkin and Missroon, August 30, 1847."
The defendants objected to the deed, because the description was insufficient.
The plaintiff offered in evidence a certified copy from the recorder's office of a power of attorney from Hastings, Seawell, Larkin, and Missroon, to Augustine D. Carpenter, dated September 24, 1851. The notary who acknowledged it certified that Seawell acknowledged personally, but Larkin and Missroon acknowledged by W. J. Eames, their agent. Hastings did not acknowledge. Defendant objected to the copy, because it was not acknowledged so as to entitle it to record. The court overruled the objection. This power made Carpenter " our agent and attorney to sell and dispose of, for purposes of actual improvement for mercantile and other purposes, any town lot situated in the town of Colusa, " etc. Theplaintiff offered in evidence a deed from Larkin, Missroon, Seawell, Hastings, and Hughes, to Richard Chenery and Charles B. Hazelton, by Carpenter, their attorney in fact, of a large number of lots in Colusa, including the demanded premises. The court instructed the jury as follows: " Both the plaintiff and defendant have, in this action, relied upon title supported and proved by documentary evidence, and both have offered and read in evidence certain deeds and documentary evidence to prove title; the plaintiff, to prove title in himself to the undivided one-sixth of lot six, and to the undivided one-third of lot five of the demanded premises; and the defendant, to prove title in himself to the whole of said lots. And the court instructs you that the defendant has by his deeds and other documentary evidence, proved a title in himself to the whole of both of said lots, if they are all embraced within the calls of said deeds, and that his title is superior to and better than the title of the plaintiff to any portion thereof, or any undivided interest therein. You will, therefore, find for the defendant, if you find that the lots in controversy are within the calls of his deeds. " Thejury found a verdict for the plaintiff, and the defendant appealed from the judgment and from an order denying a new trial.
COUNSEL
Belcher & Belcher, for the Appellant.
A. L. Hart and S. T. Kirk, for the Respondent.
OPINION
A petition for a rehearing having been filed, the following opinion was delivered. By the Court:
In his petition for a rehearing, appellant avers that there was no evidence to sustain a finding that the lands in controversy were not within the calls of the defendant's deeds. He argues from this that the jury must have disobeyed the instructions of the court when they found a verdict in favor of plaintiff. But the instruction of the court was hypothetical, and was to the effect that if the lands were within the description contained in defendant's deeds, they should find a verdict for defendant. It must be assumed, therefore, as appellant assumes, that the jury found that the lands were without the calls of the deeds through which defendant deraigned his title. If, as alleged in the petition for rehearing, there was no evidence to sustain the finding of the jury upon that issue, this is a case of a finding against evidence; and it has repeatedly been held that, to set aside such a finding, the bill of exceptions must contain a specification of the particulars wherein the evidence is insufficient to sustain the finding. The record contains no specification of an insufficiency of evidence to uphold a finding that the lands in controversy were without the calls of defendant's deeds.