136 F. 113 | 9th Cir. | 1905
after stating the case as above, delivered the opinion of the court.
This record comes to us in a very unsatisfactory condition. The statement of the evidence in the bill of exceptions is terse in the extreme, and affords but meager information of the facts. There is no definite testimony as to the location of the house or lot, the possession of which was surrendered to the defendant by Mary A. Sakaloff. There is no testimony that that tract which in the deed to the defendant was described as a parcel 25 feet by 100 was ever
The instructions of the court permitted the jury to find for the defendant for the whole of the property in controversy. This was error, for it is impossible, under any construction of the defendant’s quitclaim deed, to make its description fit the premises which are.involved in the action, and this is true no matter where along the line of B street the defendant’s house may have been located. It was error, also, to instruct the jury that they might find, from the bare fact that the defendant testified that at the time of receiving his quitclaim deed Mrs. Sakaloff put him in possession, that at that time the latter “had some right, title, or interest in said land such as actual possession,” and that the said defendant “did obtain some sort of title thereto by his acts and the surrender of possession by the other parties.”
It is not necessary to consider the other assignments of error, since for these erroneous instructions the judgment must be reversed and the cause remanded for a new trial.