31 Cal. 148 | Cal. | 1866
. In an action to recover land the defendant, Cudworth, had a verdict, which the Court set aside on application of plaintiff, and the defendant appeals from the order vacating the verdict and granting a new trial. No opinion was filed when the new trial was granted, and we are not informed upon what grounds the order was based. The appellant’s counsel claims,
The following are the facts necessary to a proper understanding of the grounds of this decision: In May, 1850, one Pell had a tract of land surveyed, upon which he had previously settled, and upon which he then resided, and set up a claim thereto. The tract claimed by him included the premises in question. In the spring of 1853, Smith and Kelly went upon the premises in question to establish a “ milk ranch,” as they termed it; whereupon the Pell family interposed their claim, and an arrangement was then made between Mrs. Pell and her son—the husband being absent—by which Smith and Kelly were permitted to remain and occupy the premises, in consideration of furnishing the family with a certain quantity of milk daily. Under this arrangement they fenced the premises, built stables and occupied for the purpose indicated, and delivered the milk regularly during the spring and summer of 1853—“ the grass season ”—and then ceased to deliver. About August, 1853, Smith and Kelly sold out
“ If you find from the evidence that the land in dispute in the case is the same, or embraced within and a part of the land in the suit of Samuel A. Hastings v. J. W. Cudworth et als., and for which the defendant, Cudworth, had judgment in his favor, and also find that the conveyance of Calloway to Hastings was made by the request or procurement of Bowman, then the defendant is entitled to your verdict.”
If Bowman is not estopped by the matters stated, then, clearly, this instruction and another of a similar character are erroneous, and the testimony itself was improperly admitted ; for we cannot perceive that it was admissible upon any other principle. The title derived from Pell was in no sense in issue, unless Bowman is estopped from setting up his prior title deíived from CalIoway. Was he so estopped ? The appellant has not cited a single authority on this point, and we know of none that sustains his position. If estopped at all, it is by matter in pais, and the case appears to us to lack the essential elements-of estoppel by matter in pais. Matter in pais, so far as it relates to the question in hand, is where some admission has been made, or some act done or acquiesced in, or some party has permitted an act to be done for his benefit, knowing the fact, without objection ; or has failed to
Order granting a new trial affirmed.