21 Cal. 220 | Cal. | 1862
Cope, J. and Norton, J. concurring.
This is an action of ejectment to recover the possession of certain premises situated in the counties of San Francisco and San Mateo. The plaintiff deraigns his title from the Mexican Government through a grant issued by Alvarado, Governor of California, to Jacob P. Leese in July, 1841. This grant was presented to the
Upon this view of the title the only matters, which could be properly left to the consideration of the jury, related to the boundaries of the premises and the possession of the defendants. The decrees of the Commission and of the District Court both give specifically
To establish the location of the southern boundary line, the plaintiff introduced in evidence an official survey of the rancho of Sanchez—known as the Buri Buri Rancho—made under the directions of the Surveyor-General of the United States for California by one of his deputies, and also a record of juridical possession of the land delivered to the grantee in 1835. It is unnecessary to consider the objections taken to the evidence furnished on this head, as it did not bear upon any rights asserted 'by the defendants who have appealed from the judgment. There are over twenty defendants to the action, of whom only four are appellants; and of these, two are tenants of the other two. The land which the latter two occupied is situated several miles from the disputed southern line of the premises in controversy; and there was no location suggested even of that line which did not include their possessions. The numerous exceptions taken by other defendants to the evidence offered cannot, therefore, aid the appellants.
Of the several instructions to the jury requested by the defendants, and refused by the Court, counsel alleges error only in the refusal of one. Of the mesne conveyances, through which the confirmee, Payson, deraigned his title from the grantee, Leese, one was executed by the Sheriff upon a sale under a judgment and execution of the District Court; and the instruction asked, if we understand its purport, was to the effect that if the property, according to the description in the Sheriff’s return on the execution, differed from the property described in the Sheriff’s deed and the decree of the United States District Court, the deed did not pass the property in controversy. The instruction is awkwardly expressed, but the proposition which it advances, is that the Sheriff’s deed is inoperative to pass any property except that which is described in his return. The proposition as thus stated is not sound in itself, and if it were sound is inapplicable to the case at bar. The title of the purchaser does not depend upon the return of the Sheriff. It rests upon the judgment, execution, sale, and deed. There may in fact be no return, or it may be defectively made. “ The purchaser,” as we said in Cloud v. El Dorado County, “has
Judgment affirmed.