The plaintiff seeks herein a partition of a tract of land in the county of Santa Cruz, alleging in his complaint that he is the owner of an undivided two thirds thereof, and that the defеndant is the owner of an undivided one third thereof. The defendant in his answer denied that either the plaintiff or himself was the owner of any part of the land, and asked that the action be dismissed. The court found in accordance with the claim of the plaintiff, and made an interlocutоry decree accordingly. The defendant has appealed.
The patent from the state of Califоrnia, which included the lands in question, was evidence of thе title of the grantees therein, and was admissible in evidence in support of the plaintiff’s claim. It was not void upon its face, and could not be attacked collaterally for any irregularity of proceedings upon whiсh it was issued.
(Doll
v.
Meador,
The failure to name in the description of the land in the deed from Scott to Sloan the meridian from which the township and range were numbered did not invalidate thе deed. The property was described as being in the county of Santa Cruz, and the court took judicial knowledgе that the meridian of Mt. Diablo is the only meridian for the townshiрs and ranges in that county.
(Faekler
v.
Wright,
The court excluded certаin evidence which was offered on behalf of the dеfendant for the purpose of showing that the convеyance to him was intended as • a mortgage from his *170 grantor to one Levi. Neither the defendant nor his grantor was рroduced as a witness at the trial, but it was sought to show this fact by the testimony of Levi alone. Levi was not a party tо the suit, and it is not claimed that any lien in his favor upon the property appeared of-record. The testimony offered by him was hearsay, and was incompetеnt as well as irrelevant. Whether the defendant’s grantor was indebted to the witness was irrelevant to any issue in the case, and the defendant could not, by any declaration to the witness, change the effect of the terms of the deed to himself.
The court was not authorized to include in the interlocutory decree a judgment for costs against the defendant. That decree is only a determination of the respective interests of the parties in the land, preliminary to the final judgment of partition, and is, аs its terms import, merely interlocutory in the proceеdings
(Hastings
v.
Cunningham,
The superior court is directed to modify the intеrlocutory decree by striking therefrom the provision with reference to costs, and, as so modified, the decree will stand affirmed.
The costs of this appeal are to be borne by the appellant.
Garoutte, J., and Van Dyke, J., concurred.
Notes