The only question in this case is whether the Court properly granted a nonsuit. The action is to recover possession of a tract of land, which is a part of the Suscol Rancho, and the complaint is in the usual form. The answer contains, first, a general denial of the complaint; second, an averment that the defendants made settlements on the land under the laws of the United States, and by virtue thereof are entitled to the possession; third, adverse possession by one of the defendants for more than five years before the commencement of the action. It appears from the record that the plaintiff claimed title under a deed from M. Gr. Vallejo, made and recorded in 1851; but there was no proof of any prior possession or title in Vallejo. On the contrary, the proof shows that the land was not in any manner inclosed or eultitivated until 1860 or 1861, at which time the plaintiff caused it to be inclosed and put some stock upon it. But the defendant was then residing on the tract, and his house was included within the plaintiff’s fence; but shortly thereafter he voluntarily removed from within the inclosure to a point just outside of it, where he continued to reside. We infer from the testimony of the witness Stewart, who was the only witness examined on that point, that the defendant, after his removal, continued to pasture his cattle on the premises inside of the inclosure, and from time to time turned the plaintiff’s cattle out. In answer to a question, he said, “he (the defendant) would not allow the plaintiff’s stock to stay in there.” In answer to the question, “Did he turn them out? ” he replied, “Yes, sir.” On cross examination, he testified “he (defendant) told me he would not leave them (plaintiff’s cattle) in there; he told me he would put them out.” This was the only proof of defendant’s occupation at the time of the com
But the plaintiff claims to have established a valid paper title from the Government of the United States; and it appears from his bill of exceptions that he “offered a patent from the United States of America to Thomas S. Page and others, dated--, purporting to convey the pretnises described in the complaint pursuant to the provisions of the Act of Congress approved March 3d, 1863, entitled ‘An Act to grant the right of pre-emption to certain purchasers on the Suscol Rancho, in the State of California,’ to the parties therein named, according to their respective interests, as purchasers from Vallejo or his assigns. Said patent also described the land as case Ho. —, in the report of the Register and Receiver, dated January 2d, 1865.”
It does not appear that the patent was put in evidence, but only that it was “offered,” and though it is probable this term was employed in the bill of exception as equivalent to the averment that it was put in evidence, we cannot but express our disapprobation of this loose mode of expression in detailing the history of the case. It leaves us in doubt
Judgment affirmed, and remittitur ordered to issue forthwith.