Wilson v. Corbier

Baldwin, J. delivered the opinion of the Court Terry, C. J. concurring.

The plaintiff failed to deraign title. The deed from Jimeno to Larkin and Missroon was not proven. The deed was executed in 1847, and made a record in the office of Colton, Alcalde of Monterey. A copy in the Spanish language appears to be on the records of Colusa County. But we know no law which authorized the Recorder or Clerk of Colusa to record this copy so as to make it evidence, without further proof. This throws on the plaintiff the burden of showing a, possessio pedis in himself, or in some predecessor through whom he deduces title. But we see no such evidence in the record. Though some evidence exists of his predecessor, Missroon, being on the premises, yet we see no sufficient proof of any distinct or exclusive possession on his part of any given quantity of land. The fact that he had cattle on the land, or was there for short periods himself, or that he claimed within given limits is, in the absence of any in closure, or some visible physical signs of the extent of its boundaries or claim insufficient to show the fact of possession of any par[168]ticular tract, when others were also in possession. We think that this qualified and equivocal possession of Missroon, therefore, did not give him a right to sue for the land, as against these defendants, and that his grantees could not maintain this action upon their deed and his possession.

As the nonsuit determines nothing, the plaintiff may proceed, and, under better proof, if he can procure it, try his case anew.

Judgment affirmed.