Dyson v. Bradshaw

Crocker, J. delivered the opinion of the Court—Horton, J. concurring.

TMs is an action to recover the possession of a large tract of about 1,000 acres of land in the City and County of San Francisco, known as the Potrero Huevo. The tract claimed by the plaintiff is bounded on three sides by Mission Creek, Precita Creek, and the Bay of San Francisco; and on the other side by a line running from one creek to the other. It seems that one Treat, in 1850, erected a house and corral on the tract, wMch was then vacant, and built a stone wall and fence from one creek to the other, thus making, with the bay and creeks, an inclosure in wMch cattle and horses were pastured. In 1852, Treat conveyed the tract to Dyson, under wMch Dyson took and held possession, and claims the title thereto. The defendants entered and took possession of portions of the tract at different times, without title. In April, 1853, the plaintiff conveyed a portion of the premises, by quitclaim deed, to Robert E. Woods, under an agreement that Woods was to remove the settlers from the Potrero; and the deed was placed in the hands of one Sharp, as an escrow, and was not to be delivered to Woods until the latter had removed all the settlers, as per agreement. The case was tried by a jury, who found a verdict “ in favor of the defendants, in consequence of the description contained in the deed from the plaintiff to Robert E. Woods—the land occupied by the defendants having been conveyed to said Woods.”

The first point urged by the appellant is, that the Court below erred in admitting in evidence the deed from the plaintiff to Woods, on the ground that it was not pleaded, and the defendants did not [536]connect themselves with the title of Woods. The plaintiff avers, in his complaint, that he was the owner of the premises, which is denied by the answer, and the deed was clearly admissible to disprove this averment and sustain the denial, as it showed that plaintiff had no title to that portion of the premises described in the deed. The objection that the defendants did not connect themselves with the title of Woods is equally untenable. The appellant, to sustain this point, refers to several decisions of this Court, wherein it was held that in an action to recover the possession of real estate, brought solely on the prior actual possession of the plaintiff, a defendant, who is a mere trespasser, cannot justify his act by showing the true title to be outstanding in a third person. (Bird v. Lisbros, 9 Cal. 1; Piercy v. Sabin, 10 Id. 22; Coryell v. Cain, 16 Id. 567.) This rule has no application to the present case. It properly applies to a case where the title of such third person is superior or better than that of the plaintiff, or adverse thereto, and it has no application in a case like the present, where such outstanding title was derived from the plaintiff. • In such case, it shows that the plaintiff has divested himself of all right to the possession by his own act, and that the right to maintain the action under his own claim of title is not in him, but in a third person. It defeats his action more effectually than proof of an abandonment, which is clearly sufficient. (Bird v. Lisbros, 9 Cal. 1; Gluckauf v. Reed, 22 Id. 468.)