Poorman v. Miller
Before: Niles
Synopsis
Construction of Deed.—The case of Mayo v. Mazeavx, 38 Cal. 442, affirmed, on the point that the land in Sacramento conveyed by John A. Sutter to John A. Sutter, Jr., by deed, dated October 14th, 1848, was land described in the grant and subsequent patent to Sutter, Sr.
Parol Evidence of Contents of a Deed.—Before parol evidence of the contents of a. deed is admissible, it must be shown to have been lost or destroyed.
Evidence of Contents of a Deed.—When a deed is given of a tract of land with a reservation of a certain parcel of land within the tract, which had been before conveyed by the grantor to a third party, the boundaries of the reserved tract cannot be proved by a description contained in a deed of a later date from the same grantor to the same grantee, even if given in lieu of the former deed.
Idem.—Such former deed is the best evidence of its contents, but if lost or destroyed, parol evidence of its contents is admissible.
Idem.—In such case the declarations of the grantor and grantee in the later deed, that it was made in lieu of a former deed of the same land, are not admissible in evidence to lay the foundation for the admission of the later deed in evidence for the purpose of fixing the boundaries of the land conveyed in the former deed.
Evidence oe Deceased Witness.—In order to entitle the testimony of a witness, since deceased, to be received in evidence, it must be shown that the testimony was given in a case in which the parties to the suit in which it is offered or their privies were parties.
Declarations as Evidence.—Declarations oí a person, since deceased, not against, but in support of his own interest, are not admissible in evidence in favor of those who claim rights which the declarations would maintain.
By the Court, Niles, J.: This is an action of ejectment to recover possession of one hundred and ninety-three acres of land in the County of [274]Sacramento. The plaintiff had judgment. The defendants appeal from the judgment and from the order overruling their motion for a new trial.
The plaintiffs derain their title through mesne conveyances from John A. Sutter, who held the land by grant from the Mexican Government, and to whom it was confirmed and patented by the United States.
It is admitted that the premises in controversy were included within the calls of the Sutter grant and patent. But the defendants contend that they were not shown to be within the calls of the deed of John A. Sutter to John A. Sutter, Jr., of October 14th, 1848. This conveyance was construed by this Court, in Mayo v. Mazeaux, 38 Cal. 442, and it was held that the land thereby conveyed was land described in the grant and subsequent patent to Sutter, Sr. It follows that the demanded premises were within the general calls of the deed of October 14th, 1848.
But this deed contained reservations of certain parcels of land which were included within the boundaries of the general description, but which had been previously conveyed to various parties, and among others, a reservation of “ one half mile of land, lying in Sutterville, and conveyed to one Langford W. Hastings some time in the year 1845.”
It may be conceded that the evidence sufficiently showed that the land in controversy was not included within the description of this or any other reservation of the deed. But it was essential to fix the location of the northerly line of the Hastings tract, as conveyed by Sutter, Sr., for the reason that it is the line to which the calls of the deeds of a series of other tracts, and finally of the deed under which the plaintiffs claim, must be referred. Por this purpose plaintiffs offered a deed from Sutter, Sr., to Hastings, dated Hovember 30th, 1849, purporting to convey a tract of land in the Town of Sutterville. This deed was of a date subsequent to the deed to one McKinstry, of the adjoining land, [275]which called for a starting point upon the northern line of the Hastings tract, and of another deed to one McDougal, of land bounded upon the south by the McKinstry tract.
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