Lick v. Diaz

By the Court, Wallace, C. J.: 1. There was no error in permitting the defendants to prove that Prado Mesa performed work upon the premises. The answer set up that the said Mesa always, during his lifetime, asserted title to an undivided moiety of the lot in ques[480]tion, and the evidence, in this respect, tended in some degree to support that allegation of the defendants.

2. bTor can the order denying the plaintiff a new trial be reversed because of the admission in evidence of the declarations of Mesa made in his lifetime to the witness, Galinda.

TTpou the former appeal in this cause it appeared that the counsel for the defendants offered to prove by Forbes and by Bose and another witness that the grant was made in 1844 to Mesa and Diaz, at the personal solicitation of the former; that the possession of the premises was delivered to them both; that the fact of their joint ownership of the lot was notorious in Yerba Buena; “that said Juan Prado Mesa before he died made statements asserting title to the undivided one half thereof;” that he assisted in building the house on the lot; that he continued to claim the lot down to the time of his death; and that Yerba Buena was then a small place, and if Mesa had renounced his interest it would for that reason have been known, etc. The exclusion by the Court of this evidence was one of the errors relied upon by the defendant on the former appeal, and in reference to which this Court, in reversing the judgment, then said: “That a portion of the testimony was competent we entertain no doubt. If it was true that the grant was made to the two jointly, at the urgent solicitation of Mesa, and that possession of the lot was delivered to the two jointly, and that Mesa assisted in building the house, and claimed, up to the time of his death, to be a joint owner with Diaz, it cannot be denied that these facts not only tended strongly to contradict Diaz, but also to show that Mesa never refused to accept the grant or agreed to renounce his claim to it,” etc. Further the Court said: “We hold, therefore, that the Court erred in excluding the evidence referred to—that is to say, such portions thereof as we have indicated were admissible. But that portion of the offer which was to the effect that Yerba Buena was then a small place, and that a renuncia[481]