Gill v. O'Connell

WALLACE, C. J. — The action is ejectment, and the plaintiff derives title from Victor Castro by deed bearing date in 1864. In order to show a right of entry in Castro, derived to himself by the deed, he proved that Castro, being at the time in the possession of the premises, demised them to the defendant for the term of one year, with the privilege to the lessee of a further term of five years upon a rent reserved in the lease. The lease bore date in 1855, and the defendant entered into possession thereunder in 1856, and has since then continued in possession.

One of the defenses relied upon by the defendant was that he had himself acquired the title of his lessor, the grantor of the plaintiff.

The title set up by the defendant originates in a mortgage deed, executed by Castro to one Leonard in the year 1853, and duly recorded at that time. By this instrument Castro mortgaged to Leonard “all the right, title and interest which the said Castro has either in law or equity in the ranch in Contra Costa county, on a part of which Castro resides, which is usually ealled the Rancho San Pablo, and which interest is [826]held by said Castro in common with himself, his seven brothers and sister and their descendants, which is to embrace all the said Castro’s improvements on the same, with all the appurtenances thereunto belonging.” This mortgage was afterward foreclosed by judicial decree, and the title of the defendant is derived from the purchaser at the sheriff’s sale. The defendant claimed that the demised premises, for the recovery of which this action is brought were included in the mortgage and the decree of foreclosure, and the principal question arises upon the ruling of the court below, by which his evidence upon that point was excluded at the trial. The premises in controversy are known as “Gill’s Point,” and are bounded on the north, south and west by the waters of the bay of San Francisco, and on the east bjr the marsh lands which separate it from the west line of the Rancho San Pablo, as that line is defined in the final survey of the rancho confirmed by the United States authorities in November, 1864. It will be observed that the mortgage deed from Castro to Leonard was of the interest of the former in the tract usually called the Rancho San Pablo, and embraced all the said Castro’s improvements on the same. The Mexican grant of the San Pablo Rancho was of the quantity of three square leagues within exterior boundaries of larger area, and at the time of the execution of the mortgage the definitive location of the quantity granted was yet to be made by the federal authorities. The defendant put in evidence the grant and the diseño exhibiting the exterior boundaries, and called Governor Alvarado as a witness, who, having stated that he had known the rancho for some thirty-six years, was asked by the defendant to state the exterior boundaries of the rancho, as they were understood to be from 1850 to 1857. This evidence was objected to, on the ground that the proceedings and decree in the courts of the United States in locating the grant must be taken as concluding the parties upon the matter inquired of-. The defendant then offered to show by the witness that he, the witness, knew where the lines of the San Pablo ranch ran according to the diseño in evidence, and that the premises in controversy are within those exterior limits, and that when the defendant entered under the lease from Castro, and for many years previous thereto, the premises in controversy were within the exterior limits of the rancho as granted, and that Castro occupied and held the premises in