THOMAS B. VALENTINE, Respondent, v. CHARLES J. JANSEN, Appellant, 1 Cal. Unrep. 525

SAWYER, C. J. This is an action to recover land, both parties relying on prior possession dating many years back. The questions are the usual issues of fact arising in such cases, relating to possession, abandonment, etc. We think the survey, traced copy with corrections, and field-notes, in connection with the testimony of Mr. Humphreys, the surveyor, were properly admitted. We think, also, that there was no error in submitting the deed from Thorne to defendant, carefully guarded as it was by the charge of the court and the critical instructions given at the request of defendant’s counsel.

Thus guarded, we are of the opinion that the taking of the deed, with the description contained in it, is a circumstance which the jury were entitled to consider with the other evidence relating to the location of the respective claims. We cannot say that the deed from Foley and wife to Welch was void upon its face for uncertainty. There are several descriptions in it, which may, upon applying it to the land, for aught that appears upon the face of the deed, identify it perfectly. Whether it covers the land or not, as in most cases, must depend upon other evidence.

It rarely happens, we apprehend, that it can be ascertained by the court, upon inspection of the deed, without other evidence, whether it embraces the land in question or not. Whether it embraced the land or not was a question for the jury upon all the testimony. There was no error in admitting the deed at the time it was offered in evidence. We think the judgment-roll, writ of possession, and return showing Brooks was put in possession in the case of Brooks v.

Crosby, executor, etc., was relevant and admissible for the purpose for which it was introduced — that is to say, to prove the existence of such a judgment, and that Brooks was put in possession under it: Brooks v. Calderwood, 34 Cal. 566; Moon v. Rollins, October Term, 1868. Suppose no other title had been shown, it would then have appeared that Brooks, plaintiff’s grantor, was put in possession under this judgment, that is to say, that he was in possession under color of right at least, and that Jansen afterward entered and ousted him.

Without any other testimony, this would have made out a prima facie case and entitled plaintiff to recover. This would make it necessary for Jansen to show some superior title or possession, prior t'o any of the plaintiff. The fact that both parties actually endeavored to show a possession antedating the proceedings in that case cannot affect the question of relevancy. Both parties might have failed on this part of the ease.

But even if the matter was irrelevant to the issues, the use to which it could be put was so clearly limited, and the real questions on the other evidence as to prior possession was so carefully and distinctly put to the jury, and the jury so well guarded on this point in the general charge of the court, as well as the. clear and carefully prepared instructions given at the request of counsel, that it is scarcely possible that the jury should have made any improper application of the testimony. We think there was no error in rejecting the deed from Shear to Center. In Rice v.

Cunningham, 29 Cal. 499, we said: “The bare circumstance that by the ruling of the court evidence was brought to the notice of the jury out of its regular order is no ground for a new trial.” If it be conceded that the testimony of Murray about Kline’s fence, on cross-examination, was out of time, it is clearly not a matter of sufficient moment to justify a reversal of the order denying a new trial on that ground.

In the charge of the court and the numerous and very elaborate and carefully prepared instructions covering almost every conceivable point that could arise in the case, given at the request of counsel, the case was fairly submitted to the jury, and in such a manner that it seems impossible for the jury to have misapprehended any point of law involved in the case. We think there is nothing in the giving or refusal of instructions to justify a reversal of the judgment or order.

The defendant’s proposed statement on motion for new trial, with a view to show the bearing of the several points which were intended to be made, stated: “The plaintiff, on his part, introduced evidence tending to prove, etc....., whilst the defendant produced, on his part, evidence tending to prove the earliest possession, etc.” The plaintiff objected to this mode of statement, and insisted that the evidence itself, which tended to show the facts, should have been inserted in place of the statement, that evidence was offered tending to show, etc., and proposed amendments accordingly; but the court refused to allow the amendments, and plaintiff excepted and protested against the mode of statement adopted.

The objection to the form of statement adopted was, that the evidence of the defendant, taken as true, did not tend to show the facts as stated. This being the claim of the plaintiff, we think he was entitled to have the testimony in the statement, so that this court could judge for itself whether it did or not. The materiality and bearing of the points made by the defendant might depend upon the question whether the testimony did, or did not, tend to establish the facts as stated, and the propriety of the rulings of the court below, upon the points made might turn upon this pivot.

In a disputed case, we think the plaintiff is entitled to have his statement prepared in such a way that this court can determine for itself whether the evidence tends to show the facts as claimed, or not. This court might differ from the district court, and agree with plaintiff’s counsel, on this point.

When there is no dispute about the tendency of the evidence, and it is only necessary to see its tendency in order to appreciate the points to be made, this brief way of statement is proper, and ought to be adopted, instead of encumbering the record with the evidence, but when the tendency of the evidence is itself a matter of dispute, the party claiming it to be different from that assumed by the district court is entitled to have it in the record, for his case may turn on that point, and the district court has no more right to finally adjudge that question than any other that arises in the course of the trial.

Judgment and order denying a new trial affirmed. We concur: Sanderson, J.; Rhodes, J. We dissent: Sprague, J.; Crockett, J.