JAMES S. CLARK, Appellant, v. MARK ANTHONY, Respondent, 1 Cal. Unrep. 888

By the COURT. — The action is ejectment and was commenced November 10, 1869.

One of the defenses set up in the answer is the statute of limitations, and the finding on. this point is “that the entry of the defendant Anthony was made on the first day of October, 1863, and was not wrongful or unlawful, and has ever since been maintained -adversely to plaintiff; .... that neither the plaintiff, his ancestors, predecessors, or grantors, or either or any of them, have' been seised or possessed of said demanded premises within five years before the commencement of this action; but the defendant has been in the actual, adverse possession thereof under claim of title, exclusive of all other right, and expressly adverse to the claims of plaintiff. ’ ’ The plaintiff assails this finding on the ground that, as he alleges, it appears from the evidence that the defendant’s grantor, from whom he obtained the possession, entered in subordination to the plaintiff’s title, and that the defendant is estopped to set up an adverse title until he surrenders the possession.

He claims, moreover, that the evidence does not support the finding that the possession of the defendant was in fact adverse. It is sufficient to say that there is a substantial conflict in the evidence on these points. Judgment and order affirmed.