ROBERT B. ELLIS v. THOMAS JEANS, WILLIS LONG, and W. B. LONG, 26 Cal. 272

By the Court, Shafter, J. This is an action of ejectment, brought to recover the possession of a certain tract of land situated in the County of Solano, containing five hundred acres. The several answer of Jeans denies all the allegations of the complaint. The joint answer of the other defendants contains a like denial and a plea of title and right of possession in themselves. The trial was by the Court. The findings were in favor of the plaintiff, and judgment was entered thereon against the defendants jointly, for restitution of the premises demanded and five thousand dollars damages.

The defendants moved for a new trial, on the ground that the evidence was insufficient to justify the findings, and of errors of law occurring at the trial. The motion was denied, and from the order, and also from the judgment, the defendants appeal. The plaintiff claims under one Vaca, through a deed executed by Vaca to McDaniel on the 21st of August, 1850, and recorded on the 22d of said month. McDaniel deeded to Mizner one undivided half of the land on the day last aforesaid, which deed was recorded June 2, 1851.

McDaniel and Mizner deeded to Bayse on the 3d day of May, 1851, which deed was duly recorded on the same day, and Bayse conveyed to the plaintiff March 18, 1852. This deed was recorded on the 24th of March, 1852. The defendants, with the exception of Jeans, who exhibits no title, also claim under Vaca, by the following deraigmnent: Deed of Vaca to Pattens and Lyon, dated April 7, 1849, recorded September 24, 1856. This deed was made in pursuance of a contract to convey, executed March 20, 1847, which contract was never recorded.

The Pattens and Lyon conveyed to the defendants Long, March 17, 1851, and the deed was recorded on the second day of July following. It appears, from the foregoing statement, that the title of the defendants derived from Vaca, the common source, was older than that of the plaintiffs; but that the deed of Vaca to McDaniel, constituting a step in the plaintiffs’ deraignment, was first recorded. The defendants introduced evidence for the purpose of proving that the plaintiff and Bayse, and Mizner and McDaniel, had actual notice at the date of the purchases respectively, of the prior deed of Vaca to Pattens and Lyon.

The testimony on the point presented was conflicting; and, furthermore, the evidence introduced by the defendants was mainly circumstantial, and, standing by itself, was not, in our judgment, so demonstrative in its character as to preclude intelligent differences of opinion on the question of its weight. Under the settled practice of this Court, a new trial cannot be granted in this case on the ground that the findings are not supported by the evidence.

It appears that the defendant Jeans occupied one hundred and twenty acres of the five hundred acres demanded from 1854 to 1857; that his occupation was limited to the one hundred and twenty acres, and that his occupation was exclusive. It further appears that Jeans was not in possession during the whole of the-interval for which damages were computed and given against him and the other defendants jointly.

It does not appear with any proper distinctness that the Court was requested to distinguish in its findings the case of Jeans from that made against his co-defendants; and therefore we consider the plaintiff was entitled to a recovery against the defendants jointly. (Winans v. Christy, 4 Cal. 70; Ellis v. Jeans, 7 Cal. 417.) The appellants further insist that the deed of McDaniel and Mizner to Bayse, and the deed of Bayse to the plaintiff, are void for uncertainty, and that the Court erred in admitting the deeds against the defendants’ objection.

We have examined the deeds referred to, and are persuaded that in neither of them is the description of the land intended to be conveyed ambiguous or in any respect uncertain. The place of beginning is fixed in the deeds respectively with entire precision, and thereafter the calls are clear and consecutive until the point of beginning is reached. It is further objected that the findings are erroneous for the reason that the parol testimony introduced for the purpose of applying the deeds last mentioned to the lands in controversy was insufficient to warrant the conclusion that the Court drew from it.

We have examined the testimony in its relations to the question named, and while we fail to detect any conflict we find the testimony to be somewhat loose and disjointed. Objects and localities are referred to in the testimony of the witnesses, which are not produced upon the map introduced for the purposes of illustration, and the oral testimony, though positive enough on certain points, is in other respects somewhat embarrassed by hypothesis. Still we consider that the testimony has some appreciable tendency to support the finding.

But it further appears from all the evidence in the case, and the admissions of counsel in argument are to the same effect— that the plaintiff, at the time this action was brought, in February, 1856, was himself in possession of one hundred and eighty acres, parcel of the five hundred acres demanded; and that the possession continued in him thereafter to the day of the trial.

On this state of the evidence, the Court found that the defendants had been in possession of the whole of the five hundred acres since the 6th of May, 1852, and the damages seem to have been assessed through the whole interval and upon the whole area. This finding of the Court upon the subject of damages was undoubtedly erroneous, both in fact and in law.

It is true that the defendants, in their answers, deny the plaintiff’s title to the whole or any part of the five hundred acres; but it is also true that the plaintiff could not recover damages for the use of land of which the defendants had never dispossessed him. The counsel of the respondent insists that the defendants should have disclaimed as to the one hundred and eighty acres in possession of the plaintiff. To this there are two answers.

One is, that when damages are denied, no more damages can be given than what the party proves he has actually sustained ; and the other is, that in the orderly conduct of an action of ejectment, disclaimers, as such, are entirely unknown. (Noe v. Card, 14 Cal. 609.) Judgment reversed and cause remanded for new trial. By the Court, Shaftek, J., on motion of Respondent to vacate judgment. Ejectment. Motion by respondent to vacate the judgment of this Court reversing the judgment of the District Court and granting appellants a new trial on the respondent’s filing a release of damages.

The motion is objected to by the appellants on the ground that the new trial was granted not only for the reason that the damages were excessive, but for the further reason that the Court below found that the defendant had disseized the plaintiff of the whole of the five hundred acres sued for, when it appeared from all the testimony in the case that the plaintiff was himself in the actual possession and enjoyment of about one hundred and eighty acres thereof at the commencement of the action.

To avoid this objection the respondent offers to release the one hundred and eighty acres- from the operation of the judgment. If the particular location of the one hundred and eighty acres appeared either in the pleadings or by the findings we might order the modification upon the basis of the record, but there' is nothing in either showing the location, and we are not at liberty to examine the evidence for the purpose of determining the location as a question of fact. To do so would be to exercise original rather than appellate jurisdiction. Motion denied and stay dissolved. Mr.

Justice Chkret, having been of counsel, did not sit on the trial of this case.