TARLTON CALDWELL v. JOHN CENTER and EDWARD CRIM, 30 Cal. 539

By the Court, Rhodes, J.: The cause was submitted to the jury both upon the theory of title under the Van Hess Ordinance and prior possession, and the verdict for the plaintiff being general, it is impossible to determine from the record upon which theory it was rendered ; but admitting that the evidence, which we think was clearly insufficient to establish title in the plaintiff under the Van Hess Ordinance, tended to show such prior possession in Foley, that the verdict would not be disturbed on the ground that the evidence was insufficient on that point, it becomes necessary to pass upon some of the other questions of the case.

Did the plaintiff acquire Foley’s title ? One of the links in the chain of title under which the plaintiff claims, is a deed from Stevens and Abell to Lyons and Sturtevant of the parcel of land “ known as Lot Number One in the subdivision of the tract of land lying on the new county road, and known as Folpy’s tract, the map of which is duly recorded in the Recor* der’s office of the County of San Francisco, reference to which is herein made,” the deed being admitted only as the deed of Stevens. Description of land in deed.

The parties to a deed, instead of setting out in full the metes and bounds or other complete designation of the tract intended to be conveyed, may describe it, in whole or in part, by reference to some instrument, as a deed, map, etc., which contains or furnishes such a description of the land that it, when read in connection with the deed, will completely identify the land. An instance of this manner of describing the premises is found in Hicks v. Coleman, 25 Cal. 122.

The deed and the instrument therein referred to, when taken together, must be as certain in respect to the description of the premises, as a deed containing no direct reference to another document. It is unnecessary to say whether the instrument referred to in the deed must- be produced in evidence, when the deed itself contains a sufficient description of the premises; but when such is not the case the party claiming under the deed is under the same rule to produce the instrument referred to in the deed, as to produce the deed itself.

The deed of Stevens and Abell to Lyons and Sturtevant is not sufficient in the description of the premises conveyed, to designate and attach itself to any particular tract of land without the aid of further evidence. Admitting that the exterior lines of the Foley tract were as claimed by the plaintiff, evidence of some kind was requisite to show where Lot Number One was located. The only evidence introduced by the plaintiff for this purpose was a map from the Eecorder’s office, and a map from the Surveyor’s office, and parol testimony in explanation of the last map.

The defendants objected to the map from the Eecorder’s office on the grounds, among others, that “ it was made with pencil and not with ink,” and that “ it is pasted in between the leaves of the book, but not recorded.” The objection should have been sustained. Had the deed referred to a map to be found in that place and condition, it would have been admissible in evidence, for it would have constituted in effect a part of the deed as much as if it had been copied into it. (Vance v.

Fore, 24 Cal. 444, and cases cited.) But the deed calls for a map duly recorded in the Eecorder’s office, and by the utmost stretch of liberality the one produced cannot be regarded as recorded.

The Act concerning County Eecorders provides that the several instruments entitled to record shall be recorded “ in large and strong bound books, and in a fair, large and legible hand.” The necessary implication from this provision is that the instrument must be copied into the proper book of record ; and in view of the purpose to be subserved by the recording of the several classes of instruments mentioned in the Act—the making and preservation of accurate and durable official copies of such instruments—a copy made in pencil or other materials that would not permanently remain, would not be within the spirit of the Act.

The map should for these reasons have been excluded. The map from the Surveyor’s office did not fill the place of the one specified iii the deed. It did not purport to be a map of the Foley tract; it did not appear to have been recorded in the Eecorder’s office, and it was not proven that it was a duplicate, or a copy in whole or in part of the one mentioned in the deed, nor that, in respect to the premises in controversy, they were identical.

We do not undertake to say that the evidence of that character would have been admissible if objected to, but as the map now appears before us, it does not fill the place that the parties to the deed designed should be occupied by the map they designated as containing the metes and bounds of the tract of land conveyed. By excluding the map from the Recorder’s office, which should have been done, the plaintiff’s chain of title is broken.

The plaintiff claims that leaving out of .the case the Foléy title, he is still entitled to a recovery on the ground of an estoppel growing out of the facts, as he alleges, that in 1858, Perkins, who was then in possession of the premises, but claiming no right in them, conveyed them to Lyons, and took' from him a lease ; that when Perkins sold his own tract adjoining the premises to Grim, and gave him the possession of it, he- at the .same time gave him the possession of the premises in controversy, and that Center entered under Grim.

We need not delay upon this matter, for when the facts appear on the new trial, and they are not entirely clear in the record, and counsel disagree, not only in respect to them, but as to the meaning of the testimony of the witnesses, the questions arising thereupon are determinable upon very familiar principles. Gharge of Court on facts in issue. The only remaining point we shall notice is the alleged error of the Court in giving that portion of the charge to the jury which is recited in the transcript.

We are clearly of the opinion that the charge is erroneous, for it assumes as a fact proven that Perkins was the tenant of the plaintiff. That was a fact in issue between the parties, and was to be found as a fact by the jury from the evidence adduced by the respective parties.

The production of a lease will not of itself show that the relation of landlord and tenant existed between the parties to the lease, and although it is the province of the.Court to construe the instrunient when admitted in evidence, yet the Court cannot declare, as a matter of law, that the party named therein as the lessee was the tenant of the lessor, because there must be further shown by competent evidence, the entry of the lessee under, the lease, or a holding of the possession of the premises by the lessee that will be referable to the lease as his authority.

Those are matters of fact to be ascertained by the jury in like manner as the delivery of a deed, after its execution is proven, and may not be assumed by the Court as facts, unless admitted by the parties to the action. Judgment reversed, and cause remanded for a new trial.