CHARLES ROBERTS and A. GOATLEY v. ALBERT UNGER, KATE UNGER, JOANNA WILLIAMS, and PATRICK GALLAGHER, 30 Cal. 676

By the Court, Sawyer, J.: Action to recover a tract of land in Sonoma County. Plaintiffs rely for recovery upon prior possession in themselves and their grantors. Defendants deny a prior possession, but, if wrong in this, claim that there was an abandonment.

There was testimony bearing upon the question of abandonment. ''The seventh instruction, given by the Court at plaintiff’s request, is as follows: “ If.the jury believe from the evidence that the plaintiffs, or their grantors, were in the actual possession of any portion of the land described in the complaint prior to the possession of the same portion by the defendants, or those under whom they claim, then they must render a verdict for the plaintiff for that portion.” The defendants excepted. This instruction does not take into consideration the evidence on the question of abandonment.

And there is nothing else in the charge qualifying it.

The jury were distinctly told that if the plaintiffs, or their grantors, were in the “ actual possession of any portion of the land described in the complaint prior to the possession of the same portion by defendants, or those under whom they claim, then they must render a verdict for the plaintiffs for that portion.” Under this unqualified instruction the jury were bound to find for the plaintiff as to all land embraced in the description, which had ever been in the prior possession of the plaintiffs, notwithstanding they might be satisfied from the evidence that the right thereby acquired, had b'een lost by abandonment.

The state of the evidence required the introduction of this element into the instruction. The second instruction also assumes that there was no abandonment, and takes this z question of fact from the jury. If the principle contained in the fourth instruction, given at the request of plaintiff, be conceded to be correct, as a general proposition, still the language requires qualification, for a party may have knowledge of the precise terms of the deed, and the extent of the grantees’ claim under it, although not recorded. The instructions cannot be sustained in the form given.

The general principle embraced in the instruction has not been discussed by counsel, and, as it is unnecessary, we do not intend to decide it now. For similar reasons we shall not critically examine the instructions asked by defendants and refused. Most of them, however, perhaps all, require some qualification. There was no error in admitting the certified copy of Blackwell’s affidavit filed under the Possessory Act of 1852, or in admitting the deed from Blackwell to G-oatley. We do not perceive from the record the purpose for which the deed from Dillard to Susan M.

Blackwell, and the acts of Hoff in pointing opt his lines, were offered by the defendants, or the relevance of the evidence. We cannot, therefore, now say that this testimony was improperly excluded. The record in the forcible entry suit has no tendency to show abandonment, or that defendants had taken possession under color of title. Nor is it perceived that it would be relevant to show mere color of title. But, for the errors indicated, the judgment and order denying a new trial must be reversed and a new trial had, and it is so ordered.