Poorman v. Miller

By the Court, Niles, J.: This is an action of ejectment to recover possession of one hundred and ninety-three acres of land in the County of [274] Sacramento. The plaintiff had judgment. The defendants appeal from the judgment and from the order overruling their motion for a new trial. The plaintiffs derain their title through mesne conveyances from John A. Sutter, who held the land by grant from the Mexican Government, and to whom it was confirmed and patented by the United States. It is admitted that the premises in controversy were included within the calls of the Sutter grant and patent. But the defendants contend that they were not shown to be within the calls of the deed of John A. Sutter to John A. Sutter, Jr., of October 14th, 1848. This conveyance was construed by this Court, in Mayo v. Mazeaux, 38 Cal. 442, and it was held that the land thereby conveyed was land described in the grant and subsequent patent to Sutter, Sr. It follows that the demanded premises were within the general calls of the deed of October 14th, 1848. But this deed contained reservations of certain parcels of land which were included within the boundaries of the general description, but which had been previously conveyed to various parties, and among others, a reservation of “ one half mile of land, lying in Sutterville, and conveyed to one Langford W. Hastings some time in the year 1845.” It may be conceded that the evidence sufficiently showed that the land in controversy was not included within the description of this or any other reservation of the deed. But it was essential to fix the location of the northerly line of the Hastings tract, as conveyed by Sutter, Sr., for the reason that it is the line to which the calls of the deeds of a series of other tracts, and finally of the deed under which the plaintiffs claim, must be referred. Por this purpose plaintiffs offered a deed from Sutter, Sr., to Hastings, dated Hovember 30th, 1849, purporting to convey a tract of land in the Town of Sutterville. This deed was of a date subsequent to the deed to one McKinstry, of the adjoining land, [275] which called for a starting point upon the northern line of the Hastings tract, and of another deed to one McDougal, of land bounded upon the south by the McKinstry tract. In order to account for this discrepancy in dates, the plaintiffs introduced a witness, who testified that he had heard both Sutter, Sr., and Hastings say that the deed offered was given in lieu of a deed executed by Sutter, Sr., to Hastings, in 1846, for the identical tract of land described; that he had heard Hastings testify to the fact under oath, and that Hastings was reputed to be dead. Both the oral evidence and the deed were admitted against the objection of the defendants. The fact to be ascertained was the line of the Hastings tract at the time when the deed to McKinstry of the adjoining land was made. The conveyance to Hastings of a subsequent date could not aid the determination of this question. If there was, as we may infer from the evidence, an older deed to Hastings, the instrument itself would be the best evidence of the extent and boundaries of the land conveyed. If it had been shown to have been lost or destroyed, parol evidence of its contents would" have been admissible. But the testimony offered by the plaintiffs did not even tend to prove the loss or destruction of the deed, or account in any manner for their failure to produce it. Uor did they offer to show its contents by any admissible proof. The recountment of the declarations of Sutter and Hastings, that the deed offered was in lieu of the former deed, was hearsay evidence merely, and upon well settled principles should have been excluded. The case does not fall within any of the recognized exceptions to the general rule. Conceding that it was sufficiently proven that since the making of the declarations Hastings deceased, the declarations do not appear to have been against his own interest, and his testimony to the fact does not appear to have been given in any case [276] in which the parties to this suit, or their privies, were concerned. We are of opinion that the admission of this evidence was error, for which the defendants are entitled to a new trial. Judgment and order reversed, and cause remanded for a new trial.