The defendant Galliac is not estopped from disputing the plaintiff's title, because he took a lease from him while in possession. The possession of the defendant Galliac was the possession of his landlord, John Dewar. (Brown v. Drysinger et al., 1 Rawle's Rep. 408; Miller v. M. Brier, 14 Sergt. & Rawle's Rep. 382; Tewksbury v. Magraff , 33 Cal. 253.)
As plaintiff has failed to prove title upon the trial, where that was the leading question at issue, the presumption necessarily follows that he had no title to prove. Having no title, his representation that he was the owner of the lot was false and fraudulent; and being so, Galliac was entitled by himself to dispute his title, having been long in possession of the property under Dewar, when he was coerced into signing the lease to Holloway. (Tewksbury v. Magraff , 33 Cal. 237; Franklin v. Merida , 35 Cal. 558.)
JUDGES: McKinstry, J.
OPINION
McKINSTRY, Judge
In Peralta v. Ginochio, ante, p. 459, we considered the effect of the circumstance that a tenant was in the possession at the time, and prior to the execution of a lease, which was subsequently relied on, as estopping the lessee from denying the title of the lessor. We there held: " The landlord, by production of the lease, makes a prima facie case, and the burden of proof is cast on the tenant; and unless he overcomes it by showing paramount title in himself, or those under whom he claims, the landlord must prevail." It remained for the defendant in this case, therefore, to connect himself with a superior title.
On the trial below it appeared, from an entry in the book of Alcalde records of the Pueblo de San Jose, that a grant was made by the chief magistrate of the pueblo to one Charles White, on the sixth day of December, A.D. 1846. The grant was of a lot " twenty-five yards in front by fifty in depth, and is bounded south-east by Chaipa Garcia's house and lot."
On the twentieth of February, 1849, the then Alcalde made an entry in the same book, and immediately below the foregoing minute of a grant, in these words: " The above is located fronting twenty-five varas on Market Place, and forty varas fronting on San Carlos street." It is not necessary to inquire whether, if the description in the grant was insufficient, the two entries could be read together and would constitute a new grant, as of the last date. If Chaipa Garcia occupied a lot in the Pueblo, and a lot twenty-five by forty yards could be located immediately to the north-west of hers, the grant was valid and conveyed ownership to a definite tract of land. The minute in the Alcalde's book of February, 1849, does not purport to grant any land, but to fix the position of a lot already granted and definitely described. It is clear that the rights of White were not affected by the last entry, and that such entry must be disregarded. The defendant claimed to defend his possession of the lot described in the complaint by virtue of a title derived from the pueblo, through the grant to Charles White. The evidence is conclusive, however, that the lot in controversy is not the lot granted to White. The identity of the lot granted, and that sued for, was a fact to be established by the defendant. But no evidence was offered on his part upon the subject, except the declaration of a third person, which was hearsay testimony; while several witnesses located the Chaipa Garcia lot at a distance of over one hundred feet from the lot in controversy, and separated from it by another lot.
The defendant having failed to connect himself with a title paramount, the plaintiff should have recovered judgment, by reason of his position as landlord.
Judgment reversed and cause remanded for a new trial. Remittitur forthwith.