Defendant might have shown that plaintiff had no title to the land in dispute. It was perfectly immaterial to show the intention of defendant in taking the lease, or whether he intended to abandon the land or not, or whether he received anything for the execution of the lease, or whether he paid any rent thereunder. Only the ultimate fact, i. e., the fact that plaintiff had no title or right to possession of the demanded premises, would have availed defendant, and his offers were not broad enough to reach the fact.
JUDGES: Rhodes, J. Mr. Chief Justice Wallace did not express an opinion.
OPINION
RHODES, Judge
Several questions of fact have been discussed by counsel which do not arise on this appeal. The only specification of the insufficiency of the evidence to sustain the decision which is to be found in the statement on new trial is the last, and it is as follows: " The evidence is insufficient to justify the decision in this, that the complaint alleges that plaintiff is owner in fee, while the evidence only shows that plaintiff had a contract to purchase the premises described in the complaint." This point cannot be sustained, for the plaintiff produced a lease of the premises, executed by him to the defendant for the term of six months, ending a few months before the commencement of the action. The lease made out a prima facie case of title in the plaintiff.
2. The point that the defendant is entitled to recover upon his evidence of adverse possession, cannot be entertained, because it is not comprehended in any of the specifications in the statement.
3. The motion for a nonsuit should have been granted. The answer denies that the defendant " ever ousted or ejected the plaintiff" from the premises; and the plaintiff failed to prove the ouster; but the defendant afterwards supplied the defect, by proving that he had remained in possession ever since the execution of the lease above mentioned. The production of that evidence cured the error.
4. The defendant urges that the Court erred in permitting the plaintiff to introduce further evidence, after the motion for a nonsuit was made. But that matter is committed to the discretion of the Court, and we see in it no abuse of discretion.
5. It is also urged that the Court erred in permitting the plaintiff to offer evidence of the deraignment of his title, after the defendant had closed. The plaintiff defends the action of the Court on the ground that the defendant, having relieved himself of the estoppel of the lease, by proving that he was in possession of the premises at the time of the execution of the lease, the burden of the proof of title was cast on the plaintiff. But this is not the rule. (See Peralta v. Ginochio, 47 Cal. 459.) The plaintiff was entitled to rely upon the lease as prima facie evidence of title, and this was not overcome by the mere fact that the defendant was in possession at its execution. The burden of proof was on the defendant to show paramount title in himself, or one under whom he claimed. But, in our opinion, the evidence was properly admitted in rebuttal--to overthrow the defense of adverse possession.
6. The defendant offered to prove that he executed the lease above mentioned for the sake of peace, " but not with the intention of surrendering his legal rights; " that he did not intend to abandon any right or title to the land; that the lease was executed without any consideration on his part; that no rent was ever demanded of him; and that he continued to assert his claim to the land after, as well as before, the execution of the lease. The purpose of that offer was to show that the defendant's possession was adverse, during the term mentioned in the lease. The lease, not being void because of fraud, or any other reason disclosed by the record, created the relation of landlord and tenant between the parties; and, by legal necessity, there could be no adverse possession by the defendant during the term, by the mere intention so to hold, and without the doing of some act which would amount to adverse possession by a tenant who had entered under a lease. The taking of the lease interrupted the running of the statute; and any subsequent adverse possession which the defendant may have held, even if it commenced immediately after the execution of the lease, could not be added to the time which had run prior to the lease; for adverse possession, in order to constitute a bar, must have been continuous during the whole statutory period. The evidence offered by the defendant was rightly excluded.
7. The plaintiff contends that the question as to the sufficiency of the evidence to justify the decision on any issue, cannot be entertained, because the statement does not purport to contain all the evidence given at the trial; and as this point is often presented, the rule will again be stated, though it has so often been repeated that it has become trite. The moving party is required to set forth so much of the evidence (and no more) as may be necessary to explain the points specified in his statement or bill of exceptions; and when such statement or bill of exceptions is settled, it will be presumed that it contains all the evidence given in the cause, which was necessary to be stated, in order to explain the points specified; and that it would not have presented a different case in respect to the specified points, had it contained, also, the omitted evidence. It is desirable that counsel shall consider this point as settled.
The other points in the case do not require any notice.
Judgment and order affirmed. Remittitur forthwith.