The appellant goes upon the presumption, without evidence, that there are eight lots in a block, and the deed purports to convey the south half of each block; yet in the blocks between Fourth and Eighth streets and I and M streets, it purports to except seven lots, and to sell fifty-eight. If there are but eight lots in a block this could not be, for there would be but fifty-seven left after excepting seven lots. Therefore, if fifty-eight were sold, there must be more than eight lots in a block, there being only the south half of the blocks sold. There is no extrinsic evidence in the case to show that lot five sued for lies in the south half of the block between L and M and Fourth and Fifth streets, which block lies in above described property, but whether in the south half or north half, or the east or west half, or whether there are eight or ten, or twelve or twenty lots in a block, does not appear, or whether the lot is in the deed or not.
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
The Court below erred in granting a nonsuit in this case. The action is to recover a lot in Sacramento City, and the plaintiff deraigns his title through mesne conveyances from John A. Sutter, to whom the premises were granted by the Mexican Government, and to whom they have been confirmed and patented by the Government of the United States. That the deed of the 14th October, 1848, from Sutter to his son, includes the site of the City of Sacramento, was decided by this Court in Mayo v. Mazeaux, 38 Cal. 442, and we see no reason to question the correctness of that decision. If the defendants intended to rely, in their motion for a nonsuit, on the ground that the deed from Sutter, Jr., to Brannan does not include the locus in quo, they should have distinctly so stated at the time. The grounds of the motion, as shown by the transcript, were: First, that the plaintiff had failed to show the title to the demanded premises to be in himself; second, that he had failed to show that said premises are included in any of the deeds offered in evidence, or in the grant or patent to Sutter. The deed from Sutter, Jr., to Brannan, was admitted in evidence without having been objected to on the ground that it did not include the premises in controversy; and there is nothing in the record to show that the attention of the Court or counsel was called to the point now relied upon, to wit: that this particular deed does not include this particular lot. On the contrary, it is quite apparent, I think, that the point really made and decided was that the grant to Sutter, and his deed of the 14th October, 1848, to his son, did not include the site of Sacramento City, and, therefore, did not include the demanded premises. But, there is enough on the face of the deed itself to raise a presumption that it includes these premises which are described in the complaint as lot number five, in the square bounded by L and M and Fourth and Fifth streets, in the City of Sacramento. The deed from Sutter, Jr., to Brannan, conveys the south half of each of sixteen blocks between Fourth and Eighth and M and I streets, in the City of Sacramento, excepting lots six and eight, between Fourth and Fifth streets and J and K streets, and lots five and eight, between Fourth and Fifth and K and L streets, and lot eight, between Fourth and Fifth and L and M streets, and lots seven and eight, between Fourth and Fifth and I and J streets--the lots conveyed being fifty-eight in number. From these recitals, the presumption is that the south half of each of the blocks contained lots numbered five, six, seven, and eight, inasmuch as lots thus numbered are excepted from the conveyance, which purports to include only the south half of the blocks. The deed certainly furnishes some evidence that the lot in contest is situate in the south half of the block bounded by Fourth and Fifth and L and M streets, and is, therefore, included in the conveyance.
Judgment reversed, and cause remanded for a new trial.