The defendants having called out, on cross-examination of Cranmer, the new matter, are bound by it. The newly discovered evidence could not be introduced on a new trial. (Carleton v. Townsend, 28 Cal. 219.)
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
The action is ejectment, and at the trial the plaintiff relied upon a paper title, which was put in evidence. Judgment was rendered for the plaintiff, and the defendant moved for a new trial, partly on the ground of newly discovered evidence, to the effect that prior to the commencement of the action the plaintiff had sold, and by deed in due form, properly acknowledged, certified, and delivered, had conveyed the premises in controversy to another person, and at the time of the conveyance had received a portion of the purchase money, and had taken the promissory note of the purchaser for the remainder; that the purchaser retained the deed for about one month, when it was verbally agreed to cancel the contract of sale; and thereupon the plaintiff surrendered the promissory note, and the purchaser returned the deed to the plaintiff to be canceled; but no reconveyance was made by the purchaser. These facts are fully and satisfactorily established by affidavit, read in support of the motion, and clearly show that the legal title to the premises was not in the plaintiff at the commencement of the action. By his deed he had divested himself of whatever title or right of possession he previously had; and it is a familiar rule of law that the destruction or cancellation of a deed, after delivery, even though it be done with the consent of all the parties to it, and for the express purpose of restoring the title to the grantor, cannot work that result. The title had vested in the grantee, and could not be divested by a parol agreement, nor otherwise than by a reconveyance in writing. If the facts stated in the affidavits be true, the plaintiff, at the commencement of the action, had not either the legal title or the right of possession, and therefore could not maintain ejectment, even as against an intruder, without title. It is equally clear that when a plaintiff in ejectment relies upon a paper title the defendant may show the true title to be outstanding in a third person without connecting himself with it. It will be a sufficient defense, in such a case, that the title is not in the plaintiff. This rule of law is too familiar to require the citation of authorities. The newly discovered evidence was, therefore, material and competent, and I think the affidavits disclose sufficient diligence on the part of the defendants to bring them within the rule on that subject. The motion for a new trial ought to have been granted on this ground. We deem it unnecessary, on this appeal, to express any opinion as to the proper construction of the deed from the defendant to Mrs. Osborn, or whether the Court ought to have reformed it on the proofs and pleadings in the case.
Judgment reversed and cause remanded for a new trial.