The patent from the State of California was admissible in evidence, for the purpose of establishing prior possession of plaintiff's intestate under a school land location, and that his right of possession thereunder had ripened into a perfect title. (Gallup v. Armstrong, 22 Cal. 480.) It was not offered or received for any other purpose whatever.
But plaintiff proved that the land in contest had been certified over to the State of California, and belonged to said State or its grantees. Such being the case, defendants could not show title except through or from the State of California. And since the defendants had not alleged title from the State of California, they were not authorized to prove title, even from the State, under the pleadings; and such being the case, the only objection that can be urged to the ruling of the Court in that regard is, that it was too favorable for defendants.
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
The Court below did not err in denying the defendants' motion to substitute Larco as plaintiff, upon the ground that since the commencement of the action he had succeeded to the plaintiff's title. If so, the substitution was a matter which did not concern the defendants, but the plaintiff and Larco. The sixteenth section of the Practice Act, so far as it relates to the substitution of another in the place of the plaintiff, in case of a transfer of the cause of action, is to be set in motion by the plaintiff or his vendee. As against the defendant, a plaintiff has a right to stay in Court until his case has been tried. If the defendant desires to take advantage of the transfer for any purpose, he must do so by supplemental answer. (Moss v. Shear, 30 Cal. 467; Barstow v. Newman, 34 Cal. 90.)
The Court erred, however, in receiving the State patent in evidence on the part of the plaintiff. The issues in an action of ejectment relate to the commencement of the action; and to recover, the plaintiff must show that he was entitled to the possession at that time. (Yount v. Howell, 14 Cal. 465; Owen v. Fowler, 24 Cal. 192.) Having been issued long after the commencement of the action, the patent tended in no respect to show that the plaintiff was entitled to the possession at the time the action was brought.
The Court erred, also, in refusing to allow the defendants to prove title unless it was derived from the State of California or the plaintiff's intestate. Conceding that the plaintiff's intestate had acquired a title from the United States through the State location and patent, the defendant may have had an older title from the same source; and if so, they were entitled to prove it under their general denial of the plaintiff's title. (Megerle v. Ashe, 33 Cal. 74.)
Judgment and order reversed, and a new trial ordered.