It is insisted, on behalf of appellant, that it was not competent for defendants to show an outstanding title in Mr. Woods, without showing connection with that title. The defendants, by producing the Woods' deed in evidence, did not admit any title in him or in the plaintiff at any time; nor does the implication arise, that thereby the defendants conceded that plaintiff or Woods ever was the owner of the land, or had any cause of action against them, as the plaintiff's counselseem to believe. It would be quite as logical to hold that the production of evidence in contradiction of a fact alleged, admits the truth of the alleged fact, as to say that such a consequence follows from the production of the Woods' deed in evidence.
In Bird v. Lisbros , 9 Cal. 5, 6, the Court held, that prior possession is evidence of title; and that this evidence may be destroyed by abandonment; and the Court say: " In ejectment, the plaintiff must show title in himself, as against the defendant." This is a cardinal doctrine in ejectment, that has never yet been overthrown by this Court, notwithstanding the repeated efforts that have been made to induce such a result. The Court also say: " Suppose that the defendant had proved that Ralph Bird had previously conveyed the property in controversy to another party. He certainly could have done so, and that would have defeated plaintiff's action." In Schauber v. Jackson, 2 Wend. 48, Senator Oliver said: " Suppose the plaintiff produces and proves a prima facie regular paper title, and the defendant shows conclusively that the whole claim of title is a forgery, is this unavailable to him because he is a naked possessor? Is not his possession good against all the world, except the legal owner? Has it ever been questioned that a defendant in ejectment, though a naked possessor, may defend himself by showing that the plaintiff has sold and conveyed his right to the premises to a third person, before the commencement of the action?"
Did the defendants do otherwise, in the case at bar, than is said, in the two cases last cited, it was competent for them to do? It is argued on the part of the plaintiff, that a defendant cannot show an outstanding title to a third person, without connecting himself with it, when the plaintiff relies on prior possession; but it is admitted that he may do so, when the plaintiff predicates his right to a recovery, on what they denominate " strict title." And, in order to render his status invulnerable to the attack of the defendants, because of his relinquishment to Woods of all his alleged right and title in and to the premises, the plaintiff's counsel disclaim any right for their client subsisting in title, saying: " He relied upon his prior possession, and was therefore in the position, in which, as we claim, an outstanding title could not be set up against him."
Theinstances in which a defendant is not permitted to controvert the plaintiff's right to recover, by showing the title to be in a third person, when he does not show directly his connection with it, are exceedingly few, and the reasons for the rule that prevails in those cases are obvious, and are necessary to the preservation of the law as a system. These instances may be arranged as follows: 1st, when the defendant enters into possession under, or claims the possession through the plaintiff; 2d, when the plaintiff claims under a valid judgment or decree against the defendant, and purchase of the premises duly made by authority of such judgment or decree; 3d, when the defendant, without claim of title, is an intruder into and upon the plaintiff's actual possession of the premises demanded. ( Schauber v. Jackson, 2 Wend. 62.) It will be seen in the first and second of these cases, there is a direct privity existing between the parties, in relation to the subject matter; and in the third, the objection is threefold against allowing the defendant to show a paramount title in a third person, without connecting himself with it. The first of which is, that the actual possession of the plaintiff, of which he has been tortiously deprived by the defendant, is of itself evidence of the title in fee in the plaintiff, or evidence that he holds in subordination to the title in whomsoever it may be. The second is, that the defendant, as a naked intruder and tort-feasor, cannot be permitted to avail himself of a status which he has acquired by wrong, to put the plaintiff to other proof of his right to the possession, than the very actual possession of which the defendant tortiously deprived him. And the third is, that the law does not accord to one who acquires possession by force and violence, the presumption that he entered upon the actual possession of the plaintiff in subordination to the better title, in the absence of affirmative evidence establishing his connection with it. It is stated also in objection to the Woods' deed, that it was executed and placed in the hands of Solomon A. Sharp, in escrow, to be delivered to Mr. Woods, on performance by him of conditions alleged; and that these conditions were not performed. Nothing of this kind appears upon the face of the deed; nor is it pretended that any written contract was entered into by Mr. Woods with the plaintiff, to do anything whatever as a consideration for the plaintiff's release and quitclaim. The consideration expressed in the deed was $ 5,000, and its payment was acknowledged, and the right of the plaintiff to contradict the truth of his acknowledgment in the deed of that consideration, is at least questionable. But suppose the Woods' deed was placed in the hands of Mr. Sharp, upon the condition alleged by the plaintiff. This condition might have been waived, or discharged without its performance; and the presumption is, that its performance did not continue a condition to be performed before delivery of the deed; for otherwise it must of necessity be assumed, that not only was Mr. Woods guilty of fraudulently obtaining the deed, but that Mr. Sharp was equally guilty with him, by delivering the deed before performance of the condition. Such a presumption will not be indulged, without affirmative proof of facts, from which as a legitimate deduction the presumption must follow. ( Starr v. Peck, 1 Hill, 272; 1 Story's Eq. Jur. Sec. 190.)
The entry of the Treats in Sept., 1850, was a trespass on the Government domain. (U. S. Stat. at Large, 445, and Brightly's Dig. 487, Sec. 171.) So was that of the plaintiff. Neither the Treats, nor the plaintiff, were authorized to make an entry under any Federal or State law. The plaintiff did not claim any right as a preemptor under any law of the United States; nor a right under the Possessory Act of this State, passed in 1852, because then he would have been required to limit his claim to one hundred and sixty acres; but he relied, say his counsel, upon his prior possession. The evidence shows that plaintiff entered into the employment of George Treat in 1851. He must be presumed to have known that Treat did not and could not acquire a right or title to so large an area by putting up an old fence across the neck that connected this peninsula with the main land. He must have known that the possession of Treat to the extent of his occupation was a trespass; and that the quitclaim deed executed by him operated only as a release of the possession of the portion of the land actually occupied, and could not become the basis of an adverse possession to any land not actually occupied by the releasor. Such deed could not have the effect to extend, by construction, the plaintiff's right beyond that which he actually occupied, andof which he had, in the language of the authorities, the possessio pedis; and it may well be doubted whether the possession which plaintiff obtained, if any, could be tacked to the prior possession of Treat. (King v. Smith, Rice, S. C., 11; Beadle v. Hunter, 3 Strob. 331, 336.) In Lessee of Potts v. Gilbert, 3 Wash. 475, Judge Washington expressed himself as clear, that where several persons enter into possession, the last cannot tack the possession of his predecessor to his own; and even if there had been conveyances, he asks, " what had any of them in point of title to convey?" The plaintiff did not, as we have already said, claim any right as a preemptor under the laws of the United States; nor any right under the " Possessory Act" of this State. He well knew that by such a claim he would be limited to one hundred and sixty acres--a quantity entirely too inconsiderable to satisfy one of his comprehensive grasp. Hence, he has sought by this action to extend his claim (though thereby he trenched on the rights of the Government and its policy, as well as upon the rights of her citizens, who were allowed under the Act of Congress of 1853--10 U.S. Stat. at Large, 246, Sec. 6, extended by an Act of 1854; Id. 268--to settle on the unsurveyed public lands) to the whole peninsula of 1,500 acres. If he could thus extend his right to the possession of 1,500 acres, why could he not have gained by the same means a right to 15,000 acres, if the Potrero Nuevo had contained so much? Will it be pretended that one who thus enters on a large tract of land surrounded by water that affords a barrier to the ingress of cattle thereby acquires a right to the exclusive possession of the whole land? ( Preston v. Kehoe , 15 Cal. 318; Wolf v. Baldwin , 19 Id. 313.)
JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
CROCKER, Judge
This is an action to recover the possession of a large tract of about 1,000 acres of land in the City and County of San Francisco, known as the Potrero Neuvo. The tract claimed by the plaintiff is bounded on three sides by Mission Creek, Precita Creek, and the Bay of San Francisco; and on the other side by a line running from one creek to the other. It seems that one Treat, in 1850, erected a house and corral on the tract, which was then vacant, and built a stone wall and fence from one creek to the other, thus making, with the bay and creeks, an inclosure in which cattle and horses were pastured. In 1852, Treat conveyed the tract to Dyson, under which Dyson took and held possession, and claims the title thereto. The defendants entered and took possession of portions of the tract at different times, without title. In April, 1853, the plaintiff conveyed a portion of the premises, by quitclaim deed, to Robert E. Woods, under an agreement that Woods was to remove the settlers from the Potrero; and the deed was placed in the hands of one Sharp, as an escrow, and was not to be delivered to Woods until the latter had removed all the settlers, as per agreement. The case was tried by a jury, who found a verdict " in favor of the defendants, in consequence of the description contained in the deed from the plaintiff to Robert E. Woods--the land occupied by the defendants having been conveyed to said Woods."
The first point urged by the appellant is, that the Court below erred in admitting in evidence the deed from the plaintiff to Woods, on the ground that it was not pleaded, and the defendants did not connect themselves with the title of Woods. The plaintiff avers, in his complaint, that he was the owner of the premises, which is denied by the answer, and the deed was clearly admissible to disprove this averment and sustain the denial, as it showed that plaintiff had no title to that portion of the premises described in the deed. The objection that the defendants did not connect themselves with the title of Woods is equally untenable. The appellant, to sustain this point, refers to several decisions of this Court, wherein it was held that in an action to recover the possession of real estate, brought solely on the prior actual possession of the plaintiff, a defendant, who is a mere trespasser, cannot justify his act by showing the true title to be outstanding in a third person. ( Bird v. Lisbros , 9 Cal. 1; Piercy v. Sabin , 10 Id. 22; Coryell v. Cain , 16 Id. 567.) This rule has no application to the present case. It properly applies to a case where the title of such third person is superior or better than that of the plaintiff, or adverse thereto, and it has no application in a case like the present, where such outstanding title was derived from the plaintiff. In such case, it shows that the plaintiff has divested himself of all right to the possession by his own act, and that the right to maintain the action under his own claim of title is not in him, but in a third person. It defeats his action more effectually than proof of an abandonment, which is clearly sufficient. ( Bird v. Lisbros , 9 Cal. 1; Gluckauf v. Reed , 22 Id. 469.)
The next point is, that the Court erred in excluding the evidence offered by the plaintiff to prove that Woods failed to comply with the agreement, which was a condition precedent to the delivery of the deed. A deed takes effect only from the time of its delivery; and where a deed is placed in the hands of a third person as an escrow, as in this case, the grantee was only entitled to a delivery of the deed upon a strict compliance with the terms of the agreement, which was clearly a condition precedent to its delivery. ( Beem v. McCusick , 10 Cal. 538.) As was said in that case, a compliance with the agreement was " the only condition whereby Beem, the grantee, could acquire title," and not having complied, it was held that the grantor had a right " to hold the contract void." So here, the removal of the settlers from the Potrero was a condition precedent to the delivery of the deed to Woods, and to the vesting of any title in him; and if true that he did not comply with or perform that agreement, then he acquired no title by the deed, and the plaintiffs had a right to treat the contract as void, Woods having died in the meantime. The Court therefore clearly erred in excluding this evidence; and this is fatal to the verdict, which shows by its own terms that it was founded entirely on this deed.
The learned and able counsel for the respondents urges with much force, that the land being a part of the public domain of the United States, Treat and the plaintiff were trespassers on the land, and had no right, under the Federal or State laws, to enter upon or take possession of more than one hundred and sixty acres, that being the quantity to which settlers upon the public lands are limited, by the Federal as well as by the State laws, except in cases of swamp and certain school lands under the State laws. There is certainly much force in the argument of the counsel, that to hold otherwise would defeat one of the wisest and most important provisions of our National and State land system, and open the door for an unlimited monopoly of the public lands, by those able to inclose them in large tracts. The contrary doctrine was, however, early established by this Court, and has been maintained ever since. The same point was distinctly raised and overruled in Hicks v. Davis , 4 Cal. 67, which was very similar in its facts to the present case; and also in Bradshaw v. Treat , 6 Id. 172, which was for a portion of the premises in controversy in this case. (See also Plume v. Seward , 4 Id. 94.) We do not feel at liberty to overrule a law of property so long established, and which might produce disastrous consequences. Besides, it is a point not necessary to be determined on the present appeal, as the judgment must be reversed for the reason before given.
The judgment is reversed, and the cause remanded for a new trial.