Carroll v. City of Benicia , 40 Cal. 386 ( 1870 )

Bhodes, C. J.,

delivered tbe opinion of tbe Court, Wallace, J., Temple, J;, and Ceockett, J., concurring.

Upon tbe issue, as to whether tbe plaintiffs grantor was in tbe bona fide occupancy of tbe premises in controversy, on tbe 23d of July, 1866, tbe date of tbe passage of tbe Act of Congress to quiet tbe title to tbe lands within tbe city of Benicia, tbe evidence is plainly conflicting. Tbe finding, therefore, upon that issue will not be distrubed.

If the findings were erroneous in that respect, and if at that date Mrs. Gars, the plaintiff’s grantor, was in the ‘ ‘ bona -fide occupancy” of the premises, still the plaintiff was not entitled to recover; for the statement shows that prior to that date, Mrs. Gars executed to persons under whom the Benicia Cement Company claims,'“aquitclaim deed for the same property, for all the subsequently acquired title of the party of the first part under her deed.” The deed is not-set out in the transcript, and we must be governed by this statement of its purport and effect.

The plaintiff insists that the deed should be excluded from consideration, because its admission in evidence was erroneous. The objection is not presented in such a manner, that we can review the action of the Court in that respect. . The objections to the admission of the deed were not stated; and had such been the case, the plaintiff has failed to specify, as one of the grounds of his motion for a new trial, the ruling of the Court in admitting the deed in evidence.

To obviate the effect of the deed, the plaintiff claims, that after its execution, Mrs. Gars held the adverse possession of the premises for more than five years. But such adverse possession is not found, nor is it clearly shown by the evidence.

The exceptions filed by the plaintiff to the findings are useless for any purpose whatsover. They are neither exception for the want of a finding, after a request therefor was made; nor for defective findings, which the Court failed to remedy, after the point or issue upon which a finding was required, was specifically designated, as provided for by Section 180 of the Practice Act. The exceptions there provided for relate, as we have often held, not to errors, but only to defects.

Judgment and order affirmed.

Sprague, J., expressed no opinion*