Hughes v. Hazard ( 1871 )

By the Court, Temple, J.:

Action of ejectment, in which the plaintiff relies upon the prior possession of his grantor. On the trial the plaintiff proved a claim and affidavit made by his grantor under the Act known as the Possessory Act, passed April 20th, 1852, for a tract of laud, including the tract in controversy. He also proved the occupation by his grantor of a portion of the land described in his possessory claim, but not of any portion of the land now in the possession of the defendants, except that the witness states that he had a fence on one side, and furrows were run with a plow around the whole tract, and stakes set at the corners and along the lines. This is manifestly insufficient to prove actual possession. After the conveyance to plaintiff, his grantor remained in possession, with plaintiff’s consent, until he had removed his crops. Plaintiff never entered into possession of any portion of the premises under his deed. The possession of the vendor, after the deed was executed, was in accordance with the contract of sale. But if the continued possession of the vendor, with the consent of the plaintiff, can be considered as an entry under his deed on the part of the plaintiff, it does not appear that he had the actual possession of any portion sued for, and the deed, under such circumstances—the lands being public lands, were never in the possession of the vendor— would not extendíais possession by construction. [Wolfskill v. Malajowich, 39 Cal. 276.)

Judgment and order affirmed.