Cox v. Hayes

ROSS, J.

The only difference between the case as now presented and as presented on the former appeal (64 Cal. 32, 49 Am. Rep. 684, 7 Pac. 785), is that on the last trial the plaintiff was permitted against the objection and exception of the defendant, to put in evidence a deed from Hudson, the common grantor to the defendant of “the northeast quarter of section 16, Tp. 17 N., R. 3 E., excepting therefrom a certain strip of said quarter section, sold by F. R. and A. O. Larkin to A. W. Campbell, and also the easterly one hundred acres of said quarter section, sold by W. K. Hudson to A. Fraser and Thomas Cox.”

It was held on the former appeal that the deed from Hudson to Fraser and Cox conveyed only seventy-seven and seventy-one hundredths acres, which excluded the premises in controversy. We know of no principle upon which the former conveyance to the plaintiff can be held enlarged by the subsequent conveyance to the defendant. The circumstance that the deed to the defendant may not have conveyed to him the property in dispute does not aid the plaintiff in this action of ejectment, where the plaintiff must recover on the strength of his own title. Judgment affirmed.

We concur: McKinstry, J.; McKee, J.