Terry, C. J. concurring.

Suit brought to quiet title to two hundred acres of land.

The plaintiff avers himself to be in possession, and charges that the defendants claim title to the premises.

Brannan answered, setting up title from Sutter, older in date than the title through which plaintiff claims—the source of both titles being the same.

The Court tried the case—a jury being waived.

The plaintiff deduced a regular chain of title from Sutter—fhe common grantor—to himself, and proved himself in possession, through one Stevens, his tenant. Brannan failed to show title of any sort.

The Practice Act, (Section 254,) provides that “ an action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest.”

It matters not whether the action under this section was intended to be an equitable or legal proceeding, as a jury was waived.

As Brannan offered no legal proof of title, it is hard to see what errors, to his prejudice, could have intervened, after the plaintiff had shown title prima facie in himself, possession by his tenant, and a claim by the defendant.

*114 Many technical points are made; but the great pressure of business will not enable us to notice them all in this opinion, as they are mostly technical exceptions, involving no new principles.

We will glance at some of the most prominent:

But these deeds are clearly not deeds on condition precedent. The grantor bargains and sells all his right, title, and interest, in the premises to the grantee; the deed then provides for the payment of the purchase money—the payment is conditional on the confirmation of the title by the Federal authorities, and then a deed is to be executed; the parties probably supposing a deed necessary after a patent to vest the title passed by the Government. This last deed is only a further assurance, but there is nothing in the deed to show that no title was to vest until after payment. On the contrary, the language is express that the property, or the grantor’s right, title, and interest, had been sold.

This deed is widely different from that in Mesick and Bran-nan ; for there, no words of grant applied to the premises in dispute, but only a covenant to convey the grantor’s property, or *115 that title should vest, on punctual payment of the purchase money; and if not so paid, the deed to be void.

3. The deed from Sutter to Brannan was not properly recorded. It is scarcely pretended that it was—the officer having no authority for that purpose. Mor was the deed proven. It seems, from the copy produced, that there were subscribing witnesses to the deed. They were not called. The original itself was not produced. Brannan testifies to its loss 5 but if his testimony was -sufficient to let in secondary evidence for the contents —which is by no means clear—the record fails to show any legal evidence of the contents of the deed. The subscribing witnesses were not shown to be without the jurisdiction of the Court, and their testimony should have been had at least to the fact of the execution of the paper. The paper being the only evidence of the title of the defendant, was, therefore, properly excluded. This left the defendant without any proof of the case made by his answer. Under this state of facts, it is unnecessary to consider any question of notice. There could be no notice when there was no title. The defendant was bound to show a prior deed and notice, in order to defeat the subsequent deed. The notice itself amounted to nothing without proof of title.

4. Several points are made as to the authority of Robinson and others, grantees of Sutter, under the deed of July, 1850, to convey the lands granted. But this question cannot arise in this controversy. Whether the conditions of the deed were or were not complied with, is a matter between Sutter and the grantees, and the defendant had no concern with it. If Sutter does not complain of the disposition made of the legal title by his grantees, third persons cannot.

5. There appears an affidavit of the late Judge of the Tenth District, to the fact that the record is erroneous in stating that the parties waived a jury. We cannot amend a record by an affidavit. But if we disregard this point it by no means follows that a party can go on and try his case before a Judge without objection, and after he has lost it complain that the case was not tried by a jury.

We do not, however, think the Appellant’s point well taken, that this is not a good bill in equity. We think it clear that it is.

*116 Many points are taken by the ingenious counsel which it is not deemed necessary to notice; for these main questions being decided, the other points become immaterial, for, on the whole case presented, the decree, resting on a few simple propositions, viz : title and possession in plaintiff, and claim without title by defendants, must be affirmed. Minor errors in the rulings of the Court, and the admission or rejection of evidence when the whole case is before the Court, and we can see that no error that ought to change the result intervenes, are not noticed by us. There is no substantial error in the form of the decree declaring the deed of the defendant void as against plaintiff; for the more strictly proper language, viz: pretended title or claim set up, would have the same effect in establishing the plaintiff’s and denying the defendant’s pretensions.

The decree of the Court below is affirmed.

(See Curtis, Administrator v. Sutter, January Term, 1860.)