Appeal from the Twelfth District.

Ejectment for a lot in San Francisco. Defendants aver title in themselves. (See same case in 7 Cal. 479 ; 10 Id. 12.)

The instrument of title relied on by defendants is in the following words :

TRANSLATION.

“ By this present I give ample and sufficient power to Don José de Jesus Roe to use or dispose of my lot, which I hold (or have) granted, as may best seem to him; and, in testimony, I give the present power in the place of Yerba Buena, the 6th day of October, 1846.

Maximo Y. Fernandez.”

On the trial defendants offered this instrument in evidence, in connection with testimony, that in 1846 sales of land in California wore, by custom, sometimes verbal, sometimes by simple writing signed by the vendor, and sometimes, where the value of the property was groat, by a writing before the Judge and witnesses. They also offered to show, in this connection, that the Spanish words in the instrument imported a transfer or conveyance to Roe in full property; a consideration paid by Roe to Fernandez, and an actual transfer and possession of the lot accompanying the execution and delivery of the instrument. •

Plaintiff objected to all this evidence on the ground that it was incompetent to prove a sale or contract for the sale of lands. The Court sustained the objection and excluded the evidence, defendants excepting. Defendants then offered to prove a verbal sale of the lot from Fernandez to Roe, consummated by transfer of possession and payment of a consideration, offering the writing as a memorandum of said sale. On plaintiffs’ objection the evidence was ruled out, defendants excepting.

Defendants offered, with all this evidence, to connect themselves with Roe by conveyances, and also to show in themselves or grantors a notorious and continued possession, with claim, of title since October, 1846. The Court ruled out the evidence, defendants excepting.

Defendants also offered said instrument as evidence of a license to occupy the land, under which Eoe and those holding under him were entitled to a notice to quit before action brought. Same objection. Same ruling.

The jury found for plaintiffs, and defendants appeal from the order overruling the motion for new trial, and from the judgment entered for plaintiff on the verdict.