Appeal from the Fourteenth District.

The complaint averred that in June, 1856, plaintiff purchased the premises, situated near and east of Nevada, by deed, from Dixon and Friedenthall; that he thereby immediately entered upon and took possession, and held the premises; that being so in possession, and entitled to the possession of the premises, the defendant, “ afterward, to wit: on or about the twelfth day of December, 1857, wrongfully and unlawfully, and without right, entered upon, took possession, ousted and ejected the plaintiff therefrom, and wrongfully and unlawfully withholds the same from the plaintiff.” The complaint describes the premises with specific metes and bounds. Defendants demurred, and the demurrer being overruled, answered.

On the trial, plaintiff offered as a witness, Friedenthall, who, among other things, testified that he owned one-half interest in the premises, and sold the same by “ bill of sale,” acknowledged before the Clerk, to plaintiff, “ about two weeks before the fire.”

Plaintiff was then sworn, and said: “I took the deeds to the Clerk’s office to be recorded and acknowledged, and they were there till they were burned, at the time of the fire; I have never inquired for them ; I never got them.”

T. P. Hawley then testified, as follows: “ I was acting as Clerk in ’56; some time previous to the fire, Mr. Collier, Mr. Friedenthall and Mr. Dixon came into the Clerk’s office; Mr. Dixon and Mr. Friedenthall acknowledged it, and I filed it, and passed it over for record; the records were destroyed in July, 1856 ; I don’t recollect exactly about the ranch; had a conversation with Mr. Friedenthall.” fr'

Cross-examined: “ I did not read the deed; it was left for record; Mr. B-was the recording clerk; I do not know whether it was burnt or not; the acknowledgment was taken before me, as deputy clerk; did not read it over; I know his name was signed to it, and by Solomon A. Dixon; that was the only name.”

Friedenthall resumed: “ The contents of the deed were one-half of the ranch; Dixon owned one-half; I don’t know as Dixon signed it; I was not there afterwards ; I don’t know what became of Dixon; never has been here but once; Dixon made the bargain with me for Mr. Collier to buy the half of the ranch; Mr. Collier paid me out the money; I got two hundred dollars cash; nobody else got any at the time; Dixon and me and the Clerk were alone in the room; I did not see Dixon receive anything; that deed conveyed all my interest in the ranch ; it described only the undivided half of the ranch.”

Cross-examined: “ Dixon never lived on the ranch; * * it was a bill of sale and a deed of Keating, or rather the preemption; Keating was the name signed to it; I signed that paper; * * I don’t know whether it was in the Clerk’s office or not; that is the only time I had anything to do with Mr. Collier, or any paper that I signed; * * nobody else signed that paper but me.” T. R. McFarland testified “ that he drew a deed of piece of ground from Dixon to Collier early in 1856—piece of ground east of and near town; it conveyed Dixon’s interest, and he executed it before he left my office, I think ; don’t know if deed was ever delivered.” T. P. Hawley: “ Deed was signed by Dixon and by Friedenthall; the consideration money was four hundred dollars ; I did not see the money paid; the parties told me the consideration money was four hundred dollars; they acknowledged the instrument; I knew all the parties and the ranch.”

This was all the proof as to any deed. If was shown that the land was originally located by Friedenthall and one Keating, who sold his interest to Dixon, and that Dixon never lived on the ranch, and was at the time of trial in Tennessee.

After plaintiff rested, defendants moved for non-suit, on the grounds that plaintiff had failed to prove a conveyance from Dixon and Friedenthall, as set forth in the complaint; had failed to prove the metes and bounds of the premises as set forth; and had shown that at most he had no right under the proof to more than half the ranch, and that in law he must recover the whole or none. Motion overruled. After evidence for defendants, the case was given to the jury under instructions. Verdict for plaintiff. Defendants appeal.