Cope, J. and Baldwin, J. concurring.

This is an action of ejectment, to recover the possession of a tract of land situated in Yuba county, south of the Yuba river, and opposite the city of Marysville. The plaintiff deraigns his title from a grant issued to John A. Sutter, in June, 1841, by the then Mexican Governor of California. The evidence given on the trial established beyond reasonable question the former existence of the grant, its destruction by fire in Sacramento, in 1851, and the correctness, as a copy of the same, of the document produced. In the description of the premises, the grant refers to the plat or map accompanying the expediente, which thus becomes, for the purpose of identifying the land, as much a part of the grant itself, as if incorporated into it. (Ferris v. Coover, 10 Cal. 622 ; Davis v. Ramsford, 17 Mass. 207 ; Proprietors of the Kennebec Purchase v. Tiffany, 1 Greenl. 220; Thomas v. Hatch, 3 Sum. 170 ; 2 Hilliard, 348.) This map was destroyed with the grant, but the evidence introduced clearly proved that it embraced lands lying east of Feather river, including the premises in controversy, and that as early as 1843 and 1844, several settlements were made by Sutter thereon. The verdict was so palpably against this evidence, that it should have been set aside without hesitation.

Several objections, it is true, were taken to the evidence thus offered, but as they were overruled, we do not notice them. The defendants are not the appellants, and had the ruling been otherwise, it is possible *307 that other evidence might have been offered. It is not errors committed against the successful party which we notice on appeal, but those committed against the party complaining. For the same reason, we do not consider the ruling on the motion for a non-suit. We do not, however, intend to intimate that the ruling either upon the evidence or motion was in any respect erroneous.

The plaintiff was the proper party to institute the suit. He was not mortgagee of the premises. There appears to have been some confusion of ideas in this respect on the trial. The deed from Mott to the plaintiff, which was taken as security against a contingent liability as indorser of certain notes, was only of an undivided interest in a certain tract. This tract was held by several tenants in common, and on a partition, a certain portion was set apart and quit-claimed to the plaintiff—representing Mott—and another portion was set apart and quit-claimed to Hedges. The portion thus received by Hedges was subsequently conveyed to the plaintiff, and embraces the premises in controversy. If the plaintiff also held these premises as security for the indorsements of Mott, of which there is no evidence, it was as trustee with the legal title, and not as mortgagee. The title had passed from Hedges, and it never had been in Mott, except of an undivided interest previous to the partition. It was, therefore, in Seaward.

All the questions arising upon the trial, as to the proper parties plaintiff, and as to the validity and effect of the grant to Sutter, and as to its loss and contents, and as to the validity and effect of the subsequent conveyances, and the proceedings in the Probate Court, were matters for the determination of the Court alone, and were not subjects for consideration by the jury. Upon the evidence in the record, the only question to be left to the jury was, whether the premises in controversy were embraced within the grant as explained by the map—or the evidence as to the map—the map being destroyed; and upon this question the verdict could only have been one way. The instruction that before the plaintiff could recover, the evidence must specifically fix and establish the eastern boundary, was clearly erroneous. The precise location of the boundary line was of no moment; it was sufficient if the land in controversy were within it. The latter fact was clearly shown, and yet it might have been difficult, if not impossible, without a survey, to fix the exact position of the eastern line. A lot may be shown to be within a city, without proof of the precise location of one of its boundary lines.

Judgment reversed, and cause remanded for a new trial.