Appeal from the Ninth District.

Ejectment for a lot in Oroville. The cause was tried by the Court, on consent of parties.

The evidence, as to the circumstances under which defendant took possession of the lot in dispute, was the testimony of Bird, as follows: “ In June or July, 1855, defendant came to the town, and soon settled on the lot where he now lives. He had lived a little while on the ‘ Savage lot,’ and did not like it. When he was building, I told him I was sorry, as Scott had selected it, in payment for surveying. Some time after that, defendant inclosed the lot, together with the one now in dispute. He told me he would give it up when my family came. Afterwards, he wanted to fence with boards, and we agreed he should fence both in, and I would pay him one-half the expenses. There would not be much difference between fencing one or both the lots. My family did not come.”

Cross-examination: “ Huntoon had asked me if I had a comer lot that would suit a friend of his. I showed him the 1 Savage lots,’ and told him he could have both for one hundred and fifty dollars, or the corner one for one hundred dollars, and the other for fifty dollars; and he (defendant) went on them, and put up his camp, and soon not liking that, moved on this one, liking it on account of the shade tree. Defendant did not consult me in regard to moving on the second lot, and went without my leave. He had been there perhaps a week, or several days, before I went to see him, or said anything to him about it. When I went to see him first, nothing was said by Ford about giving up the comer lot, as he was then living on the other.” It seems the “ Savage lots ” were near the lot on which defendant built his house, and near the corner lot in dispute. Bird also testified that, although defendant “ always said he would give up this corner lot when my family came, yet he never told me he would not give up the lot unless I brought my family.”

It does not appear, otherwise than is stated above, or in the findings, that Huntoon was the agent of defendant. It was admitted defendant came to Oroville after Bird had surveyed and laid off the town.

The findings of the Court were as follows:

Downer & Garlow, in 1854, claimed about one hundred and sixty acres of land upon the public domain, including the site of Oroville, and during that and the following years, had a number of acres inclosed and under cultivation; the balance of the tract, embracing the lot in question, -was partially inclosed, but not so as to prevent the free egress and ingress of stock. July 30th, 1855, they sold to Ralph Bird, by deed. Bird laid off the town of Oroville into blocks and lots, and, subsequently, defendant, with the consent of Bird, located, with his family, on one of the lots, and put up his camp; not liking the location, he removed in a little while, without the consent of Bird, on a lot next adjoining a corner lot—the one in dispute—and built a house. After-wards, defendant put a brush fence around the lot upon which he was living, as well as around the lot in dispute, including both lots under one inclosure. Bird designed the corner lot for a residence, and defendant informed him he would give it up when ho, Bird, required it. Subsequently, Bird entered into an agreement with defendant, by which he was to put a board fence around the lots, the expenses to bo shared equally. When defendant was putting the brush fence around the lot in dispute, he told Bird he was doing it to save it for him, and keep it from the jumpers; and when he was putting up the board fence, he told Bird he was fencing it for him. At another time, defendant said to a third person, that he was holding the corner lot for Bird, until his family came, and that he did not believe Bird’s family would ever come, and hence, he would keep or own it. Subsequently, it was found that the deed from Downer & Garlow to Bird did not cover all the land intended to be conveyed, and in December, 1856, another deed was executed, so as to include what had been omitted in the first. The lot in question was a part of the land omitted in the first deed, but, Bird having conveyed to plaintiffs before this second deed was made, this lot was excepted from its operation. The Court below dismissed from its consideration the deeds from Downer & Garlow to Bird, as they did not cover the lot in dispute. The lot was worth twenty-five dollars per month, and plaintiffs demanded possession before suit. The Court below held, that the foregoing facts showed that defendant had repeatedly acknowledged the title of Bird, who had conveyed to plaintiffs, and therefore, that they were entitled to possession, with twenty-five dollars per month from the time of demand. Judgment accordingly. Defendant appeals.