Appeal from the Twelfth District.

Ejectment for a tract of land in San Mateo county. The complaint avers, among other things, that plaintiff is “ owner in fee simple and lawfully entitled to the possession of the real estate,” &c.—describing it—and that said land “ is part of a large tract of land known as the ‘ Cañada de Raimundo,’ ” which was the name given in the Mexican grant to Coppinger of the land therein granted to him. There is no averment of claim under any particular deed or grant. The material facts are as follows :

Juan Coppinger in 1840 received a grant of a tract of land in San Mateo county, called the “ Canada de Raimundo,” from Alvarado, Governor of California, under which he took possession of the ranch, and resided there until his death in 1848.

Coppinger left his wife, Maria Luisa Coppinger, and an infant child, Manuela Coppinger, surviving. Maria Luisa afterwards intermarried with one John Greer. Maria Luisa Greer and Manuela afterwards applied for a confirmation of the above grant to the Land Commission, and for a patent, which was duly issued to them by the United States in 1859.

Plaintiff claims title, through Coppinger, to a part of this ranch by a deed from Coppinger to one. Charles Brown, called in the deed Carlos Moreno. He proved’ that Brown afterwards executed and acknowledged a mortgage to Chetwood, Rose & Turk upon the lands deeded to him by Coppinger, dated the seventh day of December, 1850, and the recording of said mortgage on the twenty-eighth of the same month ; the foreclosure and sale thereunder of Brown’s interest in said lands, and a regular chain of title from the purchaser at Sheriff’s sale, through some eight or nine parties, by deeds, mortgages, foreclosures, judgments and sales, to plaintiff Havens—his deed from his immediate grantor being dated January 11th, 1860. Plaintiff and his grantors, up to and including Coppinger, had always been in the actual possession of a portion of'the land sued for, under good and substantial inclosure.

The defense set up for Dale and Sutherland was this : That on the seventeenth day of June, 1848, plaintiff’s grantor, Brown, executed a deed for a portion of the land in controversy to one Joseph Maria Basquez or Yasquez, which deed has never been recorded; that Yasquez resided on some portion of the ranch of Brown (where ? is disputed) from the date of the deed until 1853, when he died, leaving his wife and daughter surviving; that his wife afterwards intermarried with defendant Dale, and his daughter with defendant Sutherland; that Mrs Yasquez, up to her marriage with Dale, resided where her former husband had resided just prior to his death, and that Dale, from the time of his marriage until the day of trial, resided there also ; that Sutherland was at the time of the trial and at the time of plaintiff’s purchase residing on the premises in controversy. It seems that Yasquez was in 1848 living at or near Brown’s house; that in 1849-50 he moved to another place on Brown’s rancho, and there in 1850 erected a shanty, inclosed a piece of land one hundred varas square and cultivated the same. This was all the possession proven in Yasquez on the twenty-eighth of December, 1850—the date of the record of the mortgage from Brown. The deed to Yasquez from Brown calls for “ five hundred varas square,” and the jury rendered a verdict in favor of Dale for that amount.

On the trial, plaintiff offered in evidence the patent from the United States to Mrs. Greer and Manuela Coppinger, and also the grant to Coppinger, together with the expediente and the petition of Mrs. Greer and Manuela Coppinger to the Board of Land Commissioners, and the decree of confirmation. Defendants objected to the patent that there was nothing in it to connect it with the Coppinger grant. Overruled; defendants excepting. It was shown by evidence that the patent covered the land described in the complaint. Further facts on this point are not material.

Taking the evidence together, and it shows that Brown, plaintiff’s predecessor, went into the actual possession of a portion of the land deeded him by Coppinger in 1846, and that from time to time he has extended his inclosures until now they cover five hundred varas ; but' his inclosure has never embraced the land occupied by defendants; and this possession has been continued in Brown and his successors down to plaintiff. On the other hand, Yasquez, under whom defendants claim, has also, since his deed from Brown, been in the actual possession by inclosure of a portion of the land deeded. Both parties maintain that their actual possession by inclosure is to be extended by force of then’ respective deeds to the land included therein, although outside of their inclosures; and the point of dispute is, whether Yasquez actual possession by inclosure of about one hundred varas square on the twenty-eighth of December, 1850,. under an unrecorded deed for five hundred varas square, was notice-to plaintiff’s predecessors, Chetwood, Rose & Turk, that at that time Brown, their mortgagor, had already sold the other four hundred varas to Yasquez.

The deed from Coppinger to Brown is as follows :

“ John Coppinger, a Mexican citizen, residing in the department. of California, owner of the ranch called the ‘ Cañada de Raimundo,’ as proved by the title in my possession, granted to me by the Government of the department, before the present Justice of the Peace, First of the Jurisdiction of Yerba Buena, and witness signed in due form. I do declare and say that I make cession to the certain Carlos Morena of the land between the creek of the Presa North and the creek of the Alembique, without embracing my said rancho, as shown by the desino or plat accompanied, renouncing, as I hence forth renounce in his favor, all the right and action that belong to me; and that he may possess it as such owner, and it may be recognized as his property in future, and that no one may disturb him in any manner whatever, I grant this present document for his safety and security, and that it may be shown at any time, requesting of the present authority the corresponding authority for this my cession, in order that the interested party may be safe and make the use that may suit him of the land herein expressed, and for any further ends that may suit the party.

“I sign it at Yerba Buena, on the nineteenth of June, A. D., 1846.

Three witnesses. “■John Coppingee.”

The Court charged the jury, among other things, as follows, to wit:

. That the jury must not consider plaintiff’s claim of title by possession beyond his actual inclosure; that color of title to the whole of a tract of land, with actual prior possession of part, would extend the possession to the whole—but if the jury should fail to find that the land described in the complaint is embraced in plaintiff’s deeds and grant, by reason of uncertainty of description, then his title as aforesaid by possession must also fail, and if they find otherwise, then plaintiff’s title is made out; that a prior possession of part of the tract of land, described in the unrecorded deed of defendants, extends such possession to the whole tract, and is sufficient to charge subsequent purchasers with notice of such a claim, and the extent of it; that such a possession must be a “ notorious and open possession,” and must have been such prior to Dec. 28th, 1850 ; that such notice of possession, by one tenant in common or joint tenant, is also notice of the possession of all other such tenants, although such other tenants may not reside on the tract themselves; that defendant Dale, or those under whom he claims, must have been in such possession at the date of every sale of their rancho between plaintiff’s grantors.

Plaintiff then asked the following instructions, which were refused ; plaintiff excepting:

1. That in no case is possession, unaccompanied by other circumstances, sufficient evidence that the party had any title, or what title he did have ; but that actual knowledge by a subsequent purchaser must be shown, and that possession can only be considered as a circumstance bringing home notice to such subsequent purchaser.

2. That if possession accompanied by any circumstances is notice, it is only notice of a claim to what is actually inclosed, at farthest, and that lands within a visible and notorious inclosure alone can be regarded as in possession of a party so as to defeat the subsequent purchase of the subsequent purchaser; and that lands outside of such inclosure must pass to the subsequent purchaser, unless he had actual notice.

3. That a party, with a recorded deed, who is in possession of a ■ part of one tract is in possession of the whole; but the rule is different with unrecorded deeds; for those an actual inclosure of the whole, is the only possession that can give notice to subsequent purchasers.

4. That the jury must believe from the evidence that the land described in the deed to Vasquez or Basques must be within the tract sued for by plaintiff, and that the defendant Dale must have proved himself to be within its limits, and that Dale alone is entitled to any benefit in that title, even if he should be.

Verdict for plaintiff against all the defendants, except Dale and Sutherland, and in their favor for the five hundred varas described in the deed from Brown to Vasquez. From the judgment in favor of Dale and Sutherland, plaintiff appeals.