Appeal from the Fourth District.

Ejectment for a lot in San Francisco, commencing at a point on the north side of Pacific street one hundred and sixty-seven and one-half feet westerly from the north-west corner of Kearny and Pacific streets, and running west twenty-seven feet eight inches by a depth of one hundred and thirty-seven and one-half feet, being a part of fifty vara lot, No. 48, on the map of said city.

The following diagram shows the position of the lot:

The pleadings are stated in the opinion of the Court.

At the trial, plaintiff read in evidence a stipulation, wherein it was admitted by defendant that Vardeman Bennett was the original grantee and owner of fifty vara lot, No. 48, on the plan of the town and city of San Francisco, including the premises sued for, and that both parties claim under said Bennett as the common source of title.

2d. That Bennett died in August, 1849, seized in fee of this fifty vara lot, No. 48, subject to a sale of a portion thereof to Serrine by deed dated March, 10th, 1849.

3d. That all the heirs of Bennett since his decease, and before this suit was commenced, have conveyed to plaintiff by deed all their right, title, estate and interest at the date of said deeds in and to the fifty vara lot, No. 48, whereby the plaintiff became and is possessed of such interest.

4th. That the land in dispute in this action lies on the north line of Pacific street, one hundred and sixty-seven and one-half feet west of the west line of ICearny street.

5th. That the defendant was in possession at the commencement of this action.

Here plaintiff rested.

Defendant, to maintain his defense, offered in evidence a deed of conveyance dated March 10th, 1849, from Bennett to George W. Serrine, and mesne conveyances from Serrine down to himself (the defendant). The land so conveyed by the deed from Bennett to Serrine is described therein as “ the eastern part of the lot of land, No. 48, on the plan of the town of San Francisco, containing thirty feet on Pacific street, and running back fifty varas, being the eastern portion of said lot of land,” etc. All these deeds under which the defendant claims were for a valuable consideration paid by the several grantees.

Defendant then introduced Ellis as a witness, who testified, among other things, that he was of the firm of Salmon & Ellis in 1849; that they purchased of Serrine in July, 1849, part of lot No. 48, (producing their deed) ; that they erected thereon a substantial store in front and sheds in the rear; that there was an old fence dividing the lot they occupied from the lot on the east, the fence being their eastern boundary, and that Bennett had improvements on the lot to the west of them. A paper was here shown witness, and after its execution was duly proved, was read to the jury under plaintiff’s exception that it was res inter alios. The paper was as follows:

"Salmon & Ellis with Vardeman Bennett :

“ Whereas, the above named parties are owners of a certain lot of ground situated on the northern part of Pacific street, on the plan of the town of San Francisco, containing thirty feet on Pacific street and running back fifty varas, being, the eastern part of said, lot No. 48, and as said Salmon & Ellis are now about to erect a building on one portion of their lot, it is mutually agreed between us to build a party wall on the division line of their respective lots, that is, one-half of the wall on Mr. Bennett’s lot and the other half on Salmon & Ellis’ lot. It is further agreed that Vardeman Bennett will be entitled to use the party wall when he desires to do so, upon his paying one-half of its cost.

(Signed) “ Salmon & Ellis,

his

“ Vardeman X Bennett.”

mark

The witness continued: The building was put up in pursuance of this agreement, the party wall being built on the western line of our lot, which was thirty feet front.

Defendant then called Jasper O’Farrell, who testified in substance as stated in the former report of this case in 17 Cal. 287.

Green testified, that he bought fifty vara lot No. 44, adjoining lot No. 48, on the east, in June, 1849'; that at that time there was a small house on the west part of lot No. 44, as then fenced in by a picket fence; that Salmon & Ellis’ lot was close to his western division fence, and that they lived there several years; that lot No. 44 was fenced in twenty-five to thirty feet too far west, and that when he sold he had his lot surveyed, and that this survey developed the error; that before he sold he extended his fence some twenty-six and a half feet east, which gave him fifty varas east and west, and this original twenty-six and a half feet besides; and that this balance he never claimed afterwards.

Brannan testified, that Bennett, in 1849, occupied the middle fifty vara lot on the north side of Pacific street, between Kearny and Dupont; that the lot was enclosed and had a house on it, Bennett always claiming that his house was on lot No. 48; that Bennett was living on the lot in 1846; that in 1846-7 a public meeting of citizens was held, and a resurvey of the town determined upon—people injured by any consequent removal of fences to be indemnified by the city; that Bennett as well as Smith, his neighbor, was present, and both protested against the resurvey; that the resurvey was made by O’Farrell, and lot No. 48, as fenced and located, found to be twenty-six to thirty feet too far west; that neither Smith nor Bennett would remove, and that the lot remained in the same condition until Smith sold out and Bennett died; that he, witness, was administrator of Bennett’s estate after Thompson, the former administrator, left; that while administrator he paid the debts of the estate and turned the property over to the widow; that Smith’s lot on the east, where Bennett’s house was, fell into other hands, and they claimed it; that this part of lot No. 48, where Bennett’s improvements were, was deeded in exchange for part of lot No. 66, adjoining No. 48 on the west, and that the widow Bennett knew of the exchange; the children were minors in 1850.

Plaintiff objected to that part of the testimony relative to Bennett’s occupying and claiming the lot on which he lived as part of lot No. 48, as to the mistake and the resurvey, etc., on the ground that it was hearsay, res inter alios, and representations in favor of his own interest and contradictory to the calls of his deed to Serrine. Overruled and exceptions taken.

Sherreback. testified, that Bennett, in 1844, built a house on the west part of the middle lot, on the north side of Pacific street, between Kearny and Dupont; enclosed the lot with a picket fence running along Pacific street fifty varas, and that part of the fence was there in the beginning of 1850; that Bennett had a bowling alley built of wood on Smith’s lot, an adobe house, and a liquor saloon twenty-five or thirty feet front.

Felt testified, that Salmon & Ellis built a wooden house in 1849 on Pacific street, which they occupied until the fire of June, 1851, after which they rebuilt on the same lot; thinks there was a fence on Kearny street.

Eaton testified, that he had known the part of lot No. 48, occupied by Salmon & Ellis, since 1850; that their lot commenced twenty-six and one-half feet west of one hundred and thirty-seven and one-half feet from Kearny, and ran thence west about thirty feet; that down to 1855 Gray owned twenty-six and one-half feet of such lot, and that witness collected rent of S. & E. for Gray— the last lease being for three years.

Van Allen testified that he had collected rent on the lot in controversy for Salmon since April, 1857, and that defendant bought the lot of Salmon.

Chonoi testified that Salmon occupied the lot in 1849. Salmon built an adobe house.

Fish testified that he first knew the lot in controversy in 1850, and that Salmon then occupied it; that witness had charge of it for Salmon from 1858 to 1855 ; that Gray had the lot adjoining on the east, for a piece of which Salmon paid Gray rent, and when the lease was out, Eaton, who was Gray’s agent, paid Salmon for the buildings on Gray’s lot. The whole front of the lot was covered with buildings.

Tobin testified that when Barth (defendant) bought of Salmon & Ellis, in 1857, they gave him the deeds to draw from, but that witness inserted the description by metes and bounds in feet and inches of his own motion, as more definite than to describe it as the thirty feet of the easterly part of lot number forty-eight.

Defendant then introduced the petition and order for the appointment of John Thompson as administrator of the estate of Bennett, which papers were produced from the records of the Court of First Instance, sitting as a Probate Court, now in the custody of the County Clerk of the city and county of San Francisco. The petition was by Mary Bennett, the widow, representing the death of her husband in August, 1849; that the deceased left real and personal estate in that city; that there were minor and other children, and that she declined the trust in favor of Thompson.

Plaintiff objected to both papers, on the grounds that they were res inter alios, that the Court had no jurisdiction, and that the heirs of Bennett were not made parties. Overruled, and exceptions taken.

Defendant then introduced in evidence a petition, (and the consequent order) by the administrator, to the Court of First Instance, stating, among other things, that Bennett died seized of fifty-vara lot number forty-eight, and that petitioner, as administrator, has been in possession thereof, as he supposed; but that by a decree of this Court in the case of Gray v. Patterson, it was decided that the latter was occupying twenty-six and one-half feet of ground belonging to Gray, being a portion of lot number sixty-six, on the corner of Pacific and Dupont streets, and adjoining the lot of Bennett; that by the decree Patterson was ordered to vacate said property, and to remove his buildings, and to occupy twenty-six and one-half feet of ground commencing from the most easterly part of the lot then occupied by him—that is, to occupy twenty-six and one-half feet on the most westerly part of lot number forty-eight, hitherto occupied by petitioner, as administrator aforesaid; that the result would be great loss and expense to the estate in the removal of buildings owned by it, and on the easterly part of lot sixty-six; that Gray had compromised his suit by agreeing to make Patterson a deed of the twenty-six and one-half feet of lot sixty-six, if he (Patterson) would make petitioner a deed of twenty-six and one-half feet of the ground on which petitioner, as administrator, was located, petitioner to execute a deed to Gray of twenty-six and one-half feet of the most easterly portion of lot forty-eight. Prayer that petitioner be authorized to carry out the compromise.

Ordered accordingly, on the twenty-sixth of January, 1850. To these papers plaintiff objected as last above. Same rulings and exceptions.

Subsequently, Brannan, as administrator of Bennett’s estate, filed a petition reciting the order last named, and that he, in July, 1850, as administrator, and in pursuance of the order, executed to Gray a deed of the most easterly twenty-six and one-half feet of lot forty-eight in exchange for a deed to him, as administrator, of twenty-six and one-half feet of the most easterly part of lot sixty-six ; that to effect this exchange petitioner had agreed to pay to Gray a bonus of three hundred dollars, and that this was necessary to save litigation, etc. Prayer that he be authorized to pay said sum.

Ordered accordingly.

Petition and order, and Gray’s receipt for the money, introduced in evidence.

Brannan’s final account and discharge were then read in evidence.

Defendant then introduced certain deeds of portions of lot forty-eight in evidence not necessary to be stated, and finally offered in evidence : first, the petition of Mary Bennett, the widow, and the adult heirs, praying for partition and distribution of certain real estate; second, the order of Court dated June 20th, 1855, appointing commissioners to make partition; third, their report setting apart: 1st. To the widow, a lot commencing one hundred and nine feet ten inches from the north-east corner of Dupont and Pacific streets—on the north side of Pacific—running thence east sixty feet and five five-eighth inches on Pacific, thence right angles north one hundred and thirty-seven and one-half feet, thence at right angles west sixty feet and five five-eighth inches, thence southerly one hundred and thirty-seven and one-half feet to Pacific street; 2d. To seven of the children of Bennett named, a lot commencing at a point on the northerly line of Pacific, one hundred and seventy feet and three five-eighth inches from the north-east corner of Dupont, and running easterly on Pacific forty-seven feet and three-eighth inches, thence northerly at right angles one hundred and thirty-seven and one-half feet, thence westerly forty-seven feet and three-eighth inches, thence southerly one hundred and thirty-seven and one-half feet to the place of beginning; fourth, order of Court confirming the report.

Plaintiff objected as before; overruled and exceptions.

It was admitted that defendant was in the actual possession and occupation of the demanded premises at the time plaintiff purchased of the heirs; that the O’Earrell survey in 1847 made no change in the plan or map of San Francisco, and that all the maps from that time to the present are the same, and that the only effect of the new survey was to develops the erroneous location on the ground by Bennett of lots forty-four and forty-eight, and that lots sixty-six, forty-eight and forty-four, adjoining each other from east to west, are fifty-vara lots.

Defendant rested.

Plaintiff then moved the Court to withdraw from the jury all the evidence introduced by defendant, and to instruct them that there was no evidence warranting a verdict for defendant, on the grounds: first, that there was no evidence of such an equitable title in defendant as could defeat plaintiff’s legal title; second, that admitting such equitable title had been shown, still there was no evidence that plaintiff had either actual or constructive notice thereof at the time of his purchase from the heirs of Bennett.

Motion denied, plaintiff excepting.

The Court instructed the jury:

1st. That if Bennett, at the time he conveyed the eastern part of lot forty-eight to Serrine, represented to him that the picket fence on the eastern side of said lot was the eastern line of the same, and Serrine believed it, and paid the consideration, and received the conveyance under that belief, both Bennett and his heirs are estopped to deny it, although it was not the eastern boundary line of said lot according to the map or plan of the town, or the calls of the deed; and that the defendant claiming under Serrine has such an equitable title to the demanded premises as can defeat the plaintiff’s action, if he had notice of it.

2d. That although there is nothing in the record of the chain of deeds from Bennett down to defendant, or in the Probate proceedings, which imparted constructive notice to the plaintiff of the equitable title of defendant to the demanded premises, yet the fact that the defendant was in the actual possession and occupation of the lot in controversy at the time the plaintiff purchased from the heirs of Bennett was sufficient constructive notice of defendant’s equities to put the plaintiff on inquiry in regard to them.

To the latter part of which plaintiff excepted.

Plaintiff requested the Court to instruct the jury: first, that there is no proof that plaintiff had notice, actual or constructive, of any equitable estate in defendant at the time of his purchase from the heirs, and must therefore find for plaintiff; second, that the possession by defendant at the time of plaintiff’s purchase was not of itself notice to him of any existing equitable title in defendant, and that plaintiff took the estate discharged of all such equities, if any existed; third, that whether such possession was notice or not of defendant’s equities, still the proofs fail to disclose such an equitable title in defendant as can defeat the legal title of plaintiff.

Refused, and exceptions taken.

Verdict for defendant; judgment accordingly. Motion for new trial overruled, and plaintiff appeals.