Appeal from the District Court, Sixth Judicial District, County of Sacramento.

Ejectment to recover a tract of land bounded as follows: “Commencing at a point on the easterly bank of the Sacramento river, at the northwest corner of a tract of land conveyed by John A. Sutter, Jr. to George McKinstry, Jr., John A. Sutter, Theodore Cordua, and John Bid well, by deed bearing date April 4th, 1849, and known as the ‘ McKinstry Tract,1 and running thence easterly along the northerly line of said ‘ McKinstry Tract’ one mile; thence northerly one half mile; thence westerly and parallel with the north line of said ‘McKinstry Tract’ to the Sacramento river; thence down stream and along the easterly bank of said Sacramento river to the place of beginning.” The complaint alleged an ouster on or about the 13th day of February, 1868. The answers contained a general denial.

The premises in controversy were a portion of the grant made by the Mexican nation to John A. Sutter, on the 18th of June, 1841, and patented by the United States to Sutter on the 20th of June, 1866. The plaintiff proved that said Sutter conveyed the demanded premises to John A. Sutter, Jr., on the 14th of October, 1848. The plaintiff offered in evidence a deed from John A. Sutter, Jr., to George Mc-Dougal, dated June 19th, 1849. The defendant objected that this deed did not include the land in controversy. The Court asked the plaintiff’s counsel if he expected to prove that the land described in the deed was within the limits of the patent to Sutter. The counsel answered yes; whereupon the Court overruled ^the objection. This deed conveyed the following tract of land:

“A piece of land situate on the south-easterly side of the Sacramento river, in Upper California, described as follows: Commencing at a point above and adjoining the tract of land held by McKinstry & Co., situate and adjoining the present town site of Sutterville, running parallel and back from the river of said tract of one half mile in breadth of McKinstry & Co. the distance of one mile; thence running in a straight line in a north-easterly direction one half mile; thence one mile towards the river Sacramento; thence one half mile to the point intersecting the said land held by McKinstry & Co., the whole to include one mile in length and one half mile in breadth, immediately adjoining and running with parallel lines with the half mile held by McKinstry & Co.; also all that piece or parcel of land lying between the last named line above described and the Sacramento river.”

The plaintiff then offered in evidence a deed from Mc-Dougal to Jonathan D. Stevenson and W. C. Parker, which was objected to for the same reason, but received by the Court, and a deed from Parker to Hart also objected to for the same reason, and received. The plaintiff offered in evidence a certified copy of a decree made by the District Court of the Fourth Judicial District, in the suit of J. D. Stevenson v. Mary Hart, Executrix of the Will of Wm. Hart, deceased, rendered August 11, 1860. This decree required the defendant, as executrix, to make and deliver to the plaintiff a deed of one undivided half of the premises in controversy. No other papers in the action were offered in evidence. The plaintiff then offered a deed from Mary Hart, as required by the decree. The plaintiff, by several mesne conveyances, deraigned title from Stevenson.

The plaintiff, also, for the purpose of showing the boundary of the McDougal tract, offered in evidence a deed from John A. Sutter to L. W. Hastings, dated November 30, 1849. The defendant’s attorney objected to it as irrelevant. The Court overruled the objection.

The plaintiff, also, for the purpose of showing the boundary of the McDougal tract, offered in evidence two deeds from John A. Sutter, Jr., to John A. Sutter, Sr., Theo. Cordua, George McKinstry, Jr., and John Bidwell. The first was dated April 4th, 1849, and the second was made as explanatory of the first, and was dated July 1st, 1850. The defendant objected to these deeds as irrelevant, but the Court overruled the objection. The first of said deeds conveyed the following:

“All that piece or parcel of land, situated, being, and lying in the Territory of California, bounded and described as follows, to wit: commencing at the northwest corner of the town of Sutterville, adjoining the part of said town now belonging to L. W. Hastings, Esq. ; thence running up Sacramento river one half' mile—said line to commence at low water-mark; thence running back on a line running at right angles with the aforesaid line of Hastings’ to the distance of one mile; thence running southerly on a line parallel with the river bank one half of a mile; thence running in a direct line to the place of beginning."

The second deed was as follows:

“This indenture, made the 1st day of July, in the year of our Lord one thousand eight hundred and fifty, between John A. Sutter, of Hock Farm, in the county of Sutter, State of California, of the first part, and John A. Sutter, Theo. Cordua, Geo. McKinstry, Jr., and John Bidwell, of the second part, witnesseth: that, whereas, the said John A. Sutter, by his certain deed, bearing date the fourth day of April, A. D. one thousand eight hundred and forty-nine, for a valuable consideration, conveyed a certain tract of land to the said parties of the second part, which tract or parcel of land is described in said deed as follows, to wit: commencing at the northwest corner of the town of Sutterville, adjoining the part of said town now belonging to L. W. Hastings; thence running up the Sacramento river one half a mile—said line to commence at low water-mark; thence running back on a line running at right angles with the aforesaid line of Hastings to the distance of one mile; thence running southerly on a line parallel with the river bank one half a mile; thence running in a direct line to the place of beginning. And, whereas, the said deed does not fully and clearly describe the boundaries of the land intended to be conveyed thereby; therefore, know all men by these presents, that it was my full intent _ and meaning to convey by the aforesaid deed, bearing date the said fourth day of April, in the year of our Lord one thousand eight hundred and forty-nine, all the land therein described, together with all the land lying between the north and the south boundaries of said tract, and a line extending northward in continuation of Hastings’, or the eastern boundary line of the town of Sutter and the Sacramento river. And these presents are intended to be explanatory of my full intent, purpose, and meaning as intended at the date thereof to be expressed in the aforesaid deed, bearing date on the aforesaid fourth day of April, in the year of our Lord one thousand eight hundred and forty-nine; and this indenture is hereby made a part and parcel of the aforesaid deed, so executed as aforesaid, on the said fourth day of April, A. d. eighteen hundred and forty-nine.”

After the record evidence was completed, the plaintiff introduced parol evidence, to show the location of the ground in controversy.

The trial was concluded, and the Court took the case under advisement on the 21st day of November, 1870. On the 8th day of August, 1871, the plaintiff» gave notice of a motion to set aside the order of submission, and for leave tó introduce further evidence. The motion was made and granted on the 1st day of September, 1871,' and the plaintiff introduced additional testimony.

The plaintiff recovered judgment, and the defendant appealed from the judgment, and from an order denying a new trial.

The other facts are stated in the opinion.