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

Ejectment to recover a tract of land in the county of Sacramento, described as “ commencing on the east bank of the Sacramento river, where Main street, in the town of Sutterville, would strike said bank, being the southwest corner of a tract of land conveyed by John A. Sutter to L. W. Hastings; running thence easterly along said south line of said Hastings’ tract one mile; thence at right angles southerly one half mile; thence at right angles westerly to the Sacramento river; thence up and along the Sacramento river to the place of beginning.”

The following was the deed from Eobinson and others to Saunders, which is construed in the opinion:

“This indenture, made this twenty-third day of June, A. D. one thousand eight hundred and fifty-five, between Henry E. Eobinson, Eugene F. Gillespie, John S. Fowler, John McDougal and Wake Brierly, of the counties of Sacramento and San Francisco, State of California, parties of the first part; Lewis Saunders, Jr., of the County of Sacramento, of the second part, and John A. Sutter, of the County of Sutter, State aforesaid, party of the third part: Whereas, on the 1st day of July, 1850, John A. Sutter and Ann, his wife, executed to said E. Eobinson, Eugene F. Gillespie, John S. Fowler, and John McDougal, a deed of conveyance, dated that day, for a certain tract of land bounded as follows: Commencing on the east bank of the Sacramento river, in latitude thirty-nine degrees, forty-one minutes, forty-five seconds, and running thence on said parallel of latitude to the Eio de los Plumas, Feather river; thence down said Feather river with its meanderings to its junction with Sacramento river; thence up and along the east bank of said Sacramento river to the place of begining;

also, whatever right, title, interest they may have in and to any other tract or parcel of land whereto they might have or be possessed of in the State of California, as will more fully and at large appear from the said deed, which is recorded in the office of the Kecorder of Sutter Conty, in

Book of Deeds -, pages —; and whereas the said Eugene F. Gillespie has purchased and acquired all the right, title, interest and estate of the said John S. Fowler, and the said Wake Brierly has purchased and acquired all the right, title and interest, and estate of the said John McDougal in and to said tracts or parcels of land; and whereas, the said .deed or conveyance, certain covenants and conditions are to be kept and performed on the part of said Bobinson, Fowler, Gillespie and McDougal, as parties of the second part therein, a more full statement and enumeration of which may be had by reference to said deed or conveyance, recorded as aforesaid; and whereas, differences and controversies have arisen and exist under the said deed, which differences and controversies it is the mutual desire of the parties hereto to end and determine-, and it is the further desire of the parties hereto to become seized and possessed of certain ascertained and deferred rights, titles, interests and estates in the tract or parcel of land herein first above particularly described; now, therefore, this indenture witnesseth: That the said parties of the first part, for and in consideration of the sum of one dollar to them in hand paid, the receipt whereof is hereby acknowledged, and also the consideration of a certain deed of conveyance bearing date even herewith, executed by the said Sutter, and Ann, his wife, and P. L. Edwards, to Eugene F. Gillespie, Henry E. Bobinson and Wake Brierly, of and for the undivided seventy-four one hundredths (-/A) equal parts of all their rights, title, and interest and estate in and to all of the said tract or parcels of land herein first above particularly set forth and described, except the reservations hereinafter stated, and -for the further consideration of the final adjustment and compromise of all the differences and -controversies aforesaid, and of the release made in said deed from said Sutter and wife, and P. L. Edwards to said Robinson, Gillespie and Brierly, of the said Robinson, Gillespie, Fowler, McDougal and Brierly, and each of them, their heirs, executors, administrators and assigns, of and from all further fulfillment or performance of any and all acts, covenants, and conditions, and things whatsoever, which were' to be by them fulfilled, done, or performed under or in conformity with the said deed of July 1, A. D. 1850, stated either by way of rental or otherwise, have bargained, sold, remised, released, and forever quitclaimed, and these presents do bargain, sell, release, and forever quitclaim the undivided twenty-six one hundredths (fJL) equal parts of all their rights, titles, interests, estate, claims, and demands of and in all the said tract or parcel of land hereinafter particularly described and set forth, to wit: Commencing on the north of the three peaks, or what is commonly known as the Sutter’s Buttes, at a point on the east bank of the Sacramento river, known in latitude thirty-nine degrees, fifty-one minutes, forty-five seconds; thence running with the parallel of said latitude to the Rio de los Plumas, or Feather river; thence down and along the meanderings of the Rio de los Plumas, or Feather river, to its junction with the Sacramento river; thence up and along the east bank of said Sacramento river to the plací or point of beginning—¡excepting and reserving therefrom, and from the operations of this conveyance, the tract of land known as the “Hock Farm,” and that known as the “Tuba City Tract,” and also such tracts or pieces of land heretofore sold and conveyed or contracted to be sold and conveyed by said Robinson, Fowler, Gillespie and McDougal, and also all the right, title, estate, claim, and demand whatsoever, which the said parties of the first part have, hold, or claim, either in possession or expectancy, of, in, and to any and all other tracts or parcels of land lying and being situate in the State of California, of and in which the said parties of the first part may have become interested, possessed, seized, or entitled under or in virtue-of the said deed from the said Sutter, and Ann, his wife, to said Robinson, Gillespie, Fowler and McDougal, bearing date July 1, a. d. 1850; to have and to hold said lands and real estate, and all the right, title, estate, claim, and demand therein of the said parties of the first part hereby bargained, sold, remised, released, and quitclaimed unto the said party of the second part, his successors and assigns, in trust to and for the several uses, interests, and purposes hereinafter mentioned, namely: First—Intrust, to lease the same or any part thereof, and to take, collect, ■ and receive the rents, issues, and profits thereof; to sell and convey the same or any part thereof to such person or persons, and for such price or sum of money as to him shall seem meet; subject, however, to the appeal of said John A. Sutter. Second—In trust, to apply the rents, issues and profits thereof and proceeds of the sales aforesaid: 1st. To the payment of the taxes and assessments and legal charges thereon; 2d. To the care, protection and preservation thereof, and to the prosecution of such suits and actions as may become necessary or proper in relation thereto, and to the defense of such suits or actions as may be brought in relation thereto against the said John A. Sutter, or those claiming under him, or in any way prejudicial to the right, title, estate hereby bargained, .sold, remised, released and quitclaimed; 3d. To pay any just debts against the said John A. Sutter; 4th. To pay over the residue of such rents, profits, and proceeds of sales to the said John A. Sutter, his heirs and assigns, to his and their use and benefit. And the party of the second part covenants to faithfully fulfill and perform the trusts herein created.

“ In witness whereof, the said parties of the first part, and the said parties of the second part, have hereunto set their hands and seals, the day and year first above written.

“Henry E. Robinson, [l. s.] John S. Fowler, ■ [l. s.]

Eugene F. Gillespie, [l. s.] John McDougal, [l. s.] Wake Brierly, [l. s.]

Xiewis Saunders, Jr. [l-s.]”"

The defendants claimed under Sutter, but not through Saunders.'

The plaintiff recovered judgment in the Court below, and the defendant appealed.

The other facts are stated in the opinion.