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

By a reference to the 45th of Cal. 647, some of the facts will be, found stated which apply to this case.

Under the writ of assistance which was issued as there stated, on the 22d of October, 1872, Henderson, the defendant here, was, on the 29th of October following, placed in possession of the north-west quarter, the south-west quarter, the west half of the north-west quarter, and the north-west quarter of the south-east quarter of section thirty-six, township five north, range seven east, Mount Diablo meridian. Henderson remained in possession until the 20th of August, 1873, when Daniels was restored to possession, under the decision of the Supreme Court. Daniels then brought this action to recover the rents and profits of the land, while Henderson was thus in possession. In his complaint, he merely alleged that he was in possession on the 29th day of October, 1872, and that the defendant then ousted him wrongfully and entered into possession and enjoyed the rents and profits until the 20th of August, 1873, and that he was entitled to the possession when the defendant entered, and during all the time the defendant was in possession. The defendant, in his answer, denied that the plaintiff was entitled to the possession of the land.

The answer then proceeded as follows:

And for a further defense the defendant alleges that on the 28th day of October, 1868, one Jacob Morss filed in the State Land Office of California, an application for the purchase of the north-west quarter and north half of the southwest quarter of section thirty-six, township No. five north, range seven east, Mount Diablo meridian and base, San Joaquin county, California, which said application was approved January 2d, 1869, and a certificate of purchase for said land issued to said Morss May 11th, 1869, numbered 1778.

That on the 23d day of March, 1867, said Morss filed in said land office an application to purchase the south half of the south-west quarter of section thirty-six of said township and range, which said application was approved on the 4th day of June, 1867, and a certificate of purchase therefor issued to said Morss on the 30th day of August, 1867, numbered 744.

That on the 28th day of October, 1868, one William Morss filed in said land office an application for the purchase of the west half of the north-east quarter and northwest quarter of the south-east quarter of section thirty-six of said township and range, which application was approved on the 2d day of January, 1869, and a certificate of purchase therefor was issued to said William Morss, May 11th, 1869, numbered 1779.

That on the 16th day of November, 1868, the said Jacob and William Morss conveyed all the above described land to Nathaniel McTucker, who then and there executed and delivered to said Jacob Morss a mortgage in fee of all said land to secure the payment of a certain promissory note to wit: for the sum of $2,500. given for the balance of the purchase-money of said land

That on the 23d of June, 1869, the said Jacob and William Morss assigned to said McTucker their respective certificates of purchase hereinbefore mentioned, numbered 1778 and 1779, and on the 15th day of October, 1870, said certificate numbered 744 was assigned to said McTucker by said Jacob Morss.

That on the 26th day of November, 1868, said Jacob Morss assigned said note and mortgage to this defendant, which said mortgage was, after due proceedings had, foreclosed in the District Court of the Fifth Judicial District, in and for San Joaquin County, on the 18th day of May, 1871, and subsequently, to wit, on the 28th day of March, 1872, all of said lands were, by order of said Court, sold by the Sheriff of San Joaquin County, at public auction to this defendant, and after the expiration of six months from said sale, to wit, on the 1st day of October, 1872, defendant received a deed from said Sheriff of all of said land.

That on the 13th day of October, 1869, the said Nathaniel McTucker executed a mortgage on said premises to secure the sum of $5,500, and at the same time assigned the certificate of purchase numbered 1779, and on the 26th day of August, 1869, assigned said certificate numbered 1778 to one John McTucker, which transactions, as affiant is informed and believes, were intended as a mortgage security for said $5,500 to said John McTucker, and not otherwise.

That on the 10th day of July, 1871, said certificate number 744 was assigned by said Nathaniel McTucker to one Mary McTucker without any valuable consideration whatever.

That at the time of the execution of the said mortgage by said Nathaniel McTucker to said John McTucker, said John McTucker was fully aware of the existence of the said mortgage held by defendant on said lands, which said mortgage was recorded in Book B of Mortgages, volume 9, pages-.

That on the 13th day of September, 1871, a patent was issued to John McTucker and his heirs to the lands described in said certificates, numbered 1778 and 1779, and on the same day a patent was issued to said Mary McTucker and her heirs to the land described in certificate numbered 744. Defendant further alleges that if said plaintiff has any claim to said land the same was derived under said patents and not otherwise.

On the trial, the plaintiff introduced testimony showing his possession and ouster, and the value of the rents and profits. He then introduced the transcript on appeal of the case of Henderson v. McTucker, and the case, as reported in the 45 of Gal., and rested. The defendant offered to prove the facts set out as new matter in his answer, but the Court refused to allow the evidence.

The Court found as facts, that the plaintiff, prior to the 29th of October, 1872, was in the possession, and that the defendant, acting under a supposed right given him by the writ of assistance, on said day, obtained possession of the land, and retained possession until August 20, 1873, and that the plaintiff was entitled to the possession. The plaintiff had judgment, and the defendant appealed.

The other facts are stated in the opinion.