Tompkins

At the trial, the plaintiff offered in evidence the deed, from Antonio Maria Peralta to Charles B. Strode, which is set forth in the bill of exceptions. The defendant objected to the introduction of the deed, on the ground that it was incompetent, immaterial and irrelevant to any issue in the case. The court below overruled the objections, and defendant duly excepted.

Respondent claims that the deed was admissible (under section 1849 of the Code of Civil Procedure), because of the clause therein: “Excepting the tract of one thousand varas square, occupied by Patten, heretofore sold to Jones, Tompkins & Strode, as lawyers.”

The section of the Code of Civil Procedure relied on is as follows: “When, however, one derives title to real property from another, the declaration, act or omission of the latter while holding the title in relation to the property is evidence against the former.”

Admitting, for the purposes of the argument, that this section of the Code is to have a larger effect than the rule of the common law as to the acts or declarations of one in *480 possession in disparagement of his title, the deed objected to was not admissible in evidence.

The land in possession…