Thompson

In concurring in the opinion of my brother, Sharpstein,-1 desire to add, that, in my judgment, the attornment of Osborn to Moss was made under conditions which brought it within the section of the Act of 1855, referred to in the case of Thompson v. Pioche, 44 Cal. 508 . As had been held by the Supreme Court in Leese v. Clark, 18 Cal. 535 , and 29 Cal. 387 , years prior to the decision in 44 Cal., and affirmed by the United States Supreme Court, (Beard v. Federy, 3 Wall. S. C. 491) the patent is record evidence of an adjudication, conclusive in its character, that Moss was entitled to the land sued for, from the date at least of the presentation of the claim to the Land Commissioners, as against all persons in the condition that Thompson was. The rule of Leese v. Clark is, no doubt, the conclusively settled *555 rule in this State. This patent was issued in pursuance of the judgment of a court of competent jurisdiction, and Osborn, in yielding to it, attorned in consequence of this judgment, which brought the case within the statute. This conclusion is sustained in principle by the following cases: Mayor v. Whitt, 15 M. & W. 571; George v. Putney, 4 Cush. 351 ; Chambers v. Pleak, 6…

The plaintiff sues in ejectment for the recovery of about forty acres of land lying within a larger tract known as the Bernal Bancho. The entire tract was granted to the Bernals, by the *551 Mexican Government, and on the 31st day of December, 1857, the United States issued a patent to them for it. The defendant deraigns title through mesne conveyances from the Bernals. The plaintiff claims to have acquired title to the tract involved in this action, by an adverse possession thereof for a period of five years prior to the ouster. A verdict was rendered in favor of the plaintiff. The defendant moved for a new trial, which was granted; and from that order the plaintiff has appealed.

To establish an adverse possession for the statutory period, the plaintiff testified that in 1853-4 he inclosed a tract of about 118 acres, which included the land sued for in this action, and from that time until the latter part of 1855 he pastured stock within the inclosure. In November, 1855, he leased the premises to one Osborn, and went into the interior of the State, where he remained until 1863. In the meantime a patent for the ¡Rancho issued, and Osborn took a lease of the land in 1859 from J.…