Appeal from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of Alameda County. Crane, J.

The defendant was sworn as a witness, and upon the inquiry of the Court as to what facts were proposed to be proved by said witness, the attorneys for defendant offered to prove by said witness the following state of facts:

“Mr. Griffith. Well, Sir (to the Court), we propose to prove by Mr. Pryal and other witnesses, that Mr. Alden, at the time he conveyed us this land by certain metes and bounds, so many feet front, knew that he did not own that amount of land. We will prove further by Mr. Pryal that he furnished us with a map representing that he did own the land, although he knew at the time that he did not own it. That we had no means of ascertaining what the , true boundary of the land was, excepting his representations and the map that he furnished us. We expect to prove by Mr. Pryal that the piece of land as represented to him by Mr. Alden was suitable for the purposes he desired to purchase it for, and that it was worth the amount that is specified there, and we will prove by Mr. Pryal that soon after he had purchased it he was notified by the county that the road ran in some twenty feet upon the premises. The road was laid out, I think, as early as 1862, yet there seemed to have been some dispute in relation to where the line ran. The Board of Supervisors, since 1877, ordered a resurvey of the road by the County Surveyor. The resurvey was made, and ran where the original survey called for, taking off this twenty (20) feet. The resurvey was subsequent to the execution of the mortgage. That matter of the road was of record in the records of the Board of Supervisors, but then the obstructions in the road had never been removed. The fences had never been moved back, although the Board of Supervisors had declared the road opened. Mow, we offer to prove by Mr. Pryal that the true lines were not such as designated and pointed out by Mr. Alden, and such as represented by this map; that at the time of the purchase there was a building standing on these premises, erected by Mr. Alden himself; that the building could not be placed upon the land that was left there without obstructing the public road, so that the premises are utterly worthless. And when we found that the lines were given to us incorrectly, and that the property was not suitable for the purposes for which he sold it to us, we offered to surrender to him all the right and title we had, to deed to him all the right, title and interest we had acquired by virtue of this deed, on his surrendering to us the note and cancellation of the mortgage. We expect to show further that this very land was dedicated for road purposes, which land Mr. Alden afterwards sold to Mr. Pryal. We propose to show further that Mr. Alden was one of the petitioners for opening this road, and that he was before the Board of Supervisors, and the road was declared opened; that it was dedicated to road purposes, a portion of this land that he afterwards sold to Pryal. Mow, after taking out that portion of the land that he dedicated for the road, the balance of the land is of no value whatever, and is not large enough for the very building Mr. Alden sold to us, and which he had erected himself on the premises.”

To all and every portion of which testimony so proposed and offered, counsel for plaintiff then and there objected, on the grounds that the same was incompetent, irrevelant, and immaterial.

The Court. “I understand you to say your client, Mr. Pryal, had possession of this land, with the exception of this land taken for the road. He has it in possession yet. Is that the fact, Mr. Griffith ? ”

Mr. Griffith. “Mo; we are not in possession of the whole.” The Court. “Is Mr. Pryal in possession of the land described in that deed ?”

Mr. Griffith. “Mot the whole of it, sir. In consequence of the proceedings for a road he has been compelled to pull down some buildings he had erected there, and been compelled to remove his business off the property entirely.”

The Court. “ What portion of it is he in possession of now; or was he when this suit was commenced ?”

Mr. Griffith. “We do not claim to be in possession of any. We offer to deed back to him all the right, title and interest we have in the property. Mr. Pryal informs me that after these proceedings were commenced he was compelled to remove his buildings and his business away from that place. While the building is still standing there—has not been abolished or removed by the county—we do not claim the possession at all, because we are ready to deed back to him; and we are not actually, physically, in possession of any of it; only in possession constructively by purchase from Mr. Alden. We went into possession under the deed, and we held the possession until we discovered that he did not own all the land; and since we have discovered that, we have removed our buildings and business from the premises. Mr. Pryal is not actually in possession there now. The county has not abolished that house yet.”