Norris

Action in ejectment. Judgment for plaintiff, from which defendants appeal.

There are two controlling points in this case, upon each of wdiich we think the court below erred in its conclusion of law.

The material facts, as found by the court and conceded by counsel, are these:— ■

The land in controversy is a lot in the city of San José, found and conceded to be within the exterior boundaries of the lands finally confirmed and subsequently patented to said city as the successor of the pueblo of San José de Guadaloupe. The lot is fifty varas square, known as lot 3, in block 1, range 8,-and was granted by the alcalde of the pueblo, July 12, 1847, to Leo Norris, upon the express condition subsequent, stated in the grant, “that said Leo Norris will fence said lots with a redwood fence or erect a dwelling-house thereon on or before the expiration of twelve months from date.” On the 24th of May, 1882, Leo Norris made a deed purporting to convey the lot to William H. Norris, the present plaintiff. Neither the said Leo Norris, nor any one in his behalf or claiming under him, ever had the actual possession of said lot, or made any improvement thereon.

On the 27tli of October, 1857, one…