Anzar

— Defendants appeal from the judgment and an order refusing a new trial.

This action is brought under sections 738 and 380 of the Code of Civil Procedure to try title to and recover possession of 28.41 acres of land in the county of San Benito.

The plaintiff derives title under a patent from the United States in confirmation of a grant made by a prefect to Mariano Castro, May 19, 1839. The defendant claimed under a grant to one José Modesto, an Indian, dated- March 23, 1843. Judicial possession was given to Modesto, March 28, 1843.

Defendants also plead the statute of limitations. The claim of Modesto was never presented to the United States board of land commissioners for confirmation. On the trial the defendants relied upon the grant to Modesto and the judicial possession as a perfect grant, not forfeited by non-presentation; but since this appeal was taken, the supreme court of the United States, in the case of Botiller v. Dominguez, 130 U. S. 238 , declared that all Mexican grants, whether perfect or not, must have been presented to the land commissioners on pain of *344 forfeiture. The only defense left is, therefore, the plea of the statute.

• In addition to their claim…