Madden

— Action to recover land situated in the county of Sacramento. The defendant set up the statute of limitations. The plaintiff derived title from a Mexican grant and under a patent issued within five years before the commencement of the action. The defendants contend that having established an adverse possession of more than five years, the plaintiff cannot avail himself of the exception in the limitation act in favor of titles derived from the Mexican government unless such title is pleaded.

The plea of the statute of limitations or any mere matter of avoidance is not a cross-complaint, which requires an answer or reply on the part of the plaintiff, and if a replication had been filed setting up the facts which constitute the exception to the general statute, such reply would have been unauthorized. Such matters are deemed controverted, and the plaintiff may introduce any evidence which will avoid the effect of such new matter without pleading it.

The motion for a nonsuit was properly denied. The testimony of the plaintiff made a prima facie ease, but if this were otherwise, the defendants did not rely upon their motion, but proceeded to introduce evidence and the supposed…