Larue

— The preliminary objections of the plaintiff to the transcript, not having been taken according to rule 12 of this court, are deemed waived.

The defendants pleaded the statute of limitations, and the plaintiff replied that he claimed title under a grant made by the Spanish and Mexican government, and that the grant was finally confirmed by the government of the United States within five years before the commencement of the action. The question presented is, Upon whom is the burden of proof as to the time of the final confirmation? It was decided in Richardson v. Williamson, 24 Cal. 297 , and we think correctly, that the party who claims the benefit of the proviso, giving him five years after final confirmation of his title, within which to bring his action, must both allege and prove the facts whieh bring him within its terms. When the statute interposes a denial to the answer, the plaintiff need not aver those facts, but he must prove them. The plaintiff failed to make *614 this proof; but the failure in this respect was productive of no injury to the defendants, for the court has not found the requisite adverse possession in the defendants, to put the plaintiff upon proof,…