Gill

— The action is ejectment, and the plaintiff derives title from Victor Castro by deed bearing date in 1864. In order to show a right of entry in Castro, derived to himself by the deed, he proved that Castro, being at the time in the possession of the premises, demised them to the defendant for the term of one year, with the privilege to the lessee of a further term of five years upon a rent reserved in the lease. The lease bore date in 1855, and the defendant entered into possession thereunder in 1856, and has since then continued in possession.

One of the defenses relied upon by the defendant was that he had himself acquired the title of his lessor, the grantor of the plaintiff.

The title set up by the defendant originates in a mortgage deed, executed by Castro to one Leonard in the year 1853, and duly recorded at that time. By this instrument Castro mortgaged to Leonard “all the right, title and interest which the said Castro has either in law or equity in the ranch in Contra Costa county, on a part of which Castro resides, which is usually ealled the Rancho San Pablo, and which interest is *826 held by said Castro in common with himself, his seven brothers and sister and…