Sheldon

— It is 'well settled that the issues joined in an action of ejectment relate to the commencement of the action, and that unless the plaintiff show that he was entitled to the possession at the time the action was brought, he cannot recover: Yount v. Howell, 14 Cal. 465 ; Owen v. Fowler, 24 Cal. 192 ; Hestres v. Brennan, 37 Cal. 385 .

It is equally well settled that a confirmation had and patent issued (pursuant to the provisions of the act of Congress of March 3, 1851, to settle private land claims in the state of California) to a person as executor of another, or as administrator of his estate, vests the legal title in the confirmee and patentee, and not in other persons, even though such other persons be equitable owners of the premises described in the confirmation and patent, as being devisees, heirs, or the like: Hartley v. Brown, 46 Cal. 202 , and cases there cited.

These actions were respectively commenced in January, 1872. At that time Catherine F. Sheldon and Gabriel W. Gunn held the legal title to the premises in controversy. It had vested in them on the first day of July, 1870 — the day of which the patent bears date. It was not until February, 1872, that a decree…