
    [Mo. 8732.]
    W. T. WALLACE d. HENRY MILLER.
    Tenant in Common— Constedction of Deed—Fbactionab Intekest.—'When a deed conveys a certain number of acres without describing the land conveyed, to be taken out of a larger tract described, the grantee becomes, by his deed, a tenant in common, having a fractional interest represented by a fraction having for its denominator a number equal to the number of acres in the larger tract described, and for its numerator a number equal to the number of acres conveyed. The grantee acquires such fractional interest in every acre of the larger tract.
    Appeal from the District Court, Twentieth Judicial District, County of Santa Clara.
    The action was ejectment for an undivided part and interest of, and equal to seven hundred and fifty acres in the Rancho Las Animas. The Court found that on March 15th, 1873, a patent was issued by the Government of the United States to the widow and heirs of J osé Maria Sanchez, and that the number of acres contained in the rancho as so patented was twenty-one thousand three hundred and seventy-seven ; that the plaintiff derives his title to seven hundred and fifty acres, undivided, from one of the patentees whose interest was a fee-simple interest of an undivided part and share largely in excess of an undivided twenty-eighth part of the rancho.
    Judgment was rendered for an undivided one twenty-eighth part of the rancho. The defendants moved for a new trial, which was denied, and they appealed from the judgment and from the order denying the new trial.
    
      Houghton & Reynolds, for Appellant,
   cited Gibbs v. Swift, 12 Cush. 393; Lawrence v. Bullon, 37 Cal. 518; Corbin v. Liv ingston, 14 Wend. 619 ; Schenk v. Evoy, 24 Cal. 110; Gales v. Salmon, 35 Cal. 576; Kimball v. Semple, 25 Cal. 452; Ellis v. Icans, 26 Cal. 272.

Francis E. Spencer, for Respondent.

By the Court :

It is ordered that " the judgment herein be and the same is hereby modified by the striking therefrom, wherever they occur, the words “ one twenty-eighth part,” and inserting in lieu thereof the words “ seven hundred and fifty twenty-one thousand three hundred and seventy-sevenths,” and in other respects the judgment and order denying the defendant’s motion for a new trial, are affirmed. Remittitur forthwith.  