
    136 F. 113
    ARCHER v. BEIHL.
    No. 1,087.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 6, 1905.
    
      Malony & Cobb and Alfred Sutro, for plaintiff in error.
    Z. R. Cheney and Lorenzo S. B. Sawyer, for defendant in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

This record comes to us in a very unsatisfactory condition. The statement of the evidence in the bill of exceptions is terse in the extreme, and affords but meager information of the facts. There is no definite testimony as to the location of the house or lot, the possession of which was surrendered to the defendant by Mary A. Sakaloff. There is no testimony that that tract which in the deed to the defendant was described as a parcel 25 feet by 100 was ever pointed out to the defendant, or was inclosed or in any way marked on the ground, or that the defendant ever actually or visibly occupied any precise tract of ground by using the same or marking the same or exercising acts of ownership over it. The deed under which the plaintiff claims from Mary A. Sakaloff is the south ISO feet of lot 1. There is no difficulty in determining the location of the premises so conveyed. They include the land in controversy. The quitclaim deed under which the defendant claims was made a year before Mary A. Sakaloff had acquired any title or right of possession of record. It quitclaimed a parcel “25 feet in width fronting north toward the beach and 50 feet in depth and being the northeast corner of Lot 1.” It is impossible from this description to determine where the ground so intended to be quitclaimed is located. Where is the northeast corner of lot 1? The surveyor who laid out the ground testified that according to the plat the northeast corner was the inside corner next to lot 2, but that according to the variation of the compass it would be the corner next to B street. The wording of the deed would seem to indicate that the ground was located in the corner next to lot 2, for it is described as a tract 25 feet in width “fronting north toward the beach.” Again, if it was intended to be, as the defendant contends, in the corner fronting B street, in what shape did it lie? If it is in that corner, and effect is given to the words “25 feet in width fronting north toward the beach,” it was either a tract 25 feet in width, beginning at the point of intersection of the mill site with the line of B street, and running 50 feet southwesterly along B street, or a tract 25 feet in width on B street, immediately south of the point where the mill site intersects the line thereof, and running 50 feet across lot 1. In the latter case the defendant’s ground as described in the quitclaim deed would not ■encroach on the plaintiff’s ground more than 5 feet, if at all. In the former case it would not encroach on more than half of the plaintiff’s ground. If it be admitted that the house situated on the premises described in the deed to the defendant is to be deemed a monument to identify his land, we are met by the, difficulty that the evidence did not show the location of the house further than that it was partly on lot 1 and partly in B street, and that now, after an addition has been made thereto, it is partly on the ground in controversy. For aught that appears to the contrary, the original house, so far as it was situated on lot 1, was on that portion thereof lying north of the land in controversy. This would seem to be borne out by the fact that it was not until the defendant began to build his addition that the plaintiff complained of encroachment, and the further fact that the disseisin complained of in the complaint was alleged to have occurred at about that time. But whatever may have been the true location of the land quitclaimed to the defendant, according to the intention of the parties, it is very clear that the defendant’s deed does not describe the tract in controversy, in the action, and could not by any construction cover more than a portion thereof. The defendant in his answer did not allege adverse possession of the property in controversy in any of his grantors. He alleged such adverse possession in himself only from May S, 1894. While it is true that, under the law which was in force in Alaska prior to the Code, color of title was not necessary to render actual possession under claim of title adverse, section 1042 of the Code of Civil Procedure of Alaska declares that “the uninterrupted, adverse, notorious possession of real property under color and claim of title for seven years or more shall be conclusively presumed to give title thereto except as against the United States.” The plaintiff objected to that portion of the charge which permitted the jury to find adverse possession in the defendant upon the ground that the answer had not pleaded that such possession was had under color and claim of title. We think that, taking all the averments of the answer together, it sufficiently appears that the claim of adverse possession to at least a portion of the land in controversy was made under the deed of Mary A. Sakaloff to the defendant of May 5, 1894, and there is no doubt that that deed was sufficient to give color of title, notwithstanding the fact that at the date of its execution there is nothing to show that the grantor therein had or claimed any interest in the premises. But the question is, to what precise tract of land does that deed give color of title? A deed is color of title only as to the land actually described in it. “Any description which, unaided by extrinsic facts, satisfies the mind that the land adversely occupied is embraced within the description contained in the deed, will, of course, be sufficient. So a description, though indefinite, is sufficient if the court can, with the aid of extrinsic evidence which does not add to, enlarge, or in any way change the description, fit it to the property conveyed by the deed. It is necessary, however, that the description be such that it can be rendered certain by such evidence.” 1 Cyc. 1090, and authorities there ' cited.

The instructions of the court permitted the jury to find for the defendant for the whole of the property in controversy. This was error, for it is impossible, under any construction of the defendant’s quitclaim deed, to make its description fit the premises which are.involved in the action, and this is true no matter where along the line of B street the defendant’s house may have been located. It was error, also, to instruct the jury that they might find, from the bare fact that the defendant testified that at the time of receiving his quitclaim deed Mrs. Sakaloff put him in possession, that at that time the latter “had some right, title, or interest in said land such as actual possession,” and that the said defendant “did obtain some sort of title thereto by his acts and the surrender of possession by the other parties.”

It is not necessary to consider the other assignments of error, since for these erroneous instructions the judgment must be reversed and the cause remanded for a new trial.  