
    [No. 3,701.]
    GEORGE HAGAR v. JONAS SPECT et al.
    Limitation of Actions.—The Statute of Limitations in relation to land claimed under a Mexican grant which requires confirmation does not commence running until a patent is issued by the United States.
    Idem.—A possession, in order to confer a title to land under the Statute of Limitations, must bo continuous for the full period of five years.
    Oefeking Deed in Evidence.—If a deed of a tract of land contains a clause excepting from its operation such portions of the tract as had previously been conveyed by the grantor, the grantee, in ejectment to recover a parcel of the tract, may introduce it in evidence, without previously proving that the premises in controversy had not been conveyed by the grantor when the deed was given.
    Appeal from the District Court, Tenth Judicial District, County of Colusa.
    
      Ejectment to recover a lot in the town and County of Colusa. The plaintiff claimed under the Jimeno grant, and the defendants under the Coins grant. The general facts in relation to these conflicting grants are stated in the cases referred to in the opinion. The complaint averred the ouster to have taken place on the 2d day of February, 1870. The transcript does not show when the suit was commenced, but an amended complaint was filed December 7, 1870. The final survey of the Jimeno grant was approved on the 6th day of April, 1861. The Court below found the following facts in relation to the plea of the Statute of Limitations interposed by the defendants: In 1850, C. D. Semple, who had purchased the Oolus grant from John Bidwell, entered on the land under his deed, and laid out the town of Colusa into lots and blocks and streets, and lived afterwards in the town, sometimes on one lot, and sometimes on another, but did not at any time have actual possession of the lot in controversy. Hagar, the plaintiff, after 1857, lived in the town, and had possession of some of the lots, claiming to hold the same under the Jimeno grant, but did not have possession of the lot in controversy. In 1859, one Melarkey entered upon the lot in controversy under a deed from one Shepardson, and moved into a house standing on it, and built a fence around it. On the 20th of May, 1861, Semple conveyed it to Melarkey. Melarkey lived on the lot till the spring of 1863, when he went to the State of Nevada. From 1863 to 1866, several persons occupied the house and lot for different periods, but no one entered or occupied under Melarkey. In 1866, the house and fence were removed from the lot, and it remained open and unoccupied till January, 1870, when the defendant Spect entered and commenced erecting a building thereon. He deraigned title from Melarkey through several mesne, conveyances. The other defendants were tenants of Spect. A. C. Whitcomb acquired from the grantees the title to the southern nine leagues of the Jimeno grant, and, on the 9th day of March, 1857, conveyed to the plaintiff Hagar. The deed contained a reservation in the following words: “ But it is expressly understood and agreed that this deed is made and taken without any covenants of title or warrantee, either express or implied, on the part of the said party of the first part, and that it is subject to any conveyances heretofore made by him of any portion of, or interest in, the said tract of land, or any part thereof.” The deed was signed by both the grantor and the grantee. When the plaintiff offered this deed in evidence, as a part of his chain of title, the defendants objected, as stated in the opinion.
    The other facts are stated in the opinion.
    
      F. L. Hatch, for the Appellants.
    
      W. C. Belcher and W. F. Goad, for the Respondent.
   By the Court, Rhodes, J.:

This case again presents the conflict between the titles to the Jimenos and the Colus ranchos. The evidence in the record is substantially the same as was presented in Treadway v. Semple, 28 Cal. 652; Semple v. Wright, 32 Cal. 659; Yates v. Smith, 40 Cal. 662, and Semple v. Ware, 42 Cal. 619. In each of those cases it was held that in respect to the land covered by the survey of both ranchos, the Jimeno was the better title. The grounds upon which the decisions in those cases rest, need not be again considered or even repeated. Those authories should be regarded as having definitively settled the question of the relative value of those titles.

The defendants failed to sustain their plea of the Statute of Limitations. Whatever may have been the effect of Semple’s constructive possession, it is manifest that it did not continue after May 20, 1861, when he executed a deed conveying the premises to Melarkey, the latter being then in the actual possession. The patent for the Jimeno rancho having issued July 18, 1862, the defendants, under the authority of Gardner v. Miller (47 Cal. 570), cannot compute, as a portion of the statutory period, the time which elapsed before that date. After that date, the possession of the defendant’s grantors was not continuous for the full period of five years, and therefore was unavailing. (Sec. 318, Code Giv. Proc.)

The defendants objected to the admission in evidence o£ a deed of conveyance made by Whitcomb to the plaintiff,, on the ground that it excepted such portions of the rancho as had previously been conveyed by Whitcomb; and that, the plaintiff had not proved that the premises in controversy had not been previously conveyed to other persons. It is unnecessary to determine whether the clause of the deed in question creates an exception; for, admitting that it is so to be construed, and that the plaintiff must make it appear that the premises in controversy are not within the exception, there is no rule requiring such proof to be made before the introduction of the deed, and it would be more orderly to adduce such proof after the admission of the deed-in evidence.

Judgment and order affirmed. Bemittitur forthwith..  