Appeal from the Superior Court of the City of San Francisco.
The action was ejectment for a lot in San Francisco. The case being tried by the Court without a jury, the Court found the following facts:
That the plaintiff in the year 1853, was the lawful owner of the premises in dispute; that his Attorney permitted one Angus McDonnell to enter upon the premises, for the purpose of grading and hauling stone from the same. That subsequently, McDonnell, without authority, conveyed by deed the premises to one Taylor, who afterwards conveyed the undivided half thereof to the defendant. The Court upon this state of facts, gave judgment for plaintiff. The defendant moved for a new trial, on the affidavits of McDonnell and his partner, tending to impeach plaintiff's title. The Court overruled the motion, and defendant appealed.
That the plaintiff having declared on a full legal title, he should have offered in evidence a grant from the sovereign of the soil; and that the new trial should have been granted.
Howard & Perley, for Appellant.
Wills, Haight & Gary, for Respondent.
1. A new trial is never granted to let in testimony tending to impeach the creditof a witness. The testimony must relate to some new fact, upon which evidence was not given at the trial. Harrington v. Bigelow , 2 Denio, 109. People v. Sup. Court of N. Y. 10 Wend. 293.
2. The evidence was sufficient to justify the finding.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
When McDonnell, the grantor of the defendant, went into possession by license or permission of the plaintiff's agent, his possession became that of the plaintiff--and upon this prior possession, the latter is entitled to recover. In Adams on Ejectment, the rule in such cases is laid down thus: " It has already been observed, that possession is prima facie evidence of ownership; and as between two parties who rely upon possession solely, the presumption is in favor of the first possessor; so that proof of possession by a claimant, however short, will entitle him to recover, unless the defendant can account for such possession, or show a prior possession or title in himself, or a third person."
It only remains to add, that the new trial upon the affidavits filed was properly denied.