Morgan v. Higgins

37 Cal. 59

• Court: California Supreme Court
• Decided: July 1, 1869
• Status: Published

Opinions

By the Court, Rhodes, J.:

After the plaintiff had introduced evidence tending to show the actual possession of the premises by the witness Cordes, and that such possession continued in Cordes to the time of the alleged forcible entry, he introduced in evidence the deed of Cordes to plaintiff, for the purpose of showing that at the time of the alleged forcible er try the apparent possession of the witness was the possession of the plaintiff; but it was not offered for the purpose of showing title in the plaintiff. There was no error in its admission for the purpose for which it was offered, though the fact might have been, and, indeed, was proven by parol evidence.

There was no error in overruling the motion for a nonsuit, as there was evidence tending to prove every material allegation of the complaint.

The formal offer of the defendants to prove that O’Callaghan and his grantor had the actual, exclusive and peaceable possession of the premises from 1854 to 1865 was properly rejected. The evidence which was introduced shows that during the latter portion of that period O’Oallaghan was in the actual possession, but such evidence, as well as that embraced in the offer, did not tend to prove his actual possession in August, 1866, the time of the alleged forcible entry, which was subsequent to Q’Callaghan’s death.

The remaining ground of the motion for a new trial, which, though stated as an error of the Court, is in substance that the evidence is insufficient to justify the decision, because it shows that the actual, exclusive and peaceable possession was in the executors of O’Callaghan. Upon this point the conflict in the evidence is of so apparent and substantial a character, that we would not be justified in disturbing the decision, whichever way it might have been rendered. ,

Judgment affirmed, and remittitur directed to issue forthwith.