Phelps v. McGloan

42 Cal. 298

• Court: California Supreme Court
• Decided: October 15, 1871
• Docket: No. 2,687
• Status: Published

Opinion

By the Court, Sprague, J.:

After a careful examination of the testimony, as presented by the record, I find that upon the question of possession of the demanded premises and the character thereof, from 1853 to 1863, there is direct and substantial conflict between the evidence presented by plaintiff tending to establish actual possession in Abner and Edwin Phelps, through whom she claims title, and that presented by defendants tending to establish actual possession in other parties, through whom they claim title; and as to the years 1854 and 1855, the evidence tending to establish actual possession in Abner Phelps is in direct conflict with that, tending to establish such possession in J. F. Hutton, Sr., and one Haraszthy, through whom defendant Brummagim’s testator, Biedeman, claimed title. The findings, therefore, under the uniform practice of this Court, will not be disturbed on review.

The objection to the evidence of a conversation between Abner Phelps and Hutton, Jr., in 1860, while Phelps was in possession of the premises, was not well taken. This evidence tended to explain the character of possession held by Phelps at the time, whether it was as a claimant of the premises, in his own adverse right, or as tenant of Hutton, Sr.

There is nothing in the point urged against the ruling of the Court, refusing to allow plaintiff to recall the witness, Abner Phelps, for the purpose indicated, which was to contradict the evidence of Mrs. Pfoff, formerly Mr. Bach, so far as the same was in conflict with the testimony already given by the witness Phelps.

Judgment and order denying new trial affirmed.