Rhodes, C. J.,
delivered the opinion of the Court, Wallaoe, J., and Sprague, J., concurring: Crockett, J., concurring specially:
This case comes before us, on appeal from the judgment; and the only questions in the case, are those which arise [667] upon the statement on appeal. The first ground specified in the statement, is tbat “the Court erred in admitting in evidence the patent of the Jimeno grant as the foundation of title to any land included within the Colus official survey;” and the second ground is, that “the Court erred in admitting'the Jimeno patent, the same being void, and of no effect.” The two grounds may be considered together. The objections taken at the time the patent was offered in evidence, were that the patent shows on its face, that the Colus survey is excepted and reserved- therefrom; and that it is void because Jimeno, the grantee, had received from the Government of Mexico, grants amounting to twelve square leagues of land, prior to the making of the grant, on which the patent is based. The patent is not void on its face; nor is it void because of the alleged prior grants to Jimeno. The patent did not show such prior grants, nor had any evidence then been admitted or offered going to prove such prior grants. Had the evidence of such grants, subsequently offered by the plaintiffs, been admitted at the time the patent was offered in evidence, it would not have rendered the patent void. It was so held in Kimball v. Semple (25 Cal. 440), in which this point was considered, in respect to this patent.
The Colus survey does not appear to be excepted from the patent for the Jimeno grant. The lands delineated in the Jimeno survey — and they are the lands which purport to be granted by the patent — include the lands in suit; on the survey the lines of the Colus rancho are delineated, and they include the lands in suit; and on the page of the patent next after the survey there appears a diagram of the Colus rancho, with a note made by the Commissioner of the General Land Office, stating that “ the foregoing survey of the ‘Jimeno ’ rancho embraces a portion of the survey made for the ‘Colus’ rancho, confirmed to C. D. Semple, as shown by dotted lines on the plat of the foregoing;” but it is not recited that the Colus rancho is excepted from the lands granted by the patent. The patent was not void on either of the grounds urged against it, and as it comprised [668] tbe land in controversy, and as tbe defendants claimed title under it, it was admissible in evidence,
Tbe third ground is, tbat “tbe Court erred in admitting in evidence tbe decree and accompanying plat of tbe Jimeno survey, tbe same being merged in tbe patent.” The objections presented by tbe plaintiff, when tbe decree and plat of survey were offered in evidence, were tbat they were irrelevant, and tbat they were merged in tbe patent of tbe Jimeno rancho, already in evidence. Both tbe decree and tbe plat formed parts of tbe patent, and therefore their admission in evidence as separate documents was not productive of any injury to tbe plaintiff. Tbe plaintiff introduced tbe survey of tbe Colus rancho, and tbe decree confirming tbe survey, and as tbe lands in controversy are embraced in each survey, tbe admission of tbe survey of tbe Jimeno rancho, together with tbe decree of confirmation of such survey, became proper for tbe purpose of ascertaining which party acquired tbe better right to tbe land under bis survey and decree of confirmation.
Tbe fourth ground is, tbat “tbe Court erred in rejecting tbe papers offered by plaintiff to show tbat Jimeno bad acquired twelve leagues of land in California prior to tbe ^grant of eleven leagues, called tbe ‘ Jimeno Grant.”’ Upon tbe authority of Kimball v. Semple (25 Cal. 454), and Semple v. Hague (27 Cal. 165), in which this precise question was considered, we bold tbat tbe point is not well taken.
Tbe fifth ground is, tbat “tbe Court erred in giving judgment in favor of defendants — tbe plaintiff bolding tbe older and superior title.” This ground is ’ useless and Worthless for any purpose whatsoever. If tbe Court found tbat tbe plaintiff’s title was tbe older and superior title, tbe point tbat tbe Court erred in rendering judgment for tbe defendants may be taken upon tbe judgment roll without a statement or bill of exceptions. But if tbe Court did not so find, but found tbat issue for tbe defendants, then tbe Court did not err in giving judgment for tbe defendants. If tbe plaintiff intended by tbat specification to say tbat tbe Court erred in finding or deciding for [669] the defendants, because tbe evidence shows that plaintiff held tlie older and superior title — or, in other words, that the finding or decision was contrary to the evidence, because the evidence showed that the plaintiff held the older and superior title — it has no proper place in a statement on appeal. A statement on appeal and a bill of exceptions are substantially the same — they differing only in respect to the time and manner of settlement, and in some particulars in form — and their purpose is the same, and thkt is, to present for review questions of law. The question whether the evidence is sufficient to sustain the verdict, finding or decision, can be presented only on motion for a new trial. It cannot be presented by means of a statement on appeal.
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Rhodes, C. J.,
delivered the opinion of the Court, Wallaoe, J., and Sprague, J., concurring: Crockett, J., concurring specially:
This case comes before us, on appeal from the judgment; and the only questions in the case, are those which arise [667] upon the statement on appeal. The first ground specified in the statement, is tbat “the Court erred in admitting in evidence the patent of the Jimeno grant as the foundation of title to any land included within the Colus official survey;” and the second ground is, that “the Court erred in admitting'the Jimeno patent, the same being void, and of no effect.” The two grounds may be considered together. The objections taken at the time the patent was offered in evidence, were that the patent shows on its face, that the Colus survey is excepted and reserved- therefrom; and that it is void because Jimeno, the grantee, had received from the Government of Mexico, grants amounting to twelve square leagues of land, prior to the making of the grant, on which the patent is based. The patent is not void on its face; nor is it void because of the alleged prior grants to Jimeno. The patent did not show such prior grants, nor had any evidence then been admitted or offered going to prove such prior grants. Had the evidence of such grants, subsequently offered by the plaintiffs, been admitted at the time the patent was offered in evidence, it would not have rendered the patent void. It was so held in Kimball v. Semple (25 Cal. 440), in which this point was considered, in respect to this patent.
The Colus survey does not appear to be excepted from the patent for the Jimeno grant. The lands delineated in the Jimeno survey — and they are the lands which purport to be granted by the patent — include the lands in suit; on the survey the lines of the Colus rancho are delineated, and they include the lands in suit; and on the page of the patent next after the survey there appears a diagram of the Colus rancho, with a note made by the Commissioner of the General Land Office, stating that “ the foregoing survey of the ‘Jimeno ’ rancho embraces a portion of the survey made for the ‘Colus’ rancho, confirmed to C. D. Semple, as shown by dotted lines on the plat of the foregoing;” but it is not recited that the Colus rancho is excepted from the lands granted by the patent. The patent was not void on either of the grounds urged against it, and as it comprised [668] tbe land in controversy, and as tbe defendants claimed title under it, it was admissible in evidence,
Tbe third ground is, tbat “tbe Court erred in admitting in evidence tbe decree and accompanying plat of tbe Jimeno survey, tbe same being merged in tbe patent.” The objections presented by tbe plaintiff, when tbe decree and plat of survey were offered in evidence, were tbat they were irrelevant, and tbat they were merged in tbe patent of tbe Jimeno rancho, already in evidence. Both tbe decree and tbe plat formed parts of tbe patent, and therefore their admission in evidence as separate documents was not productive of any injury to tbe plaintiff. Tbe plaintiff introduced tbe survey of tbe Colus rancho, and tbe decree confirming tbe survey, and as tbe lands in controversy are embraced in each survey, tbe admission of tbe survey of tbe Jimeno rancho, together with tbe decree of confirmation of such survey, became proper for tbe purpose of ascertaining which party acquired tbe better right to tbe land under bis survey and decree of confirmation.
Tbe fourth ground is, tbat “tbe Court erred in rejecting tbe papers offered by plaintiff to show tbat Jimeno bad acquired twelve leagues of land in California prior to tbe ^grant of eleven leagues, called tbe ‘ Jimeno Grant.”’ Upon tbe authority of Kimball v. Semple (25 Cal. 454), and Semple v. Hague (27 Cal. 165), in which this precise question was considered, we bold tbat tbe point is not well taken.
Tbe fifth ground is, tbat “tbe Court erred in giving judgment in favor of defendants — tbe plaintiff bolding tbe older and superior title.” This ground is ’ useless and Worthless for any purpose whatsoever. If tbe Court found tbat tbe plaintiff’s title was tbe older and superior title, tbe point tbat tbe Court erred in rendering judgment for tbe defendants may be taken upon tbe judgment roll without a statement or bill of exceptions. But if tbe Court did not so find, but found tbat issue for tbe defendants, then tbe Court did not err in giving judgment for tbe defendants. If tbe plaintiff intended by tbat specification to say tbat tbe Court erred in finding or deciding for [669] the defendants, because tbe evidence shows that plaintiff held tlie older and superior title — or, in other words, that the finding or decision was contrary to the evidence, because the evidence showed that the plaintiff held the older and superior title — it has no proper place in a statement on appeal. A statement on appeal and a bill of exceptions are substantially the same — they differing only in respect to the time and manner of settlement, and in some particulars in form — and their purpose is the same, and thkt is, to present for review questions of law. The question whether the evidence is sufficient to sustain the verdict, finding or decision, can be presented only on motion for a new trial. It cannot be presented by means of a statement on appeal.
It is proper here to advert again to the first three grounds of the statement on appeal. Counsel for plaintiff have discussed under one of these grounds — perhaps the fifth, but they do not designate which — the effect of the evidence admitted in the cause for the purpose of showing that the plaintiff held the title to the premises. This practice is inadmissible. It has already been stated that the question does not arise upon the fifth ground; and it is perfectly clear that it does not arise upon either of the first three grounds. The question of the admissibility of evidence is quite different from the question of its value, weight or effect. In a contest for the possession of lands, a party who offers a deed, asserting that he claims under it — if the deed be not void on its face, or if it do not appear therefrom that it does not relate to the land in controversy — is entitled to have it admitted in evidence. Perhaps other grounds for its exclusion, than those stated, may be found, but it is beyond all question, that it should not be excluded, because the adverse party has adduced in evidence a deed, which, as he claims, shows a better title in himself. This would appear obvious; for the'relative value and effect of the deeds could not be determined until they had been submitted to the Court or jury for consideration. The question whether the survey, confirmation of the survey, or the patent of the Jimeno rancho was admissible in evidence, does not involve the [670] question as to tbe .value or effect of either of those documents, when compared with the survey and confirmation of the survey of the Colus rancho. The latter question did not arise in the Court below on the objection to the admission of those documents, and cannot be considered here, in reviewing the action in that respect of that Court. Were it permissible to disregard the recognized rules of practice, and, under the objections to the admission of evidence, to determine the effect of such evidence — to determine whether the evidence sustains the decision — then a motion for a new trial, in order to have the question of fact reviewed, would be useless, and the unbroken current of decisions in this State, on that point, is wrong.
The evident purpose of the plaintiff, on this appeal, is to defeat the Jimeno patent, by showing the prior grants to Jimeno, exceeding eleven leagues of land, and to overcome the effect of the decree confirming the survey of the Jimeno rancho, as declared on the former appeal. The first point has already been sufficiently noticed. Had the record been so prepared as to present the second point, the Court would not be at liberty to re-open the discussion, and again pass on the point. The decision of that question on the former appeal — reported in 38 Cal. 60 — became the law of the case, and this Court, no more than the District Court, would be justified in disregarding it.
Judgment affirmed.
Mr. Justice Temple, being disqualified, did not sit in this case.