Tyler v. Green , 28 Cal. 406 ( 1865 )

By the Court,

Sawyer, J.

This case differs from Page v. Hobbs. In that case the declarations of intention filed in the Land, Office were not admissible, because they were made for the purpose of acquiring a pre-emption right to lands which, at the time, were not subject to pre-emption. They were of no validity, aiid therefore irrelevant. In this case the defendant sets up in his answer that the lands in question are public lands of the United States, subject to pre-emption, and alleges that he is in possession claiming a pre-emption right-; also averring the necessary facts to constitute that relation. On the trial he offered to prove by competent witnesses several of the facts averred, and necessary to establish his pre-emption right. The plaintiff objected on the ground that the evidence was “ improper and irrelevant.” The objection was sustained and the testimony excluded. The evidence was certainly relevant to the issues raised by the pleadings, and necessary to sustain the defense of lawful possession giving a pre-emption right. It is now contended, however, by respondent that the evidence was inadmissible because the offer did not embrace every fact necessary to establish the defense. It was relevant as far as it went. The defendant may not have been able to prove all the facts by the witnesses then under examination. It may be that he intended to prove other facts by other witnesses, who did not know the facts now offered. It does not appear that he was called upon to state whether he intended to follow the testimony offered by other testimony or not. As this essential evidence was excluded, it would have been useless to offer testimony as to the other facts necessary to sustain this defense, because without the testimony offered and excluded he must necessarily have failed on that defense. It does not appear that the evidence was excluded, because the defendant did not propose to prove the other facts essential to his defense. If this was the point of the objection it should have been so stated. The objection was general that it was improper and irrelevant. The Act of Congress of 1862 (12 Stats, at Large, 410, Sec. 7) extended the right of pre-emption to unsurveyed lands in California. We think the exclusion of the testimony was error.

If there was error in allowing the Sheriff to amend his return to the execution, it in no way affected the defendant, for he claimed no title under the defendant in, the execution. No rights were acquired under the defendant in the execution, between the times of making and amending the return.

Judgment reversed and new trial ordered.