Ellis v. Janes , 10 Cal. 456 ( 1858 )

Baldwin, J., delivered the opinion of the Court

Terry, C. J., and Field, J., concurring.

Several errors occurred on the trial:

1. The Court erred in refusing to permit the witness Swan, who testified that he had made a survey of the demanded premises, to answer whether the plat of the land made by him, and produced, was a correct plat of the premises.

2. The Court erred in refusing to permit the witness to testify what part of the land in dispute was occupied by the defendant Janes.

3. The Court erred in refusing to exclude that portion of the testimony of Lyons which stated that witness heard that Basye, (a tenant on the land,) was living there under Patten’s permission—“ heard it from some of old man Patten’s folks; can’t tell from whom.”

Several other errors of the same character intervened during the trial. It has been held that the declarations of a tenant in possession of land, those declarations being made at the time of possession, may sometimes be given in evidence as a part of the res gestee to qualify the possession, the possession being the transaction which the declarations illustrate. But in order, and prior to the introduction of these declarations, it must be proved that the tenant was in possession at the time the proposed declarations were made. This foundation does not seem to have been laid in these instances, and the declarations, therefore, were, like any other hearsay evidence, inadmissible.

It is not necessary to consider all the various errors assigned.

The judgment is réverséd, and cause remanded.