Owen v. Mustard , 1 Cal. Unrep. 119 ( 1864 )

SAWYER, J.

The deed from Wing to Rankin, and the record in the case of Rankin v. Owen, introduced in evidence in this ease to prove a tenancy in common between Wing and Owen, at the time of the entry of Doughty, defendants’ grantor, were inadmissible. The conveyance and suit were long subsequent to the entry of Doughty, and defendants were not parties to the action, nor does it appear that they, or their grantors, stood in the relation of privies to any party to the suit. These proceedings, therefore, were res inter alios acta, and not binding upon the defendants. The fact of the tenancy in common was relevant, but these proceedings between strangers were incompetent to prove in this action any fact established by the judgment. There was an instruction also based on this record. Although there is other testimony tending in some degree to establish the same point, yet the record was evidently principally relied on by the plaintiff to prove the tenancy in common, and it is highly probable that the verdict was determined by it.

For this error the judgment must be reversed and the cause remanded for further proceedings.