aries, it becomes evident that the boundaries which he undertakes to set up in his defense are purely imaginary, and have been prepared wholly to meet the exigencies of this litigation, for it must not be overlooked that in his examination in chief, wherein he undertakes to set out the circumstances under which he took possession, he says not a word about any deed from Maxwell, but claims to have purchased the land from Maulding and Curtis. He does not bring Maxwell on the scene at all, except to recognize his boundaries, and that was done at a distance of four miles from the land; and, when asked what boundaries were recognized by Maxwell, he replied, "The boundaries were what you read in that description there," meaning defendant's plea. The attitude of the defendant is singularly contradictory, in this: In the first place, as I have shown, he attempts to ignore altogether any paper title from Maxwell, and relies solely on a naked possession of more than 10 years,-a possession acquired under a contract with Curtis and Maulding; but when confronted with a deed given him by Maxwell, which deed, it was shown, he had accepted as a muniment of his title, he attempts to show that under the vague description contained in this deed he could hold the entire tract covered by his plea. But there are two answers to this, one of which is persuasive, and the other conclusive. They are these: In the first place, the fact that he not only did not rely on his deed, but protested against its admission, affords a strong presumption that he did not regard it as covering the amount of land he claimed. If it did include the same land covered by his plea, it would conclude this whole controversy. The plaintiff admits that he is entitled to the land covered by this deed. But, in the second place, the deed negatives this idea. It purports to convey all the land now suitable for farming or cultivating purposes in the valley or drainage of the Vermejo river, county of Mora, territory of New Mexico, "within the following boundaries." The same theory of construction that would, under this description, include the entire valley or drainage of the river, would include the entire county of Mora, and the territory of New Mexico. The land conveyed is not the "valley" or the "drainage," but certain land within a given boundary; the tract thus bounded lying in the valley or drainage of the river, and in the county and territory named. This deed, he admits, he received from Maxwell shortly after he went into possession. He did not at that or any subsequent time prior to the institution of this suit repudiate this deed. On the contrary, he allows his grantor to suppose that he was holding under this deed, and when his grantor's vendee, the plaintiff, called on him to inquire as to his boundaries, he exhibited this deed, and continuously claimed to hold the entire tract covered by his plea until the institution of this suit, when, on being advised, no

doubt, that under his 20 years' possession of this "drainage" or "valley," or what the witnesses term his "range," he could hold 20,000 acres, instead of the 1,000 covered by his deed, he determined to repudiate the deed, and hold the larger tract under title derived by naked possession

There is another singular feature connected with this defense. The defendant claims to have gone into possession in 1868, under contract with Curtis and Maulding, who claim to own a "block" lying on the river. Now, at that time the title was not only not in Maulding and Curtis, but it was not in Maxwell, for it was not until two years after that Maxwell bought the last outstanding interest in the grant, and it was not until May 19, 1879, 11 years after the defendant had gone into possession, that a patent from the government, in favor of Beaubien and Miranda, issued. Now, granting that Maxwell could anticipate his title so far as to convey by deed an interest not yet acquired from the government, it will not be pretended that a naked possession existing at the date of his patent can cre ate title as against the patentee. At the date, therefore, of the issuance of the patent, the defendant was not, nor could he be, invested with an adverse holding beyond the express terms of his deed from Maxwell. In order, therefore, to create an estate that will defeat the title of the patentee, he must show that for 10 years prior to the institution of this suit he was "holding or claiming by virtue of a deed or deeds of conveyance, devise, grant, or other assurance purporting to convey an estate in fee simple." Comp. Laws 1884, 1880. The defendant insists, however, that under his deed he can set up an adverse title to a greater quantity of land than is embraced within its boundary, if he can show that he was in possession of said amount under a mistake as to his boundaries; citing Tyler. Ej. p. 905, as authority for this proposition. He cannot avail himself of this defense, however, for the reason that neither in his pleadings nor in his testimony does he rely on the deed, but, on the contrary, expressly repudiates it. If he had set up the deed as matter of defense, and had introduced proof tending to show that by reason of the ambiguity of its recitals he had a right to suppose that it conveyed the land in controversy, and that issue had been properly submitted to the jury, I am of the opinion that a verdict in his favor on such an issue would have concluded the whole controversy. But this deed, which was admitted over the objection of the defendant, was submitted to the jury under the tenth instruction asked for by the defendant, and in terms that were well calculated to mislead the jury, for they were told, at request of defendant, that the defendant did not rely exclusively on the deed. And this whole defense, which has been conducted with singular ability, is an in

genious application of the doctrine, "heads, I win; tails, you lose," and the jury were authorized to recognize the deed if they could make it support the defendant's contention, or to discard it if it supported the plaintiff's case. It is an elementary doctrine that in ejectment the plaintiff must recover on the strength of his own, and not on the infirmity of the defendant's, title, but the defendant cannot resist the plaintiff's demand by setting up two absolutely contradictory defenses; that is to say, he cannot at the same time hold under and adverse to the plaintiff; he cannot take possession under a deed conveying 100 acres, and thereafter create a title to 200 without showing a distinct adverse claim to 100 acres not embraced in his deed. The vendor, having placed him in possession under a deed con veying 100 acres, has a right to presume that no more than that amount is claimed until some distinct act on his part discloses an intent to claim land not embraced in his deed. In other words, a vendee, while holding possession under a deed, is estopped to deny the title of the vendor. He cannot set up an outstanding title in himself. Baldwin v. Brown, 16 N. Y. 359; Jackson v. Harrison, 17 Johns. 66; Jackson v. Ayres, 14 Johns. 224. If he undertakes to hold under his deed, he must confine himself to the bounds. Sedg. & W. Tr. Title Land, p. 577; Hughes v. Israel, 73 Mo. 548; Fugate v. Pierce, 49 Mo. 441; Pope v. Hanmer, 74 N. Y. 244. So long as he is holding under his deed, good faith to his vendor requires that he shall be bound by its recitals. Crispen v. Hannavan, 50 Mo. 548; McRae v. Williams, 7 Jones, (N. C.) 430; Crary v. Goodman, 22 N. Y. 170. In this case the record fails to disclose any act upon the part of the defendant in error indicating an intention to hold adversely to his grantor any lands outside of the boundaries of his deed, prior to the filing of his plea in this case. Much was said in the argument about the use of the term "drainage." The whole burden of the defendant's contention is that he was for more than 10 years prior to the institution of this suit in possession of the "drainage" of the river. I submit that this controversy offers no occasion for the definition of the term "drainage." I agree perfectly with the majority of the court as to the meaning of this word, but the defendant in error did not, under his deed, acquire any title to the "drainage" of the Vermejo river, any more than he acquired title to the county of Mora and the territory of New Mexico. He bought a certain strip of land within the drainage, and on each side of the river; and I submit that the statement in the opinion of a majority of the court that "Dawson spoke to Maxwell in regard to where the drainage would place the line around the tract of land that he was to get, and therefore must have been understood to have known that Dawson was claiming such a line

Objec

as the drainage would give him," is not supported by the testimony, for the only conversation he ever had with Maxwell as to his boundaries took place four miles distant from the land, and the only testimony in the record as to Maxwell's recognition of his boundaries is given in his own testimony, as follows, on page 246 of the record: “Question. State whether or not there was ever any pointing out of the boundaries of your possession of the land by you and Mr. Maxwell. (Objected to by plaintiff's counsel. tion overruled. Exception reserved.) Answer. Just between us? Q. Yes, sir. A. Yes, sir; there was. Q. State what boundaries were pointed out. (Objected to by plaintiff's counsel. Objection overruled by the court. Exception reserved.) The Court: You can state what boundaries you fixed upon the earth's surface with regard to your respective possessions. A. The boundaries were what you read in that description there." On cross-examination he admits that the "pointing out" took place four miles distant from the land. Surely, no one can take this record, and upon examination thereof come to the conclusion that Maxwell, at the Vermejo station, four miles from the property in controversy, pointed out to the defendant in error a description of his boundaries, as set out in his plea in this case. I pass over the fact that plaintiff's vendor, Maxwell, is dead, and cannot be heard to give his explanation of the transaction. I pass over the further fact that, in my opinion, the testimony given by the defendant in error as to his conversation with Maulding and Curtis, his copartners, was clearly incompetent for the purpose of saying that, admitting its competency, it wholly fails, in my opinion, to maintain the defendant's claim to what. he describes as the drainage of the river.

It is insisted for the defendant in error that at the date of his purchase from Maxwell, to wit, in 1868, the statute of frauds was not in force in this territory, and therefore a verbal sale, accompanied by a deliv. ery of possession, operated to confer a perfect title. I am of the opinion that this proposition is not only unsound in the abstract, but clearly erroneous in its application to the facts in this case, for admitting that the statute of Charles II. had not at this time been incorporated into the jurisprudence of this country, and that title to land at this time was governed by the civil law, a paper title was recognized as creating the highest character of estate. But I insist that at the date of this transaction a deed was necessary for the conveyance of title to real estate in this territory. By the acquisition of this territory under the treaty of Guadalupe Hidalgo, we inherited, for the time being, the civil law as it was administered at that time by Spain and Mexico. It was held by the supreme court of the United States in the Percheman Case,

wherein Chief Justice Marshall discusses this question very elaborately, that while the right to the soil is changed by the acquisition of territory, and while the allegiance of the inhabitants is shifted from the old to the new government, that their property rights are not altered or changed, and the acquisition of territory brings with it always an implied, and generally an express, obligation upon the part of the new government to preserve and protect those rights. 7 Pet. 86. Before proceeding, however, to examine the doctrine of the civil law, as administered by Spain and Mexico, at the time of the acquisition of this territory, it is well enough to observe that from that date the tendency has been towards the principles of common law. There are not wanting authorities to the effect that the mere acquisition.of territory upon the part of the United States, and the extension over such territory of the jurisprudence of our government, carries with it, proprio vigore, the common law. It was held by the supreme court of Utah that it did not require an act of the legislature to adopt the common law in that country. Thomas v. Railroad Co., 1 Utah, 232. And in Ohio, where, by the act of October 1, 1795, the legislature adopted the common law as a rule of practice and decision, which act was repealed by the act of January 2, 1806, the supreme court of that state, in construing this latter act in the case of Drake v. Rogers, 13 Ohio St. 29, held that it did not require any statute to put in force the common law of England, and that, therefore, the repeal of the former act by the latter did not operate as a repeal or abrogation of the common law. Chancellor Kent, in speaking of the common law, as administered in this country, adopts the following language: "We live in the midst of the common law. We inhale it at every breath, imbibe it at every pore. We meet it when we wake and when we lie down to sleep, when we travel and when we stay at home. It is interwoven with the very idiom that we speak. And we cannot learn another system of laws without learning at the same time another language." It is admitted, however, that this doctrine does not apply so fully to the territories acquired by this country from France and Spain and Mexico, which were civil-law countries. What I affirm, however, is that the title set up by the defendant in this case cannot be supported by the most liberal construction of the civil law, as derived from the latter country. the case of Hoen v. Simmons, 1 Cal. 122, the supreme court of that state uses the following language: "But the defendants say that by the Mexican laws a verbal contract for the sale of land was equally valid as if it were in writing. We think not, and so held in Harris v. Brown, 1 Cal. 98. There is no doubt about the correctness of that decision. There never has been a time, since the adoption of the Fuero Juzgo, in which lands

In

could be conveyed under the Spanish or Mexican law without an instrument in writing, unless it were, perhaps, in the case of an executed contract, where corporeal possession was delivered at the very time of the sale by actual entry upon the premises, and the doing of certain acts analogous to the livery of seisin at common law. Had this not been so, one main branch of the revenues of the Spanish crown and Mexican republic, called the 'Alcabala,' being a duty payable on the transfer of land, would have been easily evaded. By Law 29, lib. 8, tit. 13, of the Recopilacion de Indias, every sale of real estate was required to be made before the escribano of the place where the contract was entered into, and, if there were no escribano, before the judge of first instance; and these officers were required to furnish a copy and statement of the writings and contracts made before them, with the day, month, and year in which they were made, the names of the seller and purchaser and the property sold and exchanged, and the price. Arrillaga's Decretes, (volume for 1838, p. 421.)" This opinion concludes with the following declaration: "We do not doubt that a writing was as necessary for the transfer of lands in Mexico as it is in the United States." This was also affirmed in the case of Hayes v. Bona, 7 Cal. 159, where the court, speaking through Mr. Justice Murray, said: "In Hoen v. Simmons, 1 Cal. 122, this court held that a verbal sale of land was not valid under the Mexican law. As a general proposition, it may be stated that under the Spanish law a sale of real estate by parol would not be void per se, and that the distinction between parol contracts and specialties, known to the common law, does not exist under the civil law, or the Mexican system of jurisprudence heretofore in force. By Law 29, bk. 8, tit. 13, of the Recopilacion de Indias, every sale of real estate is required to be made before the escribano of the place where the contract is entered into, or, where there is no escribano, the judge of the first instance." This whole question was afterwards disposed of in a very summary manner in the case of Stafford v. Lick, 10 Cal. 12, in an opinion delivered by Chief Justice Terry; Justices Field and Burnett concurring. The case is a short one, and I quote it in full: "This is an action of ejectment for a lot in San Francisco. Both parties deraign title from the same source, defendants claiming under a paper executed on the 6th of October, 1846, which is in the following words: 'By this present I give ample and sufficient power to Don Jose de Jesus Noe to use or dispose of my lot, which I hold (or have) granted, as may seem best to him; and in testimony I give the present power, in the place of Yerba Nuena, the 6th day of October, 1846. Maximo Z. Fernandez,'-and the main question raised by the record is whether this paper is a sufficient conveyance. In Hayes

But

v. Bona, 7 Cal. 158, we held that contracts for the sale of land, under the Mexican law, and by the custom of California, required to be in writing, ‘and although the forms prescribed were not strictly followed, still it was necessary that the instrument should contain at least the names of the parties, the thing sold, the date of the transfer and the price paid.' This view is decisive of this case, and on the authority of the opinion in Hayes v. Bona the judgment of the court be low is reversed." It seems to me that, in the absence of any statutory legislation on the subject, this disposes of the question, so far as concerns the position taken by a majority of the court,-that the sale of this 20,000 acres from Maxwell to the defendant in error was a good civil-law sale. The most liberal interpretation of that contract does not bring it within a single requirement of the civil law, as it existed at that time. There were no well-defined boundaries; there was no delivery of possession; there was no acknowledgment before any of the authorities; there was no erection of monuments; there was no writing containing the names of the parties, the thing sold, the date of the transfer, and the price paid. Indeed, the whole transaction did not exhibit the faintest shadow of a trace of civil-law conveyance of real estate, as understood and administered by the laws of Mexico. we are not left to any doubtful construction of the civil law in determining whether the defendant in error took any title under the verbal arrangement with Maulding and Curtis, which he says was afterwards recognized by Maxwell pointing out to him his boundaries at a distance of four miles. The legislature of this territory, in 1852, thought it necessary, in order to preserve Spanish and Mexican titles derived before its acquisition, to pass an act specially validating them, and for that purpose provided by the act of January 9, 1852, that "all manner of contracts celebrated under the laws of Mexico shall be and are held settled under the same laws, without being affected in the final decision of them by the application of any territorial law." It was further provided that contracts entered into from the time of its occupation by Gen. Kearney should be governed by the rule or law under which they were authorized, without being annulled in any manner, and this provision was made especially applicable to "grants of tillable lands made by the authorities of the same period." It seems, however, that even at that early date the people of this territory were anxious to reform the civil-law mode of acquiring real estate, and, fearing lest the provisions already quoted might in some manner be regarded as authority for the continuation of that system, the same legislature, three days thereafter, to wit, on the 12th day of January, 1852, enacted certain provisions, which are carried into the Compiled Laws at section 2748, which provi

sions created a perfect code for the regulation of transactions involving the title to real estate. The third section of that act provides, substantially, that any person holding any right or title to real estate in this territory, be it absolute or limited, in possession, remainder, or reversion, may convey the same in the manner and "subject to the restrictions prescribed by this act." The thirteenth section provided for "signing, acknowledging, and the certification and registration of such titles," while section 20 made such writing evidence in all the courts without further proof. It was while these statutes were in force that this transaction took place. It was for the purpose of conveying the estate under this statute that the deed from Maxwell to Dawson was executed, and by the latter recorded. It was under this deed that Dawson held possession of the land until the lapse of time and the death of Maxwell made it possible for him, as he supposed, to acquire title to a much larger portion of land under a verbal agreement tenfold more vague and uncertain than the language used by the sons of Heth in the transfer to Abraham of the country surrounding the cave of Macpelah. It is insisted, however, for the defendant, that his vendor, Maxwell, recognized the boundaries which he sets out in his plea. I have already endeavored to show that this so-called recognition is too vague to be regarded by this court as fixing the boundaries sought to be established in this case. But, were it otherwise, there is another consideration that, to my mind, destroys this defense: Passing over the fact that Maxwell is dead, and therefore cannot be heard to tell his story, I am of the opinion that any statements made by Maxwell calculated to impair the title of his vendee, the plaintiff in this case, were incompetent. Monnot v. Husson, 39 How. Pr. 453.

KNAEBEL v. SLAUGHTER. (Supreme Court of New Mexico. Aug. 23, 1893.)

JUDGMENT BY DEFAULT.

Practice Act 1891. § 4, provides that within 10 days after defendant's appearance plaintiff shall deliver to him or his attorney a copy of the declaration, and each successive pleading thereafter shall be filed with the clerk, and a copy served on the opposite party, or his attorney, within 10 days of the filing and serv ice of the next preceding pleadings; and failure to file and serve a pleading within the time required shall entitle the opposite party, if plaintiff, to a judgment nil dicit. Held, that judgment nil dicit cannot be entered in favor of plaintiff while a plea of set-off by defendant is on file and undisposed of, especially where the cause is set for trial on the issues thus made.

Error to district court, Santa Fe county; Edward P. Seeds, Judge.

Action of assumpsit by William J. Slaughter against John H. Knaebel. There was

judgment nil dicit in favor of plaintiff, and defendant brings error. Reversed.

Charles A. Spiess, for plaintiff in error. L. G. Read, for defendant in error.

LEE, J. In this case the defendant in error, as plaintiff below, brought an action in assumpsit against the plaintiff in error, John H. Knaebel, which was made returnable under the act of 1891, providing that the first Monday in each month shall be a return day, and requiring the defendant to enter his appearance in the office of the clerk of the court on or before the first return day to which the writ is made returnable, or judgment by default shall be rendered against him. Service was made on the defendant on the 24th day of September, 1892, and on the 29th day of October, 1892, the defendant entered his appearance by Charles A. Spiess, his attorney. On the 3d day of November, 1892, there was filed in the office of the clerk of said district court in said cause a stipulation as follows: "It is hereby stipulated by the parties to the above-entitled cause, by their attorneys of record, respectively, that the time for answering or putting in a plea in the aboveentitled cause is hereby postponed until the first Monday in December, 1892." Afterwards, on the 6th day of December, there was filed in the office of the clerk of the district court a plea of set-off by the defendant. On January 6, 1893, the record shows that the cause was set down for trial on the third Tuesday of the term. On the 29th day of said term, the same being Friday, February 3, 1892, the following order appears: "Now comes said plaintiff, by his attorney, Mr. Read, and, said defendant having failed to plead herein within the time required by law, and saying nothing in bar or preclusion of plaintiff's action, whereby he remains undefended herein against said plaintiff, it is therefore considered and adjudged by the court that said plaintiff recover of said defendant his damages by reason of the premises; and, said plaintiff not demanding a jury, the court, after hearing the evidence, assesses the damages of said plaintiff at one hundred and fifty-five dollars and forty-seven cents,"-for which amount the judgment was accordingly entered. The fourth section of the practice act of 1891 provides as follows: "Within ten days after the defendant's appearance is entered, plaintiff, or his attorney or solicitor, shall deliver to the defendant, or his attorney or solicitor, a copy of the declaration or bill of complaint, and each successive pleading thereafter shall be filed with the clerk and a copy served on the opposite party or his attorney or solicitor, within ten days of the filing and service of next preceding pleadings. And failure to file and serve a pleading within the time required shall entitle the opposite party, if plaintiff, to a judgment nil dicit, or decree

pro confesso; if defendant. to a judgment or decree of dismissal; provided, such judgment or decree is obtained before the pleading is filed and served." The record in this case shows that the plea was filed when the judgment nil dicit was taken. Judgment nil dicit could not be rendered while the defendant's plea was on file and not in any way disposed of, and especially while the cause was set down for trial on the issues thus made. The cause will have to be reversed and remanded to the court below for further proceedings in accordance with the views herein expressed. It is accordingly so ordered.

O'BRIEN, C. J., and SEEDS, FALL, and FREEMAN, JJ., concur.

MOORE et al. v. BROWNFIELD. (Supreme Court of Washington. July 12, 1893.)

BOUNDARIES-MEANDER LINE OF LAKE-ADVERSE POSSESSION-NOTICE OF APPEAL.

1. In an action to recover possession of land it appeared that plaintiffs owned land bounded by the meander line of a lake as first surveyed by the government in 1855; that the waters of the lake receded, and left the land in dispute lying between the present and original meander line of the lake; and that defendant took possession of and built a house on the land in 1879, and has ever since resided there. Defendant claimed, and witnesses testified, that the land first settled on by him was an island, separated from plaintiffs' land by water several feet deep, and was part of the public domain. Several witnesses supported plaintiffs' claim that no such island ever existed, and the plat of the original survey of the township showed none. Held, that the evidence was sufficient to justify a verdict for defendant as to the facts in issue.

2. Code 1881, § 26, which reduced the 20year limitation of actions to recover real estate to 10 years, has no retroactive effect, and the claimant of land out of possession had 10 years after the enactment of the Code in which to bring an action for its recovery against a person who held it adversely at the time of and Sohn for two years prior to such enactment. v. Waterson, 17 Wall. 596, and Baer v. Choir, followed. 32 Pac. Rep. 776, 6 Wash.

3. Where notice of appeal is given in open court, no other notice or service is necessary. Appeal from superior court, King county; Richard Osborn, Judge.

Action by James A. Moore, Eugena G. Moore, and the Clise Investment Company against D. F. Brownfield to recover possession of certain real estate. From a judgment entered on the verdict of a jury in favor Reof defendant, plaintiffs appeal. versed.

H. R. Clise and Harold Preston, for appellants. Isaac Miller Hall, for respond

ent.

ANDERS, J. The respondent moves the court to dismiss the appeal for the alleged reasons that no notice of appeal was ever given in this action, as required by law,