Plaintiff then offered in evidence a lease from said railroad company to plaintiff covering same lands, and proved the due execution of said lease. Objected to by defendant on the ground that there was a variance between the proof offered and the allegations of the complaint in this; that the plaintiff alleged seizin in fee and sought to prove a leeser estate. Objection was sustained and plaintiff excepted. Plaintiff thereupon rested and defendant moved for a non-suit, which motion was sustained, and plaintiff excepted. The other facts are stated in the opinion.

Mr. Charles S. Varian, for appellant.

The acknowledging, proving and recording, are apparently as requisite to the validity of conveyances under section 617, as the signing by witnesses. Yet it is very generally held upon similar statutes that these are not of the essence of the conveyance, but only serve to effectuate the intent of the legislature relative to proof and notice to subsequent purchasers: Fogarty v. Finlay, 10 Cal. 247; Hastings v. Vaughn, 5 Cal. 315; Belk v. Meagher, 3 Mont., 74; Ricks v. Ried, 19 Cal., 554; Landers v. Bolton, 26 Cal., 405.

I submit that I have given the proper construction of the statute, and that a subscribing witness was not necessary in this case, the certificate of acknowledgment proving the execution.

Generally in support of the foregoing propositions, see Goodenough v. Warren, 5 Sawy., 498; Commissioners v. Chase, 6 Barb., 37; Steele v. Hull, 95 Pa. St., 498; Dougherty v. Randall, 3 Mich., 585; Dole v. Thurlow, 12 Metc., 162; Thatcher et al. v. Phinney, 7 Allen, 148; Myrick v. McMillan, 13 Wis., 211; Quinney v. Denney, 18 Wis., 510; McMahon v. McGraw, 26 Wis., 619; Ferron v. Strong, 62 Wis., 228; Gilbert v. Jess, 31 Wis., 113.

The Wisconsin statute was like ours. Myrich v. McMillan, supra; Downs v. Yonge, 17 Ga., 295; U. S. Dig., First Series, Vol. 4, p. 579, sec. 2489.

See also, Lowry. v. Williams, 13 Me., 287; Beck v. Babcock, 36 Me., 493.

At common law a deed not attested by subscribing witnesses could be proved by any competent evidence. So under this statute.

If the instrument was not sufficient to pass the title, it would, doubtless, be held to be a contract of purchase: Dutton v. Warschauer, 21 Cal., 609; Deutzer v. Lawrence, 58 Wis., 594; Deutzer v. Baker, 60 Wis., 179; Mining Co. v. Bank, 44 Vt., 489.

It is true that the rule is elementary, that ejectment must be brought upon the legal title. But the common law action is unknown to our system. The code establishes the law of the Territory. Pr. Act, section 4.

The action is for the recovery of real property, and the issue is the right of possession.

At an early day the supreme court of California saw no reason why the action might not be maintained on any title legal or equitable: Ortman v. Dixon, 13 Cal., 37.

The supreme court of the United States uniformly holds that in the Federal courts, plaintiff can only recover on the legal title. But this on the express ground that the Constitution establishes a distinction between law and equity. Consequently the suitor who has an equitable claim must proceed according to the rules which the court. has prescribed, regulating proceedings in equity, and of on the chancery side of the court: Hooper v. Scheimer, 23 How., 235; Fenn v. Holme, 21 How., 482.

course

A text writer, of approved authority, makes the same distinction, and determines that where there are no separate courts of equity the courts of common law necessarily deal with equitable interests as if they were legal, and in such states ejectment may be maintained on an equitable title. Tyler on Ejectment and Adv. Enjoy. pp. 75, 76. Pomeroy Remedies and Remedial Rights, section 95-105: Phillips v. Gorham, 17 N. Y., 270.

The ruling which excluded the lease and thus cleared the way for a non-suit, is palpably and flagrantly erroneous. The object of the action is to recover possession, not to try title.

Plaintiff alleged a seizin in fee and that he was entitled to possession. The only necessary allegation was the

last. He was entitled to recover upon proof of any estate which gave him the right of present possession. What was it to the defendant, which had no title, that the plaintiff alleged a fee and proved a term of years? How was it injured by such a failure of proof? Christy v. Winans, 4 Cal., 79; Stark v. Barrett, 15 Cal., 371; Morton v. Folger, 15 Cal., 283; Touchard v. Crow, 20 Cal., 162; Marshall v. Shafter, 32 Cal., 195; Gillespie v. Jones, 47 Cal., 263.

Mr. P. L. Williams, for respondent.

Under statutes substantially like this, it has generally, if not uniformly, been held by the courts, that subscribing witnesses are essential to the validity of a conveyance: Clark v. Graham, 6 Wheaton, 577; Crane v. Reeder, 4 Amer. Repts., 430, (from 21 Mich., 24. ); Smith v. Chamberlin, 2 N. H., 440; French v. French, 3 N. H., 234, 254; Rundlett v. Hodgmann, 16 N. H., 239; Brown v. Eastman, id., 588; Cram v. Ingall, 18 N. H., 613; Courcier v. Graham, 1 Ohio, 330; Patterson v. Pease, 5 Ohio, 190; Richardson v. Bates, 8 Ohio St., 261; Merwin v. Camp, 3 Conn., 35: Bank v. Spencer, 26 Conn., 194; Townsend v. Little, 109 U. S., 572.

The lease was rightly excluded, because under the codes, as well as the common law, the proof must follow the allegation: Stout v. Coffin, 28 Cal., 65; 1 Phil. Evi., 845, C. and H. and Edwards' Notes (Note 240); 4 Cranch, 299, cited in above note; Pomeroy on Remedies, secs. 544 to 557 inclusive; Payne & Dewey v. Treadwell, 16 Cal., 221, and opinion by Field, C. J., at 243-4; Marshall v. Ferguson, 23 Cal., 66; Johnson v. Moss, 45 Cal., 515.

The lease itself provides distinctly that actions to recover the demised premises shall be in the name of the lessor, so that the plaintiff is now contending that the court erred in not permitting him to introduce in evidence an instrument for the purpose, as claimed by him, of supporting his action, when, by its very terms, it precludes his right to bring such action.

An effort is made by appellant to overthrow the doctrine that ejectment can only be maintained upon a legal title,

but the authorities cited by him in connection with that discussion are to the contrary: Marshall v. Shafter, 32 Cal., 195; Pomeroy on Rem., sec. 102.

BOREMAN, J.:

This is an action for the recovery of the possession of real estate. Upon the trial in the court below, when the plaintiff (appellant here) had introduced his evidence and rested his case, the defendant (respondent) moved the court for judgment of nonsuit against the plaintiff, which motion was granted. From this judgment of nonsuit the appellant has brought the case to this court.

1. The first alleged error was the action of the court in sustaining the objection of the respondent to the introduction in evidence of a certain deed purporting to be from the Central Pacific Railroad Company to the plaintiff. It was offered to show title in appellant. A ground of objection to this deed was that it was not signed by one or more witnesses as required by the territorial statute. Comp. Laws, p. 254, sec. 1 (617). That section of the statute provides "that conveyances of lands, or any estate or interest therein, may be made by deed signed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and by one or more credible witnesses, and acknowledged or proved and recorded as provided in this act." This section was evidently intended to cover the whole subject, and requires the use of the formalities specified to make a deed good: Crane v. Reeder, 21 Mich., 60. It sets forth all the required formalities of a deed of conveyance of real estate to make the deed good for every purpose. To make a deed good for all purposes, therefore, each of these requirements must be complied with. By the execution of a deed is meant the various formalities required by law for the completion of it, which include the signing, sealing, attestation, and acknowledgment. Tied. Real Prop., sec. 804. A deed may be good as between the parties thereto, and yet not be good for all purposes-not good as against a stranger. The respondent is a stranger to the deed under consideration. Can any of the require

ments referred to be dispensed with, and the deed yet be held good as against respondent?

The second section of the statute referred to provides that every conveyance of land "proved, acknowledged, and certified in the manner prescribed by this act" shall be valid between the parties, and to all persons having actual notice thereof, without being recorded. The recording may, therefore, as to the parties and persons having actual notice thereof, be dispensed with. By a later statute it seems that, as between the parties, all these formalities are dispensed with except the signing by the party. Laws 1884, p. 366, sec. 1206. We find nothing, however, in the statutes that would authorize the acknowledgment and proving to be dispensed with, and yet the deed be held good as to one not a party or privy, nor having notice thereof. Either the acknowledgment or the proving must accompany every deed to make it valid. Both are not necessary to make it prima facie good, either being sufficient if the deed be otherwise sufficient. The deed in the present case was acknowledged, but not otherwise proved. The proving of a deed, when necessary to be made, must be by the testimony of a subscribing witness. If the subscribing witnesses are all dead, or cannot be had, then proof of the handwriting of the grantor, or of the subscribing witnesses, may be taken. Comp. Laws Utah, p. 259, sec.

22 (638).

In the case before us, the deed having been acknowledged, and therefore no proving thereof being necessary, the question arises whether the deed is valid prima facie as against the respondent, without any witnesses having signed it. Is the signing by a witness an essential part of the deed as against a stranger when the deed has been duly acknowledged? The object of the witnesses' signing is to attest that the deed was executed, and that they are ready to certify to its genuineness. The object of having witnesses at all is to establish the fact that the deed has been executed by the party by whom it purports to have been done. Tied. Real Prop. sec. 809, referring to Dean v. Fuller, 40 Pa. St., 474; 3 Washb. Real Prop., 247, side page 572.