delivered the opinion of the Court.
Mr. J. Heydenfeldt concurred.We shall not attempt to follow the argument of counsel or pass upon the various points raised on the trial of this cause in the Court below. To do so would involve an amount of labor, which justice to other business of this Court will not admit of, and only lead us into a hasty and inconsiderate expression of opinion upon important principles not properly arising in the case.
The decision of this cause, we think must turn upon a few plain rules, well settled in the books, and heretofore adopted by this Court.
We decided in the case of Hutchinson v. Perley, ante 33, that possession was prima facie evidence of title, and that proof of prior possession was sufficient evidence on which to maintain ejectment against a mere naked trespasser.
What acts of ownership are necessary to constitute possession, and whether it must be an actual tona fide possession or * occupation of the premises claimed, [79] was not necessary for the decision of that or the present cause; no question being made on the record as to the sufficiency of the improvements. Whenever this. point presents itself for our consideration, we will lay down some rule which shall govern this vexed question for the future.
The evidence shows a continuous possession under color *80of title from Sutter to the present plaintiffs. It also appears that one Harrington, tenant of the plaintiffs’ Grantor, delivered the possession to one Hays, upon condition that said possession should be surrendered at a certain time, and that said Hays afterwards sold said premises to the defendant Christy; that there was afterwards an abandonment of the premises by Christy, and that one of the witnesses entered upon, occupied, and attorned to the present plaintiffs.
Under this state of facts, the Court instructed the jury correctly; and properly refused instructions involving questions of law not pertinent to the issue, and calculated to mislead.
This is a much stronger case than the one- of Hutchinson v. Perley, referred to. It is not a mere prior possession, but possession coupled with color of title, which must prevail, except where a better title is shown in the defendants. (See Adams on Ejectment, § 77; Jackson, ex dem. Livingston v. Walker, 7 Cow. 637; Woods v. Lane, 2 Searg. & R.; Jackson, ex dem. Murray et al. v. Denn, 5 Cow. 200; Jackson, ex dem. Ludlow v. Myers, 3 Johns. 388; Doe v. Herbert et al., Breese, 354.)
Neither were the plaintiffs, although they had alleged in their declaration a fee simple title, compelled to prove the same. They could properly rely upon prior possession, if they chose to do so. (See Adams on Ejectment, § 275; Day v. Alverson, 9 Wend. 223.)
Consequently, the introduction of Sutter’s title, and the attempt to show that the fee of the land in question was in the Government of the United States, was inadmissible, as well as any attempt to impeach the deed from the plaintiffs’ grantor. The validity of Lee’s assignment could not be tried collaterally, and the deed from him to the plaintiffs was good for all the purposes for which it was introduced.
[80] * It is objected, however, that the judgment is joint against the defendants, and that they claim different portions of the premises. The plaintiff may elect to sue one or more defendants, and they may answer separately, or demand separate verdicts; unless they do so, however, they will be concluded by the general verdict. (See Jackson v. Scoville, 5 Wend.; Smith v. Shackleford, 9 Dana.)
There are errors disclosed by the record which undoubtedly will occur in the hurry of a Nisi Prius trial, but on a review of the whole case, we are satisfied that the judgment is correct, and must therefore affirm it.
Judgment affirmed.