Field, C. J. concurring.
Ejectment for a tract of land. Plaintiff deraigns title by deed from one Brown, who claimed as grantee of one Coppinger. Coppinger was grantee of the Mexican Government, and afterwards obtained a patent on confirmation from the United States Government. We do not understand that the plaintiff rests solely upon the grant to Coppinger, but upon the title of Coppinger which was shown by the grant and the patent; nor do we see anything in the point that the deed to Brown was void by the Mexican law, because the deed does not recite a price or the consideration. A deed of gift by the Mexican law was good when made to a stranger, and possession delivered, subject to certain qualifications which do not appear in this record. Nor do we see that the deed is void for want of sufficient description, nor because of the words at the end of the description, “ without embracing my said rancho.” If these words contradict the premises, they are to be rejected; but the proper rule is to give them, if possible, some effect not inconsistent with the evident purpose and operation of the deed, and the express *367words of grant going before. As the Court below ruled against the respondents on these propositions, we do not consider it necessary to notice them further, and only refer to them in answer to the respondents’ point, that we cannot notice the errors assigned, because the plaintiff’s case was fatally defective, and hence no error of the Court in other rulings could hurt it.
The main question arises on instructions and refusal of instructions touching the character of possession which protects the vendee holding an unrecorded deed, as against a subsequent Iona fide purchaser without further notice than is implied from such possession. Brown, through whom plaintiff claims, sold, previously to his mortgage to plaintiff’s predecessors, á part of this land—five hundred varas—to one Vasquez, but the deed was not recorded; Vasquez went into actual possession of part, built a small house, and occupied and inclosed a portion. The plaintiffs contend that he, and those representing him, exercised no ostensible control or dominion over any part, except over the small part so occupied and inclosed; and they contend that this possession is not sufficient evidence of notice of title to the whole tract. Hunter v. Watson, (12 Cal. 363) decides that the open, notorious possession of real estate is evidence of notice. Smith v. Doll (13 Cal. 510) holds that the possession of a tenant is not notice of the landlord’s title. But the reasoning in both of these cases strongly tends to ignore the pretension of the respondents; for the fact of the possession is made the predicate of the notice, and it is not perceived how seeing a man on one acre of land raises any presumption that he has title-to an unlimited and indefinite tract in the same neighborhood. It would involve great confusion and impose great restrictions on sales of land as well as induce uncertainty of titles, if a purchaser could not safely buy any part of an eleven-league grant, without the risk of being ousted by one of a multitude of occupants of huts or shanties on acre or half-acre lots, claiming various tracts by force of secret contracts, leases and conditional or even parol sales. The facility of antedating such instruments, or fabricating- proof of some parol contract, would lead to frauds and perjuries innumerable. Taking possession to be notice, it must be held under such circumstances as that those circumstances give notice of the land so held; *368and it is, therefore, impossible to say that the mere inclosure of one acre gives any notice of a claim to a larger quantity; for how can it be ascertained what are the boundaries or extent of the outside claim—where it begins or where it terminates ? Does it extend to the whole grant, or if not, to^what part? And is it the duty of every purchaser to go to every settler or tenant on land covered by a grant, to see whether he has some secret deed, or claims to hold by an unrecorded contract ? We think it much more reasonable and just that the party holding the secret title should lose by his neglect of a simple duty, like the recording of it, than that third persons should suffer by his negligence, and all titles be thrown into doubt and uncertainty. It was under the pressure of authority too strong to be resisted, we went even to the extent of the doctrine declared in Hunter v. Watson, in favor of the holder of the unrecorded deed. We have no idea of still further extending the doctrine. It is better that the law should be certain, even when certainty sometimes leads to injustice, than that every title should be left exposed to contest and doubt by establishing a principle for the advantage of the improvident and the negligent.
We hold, therefore, that the holder of the unrecorded deed must show a possessio pedis—an actual, bona fide possession, consistent with his written title; and that this possession must be evidenced by an actual inclosure, or something equivalent, as showing the extent and the fact of his dominion and control of the premises. We do not mean to say that it is in all cases absolutely essential that an actual inclosure must exist, in order to protect the property. But asserting this requirement of inclosure as a general rule, it may still be that other patent proofs of an actual dominion may be admissible ; for example, if a party were in possession of a lot in a city, marked on the map as a separate subdivision, and defined by a number, though the whole lot be not inclosed, it might be that the actual possession of a house on a part of the lot would be recognized as the possession of the whole lot. But this case does not call for a modification, in this respect, of the general principle announced in this opinion.
Judgment reversed and cause remanded.