delivered the opinion of the Court—Horton, J. concurring.
TMs is an action to recover the possession of a large tract of about 1,000 acres of land in the City and County of San Francisco, known as the Potrero Huevo. The tract claimed by the plaintiff is bounded on three sides by Mission Creek, Precita Creek, and the Bay of San Francisco; and on the other side by a line running from one creek to the other. It seems that one Treat, in 1850, erected a house and corral on the tract, wMch was then vacant, and built a stone wall and fence from one creek to the other, thus making, with the bay and creeks, an inclosure in wMch cattle and horses were pastured. In 1852, Treat conveyed the tract to Dyson, under wMch Dyson took and held possession, and claims the title thereto. The defendants entered and took possession of portions of the tract at different times, without title. In April, 1853, the plaintiff conveyed a portion of the premises, by quitclaim deed, to Robert E. Woods, under an agreement that Woods was to remove the settlers from the Potrero; and the deed was placed in the hands of one Sharp, as an escrow, and was not to be delivered to Woods until the latter had removed all the settlers, as per agreement. The case was tried by a jury, who found a verdict “ in favor of the defendants, in consequence of the description contained in the deed from the plaintiff to Robert E. Woods—the land occupied by the defendants having been conveyed to said Woods.”
The first point urged by the appellant is, that the Court below erred in admitting in evidence the deed from the plaintiff to Woods, on the ground that it was not pleaded, and the defendants did not *536connect themselves with the title of Woods. The plaintiff avers, in his complaint, that he was the owner of the premises, which is denied by the answer, and the deed was clearly admissible to disprove this averment and sustain the denial, as it showed that plaintiff had no title to that portion of the premises described in the deed. The objection that the defendants did not connect themselves with the title of Woods is equally untenable. The appellant, to sustain this point, refers to several decisions of this Court, wherein it was held that in an action to recover the possession of real estate, brought solely on the prior actual possession of the plaintiff, a defendant, who is a mere trespasser, cannot justify his act by showing the true title to be outstanding in a third person. (Bird v. Lisbros, 9 Cal. 1; Piercy v. Sabin, 10 Id. 22; Coryell v. Cain, 16 Id. 567.) This rule has no application to the present case. It properly applies to a case where the title of such third person is superior or better than that of the plaintiff, or adverse thereto, and it has no application in a case like the present, where such outstanding title was derived from the plaintiff. • In such case, it shows that the plaintiff has divested himself of all right to the possession by his own act, and that the right to maintain the action under his own claim of title is not in him, but in a third person. It defeats his action more effectually than proof of an abandonment, which is clearly sufficient. (Bird v. Lisbros, 9 Cal. 1; Gluckauf v. Reed, 22 Id. 468.)
The next point is, that the Court erred in excluding the evidence offered by the plaintiff to prove that Woods failed to comply with the agreement, which was a condition precedent to the delivery of the deed. A deed takes effect only from the time of its delivery; and where a deed is placed in the hands of a third person as an escrow, as in this case, the grantee was only entitled to a delivery of the deed upon a strict compliance with the terms of the agreement, which was clearly a condition precedent to its delivery. (Beem v. McCusick, 10 Cal. 538.) As was said in that case, a compliance with the agreement was “ the only condition whereby Beem, the grantee, could acquire titleand not having complied, it was held that the grantor had a right “ to hold the contract void.” So here, the removal of the settlers from the Potrero was a *537condition precedent to the delivery of the deed to Woods, and to the vesting of any title in him; and if true that he did not comply with or perform that agreement, then he acquired no title by the deed, and the plaintiffs had a right to treat the contract as void, Woods having died in the meantime. The Court therefore clearly erred in excluding this evidence; and this is fatal to the verdict, which shows by its own terms that it was founded entirely on this deed.
The learned and able counsel for the respondents urges with much force, that the land being a part of the public domain of the United States, Treat and the plaintiff were trespassers on the land, and had no right, under the Federal or State laws, to enter upon or take possession of more than one hundred and sixty acres, that being the quantity to which settlers upon the public lands are limited, by the Federal as well as by the State laws, except in cases of swamp and certain school lands under the State laws. There is certainly much force in the argument of the counsel, that to hold otherwise would defeat one of the wisest and most important provisions of our National and State land system, and open the door for an unlimited monopoly of the public lands, by those able to inclose them in large tracts. The contrary doctrine was, however, early established by this Court, and has been maintained ever since. The same point was distinctly raised and overruled in Hicks v. Davis (4 Cal. 67), which was very similar in its facts to the present case; and also in Bradshaw v. Treat (6 Id. 172), which was for a portion of the premises in controversy in this case. (See also Plume v. Seward, 4 Id. 94.) We do not feel at liberty to overrule a law of property so long established, and which might produce disastrous consequences. Besides, it is a point not necessary to be determined on the present appeal, as the judgment must be reversed for the reason before given.
The judgment is reversed, and the cause remanded for a new trial.,