This is an action for recovery of the possession of about three thousand acres of land, alleged to be a portion of the Rancho Muscupiabe, situated in San Bernardino County. The defendant Martin, in addition to certain denials which are about equivalent to a general denial, pleads the Statute of Limitations. The other defendants, who allege that they are the tenants and employés of Martin, seem to have dropped out of the case. The jury found a verdict for the defendant.
The plaintiffs for proof of title, rely upon the grant of the rancho, made by Governor Micheltorena in 1843, a decree of confirmation of the claim of the grantee, and mesne conveyances from the grantee to the plaintiffs. An examination of the evidence leaves no doubt that the premises in controversy are within the boundaries of the rancho as granted, and the boundaries mentioned in the decree of confirmation. The jury must have found for the defendant on the issue of adverse possession. But the verdict on that issue cannot be sustained by the record now before us. The evidence does not tend to show that the defendant had the possession of all the premises described in the complaint. It is, however, shown that he had the possession of the Swartwout tract, containing about two hundred acres, at the time when the action was commenced, but it is not proven that he had such possession for the full period of five years, next .preceding the commencement of the. action. He was therefore not entitled to a verdict for that tract, on the ground of adverse possession.
The only portion of the premises sued for, of which the defendant had the possession for the statutory period of five years, is a tract of about one hundred and sixty acres; and the defendant’s counsel suggest that if the judgment is for too much, he may be permitted to release the excess; but *563conceding that the evidence showed the adverse possession of a portion of the lands sued for, there is nothing in the pleadings or the evidence, that will enable the Court to describe such portion of land with the requisite degree of certainty. A judgment for the defendant, as to the whole land sued for, could not be sustained, and a judgment for a part, without describing it, so that it might be identified, instead of ending the litigation, would open up new controversies.
As the cause must be remanded for a new trial, some of the questions raised in respect to the operation of the Statute of Limitations may be disposed of.
The plaintiffs, for the purpose of showing that the statute had not run against them, offered evidence to prove that proceedings were still pending for the approval, by the Commissioner of the General Land Office, of the survey of the rancho. The evidence would not work that result. The action was commenced in August, 1868. Ho new title or right of action, or right of entry, accrued to the plaintiffs after the passage of the Act of April 18th, 1863, amendatory of the Statute of Limitations; and the decree of confirmation of the title was rendered before that date, and the defendant had entered, upon the premises before that time. In San Jose v. Trimble, 41 Cal. 536, the proceedings for a confirmation of the title of the city were still pending, or, in other words, the title of the city had been confirmed, but there had been no final confirmation of the survey, nor had a patent issued, and it was held that the statute would run in favor of the party in the adverse possession.
It is not requisite that a party who relies upon the statute should show that he claims, title in hostility to the United States. He may admit title in the United States, either with or without a claim on his part, of the right to acquire the title from the United States, and it is sufficient if ho has such possession as is. required by the statute, and claims in *564hostility to the title which the. plaintiff establishes in the action.
A purchase of the rancho by the defendant at a tax sale, would not impair his right to rely upon the Statute of Limitations; but such purchase, if made for the owners of the rancho under an agreement by which he was to have a lease, or the use for any time, of a portion of the rancho, would amount to a recognition of their title, and thus interrupt the meaning of the statute.
Judgment and order reversed and cause remanded for a new trial.
Wallace, C. J., concurring specially:
I concur in the judgment.