This case again presents the conflict between the titles to the Jimenos and the Colus ranchos. The evidence in the record is substantially the same as was presented in Treadway v. Semple, 28 Cal. 652; Semple v. Wright, 32 Cal. 659; Yates v. Smith, 40 Cal. 662, and Semple v. Ware, 42 Cal. 619. In each of those cases it was held that in respect to the land covered by the survey of both ranchos, the Jimeno was the better title. The grounds upon which the decisions in those cases rest, need not be again considered or even repeated. Those authories should be regarded as having definitively settled the question of the relative value of those titles.
The defendants failed to sustain their plea of the Statute of Limitations. Whatever may have been the effect of Semple’s constructive possession, it is manifest that it did not continue after May 20, 1861, when he executed a deed conveying the premises to Melarkey, the latter being then in the actual possession. The patent for the Jimeno rancho having issued July 18, 1862, the defendants, under the authority of Gardner v. Miller (47 Cal. 570), cannot compute, as a portion of the statutory period, the time which elapsed before that date. After that date, the possession of the defendant’s grantors was not continuous for the full *409period of five years, and therefore was unavailing. (Sec. 318, Code Giv. Proc.)
The defendants objected to the admission in evidence o£ a deed of conveyance made by Whitcomb to the plaintiff,, on the ground that it excepted such portions of the rancho as had previously been conveyed by Whitcomb; and that, the plaintiff had not proved that the premises in controversy had not been previously conveyed to other persons. It is unnecessary to determine whether the clause of the deed in question creates an exception; for, admitting that it is so to be construed, and that the plaintiff must make it appear that the premises in controversy are not within the exception, there is no rule requiring such proof to be made before the introduction of the deed, and it would be more orderly to adduce such proof after the admission of the deed-in evidence.
Judgment and order affirmed. Bemittitur forthwith..