In concurring in the opinion of my brother, Sharpstein,-1 desire to add, that, in my judgment, the attornment of Osborn to Moss was made under conditions which brought it within the section of the Act of 1855, referred to in the case of Thompson v. Pioche, 44 Cal. 508. As had been held by the Supreme Court in Leese v. Clark, 18 Cal. 535, and 29 Cal. 387, years prior to the decision in 44 Cal., and affirmed by the United States Supreme Court, (Beard v. Federy, 3 Wall. S. C. 491) the patent is record evidence of an adjudication, conclusive in its character, that Moss was entitled to the land sued for, from the date at least of the presentation of the claim to the Land Commissioners, as against all persons in the condition that Thompson was. The rule of Leese v. Clark is, no doubt, the conclusively settled *555rule in this State. This patent was issued in pursuance of the judgment of a court of competent jurisdiction, and Osborn, in yielding to it, attorned in consequence of this judgment, which brought the case within the statute. This conclusion is sustained in principle by the following cases: Mayor v. Whitt, 15 M. & W. 571; George v. Putney, 4 Cush. 351; Chambers v. Pleak, 6 Dana, 456; Moss v. Goddord, 13 Met. 177; Watson v. Lane, 11 Exch. 769; Evans v. Elliott, 9 A. & E. 342; Simers v. Saltus, 3 Den. 214; 5 Hill, 599; 4 Id. 643; 25 N. Y. 462.
But the Supreme Court, in the case of Thompson v. Pioche, on the same facts held that the attornment of Osborn to Moss was void. This decision, however erroneous, under numerous decisions of the Supreme Court of this State constitutes the law of the case in all of its stages. To this we must yield. I have long had much doubt as to the propriety of this rule concerning the law of the case, but it has been too long settled to be now disturbed. The case must be left to be determined according to the rules laid down when in the former Supreme Court on the appeal therein heard and decided.
As the case goes back for a new trial, I will add, that as to adverse possession the law is correctly stated in the case referred to in 44th California. The elements of such a defense are there clearly set forth (see p. 517 of 44 Cal.) in that part of the opinion of the Court commencing with the words “ to constitute adverse possession,” down to end of the paragraph. The Court below will no doubt follow this, on the retrial of the cause. The “ claim of right ” referred to, is usually a mixed question of law and fact, and it should be submitted to the jury with appropriate instructions. What the instructions should be I will not venture to state in. ad vanee.