The action of ejectment is based upon the legal title. In this case the answer admitted the legal title to be in the plaintiff, but set up other matters as a defense thereto, among others, the statute of limitations. The burden of proving this defense was of course upon the defendants, and, until some proof thereof was made, the plaintiff had no occasion to offer any evidence whatever. The orderly course of the trial would have been for the plaintiff to have rested the case upon the pleadings. The defendants would then have put in the evidence of their adverse holding, which the plaintiff would have rebutted by proof of its patent title accruing to it within two years of the commencement of the action. Instead of doing this, however, the plaintiff offered its patent in evidence upon the opening, and, over the defendant's objections, it was admitted accordingly. This, of itself, certainly cannot be said to have worked the defendant any injury, as it was simply proving a fact which they did not deny. But, when the defendants came to offer the evidence of their adverse holding, the plaintiff objected to it upon the ground that the patent issued within two years of the commencement of the action was conclusive of this issue. The objection was sustained, and the evidence excluded. If this was the effect of the patent, it is evident that again no substantial injury was done the defendants, even though the evidence of their adverse holding should properly have been admitted, for it could be of no benefit to them to introduce evidence which would be nullified by the introduction of the patent. That the patent had this effect seems at the present time to be beyond question. The statute could not begin to *Page 228 run until the patent issued from the United States. (Treadway v. Wilder, 12 Nev. 108;Redfield v. Parks, 132 U.S. 239; Steele v.Boley, 7 Utah, 64.)
The variance between the date of the patent and that of the beginning of the plaintiff's ownership, as alleged in the complaint, is immaterial. The issue was now upon the statute of limitations, and any evidence which would conclusively rebut that was certainly admissible. The patent did this, and the fact that it bore a date subsequent to the alleged beginning of the plantiff's ownership neither made it better nor worse. No error affecting the substantial merits of the case is shown upon this appeal, and I therefore concur in affirming the judgment.