Opinion of the Court--Currey, J. the possession of the plaintiff was not actual and of sufficiently long standing to become to a legal intent peaceable, then he was not in a condition to maintain his action. In Treat v. Stuart (5 Cal. 113), the Court said: "The plaintiff, in an action of forcible entry and unlawful detainer, must show an actual peaceable possession in himself at the time of the entry;" and in House v. Keiser (8 Cal. 500), which was an action brought under the Act concerning forcible entries and unlawful detainers, the Court said that "a party who desires to avail himself of the summary remedy provided by this Act must bring himself clearly within its provisions. He must show a possession, actual, peaceable and exclusive; a mere scrambling or interrupted possession, or the exercise of casual acts of ownership over the premises, is not sufficient." By the ninth section of the Act it is provided that "on the trial the complainant shall only be required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession of the premises at the time of a forcible holding over." Before the plaintiff could be entitled to recover he was bound to establish a case *from which [192] it could at least be presumed that at the time of the alleged forcible entry and ouster he was peaceably in actual possession. This the statute requires. But instead of this the testimony of his witnesses showed that his own entry was tortious, and that his adverse holding had not yet become quiet and peaceable. He had not yet acquired a status affording him the right to resist the defendants' assertion by necessary force of their own right to the possession of the premises, when they came upon the ground and removed the structures erected there by the plaintiff during the same day. His acts of trespass were in fieri when the acts of the defendants of which he complains were committed. In such condition of things a mere intruder or trespasser is not entitled to the remedies provided by the statute. (People v. Reed, 11 Wend. 159.) The evidence, which was properly introduced before the Opinion of Sawyer, J., concurring. Court and jury, established beyond controversy the possession of Pierce, Church and Comstock of the parcel of land described in the complaint, and the testimony of the plaintiff's witnesses alone showed that his entry was a trespass, which was resisted before his possession had become, in the sense of the Act, actual and peaceable. If a verdict and judgment had been rendered upon the evidence properly admitted in the case, in favor of the plaintiff, it would have been erroneous. There was no evidence improperly admitted or excluded that could have justly changed the result to which the jury came; so that if the Court committed any errors in admitting testimony, or in instructing the jury, they were of a character that could not by any possibility have harmed the plaintiff. It is only errors which may have injured the complaining party that will authorize this Court to reverse a judgment of the Court charged with having committed them. (Merle v. Mathews, 26 Cal. 455, and the cases there cited.) We are of opinion the verdict was right, and that the judgment should be affirmed. [193] *SAWYER, J., concurring: There was, doubtless, irrelevant testimony admitted on both sides, and the rulings of the Court are not free from errors; but it is clear to my mind that without any of the errors committed the verdict of the jury must have been the same. It is clearly apparent from the evidence properly admitted upon the question of possession-in which it can scarcely be said there was any conflict-that the plaintiff was in the act of attempting to acquire possession by an unjustifiable trespass upon an actual possession in the defendants of long standing; and that this attempt was immediately, upon the same day, interrupted and frustrated by defendants, in the manner stated by Mr. Justice Currey, before the acts of plaintiff had crystallized, so to speak, into that actual, peaceable possession contemplated by law, which constitutes the foundation of the right to maintain the action of forcible entry and detainer. Opinion of Shafter, J., dissenting. The Court expressly instructed the jury that the right to the possession could not be determined in this action, and substantially told them that the survey of Meador, and the conveyance to him by defendants, could only be considered with reference "to the extent and boundary of such possession." For the purpose to which this testimony was thus limited, I think the evidence admissible. I am satisfied, from the testimony, that the plaintiff had acquired no such possession, as against the defendants, as would entitle him to maintain this action, and that on this ground the judgment should be affirmed. SHAFTER, J., dissenting: I am compelled to dissent from the opinion of my brethren. The only question is whether Hoag had succeeded in dispossessing the tenant of Pierce, Church and Comstock, to a legal intent at the time when the tenant, in company with his landlords, came upon the ground and demolished the house and fence and expelled Jordan, the plaintiff's servant. The *building of the fence was not in [194] fieri at the time the defendants came upon the premises, but was a fact accomplished; nor was the plaintiff in the act of going within the inclosure with a view to take possession, but was already within it, in the person of his servant. All the steps essential to an ouster by Hoag of the tenant in possession had been taken, and the fact could have had no additional force or meaning imparted to it by lapse of time. On the ground of the acts of Hoag performed upon the land, the tenant of Pierce, Church and Comstock could have maintained ejectment against him. By force of those acts the Statute of Limitations was set in motion in his favor, and he was placed in a position where he was amenable to taxation. The possession of Hoag was undoubtedly a hostile possession, but it was peaceable during the time it subsisted, and that is all that can be said of a possession of the longest duration. 1.249. Argument for Appellant. C. D. HORN v. WILLIAM JONES, J. G. FORDYCE, ACTION TO QUIET TITLE.—A person in the possession of property is in a posi- 262. TITLE UNDER A SHERIFF'S DEED.-The title of a party acquired by a Sheriff's 1 PURCHASER PENDENTE LITE ESTOPPED BY DECREE.—If an action is brought APPEAL from the District Court, Eleventh Judicial District, Amador County. Plaintiff recovered a judgment in the Court below, and defendant Jones appealed. The other facts are stated in the opinion of the Court. P. L. Edwards, for Appellant. Possession can be evidence or notice of no more than the 1. Cited, Sharp v. Lumley, 34 Cal. 615. Argument for Appellant. title actually in the possessor. (Welsh v. Welsh, 5 Ohio, 425.) Here all the facts in pais, all the record indicia, and all the averments of the complaint, show that the plaintiff has always claimed and now claims only under and in virtue of proceedings had under a void mortgage. From his complaizt, from the evidence, and from the findings, no other claim of title on his part can be inferred. He cannot now rely upon simple possession under a claim of higher title, for he has shown that his possession is qualified, and procured through proceedings in pais, and in Court, which, as against the defendant claiming under an older and better title, are wholly inoperative and void. (2 Sug. on Vend. 558; Fagg v. Mann, 2 Sum. 555.) If a person be simply in possession, the presumption is that he is the rightful owner; but when his own acts, averments, and deductions show a different estate, he is thereby bound. His possession cannot avail him when he himself shows that it is not rightful. Thus, "a person in possession of real estate is presumed to be seized in fee. This presumption, however, may be rebutted by a stronger presumption arising from circumstances." (1 Cow., Hill and Edw. Phil. on Ev. 646.) The presumption arising from possession may always be rebutted or qualified by [196] its character, or other opposite evidence. (Jayne v. Price, 5 Taunt. 326.) If the title relied upon either as a cause of action or ground of defense be a nullity, it results that the possession is wholly inoperative, at least as against a better title. (Livingston v. Peru Iron Co., 9 Wend. 511.) To the same. effect are the notes 1 Cow., Hill and Edw. Phil. on Ev. 646-7.) The effect of our statute was merely to abrogate the rule of the common law, that the simple pendency of an action should import notice, not to require or authorize the filing of a lis pendens where there was already notice in fact, or constructive under the recordation acts. (Sampson v. Ohleyer, 22 Cal. 200; Richardson v. White, 18 Cal. 102.) Section twenty-seven of the Practice Act provides that |