¶1delivered the opinion of the court. This is a petitory action, in which both parties set up title to the premises there *168was judgment in the court below for the defendants, and the plaintiff appealed.
¶2The answer denies specially the representative character of the plaintiff. It appears, he was duly appointed executor ofMcElroy, and although a year and a day had expired, from # , the opening of the succession until the commencement of the suit, the continuance of the executor’s functions by the judge of probates, enabled him to commence and maintain this action.
¶3On the trial of the cause, the counsel for plaintiff introduced a witness to prove, that previous to the testator having made any application to the Spanish government, for the land now in dispute, he had caused a survey of it to be made. This testimony was objected to, on the ground “that no location of an earlier date, than that of the Spanish recommendation, could be given in evidence,” and the objection was sustained, and as we think, erroneously, by the court.
¶4What would have been the effect of such evidence, when received, need not be stated, nor indeed could it be well known, until the merits of the case were examined. But if . the boundaries of the land, the identity of the *169premises, or the right derived from first pos- . . session, were at all questions in the cause, a survey made, even before an application to the Spanish government, was proper evidence, as making a part of the res gesta. ,
¶5It is therefore ordered, adjudged and decreed, that the judgment of the district court J <= be annulled, avoided and reversed; and it is ' ' further ordered, adjudged and decreed, that
¶6this case be remanded to the district court, with directions to the judge, not to reject proof of the survey made by the plaintiff’s ancestor, previous to his application to the Spanish government; and it is further ordered, that the appellees pay the costs of this appeal