¶1At the trial, the plaintiff offered in evidence the deed, from Antonio Maria Peralta to Charles B. Strode, which is set forth in the bill of exceptions. The defendant objected to the introduction of the deed, on the ground that it was incompetent, immaterial and irrelevant to any issue in the case. The court below overruled the objections, and defendant duly excepted.
¶2Respondent claims that the deed was admissible (under section 1849 of the Code of Civil Procedure), because of the clause therein: “Excepting the tract of one thousand varas square, occupied by Patten, heretofore sold to Jones, Tompkins & Strode, as lawyers.”
¶3The section of the Code of Civil Procedure relied on is as follows: “When, however, one derives title to real property from another, the declaration, act or omission of the latter while holding the title in relation to the property is evidence against the former.”
¶4Admitting, for the purposes of the argument, that this section of the Code is to have a larger effect than the rule of the common law as to the acts or declarations of one in *480possession in disparagement of his title, the deed objected to was not admissible in evidence.
¶5The land in possession of Patten, and alleged to have been sold to Jones, Tompkins & Strode, was clearly excluded from and constituted no portion of the land conveyed by the deed. This effect would be given to the exception without reference to the section of the Code. But by the terms of the section the “declarations, acts and omissions” of the grantor, which are made evidence against the grantee, must be declarations, acts or omissions in relation to the real property conveyed. If it be said that the declaration had relation to the tract sold to J ones, Tompkins & Strode, and proved that sale and a prior conveyance, then the declaration was not made while the declarant held the title.
¶6Judgment and order denying new trial reversed, and cause remanded for a new trial.