This was an action of ejectment, commenced April 30, 1872, by
Daniel Palmer, the plaintiff in error, against Joseph W. Low, S. O.
Houghton, and others, to recover possession of a portion of a one
hundred vara lot No. 39, part of the pueblo lands of San Francisco,
lying east of Larkin Street and northeast of Johnston Street. The
City of San Francisco was first incorporated by the State of
California April 15, 1850, with certain defined boundaries. Acts of
1850, p. 223. It was the successor of the Mexican pueblo of Yerba
Buena, or San Francisco. The original charter was repealed and a
new one granted April 15, 1851. Acts of 1851, p. 357. The premises
in controversy are within the boundaries of the city as defined in
this last act of incorporation, and constitute part of the lands
claimed from the United States by the city, on account of its
succession to the property and rights of the pueblo.
On the 20th of June, 1855, the City Council of San Francisco
passed an ordinance, known as the Van Ness
Page 98 U. S. 2
Ordinance, the sections of which material to the present
controversy are as follows:
"SEC. 2. The City of San Francisco hereby relinquishes and
grants all the right and claim of the city to the lands within the
corporate
Page 98 U. S. 3
limits to the parties in actual possession thereof, by
themselves or tenants, on or before the first day of January, A.D.
1855, and to their heirs and assigns forever, excepting the
property known as the slip property, and bounded on the north by
Clay Street, on the west by Davis Street, on the south by
Sacramento Street, and on the east by the waterline front, and
excepting also any piece or parcel of land situated south, east, or
north of the waterlot front of the City of San Francisco, as
established by an Act of the legislature of March 26, A.D. 1851,
provided such possession has been continued up to the time
of the introduction of this ordinance in the common council, or, if
interrupted by an intruder or trespasser, has been or may be
recovered by legal process, and it is hereby declared to be the
true intent and meaning of this ordinance that when any of the said
lands have been occupied and possessed under any by virtue of a
lease or demise, they shall be deemed to have been in the
possession of the landlord or lessor under whom they were so
occupied or possessed,
provided that all persons who hold
title to lands within said limits by virtue of any grant made by
any ayuntamiento, town council, alcalde, or justice of the peace of
the former pueblo of San Francisco, before the seventh day of July,
1846, or grants to lots of land lying east of Larkin Street and
northeast of Johnston Street, made by any ayuntamiento, town
council, or alcalde of said pueblo, since that date and before the
incorporation of the City of San Francisco by the State of
California, and which grant, or the material portion thereof, was
registered, or recorded in a proper book of record deposited in the
office or custody or control of the recorder of the County of San
Francisco on or before the third day of April, A.D. 1850, or by
virtue of any conveyance duly made by the commissioners of the
funded debt of the City of San Francisco, and recorded on or before
the first day of January, 1855, shall, for all the purposes
contemplated by this ordinance, be deemed to be the possessors of
the land so granted, although the said lands may be in the actual
occupancy of persons holding the same adverse to the said
grantees."
"SEC. 3. The patent issued or any grant made by the United
States to the city shall inure to the several use, benefit, and
behoof of the said possessors, their heirs and assigns, mentioned
in the preceding section, as fully and effectually, to all intents
and purposes, as if it were issued or made directly to them
individually and by name."
"SEC. 10. Application shall be made to the legislature to
confirm and ratify this ordinance, and to Congress to relinquish
all the
Page 98 U. S. 4
right and title of the United States to the said lands for the
uses and purposes hereinbefore specified."
"SEC. 11. Nothing contained in this ordinance shall be construed
to prevent the city from continuing to prosecute to a final
determination her claim now pending before the United States Land
Commission for pueblo lands, for the several use, benefit, and
behoof of the said possessors mentioned in sec. 2, as to the lands
by them so possessed, and for the proper use, benefit, and behoof
of the corporation as to all other lands not hereinbefore released
and confirmed to the said possessors."
On the 11th of March, 1858, the Legislature of the State of
California passed "An Act concerning the City of San Francisco, and
to ratify and confirm certain ordinances of the common council of
said city," whereby this ordinance was in all respects ratified and
confirmed. Sec. 2 of that act is as follows:
"SEC. 2. That the grant or relinquishment of title made by the
said city in favor of the several possessors by sect. 2 and 3 of
the ordinance first above recited shall take effect as fully and
completely, for the purpose of transferring the city's interest,
and for all other purposes whatsoever, as if deeds of release and
quitclaim had been duly executed and delivered to and in favor of
them individually and by name; and no further conveyance or other
act shall be necessary to invest the said possessors with all the
interest, title, rights, benefits, and advantages which the said
order and ordinances intend or purport to transfer or convey,
according to the true intent and meaning thereof,
provided
that nothing in this act shall be so construed as to release the
City of San Francisco, or City and County of San Francisco, from
the payment of any claim or claims due or to become due this state
against said city, or city and county, nor to effect or release to
said city and county and title this state has or may have to any
lands in said City and County of San Francisco."
Cal. Acts 1858, p. 52.
Afterwards, on the 1st of July, 1864, Congress passed "An Act to
expedite the settlement of the titles to lands in the State of
California," 13 Stat. 332, sec. 5 of which is as follows:
"SEC. 5. And be it further enacted that all the right and title
of the United States to the lands within the corporate limits of
the
Page 98 U. S. 5
City of San Francisco, as defined in the act incorporating said
city, passed by the Legislature of the State of California on the
15th of April, 1851, are hereby relinquished and granted to the
said city and its successors, for the uses and purposes specified
in the ordinances of said city ratified by an act of the
legislature of the said state, approved on the 11th of March, 1855,
entitled 'An Act concerning the City of San Francisco, and to
ratify and confirm certain ordinances of the common council of said
city,' there being excepted from this relinquishment and grant all
sites or other parcels of lands which have been or now are occupied
by the United States for military, naval, or other public uses, or
such other sites or parcels as may hereafter be designated by the
President of the United States within one year after the rendition
to the General Land Office by the surveyor general of an approved
plat of the exterior limits of San Francisco, as recognized in this
section in connection with the lines of the public surveys,
and
provided that the relinquishment and grant by this act shall
in no manner interfere with or prejudice any bona fide claims of
others, whether asserted adversely under rights derived from Spain,
Mexico, or the laws of the United States, nor preclude a judicial
examination and adjustment thereof."
Both parties claim title under this ordinance and this
legislation of the state and of Congress. A jury was waived on the
trial below, and the court made and filed its finding of facts,
from which it appears
1. That the grantors of the plaintiff entered into the
possession of the premises in controversy, without title, about the
year 1851 or 1852, and they and the plaintiff continued in the
exclusive and adverse possession thereof down to the 8th of May,
1867, when the grantor of the defendant, S. O. Houghton, was placed
in possession thereof by the Sheriff of the City and County of San
Francisco, under legal process issued in the case of
Donner v.
Palmer, to which suit neither the plaintiff nor any of his
grantors deriving title from any party to the suit after the
commencement thereof was a party.
2. On the 19th of July, 1847, George Hyde was the duly qualified
and acting alcalde of the pueblo of San Francisco, and, as such
alcalde, on the day last mentioned granted the premises in
controversy to George Donner, by a grant thereof duly made
recorded, and delivered by the alcalde, and the
Page 98 U. S. 6
material portion of the grant was registered and recorded in a
proper book of records, deposited in the office and in the custody
and control of the recorder of the County of San Francisco before
the third day of April, 1850, and which book remained in the office
and in the custody and control of the recorder until and on the
third day of April, 1850, and has continued so to remain from that
date.
3. That the defendant, S. O. Houghton, has, through mesne
conveyances, acquired all the right, title, and interest of Donner
in the premises, and that the defendants other than Houghton were,
at the time the action was commenced, in possession as tenants
under him.
4. At the time of the alleged grant to him, Donner was an infant
of about ten years of age.
To prove the grant to Donner, the defendants offered in evidence
an entry on "Book A" of original grants, from the custody of the
county recorder of the City and County of San Francisco, which is
as follows:
"
LOT No. 39"
"Whereas George Donner has presented a petition soliciting for a
grant of a title to a lot of ground as therein described, therefore
I, the undersigned alcalde, do hereby give, grant, and convey unto
the said George Donner, his heirs and assigns for ever, lot number
thirty-nine (39), one hundred varas square, in the vicinity of the
Town of San Francisco, subject to all the rules and regulations
governing in such cases."
"In testimony whereof, I have hereunto set my hand as alcalde,
this nineteenth day of July, A.D. 1847."
"GEORGE HYDE, 1st
Alcalde"
In connection with this offer, it was satisfactorily shown that
"Book A" was part of the archives of the office of the City and
County of San Francisco, and it was admitted that the book was the
original "Book A" of alcalde grants in the custody of the city and
county recorder, and known in the office as one of the books turned
over to the county recorder's office in pursuance of the directions
of the statutes of California, as one of the books of the former
alcalde's office. It was satisfactorily proved that the signature
of George Hyde to the alcalde entry
Page 98 U. S. 7
of grant, or memorandum of grant, is in his handwriting, and his
genuine signature, and that at the date of the entry he was the
acting alcalde of San Francisco.
To the introduction of this entry in "Book A," plaintiff's
counsel objected,
"on the ground that it was incompetent, irrelevant, and
immaterial, also on the ground that it is not primary evidence, or
the best evidence, of a grant having been made to George Donner;
that it is but secondary evidence, for the introduction of which no
foundation had been laid; that there has been no proof of the loss
or destruction of the original instrument, of which the said entry
is a mere memorandum; that the entry in 'Book A' of original grants
is a mere memorandum made by the alcalde; that the grant should
have been made and signed by both parties, the grantor and grantee,
and should have been attested by parties as witnesses of the fact;
that the whole proceeding should have been set out on that book;
that if it be a mere memorandum book, it was indicative merely that
there was some other instrument which had to be executed and
delivered, and which is primary evidence in the case."
These objections were overruled by the court, and an exception
was then and there taken by the plaintiff.
Sec. 6 of an act of the Legislature of California, "defining the
time for commencing civil actions," passed April 22, 1850, is as
follows:
"SEC. 6. No action for the recovery of real property, or for the
recovery of the possession thereof, shall be maintained, unless it
appear that the plaintiff, his ancestor, predecessor, or grantor,
was seised or possessed of the premises in question, within five
years before the commencement of such action."
Acts of 1850, 344, sec. 6.
On the 11th of April, 1855, this section was amended by adding
the following proviso:
"
Provided, however, that an action may be maintained by
a party claiming such real estate, or the possession thereof, under
title derived from the Spanish or Mexican governments, or the
authorities thereof, if such action be commenced within five years
from the time of the final confirmation of such title by the
government
Page 98 U. S. 8
of the United States, or its legally constituted
authorities."
Acts 1855, 109, sec. 1.
On the 18th of April, 1863, this proviso was repealed, and the
following enacted as a substitute:
"SEC. 6. . . . And provided further, that any person claiming
real property, or the possession thereof, or any right or interest
therein, under title derived from the Spanish or Mexican
governments, or the authorities thereof, which shall not have been
finally confirmed by the government of the United States, or its
legally constituted authorities, more than five years before the
passage of this act, may have five years after the passage of this
act in which to commence his action for the recovery of such real
property, or the possession thereof, or any right or interest
therein, or for rents or profits out of the same, or to make his
defense to an action founded upon the title thereto. . . ."
"SEC. 7. Final confirmation, within the meaning of this act,
shall be deemed to be the patent issued by the government of the
United States, or the final determination of the official survey
under the provisions of the Act of Congress entitled 'An Act to
amend an act entitled an act to define, &c., approved June 14,
1860.'"
Cal. Acts 1863, 327.
Upon this state of facts the court below found as conclusions of
law:
"1. That defendant, S. O. Houghton, by virtue of said grant to
said Donner, the said ordinance of the City of San Francisco, and
the said acts of the Legislature of California and of Congress, and
the said mesne conveyances from said Donner to him, is the owner
of, and has the legal title to, said demanded premises, and that
the defendants are lawfully and rightfully in the possession
thereof."
"2. That the statutes of limitations have not run in favor of
the plaintiff, by reason of his own and his grantor's possession,
from 1851 or 1852 to May 8, 1867, and that such possession gives
him no title as against defendants."
Judgment having been rendered in favor of the defendants in
accordance with this finding, the plaintiff below sued out this
writ of error, and assigns, in substance, for error the ruling of
the court admitting "Book A" as primary evidence to prove
Page 98 U. S. 9
the grant to Donner, and the judgment for the defendants upon
the facts as found.
Page 98 U. S. 11
MR. CHIEF JUSTICE WAITE, after stating the facts, delivered the
opinion of the Court.
The questions presented for decision in this case may be stated
as follows:
1. Was the entry in original "Book A" of alcalde grants
admissible as primary evidence to prove a grant to Donner?
2. Did the record show a grant sufficient in form?
3. Was the grant void because made to an infant?
4. Was the action barred by the statute of limitations?
These questions will be considered in their order.
1. As to the admissibility of the evidence.
The point of the inquiry is whether the record of alcalde grants
of the pueblo lands of San Francisco, kept by the alcalde in
accordance with the requirements of Mexican laws before the
incorporation of the City of San Francisco by the State of
California, in the custody of the city and county recorder, and
known as one of the books of the former alcalde's office turned
over to the county recorder's office, pursuant to the statutes of
California, can be used as primary evidence of the recorded grants,
or only as secondary evidence, after sufficiently accounting for
the absence of the original certificate of grant issued to the
grantee.
The rank in the scale of evidence which the Mexican archives
occupy has been oftentimes the subject of consideration in the
courts of California. As early as 1859, in the case of
Gregory
v. McPherson, 13 Cal. 562, the question arose in reference to
the admissibility of an expediente filed in the archives of the
Mexican government, to prove a grant under the colonization laws, a
copy of which grant, signed by the governor and countersigned by
the secretary of state, was annexed to and formed a part of the
expediente. The expediente itself consisted of the petition, plat,
reference, report, act of concession, approval, grant, &c. It
was rejected in the court below on the ground that it was secondary
evidence only, and the absence of the copy of the grant which had
been issued and delivered to the grantee had not been
satisfactorily accounted for; but the supreme court said (p.
572):
"We are at a loss to know upon what grounds such a document can
be denied the weight of original evidence. It was made, and signed,
and authenticated
Page 98 U. S. 12
as a record by public officers in the discharge of public
duties. The papers were retained in the custody of the appropriate
public officer for the purposes of proof, and the highest and most
authentic proof, of their own action. The documents receive the
stamp, and the most satisfactory stamp, of official authenticity.
The signatures are made on this as on the papers sent out by the
department. We cannot see why such papers should be called copies,
or why, in the scale of proofs, they should stand in any
subordinate relation to the paper handed to the grantee. If not
counterparts or duplicates, it would seem that the original paper
is the record retained by the department as part of its public
records. . . . We cannot presume that any governmental system of
granting land could be so loose as that no records were preserved
by the granting power. And it follows, we apprehend, as a universal
rule that wherever the acts of public officers are authenticated by
their records, these records are evidence in all courts of justice
of those acts. If by law or usage having the force of law a
California grant was matter of record, then it would seem to follow
that the record is proof of the grant, especially where, as in this
case, the record is itself an exemplification of the grant, and
contemporaneously signed by the same officers issuing the
grant."
Following this, in 1864, was the case of
Downer v.
Smith, 24 Cal. 114, where the question arose upon the
admissibility of an entry of a grant of land in the pueblo of San
Jose made in the book of alcalde grants, and although it was held
that a statute of the state applicable to the county in which the
lands were located made the entry admissible, it was said, p. 122,
"We think the court was warranted in finding that the book was one
of original entries, and therefore entitled to be admitted as
evidence upon that ground." In
Rice v. Cunningham, 29
id. 492, decided in 1866, it best suited the purposes of
one of the parties to use the same "Book A" which is now under
consideration, as secondary evidence to prove an alleged lost
grant, and thus avoid the effect of an apparent cancellation of the
grant which appeared upon the face of the record; but the court
said, p. 497,
"The argument of counsel for the appellant, in support of their
exception, is grounded upon a false assumption. They lower 'Book A'
to the level of a chance copy book, and
Page 98 U. S. 13
strip it of all its character and dignity as a public record of
the transactions of a government official vested with the exercise
of most important functions, and then seek to use it on a question
not then before the court."
But in
Donner v. Palmer, 31
id. 500, decided
in 1867, the precise question we are now considering was presented
in reference to the identical grant under which the defendants in
error claim, and it was held, after full argument, and with due
regard to both the written and unwritten law of Mexico, including
the "Plan of Pitic," so often alluded to in the argument here, that
the entry was to be received as primary evidence. In the opinion,
after copying the seventeenth section of the "Plan of Pitic," the
court proceeds as follows, p. 508:
"In view of this language, there can be no doubt as to the mode
in which grants of town lots were to be made. The entire
proceedings were to be first entered in the official book required
to be kept for that purpose, signed and attested in due form by the
proper officer. A copy or summary statement of the proceedings as
contained in the official book, also duly signed and attested by
the proper officer, was then to be given to the grantee as evidence
of his title; and in the event of its loss, the officer in whose
official custody the book might be at the time was authorized and
required to give him another 'like copy' of the original
proceedings. The record so kept became an official and public
record of the transactions of the alcaldes in the matter of
granting town lots, and, as such, primary evidence of the acts they
recited, under any system of law with which we are acquainted.
Entries in such a book, if made in conformity with the regulations
of the 14th of November, 1789, became, under the Mexican law, what
is denominated an authentic instrument -- that is to say, an
instrument which proves itself, and, under the common law, an
official record. Under both systems, such entries have always been
esteemed the highest and most satisfactory evidence of the facts
which they recite, because they are made by the direction of the
law, and are of public concern, and because they are made under the
sanction of an oath, or at least of official duty, and made at or
about the time the acts which they recite transpired. They are
retained in the custody of the functionary or department by which
they are required
Page 98 U. S. 14
to be kept, and are so retained for the express purpose of
making them permanent and primary evidence of the transactions of
the government. 1 Greenl.Evid., sec. 488
et seq."
The result thus reached has never been disturbed, and it is
clear that a rule of property has been established by the courts of
the state, binding as well upon the courts of the United States as
upon those of the state. While the precise question presented to us
was only decided in
Donner v. Palmer, all the other cases
point directly to the conclusion there reached, and it needed only
the occasion to make the formal declaration. Certainly, if the
Mexican archives possess the character which the courts have given
them, there can be no doubt of the rank they take as evidence,
under our system of jurisprudence.
Hedrick v.
Hughes, 15 Wall. 123. We see no error in the
admission of the testimony.
2. As to the form of the grant.
There can arise here no question as to the payment of municipal
fees or the delivery of the grant, for the bill of exceptions shows
that the court below found as facts upon the evidence contained in
the record of the grant and other evidence submitted, that the
municipal fees were paid, and that the grant was actually
delivered. Neither does any question arise as to the power of an
American alcalde to make the grant, for the ordinance under which
both parties claim, in terms confers the title upon grantees
holding by such grants.
The only question then is as to the form of the instrument
appearing in the record. It is certain that it does not meet all
the requirements contained in the "Plan of Pitic," but the counsel
for the plaintiff in error, in their argument here, say it is
"beyond the reach of contradiction, and matter of history, that
the 'Plan of Pitic' was not pursued by Mexican alcaldes in San
Francisco. Grants were made in a very different manner, and quite
repugnant to its requirements. A long established custom pursued by
these alcaldes, under Mexican rule, modified and superseded the
'Plan of Pitic.' What these modifications were we have not been
informed. No authorities are cited upon the subject except those
which go to show that after the conquest, the American alcaldes
usually followed the American system of conveyancing and
registration.
Donner
Page 98 U. S. 15
v. Palmer, supra; Montgomery v. Bevans, 1 Sawyer, 653.
We are then left to inquire whether the language of the grant is
sufficient to pass the title, if there was no statute or custom
prescribing the form in which such conveyances should be made. The
government of the United States had not undertaken to regulate this
subject, and the Mexican law, whatever it may have been, whether
enacted by statute or established by custom, was in force; for the
rule is well settled that the laws of a conquered territory, which
regulate private rights, continue in force after the conquest until
they are changed by the act of the conqueror.
American Insurance Co.
v. Canter, 1 Pet. 511."
The language of this grant is: "I, the undersigned alcalde, do
hereby give, grant, and convey unto George Donner, his heirs and
assigns forever," &c. These are the operative words of a
present grant in fee simple, and, being found in an official public
record, will be presumed, in the absence of any thing to the
contrary, to be sufficient to accomplish the purpose the parties
had in view. While the alcalde was not the sovereign, he was the
officer designated by law to make distribution of this kind of
property among those to whom, under the Mexican law, it belonged;
and the official record of his official acts, which the law
requires him to keep, carries with it the presumption that his acts
were in form such as was necessary to give full effect to what he
was attempting to do.
This same question was presented to the Supreme Court of
California in
Donner v. Palmer, supra, and the same
conclusion reached. As the point decided is one which relates to
the effect to be given the statute of the state accepting and
confirming the Van Ness Ordinance, if not in fact the construction
of a state statute absolutely binding upon us, it ought not to be
disregarded except for imperative reasons.
3. As to the infancy of Donner.
We are not advised that the Mexican law prohibited such a grant
to an infant. The distribution was to be made to "settlers," and
was evidently left largely to the "wise judgment" of the
"commissioner in charge." If he erred in his judgment, it might be
cause for setting aside the grant in some appropriate direct
proceeding for that purpose; but so long as the grant
Page 98 U. S. 16
remained uncancelled and duly recorded, it would certainly be a
grant within the letter of the Van Ness Ordinance, and it was so
decided by the Supreme Court of California in
Donner v. Palmer,
supra. While infants cannot make grants, they may accept them.
A grant to an infant is voidable, not void. The grant in this case
has never been avoided, but, on the contrary, affirmed, and that
too long before the Van Ness Ordinance was confirmed by Congress.
The title of Donner, therefore, from whom these defendants claim,
was superior to that of the plaintiff under the ordinance.
4. As to the statute of limitations.
The nature of the title of San Francisco to her pueblo lands has
often been the subject of consideration in this court, and was
carefully stated by Mr. Justice Field in
Townsend
v. Greeley, 5 Wall. 326, and
Grisar v.
McDowell, 6 Wall. 363. At the time of the conquest,
the pueblo, of which the City of San Francisco became the
successor, did not have an indefeasible estate in the unconveyed
portion of these lands, but only a limited right of disposition and
use, subject in all particulars to the control of the government of
the country. "It was a right which the government might refuse to
recognize at all, or might recognize in a qualified form." 6 Wall.
73 U. S. 373.
Upon the conquest, the United States succeeded to the rights and
authority of the Mexican government, subject only to their
obligations under the Treaty of Guadalupe Hidalgo. As before that
time the fee had not passed out of the government of Mexico, it was
transferred to the United States by the conquest and the treaty
which followed. Before, therefore, the estate of the pueblo could
become absolute and indefeasible, some action was required on the
part of the United States. It is conceded that this action was not
taken until the Act of July 1, 1864. Down to that time the city
held under its original imperfect Mexican title only. Afterwards it
was possessed of the fee "for the uses and purposes specified" in
the Van Ness Ordinance.
In
Henshaw v.
Bissell, 18 Wall. 255, we held in effect that the
state statute of limitations did not begin to run against the title
thus perfected until July 1, 1864, and this decision was followed
by the Supreme Court of California in
Page 98 U. S. 17
Gardiner v. Miller, 47 Cal. 576. After the act of
Congress no survey or patent was necessary for the consummation of
the title.
Ryan v. Carter, 93 U. S.
78;
Morrow v. Whitney, 95 U. S.
551. But independently of this, and looking only to the
statutes of the state, it is clear that, after 1855 until the act
of 1863, there was no statute of limitations in California
affecting titles derived from the Spanish or the Mexican government
before their final consummation by the government of the United
States. The act of 1863 gave a right of action upon such titles for
five years after the date of its passage; and within the five
years, to-wit, May 8, 1867, Donner, under whom the defendants
claim, was put in actual possession of the premises, and he and
they have continued in possession claiming title ever since. The
statute runs only so long as the adverse possession continues. When
the possession is ended the operation of the statute ceases, except
in respect to titles previously acquired under it; for in
California it is held that adverse possession for the requisite
length of time transfers a title to the possessor, which may be
asserted affirmatively against an otherwise valid record title.
Arrington v. Liscom, 34 Cal. 366.
It follows, then, that Palmer acquired no title by his
possession from 1851 to 1867, as against the Donner title, if that
title was derived "from the Spanish or Mexican government, or the
authorities thereof," and it seems to us clear that it was. It was
so expressly decided by MR. JUSTICE FIELD in
Montgomery v.
Bevans, supra, and the cases of
Townsend v. Greeley,
supra, Grisar v. McDowell, supra, and
Merryman
v. Bourne, 9 Wall. 592, evidently proceeded upon
that assumption. Donner claimed under the City of San Francisco,
and the city under its equitable title derived from the Mexican
government, finally ratified and confirmed by the United States.
Whatever rights the city had under the Mexican title it held for
the use and benefit of the inhabitants, and the United States, by
the act of 1864, relinquished and granted all their right and title
for the same uses and purposes. Clearly, therefore, the act of
Congress could not have been intended as the grant of a new right,
but simply as the confirmation of the old one. The title of the
city is the old imperfect title from Mexico, confirmed by the
Page 98 U. S. 18
authoritative recognition of Congress. Previous to the passage
of this act, the city had prosecuted its claim against the United
States under the Act of March 3, 1851, to ascertain and settle
private land claims in California, and that action was still
pending when this confirmatory statute was passed. The original
claim being for a larger quantity of land than was embraced in this
relinquishment, the suit went on in the courts until March 8, 1866,
when the United States, by another statute "to quiet the title to
certain lands within the corporate limits of the City of San
Francisco," 14 Stat. 4, in terms confirmed the claim of the city to
all the lands embraced in the decree of the circuit court then
pending here on appeal. It is clear, therefore, that the case is
within that part of the statute which relates to titles derived
from the Mexican government.
One other question, arising under the statute of limitations,
remains to be considered, and this grows out of the last clause in
the proviso of the act of 1863, in which five years is given to the
holder of a title derived from the Spanish or the Mexican
government "to make his defense to an action founded upon the title
thereto." If we understand correctly the position taken by counsel,
it is that the holder of a title under a Mexican grant will not be
permitted to set up his grant as a defense to an action brought
against him for the recovery of the property granted, unless he
makes his defense within five years after the date of confirmation,
whether the suit in which the defense is to be made was commenced
within that time or not. The courts of California have had no
little difficulty in giving a construction to this and other
kindred portions of this statute; but whatever else it may mean, we
think it clear that it cannot be what the plaintiff claims. The
facts in this case present in the strongest light the utter
absurdity of such an interpretation. The plaintiff's grantor
entered into the possession of the premises in 1850 or 1851,
without a shadow of title, and remained until May 8, 1867, when he
was ousted. He acquired no title by his possession. The title under
which he was ousted was a Mexican grant, not confirmed until July
1, 1864. The owner of this grant remained in peaceable possession,
claiming title, until April 30, 1872, when this suit was begun.
This was more than five years after the date of the
Page 98 U. S. 19
confirmation of the grant, but less than that time by eight days
from the commencement of possession. As the possession of the owner
had not ripened into a perfect title, he was driven to his defense
under the grant. The plaintiff, a mere trespasser originally,
having no right whatever except that of prior naked occupancy,
purposely delaying his action for more than five years from the
date of the confirmation of the grant, now seeks to get rid of the
grant as a defense to his action, because it is more than five
years old. If this be the operation of the statute, it has, in a
single line, made substantially worthless as muniments of title all
confirmed Mexican grants, and that, too, in a state where titles
are so largely drawn from such sources. It would be monstrous to
suppose the legislature could have been guilty of such folly.
The pleadings are sufficient to enable the defendants to avail
themselves of their proof. In ejectment, the plaintiff recovers
upon the strength of his own title, and not upon the weakness of
that of his adversary. The plaintiff declared generally upon his
title, without setting out the particulars. The answer of the
defendant was a general denial. The plaintiff undertook to
establish his title under the Van Ness Ordinance, by proving the
requisite possession. To rebut the effect of this evidence the
defendants made proof of the grant, under which they claimed, to
show that the title under the ordinance did not pass to the
plaintiff. Until the plaintiff put in his testimony, there was
nothing upon the record to show what his claim of title was.
Certainly, under such circumstances, it was not incumbent on the
defendant to state in his answer the matters on which he relied, to
defeat any title that might be developed upon the trial.
Judgment affirmed.
