24 Cal. 585 | Cal. | 1864
The appeal in this case comes before us on demurrer to the complaint. The facts as alleged in the complaint are substantially as follows :
By the Constitution, the Pueblo of San José was declared the seat of government until removed by law. The first session of the Legislature was held at that place. There was then no building belonging to the State or the Pueblo of San José adapted to the purposes of the Legislature, and the citizens of the pueblo petitioned the Ayuntamiento, or Town Council, to procure one. This the Ayuntamiento endeavored to do, but failed for the want of means and credit. Thereupon, seventeen citizens of the pueblo purchased a lot and building, situated within the pueblo, for the accomodation of the Legislature. In accordance with an understanding to that effect, the deed was made to Aram, Belden & Reed, in trust for the purchasers, who were to convey the property to the pueblo whenever the pueblo could pay for the same. On the 9th day of April, 1850, the Ayuntamiento purchased the premises from Aram, Belden & Reed, at the price of thirty-four thousand dollars, payable within six months, with interest at six per cent per month; and to secure the payment of that sum, pledged the State scrip or temporary loan bonds in the Treasury, and the revenues which might be raised that year by taxation, and mortgaged what is known as the pueblo lands. The first Legislature met in the building thus purchased by the Ayuntamiento, and on the 27th day of March, 1850, it passed an Act incorporating the City of San Jose. By the provisions of the Act the City of San José succeeded to all the legal rights and claims of the pueblo, and became subject to all the liabilities incurred and obligations created by the Ayuntamiento. The city government was limited in the exercise of its municipal powers to the geographical boundaries established by the Act; and over the pueblo lands situ
After this purchase some dispute arose between the city and the purchasers concerning the lands in question, and the City Council, by ordinance, authorized the Mayor to settle and arrange the dispute with the purchasers. Under this ordinance the Mayor entered into a contract with the purchasers on the 12th of June, 1851, whereby, after reciting the purchase by the trustees at the Sheriff’s sale, it was agreed that the trustees and the Mayor should conjointly sell the pueblo lands in such a manner as to realize to the trustees the amount of the purchase money paid by them and all costs and expenses. If the money thus realized should prove insufficient ■ for that purpose, the city was not to be bound for the deficit. If, on the contrary, there should be a surplus, the same was to be
This contract was duly ratified by the Common Council of the city, and the Mayor was directed to carry the same into effect. But the city afterwards refused to do so, and conveyed all the right, title, and interest in the land to the Commissioners of the' Funded Debt of. the City of San José. Upon this state of facts the plaintiffs ask for various kinds of alternative relief: First—A decree setting aside the conveyance from the city to the Commissioners of the Funded Debt; Second—Or, if that cannot be done, a decree for the specific performance of the contract of the 12th of June, 1851, against the city and the Commissioners, and an injunction perpetually restraining them from making further sales or conveyances of said lands, except in the manner and on the conditions specified in said contract of the 12th of June, 1851, and also a decree requiring them to account with, the plaintiffs for all moneys received by them or either of them from sales of land already made; Third—And inasmuch as the purchase money paid by said Branham and White liquidated the debt of the city to Aram, Belden and Reed, if for any reason it shall be adjudged that the Sheriff’s deed and the contract of the 12th of June are invalid, plaintiffs ask that the satisfaction of the judgment in favor of Aram, Belden and Reed, and against the city, may be set aside, and the Sheriff’s sale held for naught, and that they be subrogated to all the rights which Aram, Belden and Reed had in and to said judgment and mortgage prior to the satisfaction thereof, and that they have
Several points are made on the demurrer, which we shall notice, so far as it may be necessary for the purposes of this case, in the order in which they are presented in the briefs of counsel:
I. Had the Ayuntamiento power to mortgage the pueblo lands to Aram, Belden and Reed, under the circumstances and for the purposes narrated in the complaint ?
This question is not discussed by counsel for appellant, under the pretense that it cannot be made upon demurrer; holding that, inasmuch as he has averred that the Ayuntamiento had full power and authority to make the mortgage, such power and authority is admitted by the demurrer. The Ayuntamiento, being a municipal body, could take and exercise only such powers as were conferred by the will of the sovereign, as expressed in the laws creating it. Every question as to what power has been conferred by such laws is a question of law and not of fact; and the averment in the complaint that the Ayuntamiento had full power and lawful authority to do the act in question, is but an averment of a conclusion of law, and does not tender an issue of fact,
' A demurrer admits the truth of such facts as are issuable and well pleaded; but it does not admit the conclusions which counsel may choose to draw therefrom, although they may be stated in the complaint. It is to the soundness of those conclusions, whether stated in the complaint or not, that a demurrer is directed, and to which it applies the proper test.
That the Ayuntamiento had the power to execute the mortgage to Aram, Belden and Reed, does not seem to be seriously claimed by the learned counsel for appellant. Obviously, such a position could not be upheld without a complete overthrow of the law, as clearly and explicitly declared in the able and learned opinion of Mr. Justice Baldwin, in Hart v. Burnett, 15 Cal. 580. The opinion in that case is a monument to the
Such being the law, it follows that the mortgage upon the pueblo lands made by the Ayuntamiento to Aram, Belden, and Reed, was an absolute nullity, and vested in the latter no interest whatever in the lands. If the Ayuntamiento had no power to mortgage, it follows that all the subsequent proceedings, up to and including the Sheriff’s deed to Branham and White, were utterly void. Upon this point, also, at page 580, Mr. Justice Baldwin says: “If it be true, as seems clear from the citations we have given, that the municipal officers could not mortgage or sell these lands to pay a debt created by them, we do not see how it can be contended that they could accomplish the same result by borrowing money and then confessing judgment, or suffering it to be entered, or submitting to suit, and thus indirectly doing through the Sheriff what they could not do by their direct action.”
But it is contended by counsel for appellant that the city is precluded from setting up the invalidity of the mortgage to
II. We now come to the consideration of the question as to what rights, if any, the trustees, Branham and White, acquired as against the city by virtue of the contract of the 12th of June, 1851, executed by and between them of the one part and the Mayor of the city of the other part. That contract, so far as its legal effect upon the title to the pueblo lands is concerned, is a contract of confirmation and release. In terms it confirms unto Branham and White all the rights and interests in said lands which they acquired by their purchase at the Sheriff’s sale, and releases unto them all the right and title which the city then had or might afterwards have therein. Aside from all questions of power in the city government to make the contract, it is ineffectual so far as it attempts to confirm unto Branham and White the rights and interests which they acquired at the Sheriff’s sale, for the obvious reason that there was no estate in them upon which the confirmation could act. Qui confirmed nihil dat. Confirmation may make good a voidable or defeasible estate, but cannot operate upon or aid an estate which is void in law, but only “ confirms its infirmity.” Gonfirmatio est nulla, ubi donum ¡precedáis est invalidum, et ubi donatio nulla est, nec valebit confirmatio. The only exception to this rule is where the confirmation is the act of sovereign will. (Comyn’s Digest, Vol. 3, p. 139 ; D. I. p. 140; Blessing v. House, 3 Gill and John. 290.) It was upon this view that the Act of 1858, confirming the so-called “ Van Hess Ordinance” was passed, and the validity of that ordinance upheld in Hart v. Burnett.
For much the same reasons, that part of the contract in which the city authorities attempt to release the title of the
III. Failing of any relief upon the contract of the 12th of. June, 1851, plaintiffs next ask that the Sheriff’s sale and deed may be held for naught, and the satisfaction of the judgment against the city and in favor of Aram, Belden, and Reed, may be set aside, and that they may be subrogated to all the rights of Aram, Belden, and Reed, with leave to proceed, by execution or otherwise, to collect the judgment.
Up to the time the plaintiffs purchased at the Sheriff’s sale, and until the 12th day of June, 1851, about one month after the sale, there had been no treaty or negotiation between them and the city touching the foreclosure sale. There was, so far as appears from the complaint, no understanding between them and the city as to the purchase about to be made, nor were any representations whatever made by the city to induce them to purchase. On the contrary, they acted, so far as appears, entirely upon their own judgment, uninfluenced by any one. They were not asked to purchase by the city or any one else, and no promises were made to them in the way of inducement. They stand, therefore, in the attitude of naked purchasers at a judicial sale.
In the case of Laws v. Thompson, 4 Jones, N. C. 104, it was held that a purchaser at Sheriff’s sale who acquired a defective title has no right to take the place of the creditor. In Maryland, it is held that Chancery sales are made subject to all incumbrances and defects, and the rule of caveat emptor applies. In the case of “The Monte Allegre," 9 Wheat. 615, the petitioner claimed to have refunded to him the purchase price of a quantity of tobacco, (which he had purchased at a judicial sale,) because it was rotten and worthless when he bought it, and the defect was unknown to him at the time he
Against the plaintiffs’ claim to be reimbursed the amount paid by them at the Sheriff’s sale, by reason of the failure of the title which they purchased, and their right to maintain this, an independent action therefor, the case of Boggs v. Hargrave, 16 Cal. 562, seems to be conclusive.
Judgment affirmed.
Mr. Justice Rhodes, having been interested in the matters involved, did not sit on the trial of this case.