The defendant relies upon a deed executed by the Board of. Land Commissioners, by virtue of an act passed May 18th, 1853. At the time when Leavenworth made the grant to Parker, the pueblo of San Francisco had no title whatever to the water property: it belonged to the United States, who held it in trust for any new State that might be erected out of said territory, and passed to the State of California on her admission, by virtue of her sovereignty. The grant was therefore a nullity. On the twenty-sixth of March, 1851, the Legislature passed an act grant
There is no evidence that the grant to Parker was ever so recorded. A copy of the petition and grant was admitted in evidence, certified by John E. Addison, county clerk, on the seventh of June, 1850, to be a correct copy of the original record at that time in his office. •
The law requires, that the grant should be recorded in a book in the recorder’s office, or a book kept by and under the control of the recorder, and not of the county clerk. But even if there were some mistake about this, the certificate does not state that such grant was of record on the third of April, 1850.'
It may very well be, that the original grant Was on the record in the county clerk’s office, at the date of the certificate, and still not recorded at the time and in the mode pointed out by the statute. The plaintiff having failed to make out a title under the Water-Lot Act, is driven to his prior possession, which is sufficiently established to enable him to recover, unless the deed executed to defendant, by the San Francisco Land Commissioners should be held valid. ■ ■
The Water-Lot Act, gives to the city all the lands within certain boundaries, except such as have been granted or sold in a certain Manner. The grant of the lot in question, not having been recorded as required, it necessarily follows that it passed to the city, and that the Commissioners had no power to sell any other than the reversionary interest of the State.
It is urged, that the testimony shows that the defendant's tenant is in possession of a part of the property, and that he should have been joined. The record discloses the fact, that the defendant was in possession of the entire property at the commencement of the suit; even if he was not, the objection comes too late, after having come in and defended, he cannot-complain of the judgment. Whether his tenant can be dispossessed without having been made a party, is a question with which he has no concern. •
The Court below had a perfect right to require the plaintiff to remit a portion of the damages. It has been repeatedly held, that.this power was within the discretion of the Court; and its exercise has been encouraged.
Judgment affirmed.