Chipley v. Farris, 45 Cal. 527

Chipley v. Farris

45 Cal. 527 | Cal. | 1873

By the Court, Rhodes, J.:

The claim of A. M. Lugo to the Eancho de San Antonio was finally confirmed, and the description of the land confirmed, as given in the decree of confirmation, accords substantially with that of the juridical possession. In the patent issued to the confirmee, the lines of the rancho on the western side, as described in the field notes, and the plat, do not coincide with those mentioned in the decree of confirmation, but exclude a portion of the land included in the latter. The land in controversy is a portion of the land thus ex-*537eluded. The plaintiffs claim title under a son of A. M. Lugo, who had received a conveyance from his father after the confirmation, but before the issuing of the patent. The patent was issued after the death of A. M. Lugo, and was delivered to a person who was the owner of a specific parcel of the rancho; but it does not appear that any of the parties under whom the plaintiffs claim made an application for the issuing of the patent. The plaintiffs rely mainly upon the decree of confirmation, and attack the patent on several grounds.

They contend that it is void because it was issued after the death of the patentee. It was held in Waterman v. Smith, 13 Cal. 419, that the Act of Congress of May 20th; 1836, which provided “ that in all cases where patents for public lands have been or may hereafter be issued in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall inure to, and become vested in, the heirs, devisees, or assignees of such deceased patentee, as if the patent had issued to the deceased person during life ” was applicable to a patent issued under the Act of March 3d, 1851—the Act to ascertain and settle the private land claims in the State of California. The decision on that point has remained unquestioned up to the present time, and we have entire confidence in its correctness.

It is also contended that the patent is void, because the proceedings in respect to the survey were had under the Act of June 14th, 1860. The survey in the field was made prior to the passage of that Act, and there is nothing on the face of the patent, nor in any portion of the record before us, which goes to show that the proceedings were not properly had under that Act.

*538It is also contended that, as the thirteenth section of the Act of 1851 provides that “ a patent shall issue to the claimant upon his presenting to the General Land Office an authentic certificate of such confirmation, and a plat or survey of the land, duly certified and approved by the Surveyor General of California,” the patent must be held to have been issued without authority of law, if such survey and plat were transmitted to the General Land Office by the Surveyor General. It is manifest that the purpose of that provision was to require the survey and plat to be filed in the General Land Office, in order that the patent might be prepared and issued by the proper officers. The transmission of those documents by the Surveyor General, accomplishes that purpose as fully as their presentation by the claimant.

It is further contended that .the confirmation of the claim gave the claimant a perfect title, and that he could not be divested of his title to any of the lands, by a patent which excluded a portion of the rancho. The claimant did not have a perfect title when he presented his petition for confirmation, for the reason, among others, that the grant had not received the approval of the Departmental Assembly; and as it was requisite for the claimant to present his claim for confirmation, as provided for in the Act of 1851, he could not acquire, under the law then or subsequently in force, a perfect title, except by means of a patent, or a survey confirmed in accordance with the Act of June 14th, 1860.

A patent, issued under the Act of 1851, is, as has often been held by this Court, the final act in proceedings instituted for the confirmation of the claim of the patentee to land which had been granted by the former Government, and for the segregation of such land from the public lands of the United States; and it is a record which binds both the Government and the claimant, and cannot be attacked by *539either party, except by direct proceedings instituted for that purpose (Leese v. Clark, 18 Cal. 535). While it stands, the claimant or those deriving title through him, will not be permitted to aver that the claim comprised,other or different lands from those mentioned in the patent.. Such being the nature and effect of the patent, the evidence offered by the plaintiffs to prove that the patent was void was properly excluded.

It is unnecessary, in order to give effect to a patent, to show an acceptance of it by the patentee. The general rule is that a patent takes effect upon its being issued, and it is unnecessary to show a delivery to or an 'acceptance by the patentee; and whatever may be the rule in the case of public lands which are exposed to sale under the laws of the United States, as to the power of the Government to vest title in a person against his will, it would seem to admit of no doubt that in a proceeding under the Act of 1851 the claimant is as powerless to prevent the patent from issuing and taking effect, if the proceedings have not been dismissed, as he is to prevent the rendition of a decree determining the question of the validity of the claim. When a private person files his petition for a confirmation, the patent, if the claim is confirmed, is a necessary step in the proceedings, and the assent of the claimant, or those claiming under him, is no more essential to its validity or effect, than to any other step in the proceedings.

It is contended by the plaintiffs that the survey, which is incorporated into the patent, does not accord with the decree of confirmation, and that they are entitled to rely upon the decree—which is also incorporated into the patent—for title to lands within the decree, but not within the survey. This position cannot be maintained consistently with the views already expressed as to the nature and effect of the patent. The patent purports to convey the lands described in the survey, and its scope cannot be extended, nor on the other *540hand can it be limited, by showing that the decree comprised a greater or less area than the survey. E"or can the claimant, after admitting—as he must—the conclusive effect of the patent, njake out title to lands not conveyed by the patent, by the production of the proceedings which culminated in the patent. The patent, while it remains in force, conclusively determines what lands the claimant was entitled to under his claim and the decree of confirmation. The claimant can neither reform the patent nor show that it is, in any respect, incorrect, in an action of ejectment.

The last course mentioned in the survey runs from a post and charred stake station “ north three hundred and twenty chains to the point of beginning;” and it must be construed as running in a straight line between the points mentioned, unless there is something in the survey which will cause the course to deviate from a straight line. It is not claimed that the survey itself would permit any other than a straight line between the points above mentioned; but it is insisted that the boundaries mentioned in the decree of confirmation must prevail over those mentioned in the survey, whereby the last course in the survey will be divided into three or more courses. That construction would amount to the rejection of the last course of the survey, and require a point of beginning differing from that mentioned in the survey, and include lands not comprised in the survey, and exclude other lands from the survey. The survey must control, and as there is no reference in it to the juridical possession, the last course of the survey must run in a direct line to the point of beginning.

After the plaintiffs had given in evidence, among other things, the grant, testimonio of the juridical possession and decree of confirmation, and had given evidence tending to prove that the land in controversy was within the boundaries of the rancho, a witness stated that he had seen in the hands of Abel Stearns, who owned a specific portion of the rancho, *541a patent for the rancho, and the patent was produced before the referee, and the referee then ruled that unless the patent was offered in evidence by the plaintiffs, the evidence already given by them would be stricken out. The plaintiffs excepted to that ruling, and thereupon gave the patent in evidence. We see no error in that ruling, for it appears from the patent that it was issued in the proceeding, of which the decree of confirmation given in evidence by the plaintiffs formed a part—the patent being the last step in that proceeding.

The position that the plaintiffs are entitled to a recovery on the ground of prior possession cannot be sustained, for there is no specification in the statement on new trial which will comprehend that ground.

Order and judgment affirmed.