46 F. 280 | U.S. Circuit Court for the District of Southern California | 1891
This is a suit in equity, brought by the complainant to establish her alleged right to an undivided interest in the Rancho Valle de San Felipe, which was granted by the Mexican government on the 30th day of May, 1846, to Felipe Castillo, the father of complainant, and is situated in what is now San Diego county, Cal. The original bill was filed herein on the. 29th of January, 1890, and the amended bill, to which the present demurrer is interposed, was filed July 22, 1890. In -the amended' bill it is alleged that the complainant is the illegitimate daughter of.Felipe Castillo, who, it is alleged, died in the city of Los "Angeles, Cal., in the year 1848, leaving four children surviving him, 'namely, the complainant, and Loreto,'Manuel, and Refugio Castillo. It is alleged that Felipe Castillo died seised of the rancho in question, and. that .he left a will, by which he devised it in-equal- shares to his four .named children, and appointed as the executor of the will one Augustine -Olivera, a resident of Los Angeles; that Olivera declined to act as such executor, but that..on the 25th of May, 1850, he, together with Loreto Castillo, Manuel Garfias, and Juan Foster, “in fraud of the rights of your -orator herein, caused to be made .and delivered- to said' Juan Foster a certain instrument in writing, whereby the said Loreto Castillo then and .there, pretended-to and did declare himself to be the executor of the said last.«will and .testament of said Felipe Castillo, and' the agent of his said two brothers, said Manuel and-Refugio, and- empowered to sell said Rancho Valle de San Felipe;” that in and by said written instrument Loreto Castillo pretended to sell and convey to Foster the whole of the rancho; that Loreto was not at the time of the execution of the conveyance the executor of the will, nor had he any power or authority from Manuel or Refugio to sell their interest in the rancho, or in any manner to represent them, all of which, it is alleged, was well known at the time to Loreto, Olivera, Foster, and Garfias; that in the year 1855 Foster presented to the board of land commissioners (created by the act of March 3, 1851, to ascertain and settle the private land claims in California) a petition for the confirmation to him of the title to said rancho,
In the present case, the billas amended shows on its face that as early as 1876 complainant was told by her brother Loreto that her father left a will, by which he devised to her an interest in some land in San Diego county; that he, Loreto, had sold his interest therein, but had not sold complainant’s, and that she still retained hers; that subsequently complainant’s husband “ began to make inquiries concerning” the legacy, and Loreto told him substantially the same thing. There the complainant seems to have been content to rest for a period nearly three times as long as that prescribed by statute in California for the recovery of land, in an action at law. In Maj', 1888, according to the averments of the amended bill, complainant first learned through her present