Ely v. Frisbie, 17 Cal. 250

Ely v. Frisbie

17 Cal. 250 | Cal. | 1861

Field, C. J. delivered the opinion of the Court

Baldwin, J. and Cope, J. concurring.

This is an appeal from an order granting an injunction restraining the enforcement of a judgment recovered by the defendants for the possession of certain premises in the occupation of the plaintiffs, situated in Sonoma county. The defendants assert title to the premises under a grant issued to José German Pina, by Manuel Micheltorena, formerly Mexican Governor of California, and a patent issued upon its confirmation by the United States. The grant bears date in October, 1843, and the claim under it was presented by the heirs of the grantee to the Board of the United States Land Commissioners for confirmation, in August 1852, and was confirmed by the Board to the claimants in June, 1855. This decision of the Board wras affirmed by the United States District Court in March, 1857, and the claim adjudged to be valid to the extent of four square leagues, provided the quantity were contained within the boundaries designated by the grant, and the map to which the grant refers. In April following, the Attorney General of the United States gave notice that an appeal would not be prosecuted in the case, and upon the stipulation of the District Attorney to that effect, the Court entered an order giving leave to the claimants to proceed upon its decree as upon a final decree. Soon after-wards the quantity specified—four square leagues—was surveyed under the directions of the Surveyor General of the United States for California, and in October, 1859, the survey was approved by that officer, and subsequently also by the Commissioner of the General Land Office at Washington. Upon the survey thus approved, and the decree of confirmation, the patent was issued on behalf of the United States to the claimants, bearing date in November, 1859. This patent embraces the premises in the occupation of the plaintiffs, and against them the defendants, who derive their title by conveyances from the patentees, instituted in July, 1860, an action of ejectment in the ordinary form. The *256plaintiffs thereupon filed their present complaint, in which, after stating the commencement of the action of ejectment, they allege, in substance, that they are in possession of portions of the premises for the recovery of which that action is brought; that they, or the parties through whom they claim, acquired such possession in good faith, under the provisions of the Acts of Congress and of this State; that in pursuance of such provisions they became and are preemptors and settlers, and are entitled to the portions thus possessed by them ; that at the time of taking possession originally, these portions constituted part of the public lands of the United States, and but for the rights acquired by the defendants would still continue such public lands; that the defendants and others, with whom they claim title, by combination with a Deputy of the Surveyor General of the United States, fraudulently procured a survey and plot to be made, purporting to be of the tract confirmed to the heirs of Pina, but which in fact were made to include other lands than those embraced or intended to be embraced by the terms either of the decree of the Land Commission or of the United States District Court, so far as they include the lands lying in the valley of the Russian river, and occupied by the plaintiffs ; that by like combination and by fraudulent representations the defendants obtained the approval of the survey and plot by the Surveyor General, and the issuance of the patent; that, by reason of these transactions and the consequent injuries effected, the United States, in May, 1860, instituted their action in the Circuit Court of the United States, against the defendants and others claiming with them, to obtain an annulment of the survey, and plot, and patent, so far as they embrace any of the lands situated in the valley of the - Russian river ; that said action is now at issue, and before it can be determined the ejectment will be brought to trial, and upon such trial the defendants threaten and intend to use the survey, plot and patent, and thereby—such is the language of the complaint—■ “ wrongfully, and contrary to equity and justice, to obtain judgment against the plaintiffsand that without the aid of the equity powers of the Court, the plaintiffs will be unable to show or plead the fraudulent and invalid character of the survey, plot and patent, but will be subjected to their effect as evidence, and be concluded *257by them. The complaint concludes with a prayer that the defendants be restrained from introducing or using in evidence or otherwise the survey, plot or patent on the trial of the ejectment or in any other similar action for the premises in the possession of the plaintiffs, until the determination of the action brought by the United States, and for general relief.

Upon the complaint duly verified the District Judge made an order that the defendants show cause why an injunction should not issue pursuant to its prayer. On the day upon which the hearing of the application on the return of the order was had, the defendants filed their answer to the complaint, and offered to read it and the exhibits annexed in opposition to the application, but to their being read objection was taken on the ground that the matters they contain were immaterial—and that they were not properly verified. The objection was sustained and the answer and exhibits excluded. The defendants thereupon produced the patent and the application was submitted. The District Judge held that the plaintiffs would be entitled to an injunction in case the defendants recovered in the action of ejectment, and made an order that such injunction issue restraining the enforcement of any judgment which might be obtained, upon the plaintiffs executing and filing within twenty-three days thereafter an undertaking in the form required by statute, in the penal sum of fifteen thousand dollars. It is from this order that the appeal is taken. The ejectment was, in fact, tried the day before it was entered, and the plaintiffs recovered judgment for the possession of the premises and $10,000 damages.

The verification of the answer, though not complying in form with the exact language of the statute, is sufficient to entitle the answer to be considered as an affidavit, and as such it was offered. The exhibits attached consist of the pleadings and proceedings in the action brought in the name of the United States, and no verification of them was required, further than what arises from the statement in the answer that they are copies of such pleadings and proceedings. No distinct verification was necessary, and were this otherwise, the certificate of the Clerk of the Circuit Court of the United States was sufficient; that certificate was ample authentication of the documents. They were produced to show the nature *258of the action and of the proceedings therein, as the pendency of that action constitutes the main ground upon which the plaintiffs base their claim to the equitable relief they seek.

The answer of defendants meets very fully the several allegations of the complaint, and in connection with the exhibits attached, strips the case of the plaintiffs of all apparent equity. It denies that the plaintiffs, or any of them, ever were in the possession of the premises in pursuance of the provisions of any Acts of Congress or of this State, or ever became preemptioners thereunder, or that the premises occupied by them were ever public lands of the United States, and avers that the survey of the Deputy Surveyor was, in all respects, in accordance with the grant and the final decree of confirmation. It meets the charge that by fraudulent representations the approval of the survey was obtained from the Surveyor General, not merely by positive denial, but by stating that previous to its approval, and at the request of plaintiffs and their counsel, the Surveyor General personally visited the valley of the Russian ■ river, and examined the topography of the country, and compared it with the Mexican grant and the map to which the grant refers, the final decree of confirmation, and the survey of the deputy; that upon such examination and comparison he was accompanied by some of the plaintiffs and their counsel, and listened to what they had to say against the approval of the survey, and against including the valley within it; and that it was only after careful investigation, and with full knowledge of all the facts, that the survey was finally approved by him. And with reference to the action brought in the name of the United States, the answer avers that the bill therein was drawn and filed at the instigation of the plaintiffs, and under the advice, supervision and control of their counsel, and that neither the Attorney General of the United States, the Secretary of the Interior, the Solicitor of the Treasury, nor any other person authorized on behalf of the United States so to do, directed or consented to the commencement of the action; but that the defendants, notwithstanding, appeared in the action and answered, and filed certain affidavits and exhibits, copies of all which are annexed to the answer in the present case; and that in the action application was made to the Circuit Court of the United States for an injunc*259tion against the defendants, which, after argument, was denied. The exhibits attached fully corroborate the allegations of the answer as to the survey, and indeed exhibit a case of an attempted disturbance of rights acquired under a patent of the United States, upon grounds which were fully considered before the survey was approved or the patent issued. It is possible that the proofs on the hearing of that suit may change the entire aspect of the proceeding. We speak of it only as it appears upon the papers presented on the application before the District Judge for the injunction. Upon those papers the application should have been denied.

But independent of the facts developed by the answer and exhibits, the application should have been denied upon the uncontradicted allegations of the complaint. The patent, until set aside, is conclusive evidence not merely of the validity of the original grant, and of its recognition and confirmation, but of the regularity of the survey, and of its conformity with the decree of confirmation. The complaint admits the existence of the patent, and only avers that proceedings have been taken to annul it. Until those proceedings have resulted in a decree setting it aside, or modifying it, its eificacy remains for all purposes. The defendants claiming to be preemptioners upon lands of the United States, have no standing in Court by which they can resist its operation. It took effect as the deed of the United States, at the date of the presentation of the claim under the grant to the Board of Land Commissioners, in August, 1852. It is the record of the Government that on that day the land it embraces was within the boundaries designated by the grant, and subject to appropriation to satisfy the claim of the heirs of the grantee, and until vacated it imports as against the Government, and all parties claiming under the Government by title subsequent, absolute verity. It can only be impeached by the Government by direct proceedings for its annulment or limitation, and such proceedings, unless accompanied by injunction from the Court in which they are taken, cannot, before decree, impair the rights of the patentees, or those claiming under them, any more than an appeal from a judgment without a stay can affect the validity of an execution issued thereon. The institution of the suit of the United States constituted of' itself, therefore, no ground for *260granting the injunction; and had that suit been accompanied with a restraining order upon the defendants, against the use of the patent or survey, or interference with the premises, no motive would have existed for the application.

We do not consider the objection of the defendants, that the action in the name of the United States was instituted without the direction or consent of the Attorney General, or the Solicitor of the Treasury, or others having authority in the matter, as it is one which should more properly be made to the Court in which the action is pending.

The objection that as the order directs the injunction only upon condition that an undertaking be executed and filed, and as it does not appear that there was any such undertaking, the defendants are not “ parties aggrieved,” and as such entitled to appeal, is untenable. The parties aggrieved, within the meaning of the three hundred and thirty-fifth section of the Practice Act, who are entitled to appeal, are the parties against whom an appealable order or judgment has been entered. All orders for injunctions are made either upon an approval of an undertaking at the time, or upon condition that an undertaking be filed, and it is to prevent the execution of such orders that appeals are taken. It is not necessary for the party against whom an order has passed to wait until the injunction has already issued before taking his appeal.

Order reversed.