10 Cal. 589 | Cal. | 1858
Baldwin, J., concurring.
These were actions of ejectment, to recover the possession of two lots, situated in the city of Sacramento. By'agroemcnt of parties, they were tried together. The plaintiff deraigns his title from John A. Sutter, to whom a grant was issued by the Mexican Governor, Juan B. Alvarado, in June, 1841, and the principal questions raised by the record are : first, whether the grant confers title sufficient to support the action of ejectment; and, second, whether parol evidence is admissible in explanation of its boundaries, and to fix the location of the land granted.
The original grant to Sutter was destroyed by fire in 1851, and a proved copy was read in evidence. The authority of the Mexican Governor to make this grant, was not denied on the trial; nor was any question raised as to the regularity of the proceedings upon which it was issued; but it was urged, as objections to its introduction in evidence, first, that it was imperfect, inchoate, and incomplete; and, second, that it does not include the premises in controversy.
The instrument does not confer a mere permission to occupy the land described therein, but in terms grants the land itself. After reciting that Sutter has petitioned, “in conformity with the law of the 18#A of August, 1824, and regulations of the 21s# of November, 1828,” for eleven leagues of land for his benefit, and that of twelve families, and referring to “ his good conduct and other qualifications required in such cases,” and to “his great efforts, his constant firmness, and patriotic zeal,” in favor of the institutions of the country, it proceeds to state that the Governor, in the name of the Mexican nation, and in conformity with the powers conferred upon him, has “ granted ” to Sutter, “by these presents,” for himself and colonists, “the said land named Neio Helvetia,” subject to the approval or disapproval of the Supreme Government, and the Departmental Junta, upon certain conditions; and in its concluding clause the instrument states that the Governor, “holding this title to be firm and valid,” directs a note of it to be taken in the proper book, and its delivery to be made to the party interested, for his protection.
The words of this instrument are plain. They import a conveyance of the land in full property, subject, indeed, to be defeated by the subsequent action of the Supreme Government and Departmental Assembly. The clauses against the obstruction of the highways, and the navigation of the streams, are not properly conditions, but reservations in favor of the public. The condition as to the maintenance of the Indians of the different tribes in their possessions, and the conditions of the regulations of ¡November 21st, 1828, requiring the cultivation and occupancy of the land with families, are necessarily conditions subsequent, which did not prevent the estate from becoming vested eo in
In the case of Sutter, no denouncement was made, nor were any steps taken by the government indicating any intention to forfeit the land, nor is there any evidence of any such breach of the conditions to his grant, on the part of Sutter, as would have authorized a forfeiture, had proceedings to that end been instituted. So far, then, as these conditions are concerned, they did not affect the title—that passed to Sutter, upon the delivery of the grant.
Mor did the clause subjecting the grant to the approval of the Supremo Government and Departmental Assembly prevent the title from passing. That approval was not a condition precedent to the vesting of the title. By the first article of the regulations of 1828, the authority to make grants was lodged solely in the Governor of the Territory. It was not shared by him with the Departmental Assembly. That body possessed no power to
As we have stated, it was the duty of the Governor, and not of the grantee, to submit the grant to the Departmental Assembly, and afterwards, with its report, to the Supreme Government. Any neglect or refusal of the Governor to make such submission could not impair the right of the grantee to the land granted ; nor could that right be impaired by any action of the Governor when the grant had been once made by him in conformity with the decree of 1824, and the regulations of 1828. These regulations prescribe the manner in which grants should be made, and the cases in which his authority could bo exercised. Once exercised, and the power of the Governor over the land granted passed. He could not recall or revoke his grant. His further
In the present case, there is no evidence that Governor Alvarado ever forwarded the grant to Sutter to the Departmental Assembly, or to the Supreme Government, or of any action by either the Assembly or the government thereon; but the long occupation of Sutter of land claimed under his grant, and the frequent recognition of his title by the Mexican authorities, in their official documents, raise a strong presumption that the grant had the approval of both the Assembly and the Supreme Government.
The views we have expressed of the conditions annexed to the grant of Sutter, and of the provisions subjecting it to the approval of the Supreme Government and Departmental Assembly, are in accordance with the decisions of the Supreme Court of the United States in the Fremont and Beading cases. The grants in those cases differ from the one to Sutter, in being grants for the benefit of single individuals, and not empressario grants, but the same principles of construction are applicable. In both of those cases the grants were subject to conditions and to the approval of the Departmental Assembly, and neither had received such approval. And the Court held the conditions subsequent, and the submission, the duty of the Governor, and not of the grantees; and that the neglect of the Governor only operated as a suspension of the definitive validity of the grants. In the Reading case, (18 Howard, 7,) Mr. Justice Wayne, in delivering the opinion of the Court, uses this language:
“ It was also urged, that no title passed by the grant, as it had not received the approval of the Departmental Assembly. An examination of'the decrees of the 18th of August, 1824, and of the 21st of November, 1828, leads us to a different result. A right and title passed by the Governor’s grant, but its definitive validity was suspended for the approval of the Assembly; and so it continued to be suspended until its approbation had been given, when the title became definitive. But if that was refused, it did not take away, nor in any way qualify the grantee’s title, but only kej>t its final validity in suspense until the grant had been rejected by the Supreme Government of the Bepublie; it being the duty of the Governor, after its rejection by the Assembly, to forward the documents of title to the Supreme Government for its decision.
*618 “ Further, we must infer from the same decrees, and particularly from the fifth article of that of the 21st of November, 1828, that it was the duty of the Governor, and not of the grantee, to forward grants of land given by him, to the Departmental Assembly. The latter might very well, after that had been done by the. Governor, solicit the approval of the Assembly personally, or by an.agent, by all those considerations which had gained him the Governor’s favor. But if the Governor failed to transmit the documents, from any cause whatever, the grantee’s title continued to be just what it was when the grant was given. Nor could any neglect or refusal of the Governor to transmit his grantee’s documents of title to the Assembly, take from him his right in the land if the grant had been made with a due regard to what the decree of the 18th of August, 1824, required, and in conformity with the cautionary regulations of that of the 21st of November, 1828. In other words, from our reading of those decrees, the Governor could not, either directly recall a grant made by him, or indirectly nullify it when it had been conferred conformably with them.’’*
If the approval of the Departmental Assembly and the Supreme Goverment were a condition precedent, then no title whatever passed by the grant of the Governor. The grant would, in that case, be only the first movement towards a title, and be no more operative as a conveyance than a bill passing only one house of the Legislature would be operative as a law. It would not even confer an equity, as that term is understood in our system, or constitute a claim upon the bounty of the government. The consequences of such a position would be startling. A great portion, probably the greater portion, of the lands held in this State, are claimed under grants which are subject to a similar condition of approval by the Departmental Assembly, or by the Supreme Government, and if such approval were essential to the passing of title, these lands could not be taxed, for the fee and the entire beneficial interest would be in the federal government, and its property we are inhibited from taxing. They could not be sold under execution; they could not pass by bargain and sale; they would not descend to the heir; nor could they be subject to administration as assets, as real estate is, in certain cases, under our law. It would be impossible to estimate the consequences of confusion and injury to which such a position would lead, carried to its necessary and legal results. But such approval," as we have already’shown, was not a condition precedent. The title passed to Sutter by his grant; an estate vested in him, subject, it is true, to be defeated by the action of the Mexican government by direct rejection, or, in case of non-compliance with its conditions, by proceedings to that end.
Independent of the protection afforded by the law of nations to the property of the inhabitants of a ceded territory, the government of the United States, by the treaty of Guadalupte Hidalgo, expressly stipulated that those citizens of the Mexican Republic, in the territories ceded, who might elect to become citizens of the United States, should be incorporated into the Union, and be admitted at the proper time, to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution, and in the meantime be maintained and protected in the free enjoyment of their liberty and property, (Article 9;) and all those citizens of the territories are considered to have thus elected, who, within one year after the exchange of ratifications of the treaty, did not declare their intention to retain the character of Mexicans, (Art. 8.) The stipulation for maintenance and protection, even if such maintenance and protection were not obligatory, independent of the treaty, operated until the admission of California as a State into the Federal Union; and, as a matter of course, since such admission,
The Supreme Government of Mexico possessed the power to reject, upon its own mere volition, an empressario grant to one of its citizens, made by the Governors of its departments, under the colonization laws, but it may be, questioned whether this power, which the government exercised to control the action of its subordinate officers, passed to the government of the United States.
The only mode of avoiding an estate under the Mexican authorities, other than by the direct rejection of the Supreme Government, was, as we have already observed, by proceedings having their origin in what is termed a denouncement, which is entirely unknown to our laws. It may, therefore, be a question whether any right of defeasance or forfeiture, which may have existed in the Mexican government, in respect to the grant to Sutter, ever passed to the United States, and whether the grant did not, by operation of the treaty of cession, become discharged of all conditions. It is not necessary, however, to pass upon this question; it is sufficient for the disposition of the present case that the title of Sutter, under his grant, was in no respect impaired by the treaty. Under the former government, Sutter was entitled to the possession of the land under his grant; indeed, the conditions of cultivation or occupancy attached to it .by the regulations of Hovomber, 1828. To avoid a denouncement, and a possible forfeiture of his estate, he was required to cultivate or occupy the land, and its possession was his right, which could have been enforced under the Mexican government. It was- a right to the use and enjoyment of property, and as such was guarantied by the stipulations of the treaty. It accompanied his grant, and, like any other right of property, may be enforced in our Courts. The grant conveying, as we have seen, the title, carries with it the right to the possession, use, and enjoyment of the land, until, by the appropriate action of the general govern
The decisions of this Court in the cases of Leese and Vallejo v. Clark, and Vanderslice v. Hanks, (3 Cal. Rep., 17, 47,) are in direct conflict with this opinion. Those decisions were rendered previous to the decisions of the Supreme Court of the United States in the Fremont and Reading cases, and were based upon the opinion that the approval of the Departmental Assembly was a condition precedent to the vesting of the title in the grantees. The decisions in the Fremont and Reading cases led to a reconsideration, by the late Chief Justice, of the views advanced by him in the cases in 3 Cal. Rep., and in Gunn, Administrator of Sheldon, v. Bates, decided at the July Term, 1856, (6 Cal., 263;) he virtually abandoned them, not as unsound, but as overruled by the Supreme Court of the United States.
It is objected, by the defendants, that the grant to Sutter contains more than eleven leagues of land, and that the title did not pass, because the land intended to be granted was not segregated from the public domain. It is a sufficient answer to this objection, that there is no evidence in the record, and none was offered on the trial, to show that the quantity embraced within the limits of the grant exceeds eleven leagues, after excluding the lands inundated by the currents of the rivers ; and it will not be contended that the Court will presume an excess in quantity in the absence of all proof. The clause in the grant reserving any surplus which might be found upon measurement, for the benefit of the nation, is the usual clause inserted in all grants issued by the Mexican governors. They were inserted to prevent mistakes or impositions as to the quantity granted. By the regulations of 1828, the applicant for land was obliged to accompany his petition with a map, “ describing, as distinctly as possible, the land asked for,” and the requisite information as to the land and applicant having been obtained, the Governor was required, in the exercise 'of his discretion, to “accede or not,” to the petition. The grant followed the map in the general description of the land, without further survey, and to prevent mistakes or impositions as to the quantity, it was customary to insert a clause, reserving any surplus that might be afterwards found within the designated boundaries, upon a survey and measurement by the officers of the government. But until it was legally determined, by such survey and measurement, that there was a surplus, no individual could complain. The government alone could determine and set apart the surplus, and until its action in the matter, the right of the grantee remained good to the possession of the entire tract within the designated boundaries. “ On the
If the grant to Sutter had not designated any boundaries, or any point where the measurement of the land granted could commence, there would be great force in the objection of the defendants. The cases usually cited as authority, that a want of segregation of land granted, from tire public domain, prevents the title from passing, are those iii which neither boundary or description of any kind is given. But it is unnecessary to determine the question, as it does not properly arise in the present case.
The second objection to the introduction of the grant, was, that it does not include the promises in controversy.
Whether or not the premises are included within the grant, is a question of fact, to be submitted to the jury, and the only question for this Court to consider is, whether the parol testimony of Sutter and Yiogot, in explanation of the boundaries, and to fix the location of the land granted, was admissible. The language of the grant, as to the boundaries, is as follows :
“The land granted to him consists of eleven square leagues, (sitios de ganada mayo?',) comprehended in the extent designated in the plat which accompanies the expediente, without including the lands inundated by the impulse and currents of the rivers, its boundaries being: on the north, the Three Peaks, and latitude 39° 41' 45" north; on the east, the margins of Feather River; on the south, latitude 38° 49' 32" north; on the west, the River Sacramento.”
As appears by this description, the plat, or map, which accompanied Sutter’s petition, is referred to, and thus becomes a part of the instrument, for the purpose of identifying the land, and fixing its location.
The only object of the map was to identify the land, and enable the Governor to make the requisite inquiries, as to whether it was vacant or not, and thus within his power to grant; and, for the like purpose of identification, is the map referred to in the description, and it is, for that purpose, to be regarded as a part of the grant itself, as much so as if incorporated into it.
In his petition, Sutter refers to the fact that he had “ established himself,” with the approbation of the Governor, upon the land he then occupied, and to the flattering condition of “his establishment,” and solicits, “in order to aggrandize his enterprise,” eleven leagues,'In the “ establishment named Hew Helvetia,” in accordance with the land designated in the accompanying plat.
The Governor, in his grant, refers to the petition, and concedes “ the said land, (el terreno referido,) named Neto Helvetia.” On examining the map, wo find the place where the city of Sacramento now stands marked by the figure of a Port, and designated as “(Estalla de Nueva Helvetia”—establishment of How Helvetia. It is difficult to resist the conclusion that the petition and grant both refer to the locality thus designated on the map; and this conclusion is strengthened, by finding, a few miles south, a line drawn across the map, marked “ lindero,” (boundary,) .which was evidently intended to designate the southern boundary. This line is also marked “ latitude north 38° '41' 32".” In the grant, the southern boundary given is the parallel of 38° 49' 32" north latitude, differing from the latitude marked on the map by the figure 9, in the number of minutes, instead of the figure 1, a mistake which might easily be matte in drawing the grant. Of the two sets of figures, there is a difference in only one—a singular fact, if one was not made by attempting a copy of the other. It is not probable that the Governor, in drawing his grant, took any other designations of parallels of latitude than those he'found on the map.
In Clairmont v. Carlton, (2 New Hamp., 378,) it was held that “the identical monument or boundary referred to in a deed, is always a subject of parol evidence; and, when disputed, it is always left to the jury to say which was the actual monument intended.”
In Steele’s Heirs v. Taylor, (3 Marsh., 226,) it was held that a mistake in the calls of a patent may be corrected by reference to the plat and certificate of survey, which is evidence of the original position of the corners, and when they can be ascertained, they form the boundary, though variant from the description contained in the patent. In Alexander v. Lively, (5 Monroe, 160,) the patent and certificate of survey both called for eighty acres, included in a figure of five lines. The certificate agreed with the patent, but in examining them it was found that one call was opposed to another, and the defendant insisted that the patent was void, for uncertainty of description. The original plat of the survey differed from both patent and certificate, by representing a figure of six lines, and the plat was held proper evidence to show the position of the land. “We, therefore,” say the Court, “ conclude that the plat in this case must be held sufficient, under the circumstances, to supply the omitted
In Chapman v. Bennett, (2 Leigh, 357,) the lessor of the plaintiff-brought ejectment for land lying in Wood county, under a patent from the Commonwealth of Virginia, issued in April, 1785, in which the land granted was designated as lying in the county of Monongalia. The defendant offered to prove, by the Act of the Assembly- of June, 1784, for dividing the County of Monongalia, and establishing the County of Wood, and other evidence, that at the date of the patent no part of the present county of Wood lay within the boundaries of the county of Monongalia. But the Court, allowed the grant to be read in evidence, holding that it was competent for the plaintiff to prove that the land in Wood county was the same land granted by the patent, notwithstanding the error of the patent as to the county it lay in.
In Page v. Scheibel, (11 Mo., 187,) the concession described the land in question as in Grand Prairie, and bounded by Little River. Proof was admitted to fix the location of the land, and it appeared that Grand Prairie did not, in fact, touch Little River, and it was held that the boundary of Little River must be rejected. The Court say : “ The concession thus referred to described the lot, also, as in the Grand Prairie common fields, and also states that it lies between the Widow Marcschal and Little River. JSTothing is known, or no information is given on the record, as to the existence or residence of the Widow Mareschal, but the lot in controversy does not touch Little River. There is evidence to show that the Grand Prairie common fields did not, in 1768, touch any part of Little River. If this be so, it is clear that Little River, although a material boundary, should be rejected. The concession and confirmation must not fail because there is an impossible call in the concession.”
In McIver, Lessee, v. Walker, (9 Cranch, 173,) the patents called for land lying oh Crow Creek, describing them by course and' direction, and referring to a plot annexed, hieither the lines in the certificate of survey, or the patents, called for crossing Crow Creek, and, if run according to the course and direction given, would not include the creek or any part of it, or the land in possession of the defendant. But the plat annexed represented Crow Creek as passing through the tract, and the plaintiff requested the Court to instruct the jury that the lines ought to be run so as to include Crow Creek and the lands in the possession of the defendants. The instruction was refused, and the defendants had judgment. The refusal of the instruction was assigned as error, and the Supreme Court, Mr. Chief Justice Marshall delivering the opinion, held that the lines should be so run as to include both sides of the creek, and conform, as near as possible,
In Lunt v. Holland, (14 Mass., 149,) the plaintiff derived his title from a grant of the Commonwealth of Massachusetts, in which the premises conveyed are described as a certain tract of land, lying in township number one, in the county of Cumberland, which was surveyed and laid out in April, 1789, by Samuel Titcomb, and is bounded as follows, viz.: “ Beginning at a hemlock tree standing by the south side of Biver Androscoggin,; thence south, etc., to another hemlock tree, also standing by said river; thence south-eastwardly, and bounding by said river to the first-mentioned bound; said tract containing 4880 acres, more or less.”
The land in controversy was an island containing about thirty acres, the river running on each side of it. In addition to the grant, the plaintiff introduced the deposition of the surveyor, Titcomb, with a copy of the survey referred to, by which it appeared, that he intended to include the island in question, and that he returned his survey to the agents of the State previous to the issuing of the grant. The survey was introduced in evidence, under the objection of the plaintiff, who contended that the tract of land granted must be limited by the boundaries in the grant, which, being definite and fixed by monuments, could not be extended by reference to the survey, and that by them the island was necessarily excluded.
The Judge instructed the jury that, as there was direct reference in the deed to the survey, the island should be considered as within the descrij)tion of the land in the deed, and the plaintiff had a verdict subject to the opinion of the whole Court, on the instruction of the Judge, and the admission of the deed, deposition, and survey. On the motion for judgment, the counsel for the defendants contended that the land was described in the grant, and bounded by visible and known monuments, and by these the island in question was excluded; that there was no ambiguity in the language, and no construction ah extra should be admitted; that “bounding by the river ” must intend that edge of the river on which the hemlock trees stood, or those trees could not bo any part of the boundary; that, at the furthest, the land granted should be held to extend only to the thread of that branch of the river on which the trees were standing; but the Court, in giving its decision, said :
“ The Commonwealth, in its deed to the plaintiff, having referred to Titc'omb’s survey, must be bound by it. The grantee must take in conformity to that survey, and the island being included within the land surveyed, must pass by the deed;” and judgment was entered on the verdict.
In Conn. v. Penn., (1 Peters Circuit Court Rep., 511,) Mr. Justice Washington says: “ Ho gentleman of the profession, who is
The principle to be extracted from these cases is this : that the lines actually intended by the parties, if they can be ascertained, are to control. The rules adopted in the construction of boundaries, are those which will best enable the Courts to ascertain the intention of the parties. Thus, preference is given to monuments, because they are least liable to mistake, and the degree of importance given to natural or artificial monuments, courses, and distances, is just in proportion to the liability of parties to err in reference to them. But they do not occupy an inflexible position in regard to each other. To hold otherwise, would be to give greater importance to the rule itself than to the reason of the rule. It may sometimes happen, in case of a clear mistake, an inferior means of location will control a higher. In Davis v. Rainsford, (17 Mass.,) it was held that, if on taking the whole description together, it would be more reasonable to suppose a mistake was made in the monuments referred to than in the measurement of the distance, where the two disagree, the measurement should govern instead of the monuments; and in that case a diagram or plot of the land was allowed to control the designation of the monuments. “ To this admeasurement,” says the Court, “ we are bound to adhere in order to effectuate the intention of the contending parties.”
In Norwood v. Byrd, (1 Richardson, 185,) it was held that, when on the face of a deed the intention to convey a particular tract of land is clear, but the description of metes and bounds is
In Falwood v. Graham, (Ib., 497,) the Court say: “ The defendant’s counsel is wrong in supposing that there is any difference in the rules of location, as laid down and enforced in the older or more recent cases. They all maintain that, in locating lands, we are to resort: first, to natural boundaries; second, to artificial marks; third, to adjacent boundaries; fourth, to courses and distances; but it has never been said that each of these occupied an inflexible position. It sometimes might occur that an inferior means of location might control a higher, when it was plain there was a mistake. As, where a tract of land is represented as lying on one great stream, and the artificial marks or other circumstances show that it lies upon another.”
Now, apply this principle to the construction of Sutter’s grant, and the difficulty which seems so insuperable to defendants’ counsel of including New Helvetia in the face of the boundaries specified, disappears. Besides, it may be well doubted whether Sutter’s establishment, at the period when the grant was issued, was not a more conspicuous object of attention, and better known, than the position of the mountains, or the course of the rivers designated. “In the construction of a grant,” says Hilliard, “the Court will take into view the attendant circumstances, the situation of the parties, the state of the country, and of the thing granted. So, if the terms of a deed are doubtful as to the boundaries.”
In 1841, all Northern California was an unexplored region, its geography little know.n, and it was occupied almost exclusively by tribes of roving Indians. Sutter was the first white man who made a settlement in the Valley of the Sacramento. To give to mountains and streams, whose relative position to each other was imperfectly understood, the importance in determining the location of the grant as would be given if the grant were issued at this period, would be to adopt a rule of construction subversive of the plainest principles of justice.
And on this subject, and the construction of grants in California, the observations of Mr. Justice Grier, of the Supreme Court, in the case of the United States v. Sutherland, (19 Howard, 364,) are eminently just and pertinent: “In construing grants of land in California,” says the Justice, “ made under the Spanish or Mexican authorities, we must take into view the state of the country, and the policy of the government. The population of California, before its transfer to the United States, was very sparse, consisting chiefly of a few military posts and some inconsiderable villages. The millions of acres of land around them, with the exception of a mission or a rancho on some favored
Having disposed of the two principal questions raised by the record, wo proceed to consider the other errors assigned by the appellants to the ruling of the Court below, viz.: first, in its instruction to the jury; second, in its refusal to admit evidence ot abandonment of the premises by the plaintiff or his grantor; third, in its refusal to give the first instruction asked by the defendants; and, fourth, in its rejection of the tax-deed. The instruction given by the Court is as follows: “ If you believe, from the evidence, that the lots in controversy are embraced within the
The last clause qualifies the language of the preceding clause, which would otherwise have been liable to the objection urged by the defendants. Both clauses being taken together, the instruction is, that the land must be within the grant as explained by the map, and not merely within the boundaries of the map.
The plaintiff having proved title in his grantor, and afterwards in himself, there could be no abandonment by either, and the Court properly excluded all evidence on the point. The doctrine of abandonment only applies where there has been a mere naked possession without title. The right of the occupant originating in mere possession, may, as -a matter of course, be lost by abandonment. Where there is title, to preserve it there need be no continuance of possession, and the abandonment of the latter can not affect the rights held by virtue of the former.
The first instruction to the jury asked by the defendants, and refused, was as follows : “ If you find that plaintiff, or his grantors, or some of them, stood by and saw defendants making-valuable improvements, and did not interfere, nor give any notice of an adverse claim to the lots, then you are entitled to find for the defendants.”
The principle contended for by this instruction is, that silence on the part of the owner of premises as to his title may be urged by a trespasser, who is erecting valuable improvements upon them, as an estoppel against the assertion of the legal right of such owner. This would be extending the doctrine of equitable estoppel beyond all the precedents. That doctrine is based upon very different principles, and applies to very different cases, from the one at bar. It arises where one is directly influenced to his own injury, by the acts, declarations, or silence of another, in relation to the title of property, and is applied to protect against fraud on the one hand, and injury on the other. Silence becomes fraudulent only when the facts respecting the title are in the possession of one, and not of the other, and can not be easily ascertained, and they are concealed with a view of misleading—not where the facts are notorious, or can be easily ascertained, as by reference to the recorder’s office. There is no reported case which we can find whore silence could be urged as an estoppel by one acquainted with his own rights, or who had the means of ascertaining them. (Alexander v. Kerr, 2 Rawle, 90; Crest v. Jack, 3 Watts, 239; Carr v. Wallace, 7 Watts, 400; Robinson v. Jastin, 2 Penn., 22.)
The defendant, Krause, offered in evidence a tax-deed of a portion of one of the lots in suit, which was rejected by the Court. It was executed to one Madden, by the sheriff, upon a sale for taxes for the year 1853, but is not under seal. The deed contains, in its recitals, an extract from the assessment-book, from which it appears that the property was not assessed either to the owner, occupant, or unknown owners; nor is its valuation stated, nor the amount of the State or county tax.
By the doctrine of the common law, the party claiming under a tax-deed must show that all the requirements of the law, from the first to the last, have been complied with. The officers of the government, from the assessment of the tax to the execution of the deed, are acting under a special power conferred by the law, and, as in every case of the exercise of 'a special power, they must keep clearly within the limits of their authority, or there will be no validity to their acts. That rule of the common law has been changed, by statute, in this State. Here, the deed itself is prima facie evidence of the conveyance of all the right, title, and interest, owned by the delinquent at the time of sale. The effect of this is to give to the deed itself the presumption that all the requirements of the law have been complied with, by which the title could vest, and to shift the burden of proof from the party who claims under the deed to the party who attacks it. The clause of the statute does not, however, dispense with the necessity of the officer reciting in the deed the authority under which he executes it. It has no validity, as an independent conveyance. Its effect in the transfer of property arises from the power conferred by the statute, and a strict compliance with its conditions; and the deed must bear on its face a reference to that power. If, in reciting the authority for the sale upon which the deed is given, it appears that some material requisition of the law has been omitted, the deed is void. In the present case, the recitals show that the property was not
If no valuation was placed by the assessor upon the property, none could be placed upon it by the board of equalization. The board may alter the valuation in order to equalize it, but can not place the valuation in the first instance. That is the duty of the assessor. In consequence of the neglect of the assessor, the duplicate would reach the officer without any valuation placed upon the property, and of course no authority would exist in him to levy upon and sell the property. We do not notice the want of a seal to the deed, because its absence has not been alluded to by counsel, and it is probably an omission of the copyist.
Judgment affirmed.
On an application for an extension of time to file a petition for a re-hearing, Field, J., delivered the opinion of the Court— Baldwin, J., concurring.
This is an application for an extension of the time to file a petition for a re-hearing. The application is based upon the affidavit of Mr. Weeks, that he has just been retained as counsel in the cases, and is unable to present the petition within the time prescribed by the rules of the Court. There is nothing in the reason assigned which entitles the defendants to any extension. These cases were submitted more than a year since, and elaborate written arguments were subsequently filed by the original counsel of the respective parties. They have been the subject of long and mature consideration by the Court. The questions involved in them are not new; they have been the subject of discussion with the profession for the last seven years5 they have attracted the attention of the ablest jurists of the State, and been placed before the Court, in every possible view, and it would be no disparagement to the learning and ability of the counsel to say that we think it highly improbable that he could throw sufficient new light upon the questions to induce us to change our deliberate judgment.
The counsel of the plaintiffs, and one of the counsel of the defendants, have repeatedly called the attention of the Court to the cases, and invoked a decision. The cases were placed on the calendar for the present term, like all other eases previously submitted, to be argued only in the event they were not decided before they were reached, and, like a great number similarly situ
Application denied.
See note D.
See notes A and B.
In the case of Charles Covillaud et al. v. The United States, before the Board of Land Commissioners, in which Covillaud et al. claimed under the grant to John A. Sutter, the deposition of Governor Juan B. Alvarado was taken. In his deposition, Alvarado states that, when he made the grant to Sutter, he compared it with the map which accompanied Sutter’s petition; that Sutter was present, and gave him the points, and showed him. the degrees of latitude; that he (Alvarado) did not precisely understand the latitude, but he put the degrees of latitude in the grant as they were marked on the map.
See note C.
See note D.