Hart v. GouldHart v. Gould
Plaintiff sought a judgment declaring that a provision in the will of his father, William S. Hart, devising real property to the County of Los Angeles, is void; and declaring that the title to said property is vested in plaintiff as the sole heir. Defendants, County of Los Angeles and the coexecutors of the will of William S. Hart, answered the complaint and made a motion for judgment on the pleadings. The motion was granted, and the judgment was that plaintiff take nothing. Plaintiff appeals from the minute order granting the motion, and from the judgment.
It is alleged in the complaint as follows: William S. Hart died June 23, 1946. William S. Hart, Jr., is the sole heir of said decedent. The decedent owned various parcels of real property (particularly described) known as the Horseshoe Ranch. All of said parcels were acquired by decedent by virtue of conveyances from various grantors (named in the complaint), whose titles were derived by mesne conveyances from the original owner of said property, Antonio del Valle. Said del Valle acquired said property, in addition to other contiguous real property, pursuant to a certain grant executed by Juan B. Alvarado, Provisional Governor of the Department of California (then part of the Republic of Mexico), which deed is dated January 22, 1839, copy of which is attached to and made a part of the complaint. Said conveyance was executed by virtue of authority of a decree of the Constituent Assembly of the Republic of Mexico of August 18, 1824, a translation of which appears in a certain volume designated “United States Congress, Thirty-first Congress, First Session, House of Representatives Executive Document # 17, California and New Mexico ...” published in 1850, containing said decree, in Document 17, Appendix 4, Report of H. W. Halleck, Monterey, March 1, 1849, as Secretary of State of the Territory of California, a copy of which (decree) is- attached to the complaint. Antonio del Valle held said title until his death. On February 2, 1848, certain real property, as well as all other property comprising what is now the State of California, was ceded by the Republic of Mexico to the United States pursuant to the Treaty of Guadalupe Hidalgo, which was signed February 2, 1848, ratified at Queretaro May 30, 1848, and proclaimed by Executive Procla
It was further alleged in paragraph X of said complaint that said deed, upon which patent was thereafter issued, provides that said real property “cannot be devised for any mortmain purpose whatsoever, and that it cannot be devised except to living persons, and not for charitable, religious, educational, eleemosynary or public purposes”; that in spite of the said restriction which forbids the use of the property for mortmain purposes, the decedent, William S. Hart, purported to execute a will in violation of said provisions; a copy of the will is attached to the complaint and made a part thereof; the will was admitted to probate on July 26, 1946, and the proceedings for probate of the will are not final because a petition for revocation thereof is pending; by reason of the failure of decedent to effectively dispose of said property by will, plaintiff is entitled to the property regardless of the pending petition for revocation; the period for filing claims against the estate has expired, there are ample funds in the estate to pay all debts and charges against the estate, and therefore plaintiff is entitled to immediate possession of the property.
It was further alleged in paragraph XI of said complaint “that a controversy has arisen between the executors of said Estate [will], William R. McKay and Thomas 0. Gould, and
The grant or deed from Governor Alvarado to Antonio del Valle, a copy of which is attached to the complaint, provides in part: “Neither the grantee nor his heirs shall divide or transfer that which is adjudicated to him, or impose upon it ground rents, entailment, surety, mortgage or any other encumbrances even for a pious cause or transfer it in mortmain. ’ ’
The will of William S. Hart, a copy of which is attached to the complaint, states that he gives and devises said real property to the County of Los Angeles upon condition that the property shall be forever used and maintained by the county and its successors in interest as a public park, and that the name of the park shall be “William S. Hart Park.”
In the answer of the county, it is alleged that by mesne conveyances of title, set forth in the complaint, and upon the confirmatory patent, as set forth in the complaint, the fee title to the property was vested in William S. Hart and he had full power and legal right to transfer said property by will to the county. The county denied that any restriction upon the power of alienation of the property was validly imposed by the Mexican grant or by any other means.
The coexecutors admitted, in their answer, the allegations of the complaint with reference to: the grant or deed from Governor Alvarado to Antonio del Valle; and the issuance of a confirmatory patent, to the named heirs of del Valle, by the United States. It was also alleged in their answer that the contest to revoke the probate of the will resulted in a judgment against the contestant, and that said judgment is final.
■ Mortmain means: “Literally, dead hand; hence, the hand or possession of ecclesiastical corporations, ecclesiastics being in the early law deemed civilly dead; later, the possession of, or tenure by, any corporation which, by reason of the nature of corporations, may be perpetual.” (Webster’s Diet., Unabridged.) The. definition of mortmain in the New Century Dictionary is: “In
law,
the condition of lands or tenements held without right of alienation, as by an ecclesiastical cor
Appellant contends that said provision in the Mexican grant that neither the grantee nor his heirs shall transfer the property in mortmain prohibits the transfer of the property to the county for park purposes, and that the provision in the will so devising the property is void. He argues that the restriction against transfer in mortmain was valid under Mexican law; that the change of sovereignty did not destroy the application of Mexican law to real property in California or affect existing titles; that under the Treaty of Guadalupe Hidalgo, in 1848 (about nine years after the grant to del Valle) between the United States and the Republic of Mexico, the United States agreed that land titles of Mexicans in the ceded territory shall be inviolably respected.
Respondents contend that the mortmain restriction in said grant is ineffectual. They argue that the mortmain restriction in the grant is merely a condition subsequent, restricting alienation and is repugnant to the interest created by the grant; the restriction is void under the provisions of section 711 of the Civil Code which provides that, “Conditions restricting alienation, when repugnant to the interest created, are void”; that following the Treaty of Guadalupe Hidalgo, the enjoyment of any title previously acquired should be determined by the laws of the United States, and any condition imposed upon the title by the laws of Mexico inconsistent with the laws of the United States or its public policy was annulled by the conquest of California in the war with Mexico; California does not have a mortmain statute or a policy favoring mortmain statutes; the alleged prohibition of transfer in the Mexican grant is superseded by the cession of said property to the United States and by the patent of the United States to the heirs of the grantee (del Valle) in
The provision in the Mexican grant of 1839 to del Valle was a condition subsequent. A condition subsequent is: “A condition by the failure or nonperformance of which an estate already vested may be defeated.” (Ballentine’s Law Diet.) Section 707 of the Civil Code provides : “The time when the enjoyment of property is to begin or end may be determined by computation, or be made to depend on events. In the latter case, the enjoyment is said to be upon condition.” Section 708 of said code provides: “Conditions are precedent or subsequent. The former fix the beginning, the latter the ending, of the right. ” It is not claimed that there was any breach of the condition subsequent until more than 100 years after the Mexican grant was made to del Valle. If there had been a breach of condition, prior to the conquest of California by the United States, then a proper party might have maintained, under the Mexican law, some form of action based upon failure to observe the mortmain provision. Under the treaty, the United States was obligated to respect and protect the land titles of Mexicans who then owned land in the conquered territory. There is no question here with reference to respecting or protecting such a title. The titles of del Valle and his heirs were upheld by the United States, as shown by the confirmatory decree of the Board of Land Commissioners. Any question as to the title to property, acquired prior to the conquest, is to be determined by reference to the Mexican law at the time the property was acquired. Any question, however, as to restraint or restrictions upon the use of property, acquired prior to the conquest, is to be determined according to American law. There is no provision in the treaty that the United States would continue restrictions on the use of property owned by Méxicans prior to the conquest, or that the United States would preserve for Mexico or any citizen of Mexico the right of forfeiture or any remedy based upon the mortmain provision. The mortmain provision, or condition subsequent, restrains alienation and is repugnant to the fee granted. The purpose of that provision or condition was to prohibit the doing of a certain act—the transfer in mortmain. Séetión 711 of the Civil Code, enacted in 1872 and in effect since that
In
Fremont
v.
United States,
1 ‘ California was at that time in possession of the American forces, and held by the United States as a conquered country, subject to the authority of the American government. The Mexican municipal laws, which were then administered, were administered under the authority of the United States, and might be repealed or abrogated at their pleasure; and any Mexican law inconsistent with the rights of the United States or its public policy, or with the rights of its citizens, were annulled by the conquest. Now, there is nó principle of public law which prohibits a citizen of a conquering country from purchasing property, real or personal, in the territory thus acquired and held; nor is there anything in the principles of our government, in its policy or its laws, which forbids it. The Mexican government, if it had regained the power, and it had been its policy to prevent the alienation of real estate, might have treated the sale by Alvarado as a violation of its laws; but it becomes a very different question when the American government is called on to execute the Mexican law. And it can hardly be maintained that an American citizen who makes a contract or purchases property under such circumstances, can be punished in a court of the United States with the penalty of forfeiture, when there is no law of Congress to inflict it. The purchase was perfectly consistent with the rights and duties of Colonel Fremont, as an American officer and an American citizen; and the country in which he made the purchase was, at the time, subject to the authority and dominion of the United States.”
The restriction as to the use of the property herein, imposed by the Mexican grant, is inconsistent with American law and public policy. The mortmain provision in the Mexican grant is superseded by the cession of the property by Mexico to the United States, and by the patent of the United States to the heirs of the grantee (del Valle) in the Mexican grant. The mortmain provision in the grant is void under section 711 of the Civil Code.
The minute order and the judgment are affirmed.
Shinn, P. J., and Vallée, J., concurred.
. Appellant’s petition for a hearing by the Supreme Court was denied September 15, 1953.