7 Cal. 527 | Cal. | 1857
after stating the facts as above, delivered the opinion of the Court on the first hearing of this cause—HeydenEEiiDT, J., and Terry, J., concurring.
We shall not take up the arguments of the counsel in the
The finding of the Court below, that Manuel Nieto, the ancestor of the plaintiffs, entered into possession by virtue of a permission, or license, from the Spanish Government, to graze his cattle thereon, and not under a deed, or grant, is undoubtedly correct, if drawn alone, from the parol evidence adduced to rebut the presumption of a grant which would arise from his ancient possession and occupation; for the presumption of a grant arising from these circumstances, like any other presumption, may be rebutted by proof.
The finding of the Court, however, in the present case, as we think, was against the legal effect of the decree of July 27,1833, which expressly recites that the land in question had been granted to Nieto, and that he, the Governor, had seen the proceedings wherein was contained the grant of said land by his Excellency Governor Pedro Pages.
Admitting, for the sake of the argument, Nieto never had any title to land in dispute, except a mere permission to occupy, in other words, that he was a mere tenant-at-will of the Spanish crown, still it cannot be denied, that even if the fee was in the government of Mexico, at the date of this decree, she would be estopped from denying the title of Manuel Nieto and his heirs. In other words, whether the land belonged to Mexico, or not, Figueroa, as the political chief of the territory, had the authority to bind the government by his acts or admissions in relation to the public lands, and having, in a solemn decree, declared the title of said lands was originally in Manuel Nieto, the government was estopped from denying such admission, or re-granting the premises to another. When this decree, which is the foundation of the subsequent grant, is examined in connection with the petition of Grijalba, and the grant to Josefa Cota, all doubt upon the subject is at once relieved.
The petition has already been set out, and states, in substance, what is published in the decree, viz.: that Manuel Nieto held the land in question by a grant which had been lost. The deed recites :
“ That whereas, Josefa Cota, wife of Don Antonio Maria Nieto, has shown that she is entitled to the estate of the deceased, Manuel Nieto, and, taking into consideration the ancient and peaceable possession which she has had of the place,” etc.
How had Josefa Cota shown herself entitled to the estate of her husband? Certainly in no other way than by the petition of Grijalba, and if entitled to the estate, what was her interest ? Simply such as might arise by reason of her position, as the natural and legal guardian of her children, the infant heirs of Manuel Nieto, deceased.
The deed goes on, and recites that it is made in conformity
The argument that the document through which the plaintiffs claim is not a grant, but a simple recognition of title, is strengthened by the fact that different words are employed in it from those ordinarily used. The depositions of C. E. Carr, Clerk of the United States District Court for the Southern District of California, and Capt. H. W. Halleck, both of thorn have been officially connected with the ancient records of California, and have examined them, show that the word concedér, to grant, was technical, and that the word declarar, to declare, had probably never been used except in the single case of the Nieto grants; and that these grants ordinarily contained the provision of subjection to the approval of the Assembly.
It is contended that the fact that the deed to Josefa Cota contains conditions, the non-compliance with which subjects the land to forfeiture and denouncement, is an argument going to show that the Governor believed he was making a new grant, instead of declaring the title to be in the heirs of Nieto, by a prior one; otherwise, these words would not have been inserted, as he had no power to annex conditions to a previous perfect title. The answer to this is, that the deed, as before said, was made in conformity with the decree, and as the title was admitted to be in Nieto, the conditions were of no effect, and ought not properly to have been inserted in the document.
This view of the legal effect of the grant by Figueroa to Josefa Cota, would be conclusive upon the rights of the parties, were it not for a fact in the record upon which there appears to be no finding of the Court, and which seems not to have entered into consideration in the decision of the case below; that is, that the sale to Carpenter, the grantor of the defendants, was made in pursuance of a decree of the Court of First Instance of Los Angeles, and that the Judge of said Court made said order of sale in conformity with the direction, in writing, of Micheltorena, at that time Governor of California, vested with plenary powers. It is in evidence that these orders were based upon the representation of Josefa Cota, the natural guardian of the infant heirs, and that the land was sold and the proceeds applied to their maintenance and support.
Now, whether the Court of First Instance had the inherent power to order a sale in such cases or not, is a matter of little consequence, inasmuch as the proceeding was authorized by the Governor, who was vested with all power, and whose acts the law presumes to have been done correctly.
On the re-hearing at this Term, Murray, C. J., delivered the opinion of the Court—Terry, J., concurring.
In the previous opinion of this Court, the judgment of the District Court was affirmed, not upon the view taken of the case by the Court below, but on the ground that the sale of the property in question by Josefa Cota was authorized by the Governor of the Territory and a Judge of the First Instance.
Upon a petition for a re-hearing, our attention has been called to the fact that the defence on which our opinion was predicated, was abandoned in the Court below. Under these circumstances, the judgment must be reversed ; and as it appears from the record, that the defendant may have a defence to the action on the ground assumed by this Court as the basis of its former decision, a new trial is ordered.