25 Cal. 440 | Cal. | 1864
Lead Opinion
This action was brought to recover a tract of land which, it is claimed, formed a part of the Jimeno Rancho. The defendants claim that the premises in controversy are included within
The Jimeno Rancho was granted to Manuel Jimeno in 1844, and consisted of eleven Spanish leagues of land, (the diseño containing a much larger tract,) and is bounded on the east by the Sacramento River. The Colus Rancho was granted to John Bidwell in 1845, and is a grant of two Spanish leagues within a larger area, the whole tract being bounded by the Sacramento River on the east, and the larger portion of it being included within the Jimeno Rancho. Larkin and Missroon purchased from Jimeno.
The defendants offered in evidence a power of attorney executed by Missroon to Larkin, authorizing him to sell lands, etc., which was acknowledged before a Master in Chancery, in the State of New Jersey, who certified, among other things, that he was “ satisfied” that Missroon and wife were the grantors named in the deed, but not that they were known or proved to him to be such. No proof was offered of the execution of the power, except what was afforded by the certificate of acknowledgment.
The plaintiff objected to its introduction as evidence, on the ground that it was neither proven nor properly acknowledged. A Master in Chancery is not one of the officers authorized by law to take the acknowledgment of deeds, out of this State, and within any other State; and the certificate, by whomsoever made, must state that the maker of the instrument was known to him, or proven to him to be the person who executed the instrument. If he is “ satisfied,” he must state how, whether by personal knowledge, or by the sworn testimony of a credible witness, whose name is inserted in the certificate. The power of attorney should not have been admitted without proof of its execution.
On the 23d of September, 1851, Larkin and Missroon, by Larkin (who professed to act by virtue of the power of attorney just mentioned,) executed to Seawell and Hastings a deed
On the 22d of April, 1852, Missroon conveyed to Coghill all his right, title, and interest in the one undivided half of,nine Spanish leagues of land, “ commencing two Spanish leagues below or southerly from the tract of land on said river known as the rancho of Larkin’s children; thence running with said river southerly nine Spanish leagues, and one Spanish league back or westjvardly from said river, being part of a tract on said river known as the Jimeno grant,” excepting therefrom one thousand two hundred acres conveyed to Belden; and on the 23d of July, 1852, Larkin conveyed to Whitcomb all his estate, right, title, etc., in and to an undivided half of nine Sjoanish leagues of land, “ commencing at a point on the said river, two Spanish leagues in length along the said river, below a point on the same made by the intersection with the river of the lower or southerly boundary line of a tract of land on said river known as the rancho of Larkin’s children; thence running southerly (its eastern boundary for the whole length being the said river) nine Spanish leagues, more or less,” to the southern boundary of the Jimeno grant, and back from the river one league, more or less, the whole length of the tract conveyed. The one thousand two hundred acres conveyed to Belden was excepted. The grantor recites in his deed that he means and intends to convey all his right, etc., in and to the Jimeno grant, “ with the exception of a tract of two Spanish leagues in length along and with said river on the upper or northerly part of said Jimeno grant,” and with the exception of the Belden tract. The title that passed by the last two deeds to Coghill and Whitcomb subsequently vested in the plaintiff.
In July, 1856, Seawell and Todd conveyed to defendant Semple, all their interest, “ supposed to be two fifths of two thirds, in and to two leagues of land known as the Colus tract;” also whatever interest they had in the Jimeno tract. It does not appear that Todd had any interest, and the deed simply passed Seawell’s undivided third in the upper two leagues
The parties present the question, -whether the place of beginning in the deed from Larkin to Whitcomb, is to be ascertained by measuring two leagues in length from the southern boundary of Larkin’s children’s rancho, in a straight line, or following the meanderings of the river. If measured in a straight line, the excepted portion will be five eighths of a mile longer than if measured by the meandering line. The plaintiff insists upon the meandering line, and the defendants upon the straight line. It is the duty of the Court to give the deed the same construction that the parties gave it, at the time of its execution. The Court will place itself, as nearly as possible, in the position of the contracting parties, and their intent will be ascertained in the same manner as in the case of any other contract. If, when the Court has placed itself in that position, the intent of the parties is not apparent from the deed, it is to be sought by a resort to the rules of construction which give greater effect "to those things about which the law presumes- the parties are the least liable to mistake. But arbitrary rules of construction are not to be invoked, if the intention of the parties can be plainly discovered without their aid. At the date of the deed to Whitcomb, the southern line of the rancho of Larkin’s children does not appear to have been established, nor was the northern line of the Jimeno Rancho ; but the parties in this case assume in argument that the two lines coincided. Neither the Jimeno nor the Colus Rancho had then been surveyed. The Jimeno Rancho seems to have been considered by the parties as a
We can see nothing in the deed requiring a strict rule to be applied to the survey of the two leagues that does not as imperatively require the same rule in the survey of the nine leagues. The parties evidently did not contemplate a strict measurement, for after describing the premises conveyed they returned, as if for the purpose of a better description of the land to be conveyed, and say that the premises include all the Jimeno Rancho except a tract of two leagues in length along and with the river, on the upper part of the rancho. The excepted tract could not be two leagues in length, if the meanders of the river were required to be measured to find the length of the tract. Uor, on the other hand, would the tract conveyed, include the half of all the rancho besides the excepted portion, if surveyed as the plaintiff requires the upper two leagues to be measured, for the rancho exceeds eleven leagues in length. The situation of the land, the fact that it had not been surveyed, the absence of -abuttals except on one side, the uncertain location of an adjoining rancho, the low price of the land, the loose description of the land conveyed and the land excepted, and all the surrounding circumstances, seem to indicate that the parties did not contemplate an accurate measurement of the lines, or a measurement by the meanders of the river. The rule contended for by the plaintiff has
It. is apparent that the deed, when viewed by the light of surrounding circumstances, was intended as a conveyance of the undivided half of all the rancho except the upper or northern portion thereof, which was two leagues in length; and this construction leaves the strip of land five eighths of a mile in width, to the north of the plaintiff’s northern line.
A further point is raised in respect to the deed of Larkin to Whitcomb, the defendants contending that at its date Larkin did not hold any title in the Jimeno Rancho south of the upper two leagues, and within the Colus Rancho ; that Larkin, by his deed of 1851 to Seawell and Hastings, conveyed to them his
At that time, he had parted with his interest in that portion of the land, which was included within the Colus Rancho. The deed to Whitcomb was simply a conveyance of whatever interest Larkin then held in the land mentioned in the deed, but it did not purport to convey the land, nor any certain interest therein, nor any interest he might thereafter acquire. The warranty in the deed attached itself to the interest conveyed, and not to the land itself, the grantor warranting the title conveyed by him against any incumbrance, claim or demand made or suffered under or through him.
The deed itself would not estop Larkin from setting up an after acquired title, nor will a warranty of the character of the one before us, when annexed to a conveyance merely of the grantor’s present interest, cause the after acquired interest of the grantor to “ feed the estoppel,” and inure to the benefit of his grantee. In Gee v. Moore, 14 Cal. 472, a deed of the character of the one before us, and containing a covenant similar to the one in this case, was considered, and the Court held that the warranty was confined to the estate conveyed; and Mr. Chief Justice Field, in speaking of the deed, said: “ It purports to pass all the right, title and estate which the grantor possessed in the land, but does not operate upon interests subsequently acquired.” (Blanchard v. Brooks, 12 Pick. 47; Comstock v. Smith, 13 Pick. 116 ; Miller v. Ewing, 6 Cush. 34; Duchess of Kingston's Case, 2 Smith’s Leading Cases, and Notes.)
It results from the construction we have given to the several conveyances, that the title to no part of the northern two leagues of the Jimeno Rancho passed to plaintiff through those
The matters of greatest importance involved in this case, and which, perhaps, more than any other, it was desired by the parties should be decided on this appeal, are the questions arising out of the conflict between the boundaries of the two ranchos. Since the trial of this cause in the Court below, it is understood that the Supreme Court of the United States, in the case of The United States v. Sepulveda, and in other cases, have more fully and accurately defined the jurisdiction of the District Courts of the United States respecting the surveys of private land claims in this State; and if they have not modified their previous opinions, they have prescribed narrower limits to the power of the District Courts, under the Act of Congress of the 14th of June, 1860, than the bar of the State seem to have understood were fixed by that Act. This case was not presented in view of the law as declared by the more recent decisions of that Court. But be that as it may, the record is not in such form that we can properly pass upon the questions of conflict of boundaries, and settle the rights of the parties depending upon the priority of the segregation of the respective ranchos from the public lands. The plaintiff presented an approved survey and a patent of the Jimeno Rancho, and on the plat the lines of a tract of land, marked “ Colus Rancho,” are delineated. The defendants introduced a plat and the field notes of a survey of the Colus Rancho, approved by the United'States Surveyor-General and the Judge of the District Court. Three other surveys of the Colus Rancho were offered by the plaintiff, without any explanation as to the action taken upon them by the Surveyor-General or the United States District Court. In such a condition of the evidence in respect to the survey of the Colus Rancho, it is
We will proceed to notice further some of the errors assigned by the plaintiff. The deed from Frederick H. Larkin and Rachel Larkin to Jerome Lincoln was improperly admitted as evidence. There was no proof that Larkin made a will as mentioned in the deed, nor that he was 'dead, except that afforded by the Act of the Legislature, which denominates him “ Thomas 0. Larkin, deceased,” and we doubt the power of the Legislature to determine judicially that Larkin was dead, or that he made a will; or if dead, who were his executors, or any other fact that must be ascertained by the proper Court, in' order that proceedings to sell the real estate of any alleged.decedent may have any validity.
The Court erred in admitting in evidence that portion of the “ Spanish documents ” consisting of the grant of the Sal Si Puedes, and other ranchos, which were offered for the purpose of proving that the Mexican Government had granted to Jimeno more than eleven leagues, previous to the grant of the Jimeno Rancho. These matters might perhaps have been properly addressed to the Federal authorities, in the proceedings to confirm the Jimeno Rancho title, but the legality or effect of a patent issued by the United States cannot, in this manner, be called in question. And for the same reason the several conveyances by Jimeno, of those ranchos to Crockett, Davidson and others were inadmissible.
The questions arising upon the admission of certain other-deeds offered by the defendants, have been disposed of in considering the effect of the deeds already referred to.
The plaintiff also assigns for error the admission, as evidence, of-the confirmation, survey and decree of-confirmation thereof of the Coins Rancho, and of oral testimony respecting the quantity of land within the exterior lines of the Jimeno
Judgment reversed and cause remanded for a new trial.
Mr. Chief Justice Sanderson expressed no opinion. .
Rehearing
A rehearing was granted upon the petitions of both parties, and with the expectation, on our part, that on a re-argument of this complicated case, much additional light would be shed upon several points that, in the present state of the record, are quite obscure, but the cause has been resubmitted upon the former briefs and the petitions for rehearing. We shall, therefore, not pass upon any of those questions which, in our former opinion, we declined to consider, for reasons there stated; but will notice some of the points made in the petitions for rehearing.
The learned counsel for the appellant requests the Court “to fix with certainty the starting point in the deeds to Coghill and Whitcomb.” To do so would be to find a fact, and that is the province of the jury, not of the Court. We have attempted to give a construction to the deeds that will serve as a means—a rule—to the jury, by which, coupled with the evidence, they may find the beginning point of the land described in the Coghill and Whitcomb deeds. We frequently state a portion of the facts in a case, mot as finding them from the evidence, but to give application and point to our reasoning. If we mistake the facts or the evidence, it cannot by any possibility benefit or injure either party in a new trial of the action, for in that forum the parties must again produce their evidence and have the facts found, in the same manner as required at the first trial. If we had been of the opinion from
In regard to fixing the starting point, we have done only that which we are authorized by the power and jurisdiction of the Court to do; that is to say, to construe the deeds and to declare the law arising.upon our construction of them, and our decision thus given will govern the Court below and the jury, in ascertaining the bounds of the premises described in the deeds.
We adhere to the construction of the deeds we have given, holding that the two leagues in length should be measured in a straight line from the point where the southern line of the rancho of Larkin’s children intersects the Sacramento River. The position of the southern line of the rancho of Larkin’s children, like any other fact in the case, must be proven on the new trial, by competent evidence. Our opinion that it was or was not proven at the first trial, will not dispense with proper proof at the new trial. We must have been strangely unfortunate, in the selection and use of language to express our opinion, in construing the deed of Larkin to Whitcomb, if the learned counsel is justified in saying that “ it appears from the opinion that it was decided rather from the presumed or supposed intention of the parties to the deed, rather than
It will be a sufficient answer to the statement of counsel, made in connection with his remark just cited—that he drew the deed and used the language therein contained, to express the intention he now contends for—to say that he cites no authority, that permits the parties to a deed, to take the witness stand, and explain the meaning of the instrument they have executed.
If the language employed in describing the distance was the same as that used in the description of that portion of the land left out of, and excepted from the conveyance, there would be far more force in the appellant’s views of the proper construction. In describing the distance of the point of beginning, from the rancho of Larkin’s children, the words are: “ Two Spanish leagues in length along the said river;” and in respect to the excepted land the language is : “A tract of land two Spanish leagues in length along and with the said river.” A road may be said to run along a river that passes from point to point on the river, without following its meanders ; but the boundary of a tract of land extending along and with a river, would coincide with the meanders of the river. Parties intending to describe a course or distance, coinciding with the bank or thread of a river, could very readily, and naturally would use language like that employed by Mr. Green, the surveyor, in giving his testimony—“ the meanders of the river”—or words of similar import.
Counsel insist that the tract conveyed was not nine leagues in quantity, and the excepted portion two leagues in quantity— that is, leagues in area of land. We interpret the deeds in this respect as does the counsel for the appellant. The terms
Our attention is again called by the appellant to the deed of the 23d of September, 1851, executed to Seawell and Hastings by Larkin and Missroon—Larkin, professing to act for Missroon under the power of attorney, the execution of which was not proven. The appellant objected to the deed as void for uncertainty, and now holds that if not void, it left in Larkin and Missroon one undivided third of the tract, out of which they professed to convey the undivided two thirds. We were inclined to the opinion that if Larkin had not, in fact, power to execute the conveyance for Missroon, the conveyance purporting to be for the undivided two thirds of the premises, was sufficient to convey the undivided half then held by Larkin, but we did not think the case required an examination and decision of that point, it appearing that whatever interest passed by that conveyance was conveyed to Larkin by Seawell and Hastings in eighteen hundred and fifty-six, subsequent to Larkin’s deed of his interest to Whitcomb. Counsel have failed to point out an important discrepancy between the description of the premises in the two deeds. In our previous examination of the record, we had the impression that the description of the premises conveyed by Larkin and Missroon
The learned counsel for the respondents earnestly urges us to affirm the judgment, for the reason that the evidence shows, as he says, that the defendants’ possessions were not included within the lands described in the appellant’s deeds. We have remarked that we do not agree with him in holding that those deeds convey nine Spanish leagues in quantity. It is the
If the proof by the witnesses was, as the respondents assert, that they were all, except Roberts, above what they call the dividing line between the upper two and lower nine leagues, it might not necessarily follow that they were entitled to a verdict, for they admit that they were in possession of the “premises in controversy,” which, according to the pleadings, are the premises described in the complaint, and which we understand to extend south of the said dividing line.
No appeal was taken from the judgment against defendant Amos Roberts, and that judgment is not before us for review.
The judgment entered May 14, 1863, is reversed and the cause remanded. V