84 Cal. 143 | Cal. | 1890
Action in ejectment. Judgment for plaintiff, from which defendants appeal.
There are two controlling points in this case, upon each of wdiich we think the court below erred in its conclusion of law.
The material facts, as found by the court and conceded by counsel, are these:— ■
The land in controversy is a lot in the city of San José, found and conceded to be within the exterior boundaries of the lands finally confirmed and subsequently patented to said city as the successor of the pueblo of San José de Guadaloupe. The lot is fifty varas square, known as lot 3, in block 1, range 8,-and was granted by the alcalde of the pueblo, July 12, 1847, to Leo Norris, upon the express condition subsequent, stated in the grant, “that said Leo Norris will fence said lots with a redwood fence or erect a dwelling-house thereon on or before the expiration of twelve months from date.” On the 24th of May, 1882, Leo Norris made a deed purporting to convey the lot to William H. Norris, the present plaintiff. Neither the said Leo Norris, nor any one in his behalf or claiming under him, ever had the actual possession of said lot, or made any improvement thereon.
On the 27tli of October, 1857, one Warren, claiming to be the owner of the lot, conveyed the same to Ransom G. Moody, who immediately went into possession, and thereafter continued in the open, notorious, actual, exclusive, and adverse possession of the same, claiming title thereto in fee against all the world, and on the second
There is no dispute that there was an entire failure to perform the condition subsequent, upon which the grant to Leo Norris was made. The first question is, whether the breach of that condition subsequent of itself revested the title in the pueblo or its successor so as to enable it to pass title by a subsequent grant, without denouncement under the civil law, or office found under the common law.
Under the common law, it may be conceded, without argument, that the mere breach of the condition would not revest the title so as to authorize a subsequent grant without office found. But this grant to Norris was made under the civil law July 12, 1847. That civil law continued to be “the law of the case,” that is, the law governing this grant and its condition, until April 13, 1850, — the date of the adoption of the common law,— almost two years and nine months after the date of the grant, and one year and nine months after the breach of the condition was complete.
In the early history of this state, this court had occasion several times to consider this question of the necessity of denouncement, in order to revest title and authorize a reconveyance.
One of the cases in which that question was discussed was Vanderslice v. Hanks, 3 Cal. 27. That was a
In the subsequent case of Touchard v. Touchard, 5 Cal. 307, the court, in referring to the case of Vanderslice v. Hanks, gave as a further reason for the ruling in that case, that, by express decree of the Mexican government, denouncement was the mode of'taking advantage of the non-performance of subsequent conditions in cases of grants made by the government itself. But it further held that, as to grants made by municipal corporations, they must be construed in the same manner as those of natural persons, and that as a private natural person can grant lands upon conditions subsequent, and upon their non-performance resume the ownership, a municipal corporation can do the same.
But it is claimed by respondent, and was so held by the court below, in an opinion filed in the case, that Touchard v. Touchard has been overruled, and is no
And after some discussion of the civil law, it says:
Acting upon that principle of the civil law, the court proceeded to examine the case before it, and found that the lot in question had been granted in 1843 to one Bee; that he commenced in good faith to comply with the condition, — a condition usual to such grants, — that of building a house within one year; the breaking out of a revolution checked the progress of his building before it was completed; that all during the war, and even after the conquest, the lot was recognized as Bee’s lot; that in January, 1847, one Pell applied, to the new alcalde for a grant of the lot, representing it as vacant, and secured a grant,But he never went into possession, and his grant was subsequently lost without having ever been recorded; that in 1849 the holders of the Bee title went into possession, when Pell undertook the recovery by suit, but was unable to do so; that iii 1847 the alcalde found that he had been making mistakes in granting lots of which there were already outstanding grants, and he notified the parties in interest to appear and have their grants adjusted. Pell failed to appear, but Bee appeared and had possession redelivered to him. Under these circumstances the court held that Bee’s title had never been forfeited.
Under the course of procedure and rulings of the court in this case, we fail to see how it can be held that this decision, either in terms or legal effect, overruled the case of Touchard v. Touchard, 5 Cal. 307. And yet
Applying the principle thus plainly stated to whet is
There were three questions involved and necessary to be decided in Hart v. Burnett: 1. Was the city of San Francisco a pueblo or the successor to- a pueblo? 2. If yea, then was she possessed of a certain right or title, in lands, as such, within certain prescribed limits? 3. If both the other questions were answered in the affirmative, then were the lands in which she had such right or title by virtue of her character as a pueblo or the successor to a pueblo subject to seizure and sale under execution against the city ? In the unsettled condition of the law at that time, it was both natural and proper that the court should enter very fully into its reasons for the affirmative conclusion which it. reached upon-each of the two first of these questions, and the negative conclusion reached upon the last of them. The temptation was also naturally strong to enter into a general discussion of all the powers of a pueblo, or its successor, and it will be found upon examination that the court has occupied more than fifty pages in the discussion of .general powers and rights of a pueblo, which were entirety unnecessary to the determination of the question of the character of its right in lands, or of whether or not they were subject to seizure and sale under execution. This was especially so of its discussion of the question of denouncement and forfeiture. It was a discussion wholly foreign to the determination of the fact, that the lands held by the pueblo were held in trust, and were not, therefore, subject to seizure and sale under execution,—so foreign to it that anything which was said upon the subject is not entitled, according to the
But even according to Hart v. Burnett, 15 Cal. 599, the case of Holliday v. West, 6 Cal. 525, is authority for the proposition that formal denouncement was not necessary in case of forfeiture for non-performance of condition subsequent in an alcalde grant, and also for the proposition that, according to the civil law, the court was to view the facts of each particular case, and from those facts determine the right “ by those principles which every system would admit to be the immutable laws of right and wrong.”
In this case it is conceded that there was no attempt to perform the condition “subsequent; that there was neither civil war, insurrection, or anything else to prevent or excuse performance; that for nearly forty years the holder of this alcalde grant has remained silent, asserting no claim to the lot, and for thirty years of that time has seen others actually occupying the premises, improving them, building tenements upon them (for the place has long been occupied by tenants, which implies the existence of tenements), and he only now asserts a right after the property has been made and become of great value, and upon the assumption that the recent issue of a patent for the pueblo lands has given him a right of action to recover what in fact he had forfeited by the terms of his own title deed forty years before.
Under these circumstances, we have no hesitation in holding that, under the civil law, interpreted as the courts of the country under the civil law were accustomed to interpret it, he had forfeited all right to this lot before the adoption of the common law, and neither that adoption, nor any event that has occurred since, has restored to him any right in the premises.
This is decisive of this case; but there is one other ground upon which we are equally confident that the plaintiff ought not to recover. One of the defenses to
The final decree of confirmation of the lands of this pueblo was entered June 13, 1866, and in that decree the boundaries of the lands are fixed and established, definite and certain, by monuments and courses. Not even monuments were required to be established, or any course authorized to be varied, by any subsequent survey. From this fact (and there is nothing in the record to militate against this view) it would seem that this was a final confirmation and determination of the survey of those lands. And this conclusion would account for the ruling in San José v. Trimble, supra. Whether that be the reason for the ruling or not, if the decision in San José v. Trimble, supra, was correct, then this plaintiff’s right of action was barred by the statute of limitations, even as it stood before the adoption of the codes.
Under the codes, plaintiff’s right of action is clearly barred. The codes went into effect January 1, 1873. They do not contain, and never have contained, any provision such as that found in the former statute of limitations, giving to claimants under Spanish or Mexican grants five years after confirmation of either grant or survey, or after patent, in which to bring or maintain an action. If the statute of limitations never commenced to run against this plaintiff before, it did so commence to run when the codes went into effect, and had run more than twice over before the commencement of this action.
Sharpstein, J., concurred.
Thornton, J., concurring.—I concur in the judgment, on the ground that the cause of action is barred under the Code of Civil Procedure, which went into effect on the 1st of January, 1873.
Paterson, J., and McFarland, J., concurred in the judgment on the ground first discussed by Mr. Justice Fox.