113 Cal. 247 | Cal. | 1896
Lead Opinion
The plaintiff entered into two several contracts with the defendant’s intestate August 18,1887, for the sale to the latter of two designated sections of land in the county of Los Angeles. The land described in the* agreements was claimed by the plaintiff as a portion of a grant to it by the United States by virtue of the act of March 3, 1871. At the date of the agreements no patent had been issued therefor, and each of the agreements contained the following covenant:
“In case it be finally determined that patent shall not issue to said party of the first part for all or any of the tracts herein described, it will upon demand repay (without interest) to the party of the second part all moneys that may have been paid to it by him on account of any such tract as it shall fail to procure patent for.”
The defendant’s intestate paid to the plaintiff twenty per cent of the purchase money, with one year’s interest upon the remainder, at the execution of the agreements, and by their terms was to pay the balance of the purchase money, with interest thereon at the rate of ten per cent per annum, on or before August 18, 1892. No
The judgment and order are affirmed.
Garoutte, J., Temple, J., and Henshaw, J., concurred.
Dissenting Opinion
I dissent. The contracts sued on are in all respects similar to those involved in the case of Southern Pac. Co. v. Allen, 112 Cal. 445; and the material facts are the same as in that case,except as herein noted.
The case was submitted upon an agreed statement of facts, the substance of which was as follows: The plaintiff’s only claim to the land in question was under the act of Congress of March 3, 1871, granting lands to it for its branch line. The said lands lie within the limits of that grant, and also within the limits of the grant made by the act of Congress of July 27, 1866, to the Atlantic & Pacific Railroad Company, at the crossing of the lines of said railroads as definitely located. That the lands are unsurveyed, and no steps have been taken by plaintiff to obtain a patent for the same. “ That there is now pending, and was pending at the time that the case of United States v. Southern Pac. R. R. Co., 146 U. S. 570, was decided, a suit in the circuit court of the United States,” brought by the United States against the parties to this action for trespass on said lands, and to quiet the title thereto. That the defendant’s intestate took possession of said lands, but that defendant has exercised no acts of ownership over the same.
The court found that plaintiff never owned and never had any interest in the lands, and is not ready, willing, or able to perform the agreements in question, and never will be able to perform the same; and further found: “That it has been finally determined by the supreme court of the United States, and by the land department of the United States, that patent shall not issue from the United States to plaintiff” for any of the lands in •question.
We held in Southern Pac. Co. v. Allen, supra, that the plaintiff was entitled to recover in such an action, unless it had been “ finally determined” that a patent should not issue to plaintiff. The only question now to be determined, therefore, is, whether the finding of the
There is no evidence in the case othet than that contained in the agreed statement, and I fail to find in that statement any evidence of any determination, final or otherwise, that patent shall not issue to plaintiff. Counsel for respondent refers to the case of United States v. Southern Pac. R. R. Co., supra, in which case, they say, the supreme court of the United States decided that the Southern Pacific Eailroad Company has “no title of any kind ” to the lands within the overlapping limits of the two grants above referred to. It is not contended that the particular lands here in question were involved in the issues of that case; but counsel contend, under the authority of Bissell v. Spring Valley Tp., 124 U. S. 225, and other cases, that the judgment in that case concludes the plaintiff, by way of estoppel, from claiming title to any lands within those overlapping limits, and, therefore, amounts to a final determination that patent shall not issue to plaintiff for the lands in question.
The question thus raised is one of great delicacy. This court is, in effect, asked to say that the supreme court of the United States cannot reconsider its views on that question, but must, should the question of the title to these lands come before it, hold itself absolutely concluded by its former decision in a case involving entirely different lands. We should hesitate long before assuming thus to set bounds to the power of that court; but the exigencies of this case do not, in my judgment, require any decision of that question. Under these contracts, the defendant is bound to make the payments agreed upon, unless it has been “ finally determined” that a patent shall not issue. Whatever our views may be as to the effect of the decision referred to, it is at least possible that the supreme court of the United States may hold, when the question comes before it, that plaintiff is entitled to a patent for these lands. It is evident, then, that the decision is not a final determination of the question here involved. At the most,
But, if that were not so, still defendant cannot avail himself of that case; for there is no evidence in the record that any such judgment was ever rendered as would bind the plaintiff, even by way of estoppel. It is true that the agreed statement incidentally refers to a “ case reported in 146 United States Eeports, page 570,” but no facts are stated showing that the plaintiff was actually a party to that suit, .or what the issues therein were, or whether the court had any jurisdiction of the parties. Still less is it shown that the defendant here was a party or privy to that suit, or would be bound by the judgment therein. Such a loose incidental mention of a decision by an appellate court is not evidence on which a finding of estoppel by judgment should be predicated.
But counsel for respondent contend that the judgment in that case is an “ official act of the judicial department of the United States,” of which this court must take judicial notice, under subdivision 3 of section 1875 of the Code of Civil Procedure, and that the one hundred and forty-sixth volume of the reports of the supreme court of the United States is an “ appropriate book of reference” to which this court may resort for that purpose. If that be so, a great and hitherto unnoticed change in the rules of evidence has been wrought by the section referred to. According to that construction, a party relying on a judgment of any court of this state, or of the United States, may abstain entirely from producing the record, or, indeed, any evidence of such judgment, and may require the court to ascertain the fact for itself. But section 1905 of said code expressly requires such records to be proved by the production of the original or of a certified copy thereof; and, as that section is contained in the chapter of the code upon
It should be further noted that, if the defendant in this action was not a party to the suit in question (and there is no evidence that he was a party thereto), he would not be estopped by the judgment therein, and would be entitled, in the pending suit mentioned in the agreed statement,-to claim that a patent should issue to plaintiff for his benefit. In that event, it is certainly possible that such patent may yet be issued. Defendant is, therefore, not entitled to rely upon any supposed estoppel as between the United States and plaintiff. In any point of view, then, the finding in question is unsupported by evidence.
The finding that plaintiff never will be able to perform its agreement, for the reason that it has no title or interest in the lands in question, is also unsupported by the evidence. The question of plaintiff’s title, in a general sense, is wholly irrelevant. Plaintiff contracted to convey, not the title it had, nor a title to be pronounced good by a court, but such title as the United States should thereafter convey by its patent. The contract, by its terms, was to continue in force until it should be finally determined that patent should not issue. That determination can be made only by some competent tribunal of the United States; and it is not for any court of this state to say, in an action like the present, how that question will or should be determined.
McFarland, J., concurred.
