1 Cal. 254 | Cal. | 1850
Lead Opinion
By the Court,
On the first argument of this cause my impressions were strong, that the plaintiffs ought not to recover, and, if it had been qn ordinary case, I should have had no hesitation in so deciding at once. I was not entirely satisfied, however, but that, on a re-argument, additional authorities might be adduced, which would leave the case without doubt in the minds both of myself and my associates. I felt, also, in common with the chief justice, that there was a possibility that I might have been led into error. I thought, therefore, that the case was a proper one for re-argument, and that, the attention of counsel should he called to the particular points concerning which some doubts were entertained by the court. I was the more inclined to this course, inasmuch as the cause was not argued before a full bench, and from the conviction that a decision, which must not only settle the rights of the immediate parties to this suit, blit which may determine great and important interests in all parts of the state, should receive the deliberation, ami, if possible, the sanction of all the members of the court. The re-argument was, accordingly, ordered, and
The cause was tried in the court of First Instance of San José, before a jury. The jury were unable to agree; and the parties stipulated that a verdict should be entered in favor of the defendants, saving to the plaintiffs the same rights which they would have had, in case the jury had actually rendered a verdict for the defendants. In strictness, this stipulation should be regarded in precisely the same light as a verdict, and should, in this court, be followed by the same legal results. I shall, in the first place, examine the case as I should be disposed to treat it, had it been tided and the stipulation entered into under the system of practice which exists at present, and, then, consider whether there are any circumstances which should be allowed to control what would otherwise be the legal effect of the stipulation.
The claim of the plaintiffs for the destruction of certain huts mentioned in the complaint, may be dismissed from consideration. The stipulation above mentioned, standing in the place of a verdict, and finding as it does, one cent damage in favor of the defendants, puts an end to that matter.
The defendants Charles Stewart and William II. Stewart are, also, easily disposed of. If it is intended to charge them with taking possession of one or more parcels of land distinct from the lot on which Hepburn entered, the claim against them should not have been included in the suit against him. If they are sought to be made joint possessors with Hepburn, the complaint is unsustained by proof. In either event, the judgment of the court of First Instance is correct, and should be affirmed with costs.
The important point, presented by the papers and argued at the bar, affects the defendant Hepburn alone. Before proceeding, however, to examine the claim of the plaintiffs against him, it is to be observed, in the outset, that no question can be made, whether the acts of Hepburn are sufficient to constitute posses
This is a possessory a'ction. It is based solely upon the ground that the plaintiffs were in possession of the land on which Hepburn entered at the time of bis entry, and not upon the ground that they held the property or dominion therein by a valid title. This is the proper construction to be given to the complaint, and this is the view taken by the counsel of both parties in their arguments and briefs.
As, in American law, a party, to maintain his ejectment, may rely on the strength of his title, or simply on prior actual possession, which, if his title does not appear to be defective, may enable him to sustain his action, so, under the Mexican system, a party may have his possessory action, in which the possession of the plaintiff and the disturbance thereof by tbe defendant may be the sole questions at issue between the parties, or be may have his petitory suit founded on the claim of an indisputable title. Under the latter system, possessory suits are either plenary, being such as are prosecuted and defended in the manner and with the formalities of ordinary judicial proceedings ; or summary, also termed interdicts, which are conducted without the solemnities of ordinary suits, are terminated within a short period, and either admit of no appeal, or only of an appeal without suspension of the execution of the judgment. (4 Feb. Mej. 271, sec. 1, Ed. 1834; Escriche Dic. de Leg. Art. “ Juicio Posesorio.”) Whether this suit belongs, technically, to one class or the other of civil law proceedings, whether it is to be deemed a possessory action under the Mexican law, or an action of ejectment as understood in tbe United States, and there seems to be a mixture of tbe forms of both species in the proceedings, can be a matter of but little moment. The result is the same. In any event the question, to be determined is one of possession.
The action on the part of the plaintiffs is joint, and all must recover, or neither can. It must, consequently, appear that, at the time of Hepburn’s entry, Suñol, Sansevaine and Naglee were jointly possessed of the lot in controversy. The deed from Suñol to Sansevaine and Naglee was executed on the fifteenth day of December, 1849, and thus, up to that time, the two latter had neither possession, nor right of possession, nor claim of title. If, previous to that date, either of the plaintiffs was in possession, it veas Suñol alone. The conveyance to Sansevaine and Naglee cannot carry back their possession, either severally, or jointly with Suñol, beyond the period when they derived their title under it, and any entry on the land prior to the fifteenth day of December could not have been an intrusion on tbe possession of Sansevaine and Naglee.
It thus becomes material to determine the precise date of Hepburn’s entry. The complaint charges it to have been on or about the twentieth day of November, 1849. The testimony, though not entirely clear on the point, one witness stating that as late as the fourteenth day of December, Hepburn had no house on the land, nevertheless pretty fully establishes the fact, that the defendant had taken possession as early as the day alleged in the complaint. The apparent discrepancy in the testimony is attempted to be explained on the ground, that Hepburn’s tent was, at first, pitched on the reserved space of twenty varas lying between tbe Alameda and tbe land claimed by tbe plaintiffs, and that he did not move within the bounds of the tract in question until after the conveyance to Sansevaine and Naglee. This, if so, does not negative the idea of his having
The possession, then, on which the defendant intruded was that of Suñol alone, and not the joint possession of Suñol, Sansevaine and Naglee, and they cannot maintain a joint action solely on the ground of prior possession. If the defendant is guilty of a wrongful detention of the premises after the acquisition of title by Sansevaine and Naglee, a suit for the recovery of them can be sustained only upon proof of title establishing the right of possession, and, perhaps, also, a demand, or some act equivalent thereto, -which shall put Hepburn in tbe position of a wrong-doer in respect to Sansevaine and Naglee equally with Suñol.
Perhaps I ought to leave the case here, without reviewing the other points made on the argument; but a consideration of the magnitude of the interests depending, immediately and remotely, on the result of this case, induces me to proceed in the investigation upon the assumption that Sansevaine and Naglee had received the conveyance to them before the entry of the defendant. In such event, the possession of either of the plaintiffs would have been the possession of all. The question then is, had they such a possession as will enable them to maintain this action.
The judicial possession may be laid entirely out of the case. It amounts to nothing. It is doubtful whether it was taken before Hepburn’s entry. It is not proved in tbe way that a judicial proceeding should be proved ; and, if it were, it does not appear to have been conducted with the formalities required by the Mexican law.
Indeed, the case of the plaintiffs is not rested on the ground of actual possession of this identical lot, or of any part of it. It is sought to be supported by the fact, that some small portions of the whole tract of two thousand acres and upwards, had, at different times, been cultivated by the plaintiff Sunol, and by tbe Indian Roberto, under whom he claims ; that one, or both of them, had a corral upon it, and some buildings ; and that these circumstances, and others of a similar character, give them, in contemplation of law, the possession of the whole tract described in the grant from the Mexican governor to Roberto. The question, then, is, whether an actual occupation of an inconsiderable portion of a large tract of land is such a possession of the unoccupied portions of the same tract, as will support a possessory action under Mexican law; and, if so, in what way is the possession of the unoccupied portions to be established.
In Mexican law, possession is the occupation of a corporeal thing. It is divided into possession in fact, (de hecho,) and possession in fact and by the will, (de hecho y de voluntad.) Possession in fact is nothing more than a simple holding or detention of a thing, which is under our control, without the intention of acquiring the thing for ourselves; such is the possession of a bailee, a tenant, and others, who possess a thing in the name of another, and not in their own. The possession in fact and by the will, is the holding of a thing with the intention of excluding all others from its use, or, as it is expressed in the Partidas,
The above rules respecting possession in Spanish and Mexican law do not differ materially from those of the French law. It is necessary, says Domat, to distinguish in the general idea which is formed from the word possession, a right and a fact; the right to possess, and the actual detention, which is a tact. (1 Domat, lib. 3. tit. 7.) Possession taken in a proper sense, is the detention of a thing, which he, who is master of it, or who has reason to believe that he is so, has in his own keeping, or in that of another person by whom he possesses. (Id. 469,
Argon, in his Institution an Droit Francais, (lib. 2, chap. 9—tom. 1, p. 221-8,) in treating of possession, says, that “ he “ who has the possession of a thing, although he may not be the “ true proprietor, has a great advantage over those who are not “ in possession. If he is molested in his possession, after “ having possessed for a year and a day, he has an action by “ which he is maintained in his possession. The possessor is “ not obliged to show the title to his possession, and when it is “ demanded of him by what title he holds, it is sufficient for “ him to say, I possess, because I do possess. Possession, “ purely natural, is a simple detention of the thing, without “ any intention to possess it in the quality of. proprietor. “ Civil possession is the detention of the thing, accompanied “ with the design of possessing in quality of proprietor. Al- “ though this possession cannot be acquired by the sole inten- “ tion of him who wishes to possess, without a real and actual “ possession, it can be retained by the intention alone of retain- “ ing it. Whilst I dwell in my house, if I go forth with the “ intention of returning, I retain the civil possession, &c. But “ from the moment when a man has been evicted by force and “ violence, he ceases to possess, but has an action, which he “ can institute within a year and a day, for being restored to “ the possession of which he has been deprived by force! Cocceji, in his commentary on Grotius, (lib. 2, cap. 3, sec. 11 —tom. 2,p. 154,) thus defines possession. Possession, he says, consists in detention, and, therefore, is a bodily act; and in the intention to possess ; one of these two failing, possession ceases, and therefore the intention alone is not sufficient.
It is laid down in the Institutes of Justinian, (lib. 4, tit. 15, sec. 5.) that a possession may be retained by the mere intention only; for, although a man is neither in possession himself, nor any other for him, but has quitted the possession of certain lands with an intent to return to them again, he shall, nevertheless, be deemed to continue in possession ; but that, although posses
But the clearest exposition of the doctrines of the civil law in relation to possession is to be found in the Louisiana code, which, in most, though, I apprehend, not in all particulars, is only declaratory of the principles of the civil law in those countries where it prevails. By that code, possession is defined to be the detention or enjoyment of a thing, which we hold or exercise by ourselves, or by another who keeps or exercises it in our name, {Art. 3389 ;) and, iii unison with the authorities above cited, it divides possession into two species, natural and civil. {Art. 3390.) Natural possession is that by which a man detains a thing corporeal, as by occupying a house, cultivating grounds, or retaining a moveable in possession. {Art. 3391.) Possession is civil, when a person ceases to reside in the house or on the land which he occupied, or to detain the moveable which he possesses, but without intending to abandon the possession. (Art. 3892.) Natural possession is also defined to be the corporeal ¿eféntion of a thing, which we possess as belonging to us, without any title to that possession, or with a title which is void. (Art. 3393.) Civil possession, on the contrary, is defined in this sense, as being the detention of a thing by virtue of a just title, and under the conviction of possessing as owner. (Art. 3394.) Possession implies a right and a fact; the right to enjoy annexed to the right of property, and the fact of the real detention of the thing, that is in the hands of the master or of another for him. (Art. 339T.) To be able to acquire possession of a property, two distinct things are requisite; 1. The intention of possessing as owner ; 2. The corporeal possession of the thing. (Art. 8399.) It is not necessary, however, that a person wishing to take possession of an estate, should pass over every part of it; it is sufficient, if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries. (Art. 3400.) When a person has once acquired possession of a thing by the corporeal detention of it. the intention which he has of possessing, suffices to preserve the possession in him,
From the authorities above cited it will be seen, that the Mexican law, adopting the principles of the Institutes and Pan-dects of Justinian in relation to possession, does not differ materially from the laws of France and Louisiana, which have also derived their doctrines on this subject from the same original source- Neither does it differ essentially from the common law rjiles concerning possession. The natural possession, the actual and real possession, the possession in fact, spoken of in the authorities cited, appear to be but other names for what is termed in the common law, actual possession; and the civil possession, the possession bv the mind or intention or will, appear to be but different forms of expression for the constructive possession of the common law—that is, a possession, not actual and corporeal, and readily manifest to all people, but one which is to be made out through a deduction of title and by a process of reasoning. It must, however, be observed, that the lines and colors of the different species of possession, whether in the civil or the common law, so intermingle and blend together, according to the infinite variety of circumstances, that it is quite impossible to frame any general rule or precise definition by which the character of each successive case, as it arises, can be readily and accurately determined. But I think that the possession of the plaintiffs, as claimed by them in this case, partakes rather of the nature of civil than of corporeal possession, under*the definitions of Mexican law, and of constructive rather than of
Having thus seen the general characteristics of the different kinds of possession, let us next direct our attention to the inquiry, as to what is the kind of possession and the nature of the int rusion, ■which will enable a party to maintain a possessory action.
By the Louisiana Code of Practice, {Art. 49,) it is declared that a person, to be entitled to bring a possessory action, should have had the real and actual possession of the property, at the instant when the disturbance occurred; a mere civil or legal possession is not sufficient.
The Institutes of Justinian, (lib. 4, tit. 15, see. 4,) treating of proceedings concerning contested possession, declare that, in any cause, either concerning things moveable or immoveable, that party prevails, who was in possession at the commencement of the suit, if it be not shown that he gained such possession by force, by clandestine means, or precariously. Again, it is said, (id. ibid. sec. 6,) that the interdict for the recovery of possession, is generally employed, when any one hath been ousted by force from the possession of his house or estate; who then becomes entitled*to the interdict Unde vi, by which the intruder is compelled to restore him possession, although he, who had been thus forcibly ousted, was himself in possession by clandestine means, by force, or precariously.
The possessory action of the Mexican law seems to be subject, in some cases at least, to the same rules. It is brought to recover possession of immoveable property, of which one has been despoiled {despojado) by another. The word despoil {des-pojar) involves, in its signification, violence or clandestine means, by which one is deprived of that which he possesses. (Escriche, Dic. de Leg. Arts. “Despojo;" “ Despojar;" "Interdicto de recobrar la posesion ;” 4 Feb. Mej. p. 273, 274, sec. 8
In the Louisiana Code it is laid down, that a possessory action may be sustained where the eviction was by “ force or otherwise;” but in Meeker v. Williamson, (4 Martin, Rep. 626,) decided in 1817 and before the adoption of the code, the court uses the following language: “The plaintiff proving that he “ was in possession, and ousted by violence, fraud, or artifice,
The authors, to whom I have above referred, both in reference to the nature of possession in general, and the different species of it, by virtue of which such an action as the present may be sustained, appear to me to be in conflict, not only, each with the other, hut each with himself; and the only way in which I can reconcile their apparent contradictions, is by the following conclusions:—1. That, in case the party can make out his possession by showing an actual occupancy, without resorting to an exhibition of his title, then, although he may have no title whatever, yet, if he can show’ that he lias been evicted by force, fraud, artifice, or any clandestine means, he is entitled to be restored to possession at all events, even though the other party may offer, and may be able to prove an unquestionably valid title in himself; and, 2. That where the plaintiff claims the possession of a large lot or tract of land included within the boundaries of his deed, by virtue of his having entered on and actually occupied a portion, in such ease, he cannot recover for an intrusion on any portion not so actually occupied, unless it appears that he claims under a just title and in good faith, without which requisites lie could never have acquired possession beyond the lines of his actual occupancy. In such case, the nature of the controversy changes from a question of mere possession, to a question as to the right of possessing; and this right can be established only through the medium of a just title.
I have referred to the case of Meeker v. Williamson, (4 Martin, Rep. 625.) It was held in that case, that, although ti-
It was insisted in Meeker v. Williamson, that the plaintiffs had a right to be restored to their possession, independently of any inquiry into their title, as in the case before us it is claimed that the validity of the plaintiffs’ title cannot be questioned. In the former, the plaintiffs adduced no other evidence of their title than a bill of sale to them, as in the latter, the plaintiffs have adduced no evidence of their possession of this particular lot, prior to the entry of the defendant, other than their title. There, the court say, it is impossible to pronounce on the question of possession, without examining whether the bill of sale be such as the plaintiffs could possess under: so here, I see not how we can determine in respect to the plaintiffs’ possession of this particular lot, without ascertaining whether their title be such as could give them the right of possessing. In that case the court say: “ In mere actions recuperando} possessionis, the fact of a possession alone is at issue. The plaintiff, proving that he was “ in possession, and ousted by violence, fraud, or artifice, becomes “ entitled to recover possession at once ; the other party not being “ even permitted to say that the plaintiff has no title to the thing. “ But where the plaintiff puts at issue his right of possessing, as “ where he alleges that he is the owner, and presents his title, as “ the evidence of his possession, the single fact of possessing is no “ longer the only question. The defendant is then allowed to die- “ pute the validity of that title, and is maintained in the actual “ enjoyment of the premises, if the plaintiff fails to make his “ title good.” In support of these positions, two Spanish writers of acknowledged eminence and ability are cited; Greg. Lopez on Part. 3, 2, 7; and Gomez in leg. Tauri, 45 n. 118.
Let us apply that doctrine to this case. The action is. confess
This appears to be not only law, but reasonable and founded injustice. Were it not to prevail, then it would be necessary to hold, not only that the defendant could not avail himself of the imperfection or nullity of his adversary’s title, when necessarily adduced as the only means by which the latter can make out his possession, but also that, according to the authorities hereinbefore cited, he could not be permitted to allege, or set up, or sustain his defense upon a perfect and indisputable title on his own part. This latter contingency, certainly under American, and doubtless under Mexican law also, can occur only where the defendant has evicted the plaintiff from actual possession, through force, fraud, or artifice ; in which event, as we have seen, the plaintiff is entitled to be restored to possession irrespective of title; for, in the language of Mexican writers, public tranquillity requires, that no one, of his own authority and with violence, should be allowed to deprive another of that which he possesses. (Escriche, Dic. de Leg. Art. “ Despojo.")
The point, then, which remains to be considered is as to the effect of the plaintiffs’ title. And, first, let us ascertain what is understood, in Mexican law, by the terms just title, and holding' in good faith. It was stated by the counsel for the appellants that there could be no possession, which the law would recognize as such, either natural or civil, either in fact or by the will, unless it was taken and held in good faith and by virtue of a just title. I think, the counsel carried the doctrine too far. The Spanish law recognizes a possession in bad faith and without
The question, then, is, whether their title be of this description. I am convinced that it is not. I am convinced that Roberto had not the power to convey in the manner ho did; that the title of the plaintiffs is defective and void on its face ; and
I shall now proceed to consider these positions. And, first, as to the title. An essential element in the validity of a contract, whether in Mexican or American law, is a capacity to contract—a capacity in the grantor, to convey—and a capacity in the grantee, to receive. In some instances, as in the case of minors, there may be a qualified capacity to contract, which, when exercised, may, by subsequent acts, he brought to attain the effect of a full capacity. But in Roberto there was lacking, in every respect, the capacity to transfer the land, which he held as a gift from the government. The very instrument under which he acquired his rights, the grant from the governor of California, declares, in express terms, that be shall not have the power to alienate or mortgage the land, or impose upon it any charge or incumbrance whatsoever.
It cannot be seriously doubted, that any independent government may, in disposing of the national domain, annex to the estate and right conceded, such conditions and restrictions, as, in its own sovereign pleasure, it sees fit. The rule, that restraints upon alienation are contrary to the policy of the law, and therefore void, may be applicable to a conveyance from one individual to another, but can have no application to a grant from the sovereignty of a nation, or from an officer to whom the exercise of this attribute of sovereign power has been entrusted. Not only was it not opposed to Mexican law, for the governor of California in the discharge of his legitimate duties in distributing the public lands, to impose on an emancipated Indian restrictions against alienation, but it was in strict conformity with the positive provisions of Mexican legislation.
Mr. Ilalleck, in his report to General Riley concerning the regulations which controlled the grants or sales of land in California, says, “ The emancipated Indians were to assist in the “ cultivation of the common lands of the v.&nr pueblos, but were <( prohibited from selling any of the lots or stock assigned to
The object of the restriction in the grant to Iloberto, and of the law to which Mr. Ilalleck refers, is entirely obvious. They both had, for their beneficent purpose, the interposition of an insuperable barrier against all attempts on the part of the white race to strip the natives of the property which they might accumulate by their own industry, or which they might receive from the bounty of the government. Such provisions were no less wise in Mexico, and no less necessary in California, than they have been found, from experience in the United States, to be imperative, in order to prevent ignorance and thoughtlessness from being led into folly by superior knowledge and prudence and sagacity. And this was no new and late tone given by Mexican legislators to national policy. 'Whatever may have been the practice of the European settlers of the Spanish dominions in America, the spirit of the Spanish laws, when viewed in the light of the ages in which they were enacted, always endeavored, though often with but little success, to cherish and protect the native inhabitants against the rapacity of their invaders.
By a decree of Philip II, made on the 24th day of March 1571, it was ordered, that when Indians wished to sell their property, whether personal or real estate, it was to be sold at auction, in the presence of the justice, after the expiration of thirty days in the case of real estate, and nine days in the case of personal property ; and that any sale, which had not these requisites, should be of no validity or effect; (do ningún valor ni efecto;) but that the justice might, if it appeared proper to him, abridge this period in respect to moveables. (Ley 27, tit. 6, lib. 1, de la liec. de Indias.)
Laws 16, IT, 18 and 19, of title 12, lib. 4, of the same code also prohibited the sale of lands of the Indians without the citation of tb a fiscal of the audiencia, and provided rules and regulations to protect the Indians in the possession of their lands, and to secure them in the free use and enjoyment of them.
In order to enforce the more exact observance of the laws last cited, and by virtue thereof, the royal audiencia of Mexico, on the 23d day of February 1781, adopted an ordinance, entitled Instructions concerning sales and alienations of lands by Indians, which sets forth, in full, the policy of the Spanish laws in prohibiting such sales. This speaks of the general abuse with which the Indians persisted in the hurtful practice of alienating their lands, building-lots, and houses, as well those of their own. individual acquisition, as those of community, whereby they subjected themselves to inexpressible losses, {imponderablesper-juicios.) until, at length, the most improvident among them found themselves destitute of habitations wherein to live, and were left without even the shelter of cabins sufficient for the preservation of human life. Reference is therein made to the great prejudice which the Indians suffered, through loans, pledges, leases, and sales, which they were in the habit of making, either voluntarily or under the constraint of wrant or compulsion, not only from one to another, but also to strangers, Spaniards, Mestizos, and other castes, without regard to the provisions of the laws in the Recopilación de Indias, which declared such sales to be, not only unlawful, but prohibited, unless made with a previous license and with the fonnali
These are some of the provisions of Spanish and Mexican law, touching the disability of Indians to transfer their lands. All of them manifest the great, anxiety which the rulers of Mexico have felt, to collect the natives together in communities and subject them to municipal regulations, to secure to them the ability to pay the tribute imposed upon them for the supply of the national treasury, to induce them to forget their ancient religious rites and embrace the catholic faith, to reform their idle and roving propensities and make them industrious and useful subjects. (See ley 1, tit. 3, lib. 6, Rec. de Indias.) The legislation on this subject was not limited solely to considerations of benefit to individuals. Its whole tenor abundantly proves, that its main purpose was the advancement of great measures of national policy in respect both to temporal and spiritual affairs—■ that it was a series of continued efforts to obviate the hurtful consequences resulting to society from having in its midst a population destitute of habitations and the means of subsistence, and consequently vicious, vagrant, and easily seduced into the commission of crime.
It would seem to be sufficient to establish the position, that the conveyance from Eoberto to Sufiol did not give even a color of title, that the attempted transfer was not only in palpable violation of the plain terms of the grant to Eoberto, but was expressly prohibited by positive law, and in contravention of the entire spirit of Spanish and Mexican legislation. I cannot doubt, that the Mexican courts would have held the conveyance
But the counsel for the appellants insists, that, by the decrees of 1812 and 1813, (9 Col. of Decrees 54, 57, 107,) and by the provisions of the constitution of 1836, (Arts. 1, 2, 7,) and of the constitution of 1843, (tit. 2, art. 7,) the restrictions on alienation by Indians were removed.
The decrees cited provide for the distribution to Indians of lands in the vicinity of the Duellos, and lands held in common, with prohibitions to entail the same or convey them in mort-main; and the conclusion is deduced from the fact of such limited prohibition, that the beneficiaries had, in all other respects, the unqualified power of alienation. I cannot come to the same conclusion. I think these decrees neither do, nor were intended to, supersede the laws then in force. The law, as it then stood, did not absolutely forbid the transfer of lands held by Indians ; but it required, as an essential requisite to the validity of a conveyance, that it should be made under the supervision, and receive the approbation, of the proper officer. These decrees, however, take away the power of alienation, even in this manner, when the transfer is by way of entail, or in mortmain. The anterior law is not expressly repealed by the decrees cited, and, at the same time, not being inconsistent with, nor repugnant to them, is not affected by implication.
The constitutions referred to, it is said, by conferring upon Indians the character of Mexican citizens, thereby removed all restraints on the alienation of lands by them. But this argument proves too much. Infants, idiots, lunatics, spendthrifts, and married women, are also Mexican citizens ; yet it can scarcely he claimed that those constitutional provisions were intended to remove all disabilities, under which they are placed by law, and enable them to contract and alienate their property without the intervention of tutor or curator, committee or guar
It is further contended that, by virtue of the Plan of Iguala, and the circular of January 11th, 1821, which declared that all the inhabitants of Mexico were equal in rights, without distinction of Europeans, Africans or Indians, the disabilities of the latter class to transfer their lands without control were removed.
The same objection to this argument arises, which has been noticed in respect to that founded on the constitutions referred to. It proves too much. Besides, it is laid down in the Fe-brero Mejicano, {torn. 1, p. 97,) in speaking of the Plan of Iguala, that all those laws, which establish different regulations, according to the diversity of races, still remain in force, when they concede some rational and substantial favor, though not, when, without reason, they subject any class to a distinction ridiculous and abhorrent. And we Lave seen, that the object of the disability under consideration, was not to create an invidious distinction or impose a useless burden, but, in part at least, to favor the native inhabitants by shielding them from the impositions of the superior races.
By the above reasoning I am led to the conclusion that the title of the plaintiffs is null and void.
The next question is whether it was void on its face. The approbation and consent of the government being necessary to the transfer by Iloberto, and his conveyance having been made without such approbation or consent, the title, therefore, on its face, is lacking in a substantial point, as much as if, in any other particular, it were defective in the essential requirements of lawn ■
Are the plaintiffs chargeable with knowledge that they took nothing under their deeds ? It is a principle of Spanish and Mexican jurisprudence, equally with the English and American, that every citizen is presumed to know the law, and, with some exceptions not affecting this case, ignorance of it excuses no one. (Escriche, Dic. de Leg. Art. “ Ignorancia ;” 1 Feb. Mej. 13.) The law, then, says that the plaintiffs, when they received
I come, now, to consider the effect of a claim set up under a title thus defective.
In Spanish law, nullity is divided into absolute and relative. The former is that which arises from a law, whether civil or criminal, the principal motive for which is the public interest; and the latter is that which affects only certain individuals. Nullity is not to be confounded with rescisión. Nullity takes place, when the act is affected with a radical vice, which prevents it from producing any effect; as where an act is in contravention of the laws or of good morals, or where it has been executed by a person, who cannot be supposed to have any will, as a child under the age of seven years or a madman, (tin niño 6 demente.) .Rescisión is where an act, valid in appearance, nevertheless conceals a defect, which may make it null, if demanded by any of the parties; as for example, mistake, force, fraud, deceit, want of sufficient age, &e. Nullity relates generally to public order, and cannot, therefore, be made good, either by ratification or prescription ; so that the tribunals ought, for this reason alone, to decide that the mill act can have no effect, without stopping to inquire whether the parties to it have, or have not, received any injury. Rescisión, on the contrary, may be made good by ratification or by the silence of the parties; and neither of the parties can demand it, unless he can prove that he has received some prejudice or sustained some damage by the act. (Escriche, Dic. de Leg. Art. “ Nulidad.”)
In Spencer v. Grimball, (6 Martin’s New Series, 362,) the court, treating of the Spanish law on this subject, say: “ Some “ of the writers on our law, of the very highest authority, are “ of opinion that it is only such nullities as grow out of prohi- “ bitions, having for their first and principal off ct, reasons of “public utility, that strangers can set up in their defense / and
The nullity of the conveyance from Iioberto results as we have seen, from its being in violation of legal prohibitions, having for their first and principal object public order and public utility, and, therefore, in the language of Escriche above cited, cannot be made good either by ratification or prescription, and may, as implied by the language of the court in Spencer v. Grimball, be set up by a stranger in his defense.
I am aware that the case last cited may be claimed to have decided the contrary of the conclusion to which I have arrived. Were that, indeed, so, I might perhaps think that we ought not to determine a point in opposition to the authority of that distinguished tribunal. The facts of that case, however, hear but a remote analogy to the facts of the case before iis. The sale there was by a tribe of Indians—here, by an individual. The question there was, whether the Beloxi tribe of Indians had parted with the title to their lands. But it appeared that the sale was not, as in the case at bar, a private transaction, but a public act, passed before the commandant of Rapides, apd approved by the governor of Louisiana. The Spanish law was thus substantially complied with. The only point decided by that case is, that it was not necessary that the sale should be at public auction, and in that conclusion I entirely concur.
I may be' allowed to suggest, with the highest respect for the eminent legal ability of the judge who delivered the opinion of the court in Spencer v. Grimball, that the reasoning of that case, if extended beyond the precise facts to which it is there applied, can scarcely bear the test of examination. lie likens the incapacity of Indians to the temporary disability to which minors are subject, and deduces the conclusion, that, because a sale from a minor is only voidable, therefore a sale from Indians is also only voidable. But we have seen from the author-
Nor do I deem it any answer to the view of the case I have taken, to say that the restraint on alienation in the grant from Micheltoreno to Roberto is a condition, for the breach of which only the government can interfere. It may be true as a general proposition, applicable between individuals, or even, perhaps, where the government is a party, when neither positive statute nor the general policy of the law has been contravened, that the breach of a condition can be taken advantage of only by the person who imposed it, or by one who is a privy either in contract or estate. But here is something more than a condition. It is an absolute prohibition—a prohibition, too, which is in perfect harmony with both the letter and spirit of Spanish and Mexican legislation for centuries. The policy of the law, for wise purposes, will not permit the white race to trade or traffic with the Indians in the lands granted to them by the government. That law and that policy, in addition to the plain terms of the original grant, have been disregarded by the plaintiffs, and the defendant, a stranger, is consequently permitted to avail himself of the nullity of their title.
The policy referred to is not peculiar to Spain or to Mexico, but is adopted and adhered to in the United States. There, Indians are permitted to sell their lands under the superintendence of an agent of the government, whilst a private sale is void, and.
A case strongly analogous to the one at bar, has been decided by the supreme court of the state of New York. (Jackson ex dem. Gilbert v. Wood, 7 J. R. 290.) It there appeared that a patent for a lot of land had been issued to an Oneida Indian, 44 to hold unto him and his heirs and assigns forever.” The pa-tentee died leaving two sons, his heirs, who sold and conveyed the land to A. It was held that the, sale and conveyance were void, they not having received the consent of the legislature, or the approval of the surveyor-general, as recpiired by lawn Kent, Oh. J., delivering the opinion of the court, says : “ The various “ regulations in the act of 1801, all show the sense of the legis-44 1 ature, that an Indian, in his individual capacity, is, in a great “ degree, inops consilii, and unfit to make contracts, unless with “ the consent, and under the protection, of a civil magistrate. “ The law not only protects Indians from any suit upon their “ contracts, but it declares specially, that all alienations of land “ by the Brothertown and New Stockbridge Indians, are void, “ These are just and humane guards against the imposition and “ frauds, which that unfortunate people have not the power to “ withstand. The same provisions prevail in the Spanish co- “ lonies. None of the Indians within the Spanish dominions “ can dispose of their real property, without the inter veil tion of “ a magistrate.” Again he says, (p. 297,) “ these statutes 44 ought to be construed liberally. The principles of public po- “ licy, a sense of justice and humanity, the honor of the state, “ and the conclusions of law, require us to consider such eon-44 tracts as made with persons unfit to contract without the ad-44 vice of disinterested counsel.”
If any reasons were needed in addition to those above advanced, to maintain the justice and wisdom of the policy of the law, they might be gathered from this very case. Roberto the Indian conveyed, in payment of a precedent debt of five hundred dollars, an estate which the proof shows to be worth one hundred thousand dollar's ; and though the value of the land is, doubtless, greatly enhanced since the conveyance, there can, I
The sole question remaining is, as to what effect should be given to the stipulation, which I noticed in the outset. In all cases coming up from courts of First Instance, I am disposed, owing to the want of form and regularity in their proceedings, to look on an application for a new trial wdth great favor ; and if, in this case, I supposed that the plaintiffs could make out an actual possession without resorting to their title, and an eviction by the defendant of the character required, I should feel disposed to waive the strict construction, which, if the stipulation had been given under the present system of practice, ought to be applied to it. But the cause seems to have been thoroughly tried, and the evidence fully returned; and I do not see how it is possible for the plaintiffs to make out a possession without resorting to their title, and the moment they invoke the aid of that, they show that they could never have acquired possession beyond the metes and bounds of their actual occupation. A new trial would, consequently, be but an useless expense; I think it should be refused, and the judgment be affirmed.
Ordered accordingly.
Dissenting Opinion
(dissenting.) The plaintiffs sued to recover a tract of land, alleging that for more than two years they had been in the peaceable, public, and uninterrupted possession of the land, as owners, and that, shortly before the commencement of their suit, the defendants forcibly entered upon and detained it, and that, when the plaintiffs had erected a building upon the land, the defendants came with force and drove away the plaintiffs’ workmen, and destroyed their building. The plaintiffs seek to be restored to the possession, and to recover damages. The defendants deny all the allegations of the petition, and claim back one hundred and sixty acres of the land under the pre-emption laws of the United States. The defendant Hepburn justifies the destruction of the plaintiffs’ building on the
The different kinds of possession for the recovery of which possessory actions are sustained in the Spanish and eiyil law, the two interdicts summary and plenary instituted for the recovery of such possession, are fully examined in my dissenting opinion in the case of Woodworth v. Fulton et al., to which case reference is now made, for a better understanding of the rights and remedies of a party despoiled of possession of immoveable property. This action is purely a possessory one, the plenary interdict. Ho title in the plaintiffs is alleged, but a possession under a claim of title in good faith for more than a year and a day.
To maintain their right to recover it is only necessary in this action for the plaintiffs to show their own possession for that length of time, and the entry of the defendants. The question of title cannot be raised. In Louisiana, whose system of law is derived from the same source as that which prevailed here, pos
But the defendants set up title. They claim a right by virtue
The land in controversy, a half league, was granted in 1844, by the government to Roberto, an emancipated Indian, and was subsequently conveyed by him to Suiiol, one of the plaintiffs, who sold an undivided interest in it to the other plaintiffs. The act of emancipation of Roberto, the grant to him, his conveyance to Suiiol, the confirmation of that conveyance by his heirs, the order of the Alcalde putting Suiiol in judicial possession, and the survey of the land were given in evidence to show that these parties claimed as owners under title and in good faith, and to show the extent of their possession. It appears from the testimony that there was an actual occupation of portions of the land by Roberto or those who claim under him from the time of the grant, and even before it, down to the time when this suit was commenced, and a constant exercise of acts of ownership over the whole tract until the defendants entered. The defendants entered that portion of the land which had, prior to their entry, been surveyed into a town, and after their entry the survey stakes were visible. On the 14th of Dec. 1849, the day prior to Sufiol’s conveyance to Raglee and Sansevaine, Naglee, in company with Whiting, examined the premises. Ledbetter’s survey was completed on that day. Hepburn’s house was not then on the land, but it seems he occupied a tent on the alameda, a few yards from the line and limits of the town survey and tract of land claimed by the plaintiffs. The defendants, therefore, must have known and had notice of plaintiffs’ claim to possession at least, and this was acknowledged to one of defendants’ witnesses.
Does this evidence prove a sufficient possession'? or is it requisite that the whole tract should have been inclosed, or cultivated ? In Louisiana an actual occupation is not required. Possession of part with a claim of title to the whole, or where there has been a natural possession not abandoned, a civil possession only is sufficient. (C. P. 49; C. C. 3394, 3389-90-91,
But from the. testimony it is evident that the plaintiffs had the actual possession, at the time of the entry of the defendants. The part inclosed by defendants’ furrow was in their actual occupancy, having been surveyed into a town. Stakes and maps existed indicating especially to the defendants, whose tent was but a few feet from the line, the possession of the plaintiffs. As to these defendants, then, without proof of any other possession or acts of ownership, at common law, the plaintiffs could recover in a summary action. It was not necessary that the -premises should be actually inclosed with a fence; any improvements or monuments which show the land to have been occupied by another, and there being no evidence of an abandonment, are sufficient. (See cases cited in Woodworth v. Fulton, decided at this term; Ellicott & Meredith v. Pearl, 10 Pet. Rep. 441; Ewing v. Burnet, 11 Pet. Rep. 52.)
The fact of possession in the plaintiffs being established, either natural or civil, to a part of the land granted to Huberto, it becomes perhaps the most difficult question in this case to ascertain the extent of such possession. Both the Spanish and common law writers agree that he who is in possession of a
The plaintiffs have a deed executed in the usual form to impart title, {Apt to transfer property,) describing the premises by certain monuments, courses, and distances, not very distinctly defined however, nor clearly understood, but perhaps sufficient with the aid of oral proof.
But it is said the deed from Roberto to Suiiol is void, as an Indian could not alienate his property but in the manner prescribed by law ; that Suiiol was bound to know the law, and to know that the conveyance of Roberto was void, and transferred no title. Suiiol not only purchased of Roberto, but also of his heirs, after his decease. The other plaintiffs purchased of Suiiol. If these conveyances do not furnish colorable title which would be sufficient in adverse possession or prescription, then the decisions of the courts in the case of Jackson v. Newton, (18 Johnson’s Rep. 355;) Northrop v. Wright, (7 Hill, Rep. 468-9;) La Frambois v. Jackson (8 Cowen, 589;) and the doctrines of the Spanish law writers referred to in Woodworth v. Fulton, and the uniform decisions of the courts of Louisiana, are not law.
The idea that an Indian could not convey land is derived from the various laws and royal ordinances relating to (he government of the Indians, which were promulgated at different periods between the years 1551 and 1787. (Ord. de Tierras y Aguas, 97, 112; 2 White’s Recop. 703.) One of these (24 May, 1571) prescribes the formalities which shall be observed by the Indians in making sales of their property, and declares void all sales made without those formalities. These regulations were intended for the protection of those Indians who formed separate communities, and lived in the Pueblos, as the mere occupants of the lands from which they had never been ejected, and the title to which was in the crown. That this is the object of those laws is apparent from their perusal.
Admitting that a conveyance by an Indian was prohibited by the law, it was for the benefit of the Indian that the prohi
The Indians were considered as persons under legal disability, and their legal protectors stand in the light of guardians, and although of age, they enjoyed the rights of minors to avoid contracts or other disposition of their property, particularly real, made without the authority of the judiciary, or the intervention of their legal protectors. (2d White’s Recop. 704.)
These laws then would not render absolutely void a deed from an Indian, but voidable only, as in the case of infants under guardians. The Indians were under a state of pupilage. But in this case the Indian, Roberto, as he is called, was, at the time of his sale to Suñol, under no such disability. He was an
It is argued with much plausible reasoning, the correctness of which cannot well be controverted, that the grantee, Roberto, was a Mexican citizen according to the terms of the constitution ; that it was only as a Mexican citizen that such a grant could be made to him, it being expressly prohibited by the.colonization law to all others than Mexican citizens ; and that the grant was made by the competent authority, whose acts are to be presumed to be valid.
Upon the point that Roberto was under no disability, reference is made to 1 Febrero Mexicano, p. 96, sec. 48 : “ In “the ancient laws other distinctions are made between men on “account of their races and colors, and of these the principal “ was the one between Indians and Spaniards. So odious a “classification has not existed in the republic since it declared “ itself sovereign and independent, and principally since the “ Plan of Iguala declared all inhabitants to be equal in rights “without distinction between Europeans, Africans and Indians.*’ The 12th article of the Plan of Iguala declares, “ all the inha- “ bitants of Mew Spain, without distinction between Europeans, “Africans or Indians, are citizens of this monarchy, with a “ right to hold office according to their merit and virtues.” (1 Col. de Dec. 4.) In the same work, (p. 257, sec. 1,) it is said, “ Anciently the Indians also were reputed minors under the “ age of five and twenty years, although they were above that “ age ; but now it is expressly declared that, allowing them to “ be equal to other citizens, they are no longer in a state of “minority;” and this clause refers to a circular of 11th of January, 1821. The Indian, then, rests no longer under that state of pupilage in which the law formerly placed him.
It seems that the grant to Roberto contains conditions prohi
The Indian Roberto was a citizen of the Republic, enjoying all the rights and privileges of any other citizen of Mexico, and was eligible to office according to his merits and virtues. This is admitted. Yet it is said that a Mexican citizen, because he happens to be of Indian blood, or an emancipated Indian, shall not, and carmot, transfer his property in real estate, without permission, and under the direction of a judicial officer, as if he were an insane person, lunatic, or infant. It appears evident that to be a citizen, enjoying equal rights with other citizens of the Republic, the Indian must enjoy the right to alienate his property without restraint—the right to think and act for himself. It is matter of history that some of the wealthiest citizens of this state, at the present time, are either Indians of full or half blood. They are men of wealth, intelligence, and education, and yet. by the Plan of Iguala, as well as by the principles of the Republican Institutions of Mexico, they have no superior social rights to the Incl ian Roberto, nor any higher legal privileges.
The policy of the Royal government of Spain, regulating the intercourse with the Indians, humane as it may have been, differed widely from the system of trade and intercourse with the Indian tribes adopted by the government of the United States.
• The United States have never elevated the Indian to an equality in rights and privileges with the white race; if so, trade and traffic in property, real and personal, would be free, and not positively inhibited by the National Legislature.
Entertaining these views, and governed by the law as I understand it, I believe the following conclusions to be correct:—■
2d. That, if under such incapacity, no third party can take advantage of it; the sale could be avoided only by Roberto, his heirs, or the government,
3d. That all restraints upon Indians, in the alienation of their real property, appear to have been abolished.
4th. That the plaintiffs had, at the time of the entry of defendants. actual possession of a part of the premises conveyed, in the name of the whole.
5th. That such possession is good for the entire tract within the specified metes and bounds.
6th. That they can sustain their action to oust any intruder without title.
I think, therefore, the judgment of the court of. First Instance should be reversed, and a new trial had.
After the decision of the above cause, another motion for a re-hearing was made, on which occasion the opinion of the court was delivered by
Bennett. J. This cause has been twice argued; once by counsel for both parties, and again ex parte, on behalf of the plaintiffs. An application is now made for a re-hearing. No new arguments are advanced, and no additional authorities cited. Indeed, the plaintiffs state, in their petition for a re-hearing, that u no new views “ are sought to be offered/* The old views have been twice presented to the* court, and twice considered by it, and as the court is satisfied that its former decision is in conformity both with law and justice, it sees no reason why that decision should be disturbed.
It is proper, however, to observe that our former judgment did not pretend to define the quantity of land of which the defendant was in possession. This could not well have been done under the pleadings. It barely deckles that the plaintiffs showed no right to oust the defendant from any portion of the land claimed by the plaintiffs, the actual possession of which the defendant. Hepburn, had at the time the suit was brought.
Re-hearing denied.
