Houghton v. Jones

THIS was a writ of error to the Northern District of California; the case being thus:

By the act of Congress of March 3, 1851, 'to ascertain and settle the private land claims in the State of California,' it is provided, 'that each and every person claiming lands in California, by virtue of any right or title derived from the Spanish or Mexican government, shall present the same to the commissioners,' &c., who are directed to examine into and 'decide upon the validity of the said claim.' And it is further declared that 'all lands, the claims to which shall not have been presented to the said commissioners within two years after the date of the act, shall be deemed, held and considered as part of the public domain of the United States.'

With this act in orce, Mrs. Jones brought ejectment, in 1860, against Houghton and another, for land in Contra Costa County, in the State of California. She deraigned title from the Mexican government, through a grant issued in August, 1841, by Juan B. Alvarado, then Governor of the Department of California, and by sundry mesne conveyances from the grantees. It did not appear on the trial below that the grant had ever been laid before the Board of Commissioners, as required by the act above quoted, or in any way passed on by it. But no objection was made on the trial to the grant from this want of presentation to the board, or consideration by it.

One of the conveyances through which the plaintiff, Mrs. Jones, claimed was read in evidence, on proof of its execution, certified by a notary public. It is necessary, in that connection, to mention that a statute of California, 'concerning conveyances,' approved April 16th, 1850, contains the following enactments:

'SECTION 4. The proof or acknowledgment of every conveyance affecting any real estate shall be taken by some one of the following officers: 1. If acknowledged or proved within this State, by some judge or clerk of a court having a seal, or some notary public or justice of the peace of the proper county. . . ..

'SECTION 29. Every conveyance, or other instrument conveying or affecting real estate, which shall be acknowledged, or proved and certified, as herein prescribed, may, together with the certificate of acknowledgment or proof, be read in evidence without further proof.' The subscribing witness to the deed thus read was in court, and had been examined by the plaintiff about certain matters, but not about the execution of the deed. The defendant proposed to cross-examine him upon such execution, which the court would not allow him to do; deciding that if he wished to examine the witness at all upon a point not raised in the examination-in-chief, he must call him anew, and so make him his own witness.

The plaintiff having had judgment, and the defendant having sued out a writ of error, three questions were now here made; the first question having been raised on the argument in this court for the first time in the case.

1. Whether this want of presentation of the grant at any time to the Board of Commissioners was fatal to it?

2. Whether the deed was properly acknowledged by the laws of California.

3. Whether the court rightly refused to let the defendant cross-examine the witness in the circumstances stated.

Mr. Carlisle, for plaintiff in error:

I. The language of the statute of March 3, 1851, being express, it is indispensable that the grant should have been presented within two years after the date of the act. More than two years had passed before this suit brought. No averment of any presentation is made. No presumptions can be made to supply that which is a prerequisite of the case, an indispensable link in the title. The land is, of course, part of the public domain.

II. The statute does not dispense with calling the subscribing witness. The point has not yet been decided. Its language is perhaps not entirely plain.

III. The rule is not universally adopted that a right to cross-examine is limited to matters comprised in the examination-in-chief. In some States it prevails; in some it does not. The rule has not been so settled for California.

Mr. Hepburn, contra.

Mr. Justice FIELD delivered the opinion of the court.