Meader v. Norton

APPEAL from the Circuit Court for the District of California.

This was a bill in equity, filed in the court below by C. E. Norton, to have the defendants, Meader and several others, declared trustees of certain real property situated in the State of California, and to obtain a decree that they convey to him the legal title held by them to the premises. The case as presented by the record was thus:

Three sisters, named respectively Maria Candida, Maria Jacinta, and Maria Los Angeles Castro, on the 13th of February, 1839, applied by petition to J. B. Alvarado, then Mexican governor of the department of California, for a grant of the land known as the Rancho El Refugio, situated in that part of California now known as the county of Santa Cruz.

This petition was immediately referred by the governor to the administrator of the adjoining mission with directions to make a report upon the same. On the 10th of March following that officer reported that the land solicited could be granted, and on the 16th of the same month the governor made a provisional concession of it to the petitioners; a concession which was subject to further action in the premises. To guide him in such further action, the governor directed the prefect of the district to report to him upon the subject. The prefect reported that a grant in fee of the land solicited could be made to the parties, as it was vacant and was not claimed by any one. Accordingly, on the 8th of April following (1839), the governor made a formal cession of the land to the three sisters by name, referring to the previous proceedings, and declaring them owners in fee and directing that the proper grant or title papers (titulo) issue to them, and that the proceedings in the case be retained for the information and approval of the Departmental Assembly. These proceedings were numbered 131. In the order of concession of the governor, the name of one of the sisters, Maria de los Angeles, was erased, and over the erasure was written the name of Jos e Bolcoff. This concession or grant of the governor was approved by the Departmental Assembly on the 22d of May, 1840. The approval in the records of the Assembly has in it the number, 131, and gives the date of the concession, and mentions the three sisters by name as the parties to whom the concession was made. On the 13th of June following the governor ordered a certificate of the approval to be given to the three sisters.

At this time one Jos e Castro was prefect of the first district, within which district the land granted was situated, and he kept a record or minute of the grants of land made in his district. His book of registry is now in the archives in the custody of the Surveyor-General of the United States for California. In this registry is entered a minute that on the 8th day of April, 1839, the governor granted to the three sisters the place called El Refugio. In this registry there is also a similar minute of eight other grants, all of which are found in the archives, and each has a memorandum indorsed upon it that it has been entered in the registry. The memoranda on these eight grants and the entries in the registry correspond.

There is also in the archives an index of grants made between 1838 and 1845, by a clerk in the office of the secretary of state of the department, and under his direction, which is commonly known as 'Jimeno's Index.' This Index gives the number of the espedientes, the names of the grantees, and the designation of the land granted. Upon the index against No. 131 is the entry of a grant of land designated as El Refugio, and the name of Jos e Bolcoff is written over an erasure. It was admitted that originally the names of the three sisters were written there.

This was the documentary evidence which the complainant produced to show that a grant of the rancho El Refugio was issued to the three sisters, under whom he claimed by sundry mesne conveyances. Parol evidence produced by him related chiefly to the possession of the premises since the concession of the governor, and various alleged admissions and acts of the sisters. It was also in evidence that in 1839 or 1840 the possession of the land was officially delivered to the three sisters, and that in this proceeding, called a delivery of juridical possession, Jos e Bolcoff appeared on behalf of the sisters, and represented them.

The defendants asserted title to the premises through Jos e Bolcoff; and of some portions of the premises they also alleged a conveyance or release from the sisters.

As documentary evidence of title they produced—

First. A paper purporting to be a grant of El Refugio to Jos e Bolcoff, by Governor Alvarado, bearing date on the 7th of April, 1841.

It was shown that there was no trace of any such document as this in the archives of the department, except what appeared over the erasure in the index of Jimeno.

Second. A certificate of Governor Alvarado, dated July 28th, 1841, stating that the grant made on the 8th of April, 1839, in favor of Jos e Bolcoff, was approved on the 22d of May, 1841, by the Departmental Assembly, and purporting to quote the language of the proceedings of that body. The certificate concluded by stating that it was issued to the party interested for his security, in consequence of the decree of the 13th of June preceding, existing in the espediente.

It is to be noticed by the reader that the certificate states that the grant made on the 8th of April, 1839, in favor of Jos e Bolcoff was approved on the 22d of May, 1841, while the alleged grant to Bolcoff produced bears date the 7th of April, 1841. The certificate purported further to quote the language used by the Departmental Assembly in this approval. It was shown that there was no session of the Assembly in 1841; at least, that there was no evidence in the archives of the department that there was a session in that year, and if the year was erroneously given, and the approval of May 22d, 1840, was intended, that related only to the grant to the three sisters, who were therein designated by name, and no such language as that given was found on the journals of the Assembly.

Third. A document purporting to be a record of juridical possession, given to Bolcoff, July, 1842.

This document bears the signature of the prefect of the district and two attesting witnesses. It appeared in evidence that one of the witnesses was unable to write, and that the body of the entire document was in the handwriting of Bolcoff. The other witness testified that he added his signature in 1851, when the document was presented to him by Bolcoff, with a request that he should sign it, inasmuch as he had not done so when the possession was given; that at this time the document had not the signature of the prefect or of the other witness, and Bolcoff stated that he was going to them for their signatures. Both of these witnesses testified emphatically that there never was but one juridical possession of the premises, and that this was delivered to the sisters. Bolcoff made oath before the land commission, that the document was signed by all the parties in the year 1842.

Fourth. A dise no or sketch of the tract El Refugio; and

Fifth. A patent of the United States, bearing date on the 4th of February, 1860, issued to Francisco and Juan Bolcoff upon the confirmation of the alleged grant to Jos e Bolcoff.

In 1822 one of the sisters, Maria Candida, intermarried with Jos e Bolcoff, and in 1839 Maria de los Angeles intermarried with one Majors. The three sisters lived together as members of the family of Bolcoff upon the land granted, Los Angeles until her marriage, and Jacinta until 1850, when she became a nun, and had not since resided upon the premises. Since some time in 1850, Majors and his wife had occupied a portion of the tract, claiming possession under the concession to the sisters.

In 1852, Francisco Bolcoff and Juan Bolcoff, sons of Jos e Bolcoff, presented a petition to the board of land commissioners, created under the act of Congress of March 3d, 1851, to ascertain and settle private land claims in California, for a confirmation of the claim to El Refugio, asserted by them under the alleged grant to their father. In support of their claim they relied upon the alleged grant of Alvarado, of April 7th, 1841, his certificate of approval by the Departmental Assembly, the record of juridical possession, and the sketch, which are mentioned above, with parol evidence of possession and cultivation. No question was raised before the board as to the genuineness of these documents, and in January, 1855, the claim was confirmed. An appeal from the decision was dismissed, and on the 4th of February, 1860, a patent of the United States was issued thereon.

In 1852 Majors presented for himself and on behalf of his wife a petition to the board for a confirmation of her claim to one-third of the tract, under the cession to her and her sisters. In support of the claim they produced the petition to the governor, the reports thereon, the provisional grant of March 16th, 1839, the formal concession of April 8th, 1839, and the order of the governor of June 13th, 1840, that a certificate of the approval of the Assembly be issued to them.

The board rejected this claim, holding, in substance, that there was no evidence that any grant was issued to the sisters; that the decree of concession found in the archives was not proof of the delivery of a title to the parties interested; that until a document as evidence of the concession was issued and delivered to the grantees the favorable action of the Departmental Assembly did not establish their title, and the concession was not completed, and the property continued part of the public domain, subject to the disposition of the authorities of the government. And the board observed that this was the view of the governor and Departmental Assembly, as he had, notwithstanding the decree of concession to the sisters, made two years afterwards, a grant of the same land to Bolcoff, which had been approved by the Assembly.

The entire decision proceeded upon the supposition that the documents offered as evidence of Bolcoff's title were genuine, and that the officers of Mexico possessed the power to re-grant lands which had been once granted, without their previous surrender by the first grantee, where the final title-papers had not been issued to the grantee, although such grant had been approved by the Departmental Assembly. The board in its opinion also spoke of a want of proof of performance of the usual conditions of cultivation and inhabitation; but this view was held upon the supposition that the residence and cultivation of Bolcoff and his wife, and that of her sisters, were under different grants. The commissioners held, in confirming his claim, that the proof showed cultivation of and residence upon the land. Subsequent to the action of the board upon these claims, the registry of the prefect was discovered, and this discovery and other circumstances led to a critical inspection and examination of the documents upon which the claim of Bolcoff was founded, and finally to the bringing of this suit.

The position taken by the complainant was this: that a former grant, a titulo, or some documentary evidence of title based upon the concession of April 8th, 1839, was on the same day issued to the three sisters; that this titulo or grant passed into the custody of Bolcoff, and was some years afterwards suppressed or destroyed by him, with the intent to defraud the sisters of the property granted to them, and to secure the title to himself; that in the execution of this intent, the documents presented to the board of commissioners, the grant purporting to be issued to him, the certificate of the approval of the Departmental Assembly, and the record of juridical possession, were fabricated by him, or others at his request, and the erasures made in the decree of concession to the sisters, and in Jimeno's Index; and that a claim confirmed, and a legal title obtained by these means, should be controlled for the benefit of parties equitable entitled to the property.

The defendants in the court below did not deny that the decree of concession was made to the sisters, but they contended that the interest of the sisters was exchanged with Bolcoff for an interest in a tract of land of which he had obtained a grant, and that in consequence of this exchange the grant of El Refugio was issued at their request to him instead of being issued to them. The agreement was stated to have been this: that Majors and wife should relinquish to Bolcoff their interest in El Refugio, and allow him to obtain a grant therefor in his own name; and in exchange for this that Bolcoff should relinquish to Majors his interest in a ranch known as St. Augustine, of which he had obtained a grant in 1833, and allow Majors to obtain a grant for the same, he paying Bolcoff in addition the sum of four hundred dollars. And it was alleged that this agreement was made after the intermarriage of Majors and Maria de los Angeles, and immediately carried into execution; that Majors and wife took possession of St. Augustine, and that afterwards, on the 7th of April, 1841, Maria Candida went personally to the governor and stated the agreement, when the governor, at her request, issued the grant to Bolcoff alone, and that the erasures in the decree of concession and in the Index were at that time made by Jimeno, the secretary of state.

This statement of the defendants was contradicted by Majors, and was inconsistent with facts disclosed by the records. Majors obtained the ranch St. Augustine from Bolcoff by direct purchase, and the transfer to him was made before his marriage, and before the sisters had petitioned for El Refugio. The transfer to him is indorsed on the espediente of St. Augustine in the archives, and bears date on the 14th of January, 1839.

The alleged grant to Bolcoff of April 7th, 1841, made no allusion to any purchase or exchange with the sisters, or of any abandonment of their rights. It recited that he himself had petitioned for El Refugio.

The court below held that the documents upon which the claim of Bolcoff was founded were all false, and were fabricated by Bolcoff, or some one at his instigation, to defraud the sisters of their property and secure the title to himself; that by the false and fabricated documents, and the suppression or destruction of the grant to the sisters, a confirmation of the claim under the alleged grant to Bolcoff was obtained, and the legal title secured to his children; when in truth the real title was in the three sisters, and should have been adjudged to them; and it held that, under these circumstances, the patentees and all persons holding under them with notice of the claim of the sisters, should be decreed to surrender the title.

Besides insisting upon the genuineness of the alleged grant to Bolcoff, and other documents produced in support of his title, the defendants relied, as a defence to this suit, upon the following grounds:

First. That the claim of the complainant was a stale claim, and barred by the statute of limitations.

Second. That the complainant had no standing in court, by reason of the non-presentation of the claim of two of the sisters to the board of land commissioners for confirmation, and the rejection, by the board, of the claim of the other sister. And,

Third. That the defendants were bon a fide purchasers of some portions of the property for a valuable consideration, without notice of the claim of the sisters; and for other portions had conveyances or releases from them.

The court below held:

1st. That to claim any benefit of the statute of limitations the defendants were required to state facts sufficient to bring the case within its operation, and then to insist that by reason of those facts the remedy of the complainant was barred, and that this had not been done by them in this case.

2d. That the presentation or non-presentation by the sisters of their claim under the grant to the board of land commissioners had nothing to do with the equitable relations between them and third parties; which relations were never submitted to the board for adjudication.

3d. That whilst equity would reach the perpetrator of the fraud in this case, and parties acquiring the property under him without consideration or with notice of the rights of the real owners, it would extend its protection to purchasers in good faith for a valuable consideration without such notice.

The court below therefore directed that an interlocutory decree in favor of the complainant be entered and a reference be had to a master to report which of the defendants were bon a fide purchasers, without notice of the claim of the sisters, and what parcels were so purchased, and also of what parcels the interest of the sisters or of any of them had been conveyed to the defendants, with all necessary particulars; and that upon the coming in and confirmation of his report a final decree be entered directing the defendants to transfer to the complainant their title to all parcels, and undivided interests in parcels, not thus acquired and held.

The case accordingly went to a master, and his report having been confirmed a final decree was entered, from which the defendants appealed to this court.

Messrs. W. H. Lamon and W. G. M. Davis, for the appellants; Mr. W. M. Stewart, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.