Page:Federal Reporter, 1st Series, Volume 10.djvu/649

 MOBA ». NUNEZ. 637 �after therepeal of the act of 1860, an amended survey, in pursnance of the said decree modifying said eastern boundary, was returned into court. Upon said amended survey, witii other amendments and certain reservations approved by the court, a patent was issued.to the petitioner and conflrmed on January 8. 1873. The title claimed under said grant and patent has become vested in the defendants. In addition to the f oregoing f acts, it is recited in said patent that " the district court erroiieously assumed jurisdiction over said resurvey, and amended and approved the same, reserving therefrom the rancho 'El En- cino,' conflrmed and patented January 8, 1873, toVineente de la Ossa and others, and the eight tracts of land knownas the mission of San Fernando, coiifirmed and patented May 31, 1864, to Joseph S. Alemany, bishop of Monterey, and to his successors, which reservations are satisfactory to the parties wijally entitled to this patent, as app'ears by their acceptance of these presents as a good and valid patent for the lands conflrmed, as aforesaid," and that " the plat hereunto annexed in all respects conforms to the aforesaid decree and survey made on the fourteenth of August, 1865, by the United States district court aforesaid, except that the rancho 'El Encino,' patented January 8, 1878, and the eight tracts of land known as the mission of San Fernando, patented May 31, 1864, to Joseph S. Alemany, bishop of Monterey, and to his successors, are reserved therefrom." Then follow the other usual recitals, with the certifi- cate of the surveyor general giving a description of the lands, at the close of which description it is said: "From which are to be deduced the are:vs of the following-described tracts conflrmed by the United States district court to other confirmees, which tracts lie entirely within the area coraprised by the boundaries described, namely: First, 'El Encino.' * * « Also, eight tracts of land at the mission San Fernando, conflrmed to J. S. Alemany, bishop of Monterey, the boundaries of which are described as follows ;" giving, the boundaries as set forth in the said patent to Bishop Alemany. The pat- ent then proceeds with the granting clause, by which the United States gives and grants " to the said Eulogio de Celis, and to his heirs, the tract of land embraeed and described in the foregoing survey, excepting and reserving there- from the rancho ' El Encino,' * * * and the eight tracts of land known as the mission of San Fernando, containing in the aggregate 76.94 aires, pat- ented May 31, 1864, to Joseph S. Alemany, Bishop of Monterey, and his suc- cessors." �The first point argued by counsel is as to the validity of the sher- iff's sale and deed. A sale upon a judgment rendered for unpaid taxes, reeovered under the same act, made in the same manner, and the deed containing similar recitals, was held to be void by the supreme court of the United States in Frcnch v. Edwards, 13 Wall. 511. The same point was decided the same way by this court in Le Roy v. Reeves, 5 Sawy. 102, and by the supreme court of California in Carpenter v. Gann, 51 Cal. 193, and Hewell v. Lane, 53 Cal. 213. Ail these cases arose under the same act. It is attempted to distinguish the present case from those cited, on the ground that those cases were proeeedings ��� �