Palmer v. Low

Page 2 ERROR to the Circuit Court of the United States for the District of California.

This was an action of ejectment, commenced April 30, 1872, by Daniel Palmer, the plaintiff in error, against Joseph W. Low, S. O. Houghton, and others, to recover possession of a portion of a one hundred vara lot No. 39, part of the pueblo lands of San Francisco, lying east of Larkin Street and northeast of Johnston Street. The city of San Francisco was first incorporated by the State of California, April 15, 1850, with certain defined boundaries. Acts of 1850, p. 223. It was the successor of the Mexican pueblo of Yerba Buena, or San Francisco. The original charter was repealed, and a new one granted, April 15, 1851. Acts of 1851, p. 357. The premises in controversy are within the boundaries of the city, as defined in this last act of incorporation, and constitute part of the lands claimed from the United States by the city, on account of its succession to the property and rights of the pueblo.

On the 20th of June, 1855, the city council of San Francisco passed an ordinance, known as the Van Ness ordinance, the sections of which material to the present controversy are as follows:--

'SECT. 2. The city of San Francisco hereby relinquishes and grants all the right and claim of the city to the lands within the corporate limits to the parties in actual possession thereof, by themselves or tenants, on or before the first day of January, A.D. 1855, and to their heirs and assigns for ever, excepting the property known as the slip property, and bounded on the north by Clay Street, on the west by Davis Street, on the south by Sacramento Street, and on the east by the water-line front; and excepting also any piece or parcel of land situated south, east, or north of the water-lot front of the city of San Francisco, as established by an act of the legislature of March 26, A.D. 1851: Provided, such possession has been continued up to the time of the introduction of this ordinance in the common council, or, if interrupted by an intruder or trespasser, has been or may be recovered by legal process; and it is hereby declared to be the true intent and meaning of this ordinance, that when any of the said lands have been occupied and possessed under any by virtue of a lease or demise, they shall be deemed to have been in the possession of the landlord or lessor under whom they were so occupied or possessed: Provided, that all persons who hold title to lands within said limits by virtue of any grant made by any ayuntamiento, town council, alcalde, or justice of the peace of the former pueblo of San Francisco, before the seventh day of July, 1846, or grants to lots of land lying east of Larkin Street and northeast of Johnston Street, made by any ayuntamiento, town council, or alcalde of said pueblo, since that date and before the incorporation of the city of San Francisco by the State of California; and which grant, or the material portion thereof, was registered, or recorded, in a proper book of record deposited in the office or custody or control of the recorder of the county of San Francisco, on or before the third day of April, A.D. 1850; or by virtue of any conveyance duly made by the commissioners of the funded debt of the city of San Francisco, and recorded on or before the first day of January, 1855, shall, for all the purposes contemplated by this ordinance, be deemed to be the possessors of the land so granted, although the said lands may be in the actual occupancy of persons holding the same adverse to the said grantees.

'SECT. 3. The patent issued or any grant made by the United States to the city shall inure to the several use, benefit, and behoof of the said possessors, their heirs and assigns, mentioned in the preceding section, as fully and effectually, to all intents and purposes, as if it were issued or made directly to them individually and by name.'

'SECT. 10. Application shall be made to the legislature to confirm and ratify this ordinance, and to Congress to relinquish all the right and title of the United States to the said lands, for the uses and purposes hereinbefore specified.

'SECT. 11. Nothing contained in this ordinance shall be construed to prevent the city from continuing to prosecute to a final determination her claim now pending before the United States land commission for pueblo lands, for the several use, benefit, and behoof of the said possessors mentioned in sect. 2, as to the lands by them so possessed, and for the proper use, benefit, and behoof of the corporation as to all other lands not hereinbefore released and confirmed to the said possessors.'

On the 11th of March, 1858, the legislature of the State of California passed 'An Act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city,' whereby this ordinance was in all respects ratified and confirmed. Sect. 2 of that act is as follows:--

'SECT. 2. That the grant or relinquishment of title made by the said city in favor of the several possessors by sects. 2 and 3 of the ordinance first above recited shall take effect as fully and completely, for the purpose of transferring the city's interest, and for all other purposes whatsoever, as if deeds of release and quitclaim had been duly executed and delivered to and in favor of them individually and by name; and no further conveyance or other act shall be necessary to invest the said possessors with all the interest, title, rights, benefits, and advantages which the said order and ordinances intend or purport to transfer or convey, according to the true intent and meaning thereof: Provided, that nothing in this act shall be so construed as to release the city of San Francisco, or city and county of San Francisco, from the payment of any claim or claims due or to become due this State against said city, or city and county, nor to effect or release to said city and county and title this State has or may have to any lands in said city and county of San Francisco.' Cal. Acts 1858, p. 52.

Afterwards, on the 1st of July, 1864, Congress passed 'An Act to expedite the settlement of the titles to lands in the State of California' (13 Stat. 332), sect. 5 of which is as follows:--

'SECT. 5. And be it further enacted, that all the right and title of the United States to the lands within the corporate limits of the city of San Francisco, as defined in the act incorporating said city, passed by the legislature of the State of California on the 15th of April, 1851, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinances of said city ratified by an act of the legislature of the said State, approved on the 11th of March, 1855, entitled 'An Act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city,' there being excepted from this relinquishment and grant all sites or other parcels of lands which have been or now are occupied by the United States for military, naval, or other public uses, or such other sites or parcels as may hereafter be designated by the President of the United States within one year after the rendition to the General Land-Office by the surveyor-general of an approved plat of the exterior limits of San Francisco, as recognized in this section in connection with the lines of the public surveys: And provided, that the relinquishment and grant by this act shall in no manner interfere with or prejudice any bona fide claims of others, whether asserted adversely under rights derived from Spain, Mexico, or the laws of the United States, nor preclude a judicial examination and adjustment thereof.'

Both parties claim title under this ordinance and this legislation of the State and of Congress. A jury was waived on the trial below, and the court made and filed its finding of facts, from which it appears,--

1. That the grantors of the plaintiff entered into the possession of the premises in controversy, without title, about the year 1851 or 1852, and they and the plaintiff continued in the exclusive and adverse possession thereof down to the 8th of May, 1867, when the grantor of the defendant, S. O. Houghton, was placed in possession thereof by the sheriff of the city and county of San Francisco, under legal process issued in the case of Donner v. Palmer et al., to which suit neither the plaintiff nor any of his grantors deriving title from any party to the suit after the commencement thereof was a party.

2. On the 19th of July, 1847, George Hyde was the duly qualified and acting alcalde of the pueblo of San Francisco, and, as such alcalde, on the day last mentioned granted the premises in controversy to George Donner, by a grant thereof duly made recorded, and delivered by the alcalde; and the material portion of the grant was registered and recorded in a proper book of records, deposited in the office and in the custody and control of the recorder of the county of San Francisco, before the third day of April, 1850, and which book remained in the office and in the custody and control of the recorder until and on the third day of April, 1850, and has continued so to remain from that date.

3. That the defendant, S. O. Houghton, has, through mesne conveyances, acquired all the right, title, and interest of Donner in the premises, and that the defendants other than Houghton were, at the time the action was commenced, in possession as tenants under him.

4. At the time of the alleged grant to him, Donner was an infant of about ten years of age.

To prove the grant to Donner, the defendants offered in evidence an entry on 'Book A' of original grants, from the custody of the county recorder of the city and county of San Francisco, which is as follows:--

'LOT No. 39.

'Whereas George Donner has presented a petition soliciting for a grant of a title to a lot of ground as therein described, therefore I, the undersigned alcalde, do hereby give, grant, and convey unto the said George Donner, his heirs and assigns for ever, lot number thirty-nine (39), one hundred varas square, in the vicinity of the town of San Francisco, subject to all the rules and regulations governing in such cases.

'In testimony whereof, I have hereunto set my hand as alcalde, this nineteenth day of July, A.D. 1847.

'GEORGE HYDE, 1st Alcalde.'

In connection with this offer, it was satisfactorily shown that 'Book A' was part of the archives of the office of the city and county of San Francisco, and it was admitted that the book was the original 'Book A' of alcalde grants in the custody of the city and county recorder, and known in the office as one of the books turned over to the county recorder's office in pursuance of the directions of the statutes of California, as one of the books of the former alcalde's office. It was satisfactorily proved that the signature of George Hyde to the alcalde entry of grant, or memorandum of grant, is in his handwriting, and his genuine signature, and that at the date of the entry he was the acting alcalde of San Francisco.

To the introduction of this entry in 'Book A' plaintiff's counsel objected, 'on the ground that it was incompetent, irrelevant, and immaterial, also on the ground that it is not primary evidence, or the best evidence, of a grant having been made to George Donner; that it is but secondary evidence, for the introduction of which no foundation had been laid; that there has been no proof of the loss or destruction of the original instrument, of which the said entry is a mere memorandum; that the entry in 'Book A' of original grants is a mere memorandum made by the alcalde; that the grant should have been made and signed by both parties, the grantor and grantee, and should have been attested by parties as witnesses of the fact; that the whole proceeding should have been set out on that book; that if it be a mere memorandum-book, it was indicative merely that there was some other instrument which had to be executed and delivered, and which is primary evidence in the case.'

These objections were overruled by the court, and an exception was then and there taken by the plaintiff.

Sect. 6 of an act of the legislature of California, 'defining the time for commencing civil actions,' passed April 22, 1850, is as follows:--

'SECT. 6. No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the premises in question, within five years before the commencement of such action.' Acts of 1850, 344, sect. 6.

On the 11th of April, 1855, this section was amended by adding the following proviso:--

'Provided, however, that an action may be maintained by a party claiming such real estate, or the possession thereof, under title derived from the Spanish or Mexican governments, or the authorities thereof, if such action be commenced within five years from the time of the final confirmation of such title by the government of the United States, or its legally constituted authorities.' Acts 1855, 109, sect. 1.

On the 18th of April, 1863, this proviso was repealed, and the following enacted as a substitute:--

'SECT. 6. . . . And provided further, that any person claiming real property, or the possession thereof, or any right or interest therein, under title derived from the Spanish or Mexican governments, or the authorities thereof, which shall not have been finally confirmed by the government of the United States, or its legally constituted authorities, more than five years before the passage of this act, may have five years after the passage of this act in which to commence his action for the recovery of such real property, or the possession thereof, or any right or interest therein, or for rents or profits out of the same, or to make his defence to an action founded upon the title thereto. . ..

'SECT. 7. Final confirmation, within the meaning of this act, shall be deemed to be the patent issued by the government of the United States, or the final determination of the official survey under the provisions of the act of Congress, entitled 'An Act to amend an act entitled an act to define, &c., approved June 14, 1860." Cal. Acts 1863, 327.

Upon this state of facts the court below found as conclusions of law,--

'1. That defendant, S. O. Houghton, by virtue of said grant to said Donner, the said ordinance of the city of San Francisco, and the said acts of the legislature of California and of Congress, and the said mesne conveyances from said Donner to him, is the owner of, and has the legal title to, said demanded premises, and that the defendants are lawfully and rightfully in the possession thereof.

'2. That the Statutes of Limitations have not run in favor of the plaintiff, by reason of his own and his grantor's possession, from 1851 or 1852 to May 8, 1867, and that such possession gives him no title as against defendants.'

Judgment having been rendered in favor of the defendants in accordance with this finding, the plaintiff below sued out this writ of error, and assigns, in substance, for error the ruling of the court admitting 'Book A' as primary evidence to prove the grant to Donner, and the judgment for the defendants upon the facts as found.

Mr. Walter H. Smith and Mr. James K. Redington for the plaintiff in error.

1. Both parties claim under the Van Ness ordinance of June 20, 1855, the California act of March 11, 1858, and the act of Congress of July 1, 1864, confirming the title of San Francisco to certain lands.

As the plaintiff had actual, adverse, and exclusive possession of the demanded premises from 1851 to 1867, the enacting clause of that ordinance relinquished and granted to him the claim and right of the city to them. He therefore made out a clear prima facie title to recover.

2. The defendant cannot defeat that prima facie title, unless he produces first a grant of the premises, and, secondly, a record, showing that the 'grant, or a material portion of it, was registered.' These two substantive and independent facts must be established by legal evidence, to bring his case within the proviso to that ordinance.

The grant must, of course, be in such form as would possess intrinsic validity and transfer the title, if the alcalde had been vested with power to make it, and the grantee must have been competent to take.

The 'Plan of Pitic,' founded upon a royal ordinance, was not pursued in later years by the Mexican alcaldes in San Francisco, but was partially superseded by a custom which prevailed in July, 1846, when Upper California was conquered by the military forces of the United States. Dwinelle, Col. Hist. of San Francisco, 111. By that custom the only document containing the 'entire proceedings' was 'signed and attested in due form by the proper officer,' and delivered to the grantee; whilst the record-book contained a mere condensed copy or summary statement, often not signed at all, and it omitted the condition that the grantee should build a house on the land within a year, and conform to the police regulations. Id. 162-165. The grant was not produced nor its absence accounted for; and the pretended grantee, under whom the defendant claims, was then a child ten years old, and consequently incapable of performing the required condition.

'Book A' was inadmissible to prove an original grant. It could only be allowed upon the footing of mere secondary evidence, after the necessary preliminary proof had been made. It is not like a common-law record of proceedings in court, for that is itself an original, and supposes no better evidence in existence; whereas a record or registry of a deed or other instrument is only a copy, and presupposes an original. 2 Phill. Evid. 490; Brooks v. Marbury, 11 Wheat. 79; Rice v. Cunningham, 29 Cal. 492.

During the time which elapsed between the conquest of California and the establishment of her State government, an American officer, who acted as alcalde and granted pueblo lands, was bound to conform to pre-existing laws and customs until they were superseded by the conqueror. They made the delivery of the grant an essential prerequisite to the investiture of title, and in that respect conformed to the common-law doctrine applicable to the forms of conveyance prevailing in the United States, which were after the conquest introduced in California.

The record is not primary evidence of the execution and delivery of the alleged grant, and if it were, the grant as it there appears-containing no condition whatever-passed no right to the land.

3. Plaintiff's possession for the period prescribed by the Statute of Limitations vested in him a title which he could affirmatively assert against any adverse right or claim. Shelly v. Guy, 11 Wheat. 370; Pendleton v. Alexander, 8 Cranch, 469; Leffingwell v. Warren, 2 Black, 605; Bradstreet v. Huntington, 5 Pet. 402.

This proposition has been repeatedly affirmed by the Supreme Court of California in the construction of the statutes of that State. Grattan v. Wiggins, 23 Cal. 36; Le Roi v. Rodgers, 30 id. 234; Arrington v. Liscom, 34 id. 370, 371; Cannon v. Stockman, 36 id. 540; San Francisco v. Fulde, 37 id. 352.

4. The Statute of Limitations, set up by the defendants, was not a bar to this suit. Richardson v. Williamson, 24 Cal. 296; Maris v. De Celis, 51 id. 60; Arrington v. Liscom, supra.

Mr. S. O. Houghton, contra.

MR. CHIEF JUSTICE WAITE, after stating the facts, delivered the opinion of the court.