Argument for Appellants. tive notes of the survey approved are set forth in full in the patent with a plat of the lands. This patent does not embrace the premises to which adverse claims are asserted by the defendants. Their contention is that the grant followed by the judicial possession given by the alcalde of the vicinity in 1847, vested in the grantee a perfect title to the lands within such judicial possession, which does embrace these lands; and that their right to such lands is not lost by reason of the fact that they are not included in the subsequent survey of the claim under the act of 1851, and the patent of the United States. The court below held against their contention, and adjudged that the plaintiffs were owners in fee of the described premises, and that the adverse claims of the defendants to an estate or interest therein were unfounded in law or equity, and gave a decree, as prayed, for the plaintiffs. From this decree the defendants have appealed to this court. Mr. George Flournoy and Mr. John B. Mhoon for appellants. I. If the court be of opinion that the patent to De Poli is admissible in evidence we still claim that it did not vest title in the patentee, either as against (1) claimants under a complete Mexican title, or (2) the United States. If Mexico had invested Jimeno with a complete title she had no title to cede to the United States in 1848, and did, in fact, only cede, as to this parcel of land, territorial sovereignty. The United States could not convey by its patent, or otherwise, that which she never had. And if the sale to Jose Arnaz was void, the patent issued thereon is clearly void. The United States can only patent its domain and convey its territory pursuant to law. Any acts of even the highest officers of the United States, contrary to law, will not estop the government from denying that act. Story on Agency, § 307 a; Hunter v. United States, 5 Pet. 173, 188. II. The appellants' title to the land described in the answer was complete and perfect in all respects prior to the cession. Argument for Appellants. of California to the United States; and the United States cannot, either by an act of Congress, or patent of the Executive, or decree of the Judicial Department, in contravention of that treaty, divest the appellants. [Counsel then stated the various steps in their chain of title upon which they relied, and continued:] We submit, without fear of contradiction, that in no case in California, Florida, Louisiana or Texas has any Mexican or Spanish grantee shown a more perfect and complete title than the grantee in the case at bar. And we confidently claim that unless the fact that the juridical survey being made after July 6, 1846, vitiates said survey, Jimeno's title to the land described in that survey was in all respects perfect and complete. Minturn v. Brower, 24 California, 644; Schmitt v. Giovanari, 43 California, 617; Malarin v. United States, 1 Wall. 282; United States v. Castro, 5 Sawyer, 625; Rancho Corte de Madera del Presidio; Copp's Pub. Land Laws, p. 532. That Pablo de la Guerra had jurisdiction to make the survey cannot be doubted. Cohas v. Raisin, 3 California, 443; White v. Moses, 21 California, 34; Merryman v. Bourne, 9 Wall. 592, 602; Palmer v. Low, 2 Sawyer, 248; Pico v. United States, 1 Hoffman Land Cas. 279. "The laws of a conquered or ceded country remain in force till altered by the new sovereign." Mitchell v. United States, 9 Pet. 711, 749. Now, if we have shown a perfect title from Mexico in Jimeno prior to the treaty of cession, the United States must protect it. The treaty of cession stipulated for such protection, and as to perfect titles so acquired, they could not be lawfully required to be presented for adjudication under the act of 1851. Beard v. Federy, 3 Wall. 478, 490. The treaty was the law of the title. There can be no estoppel by the patent to Davidson as in favor of respondents, for the reason that there could be none against them arising out of a proceeding to which neither they nor their grantor was a party. Neither the United States patent to De Poli nor the United States patent to Davidson can affect the rights of the other Argument for Appellants. party in a suit for said claims under Mexican grants, because a United States patent on a Mexican grant is a quit claim deed from the government, and does not enlarge or abridge preexisting titles. United States v. Arredondo, 6 Pet. 691, 736; New Orleans v. De Armas, 9 Pet. 224; Langdeau v. Hanes, 21 Wall. 521; Nelson v. Moon, 3 McLean, 319. The appellants are not estopped by a quit claim deed under which they do not claim. Kidder v. Blaisdell, 45 Maine, 461. Under the rule in Cassidy v. Carr, 48 California, 339, and Boyles v. Hinds, 2 Sawyer, if these respondents derived their title by grant from the United States, as, for instance, under the preemption or other valid act by which the United States disposes of its lands, then the patent to Davidson would estop these appellants for the sole reason that appellants would have litigated their rights in a proceeding to which respondents' grantor was a party, and the decree in that case would be an estoppel on both parties to this suit. The case at bar presents no such facts. The United States is not respondents' grantor, nor is it appellants' grantor. It never had the title to the land described in either patent. If so, both patents are void, for under the act of 1851 the United States could issue patents only on lands the right to which came from Mexico to claimants. The land in dispute is embraced in the De Poli patent, that patent issued in a proceeding to which appellants (and their grantors) were not parties. By that patent the United States declared that it had no title or rights to the land therein described and that, as against the United States, De Poli had derived title from Mexico. By its patent to Davidson the United States did not undertake to do more than segregate Davidson's land from the public domain. It had no power to establish lines which would determine the rights of private parties inter sese, because those private parties were not parties in the proceedings under which such patents issued. The land in dispute here never was public domain. It either belonged to De Poli or Jimeno at the time of the cession to the United States, and nothing the United States has since done, or can now do, Argument for Appellants. should estop those who have succeeded to De Poli or Jimeno from showing to whom it did then belong. "In such a case the United States has no interest." United States v. White, 23 How. 249. As was said in Bissell v. Henshaw, 1 Sawyer, 553, 583: As if aware of the confusion which must follow such proceedings, the act of 1851 provides expressly that neither the final decree of the Board of Commissioners, or of the District, or the Supreme Court, or any patent to be issued under that act, shall be conclusive against any one but the claimants and the United States. Rodrigues v. United States, 1 Wall. 582, 588." If there were a contest between the United States and either of these patentees, or a grantee of the United States. and either of the patentees, the patent would clearly be conclusive. But how can such a rule apply when both parties claim the land under a title paramount to the United States? The land in question does not belong to the United States. It is the property of either appellants or respondents. The title came from Mexico to its present owners not from the United States. The determination of the suit will depend upon the question: To whom did Mexico convey? If Mexico conveyed the property to appellants, the United States cannot convey it to respondents; and, on the other hand, if she conveyed it to respondents, the United States cannot convey it to appellants. The United States has, by its Executive Department, segregated it from the public domain, and it now remains for the Judicial Department of the government, as the last duty of the government under the treaty, to determine to whom Mexico did convey, and to then protect the Mexican grantee in his property. III. But if the Pico sale, upon which the De Poli patent issued, is valid, and the juridical survey of November, 1847, is void, the respondents are estopped from now objecting to the lines then established and agreed upon by Anguisola, in charge of the Mission. The recital in the juridical survey, that the neighboring owners were present and consented to that survey and the Opinion of the Court. lines then established, and that Anguisola was then in charge of the Mission lands, and was present and satisfied with said lines, is presumptively true. California Code of Civil Procedure, § 1963, Subd. 15; Stinson v. Hawkins, 13 Fed. Rep. 833. Respondents are estopped by their assent from denying the division line between themselves and defendants. Stowe v. United States, 19 Wall. 13. The line established by agreement controls as between the parties or their privies: Bronson's Executor v. Chappell, 12 Wall. 681; Spring v. Hewston, 52 California, 442; Carpentier v. Thurston, 24 California, 281; Alviso v. United States, 8 Wall. 337; Higueras v. United States, 5 Wall. 824; Fossatt's Case, 2 Wall. 649, 715. "Acquiescence in error takes away the right of objecting to it." California Civil Code, § 3516. Mr. E. S. Pillsbury for appellees. MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court. The question presented for determination in this case relates to the effect of proceedings taken under the act of March 3, 1851, to ascertain and settle private land claims in California, upon the claims of parties holding concessions of lands in that State under the Spanish or the Mexican government. By the cession of California to the United States, the rights of the inhabitants to their property were not affected. They remained as before. Political jurisdiction and sovereignty over the territory and public property alone passed to the United States. United States v. Percheman, 7 Pet. 51, 87. Previous to the cession numerous grants of land in California had been made by the Spanish and Mexican governments to private parties. Some of these were of tracts with defined boundaries; some were for specific quantities of land to be selected from areas containing a much larger quantity; and others were of lands known only by particular names, without any designated boundaries. To ascertain what rights had thus passed, and to |