Statement of the Case.

Under the Code of Civil Procedure of California a plaintiff asserting title to lands, though out of possession, may maintain an action to determine an adverse claim, estate, or interest in the premises.

THE case as stated by the court was as follows:

This is a suit in equity to determine the adverse claims of the defendants below, appellants here, to certain lands in the county of Ventura, in the State of California. One of the plaintiffs, Rudolph Steinbach, is an alien and a subject of the Emperor of Germany. The other plaintiff, Horace W. Carpentier, is a citizen of the State of New York. The defendants are all citizens of the State of California. In their complaint the plaintiffs allege that they are the owners in fee of the premises, which are fully described; that the defendants claim an estate therein adverse to them; that such claim is wholly unfounded and invalid in law or equity; and that its assertion depreciates the value of their title and property, and prevents them from using or selling the property, and otherwise harasses and annoys them in its possession and ownership. They therefore pray that the defendants may be required to set forth the grounds and nature of their claims and pretensions, that the court may determine each of them; and that it may be adjudged that they are unfounded in law and equity, and that the plaintiffs are the owners of the premises and entitled to their possession, and may have a writ of assistance for the possession of such portions as may be found to be in the occupation of the defendants, and for such other and further relief as may be just.

In their answer the defendants disclaim all interest in a portion of the premises, and deny that the plaintiffs have any estate in the residue. As to such residue, they admit that they claim an estate in fee simple therein, and aver that the defendant A. P. More is now, and his grantors have been since 1843, the owners thereof in fee by virtue of a grant made April 28, 1840, by Alvarado, then governor of the Department of California under the Mexican government; that the grant was approved by the Departmental Assembly on the 26th of May, 1840; and that thereafter, on the 1st of April.

Statement of the Case.

1843, Micheltorena, then governor of the Department, ratified and confirmed the grant; and that, on the 17th and 18th of November, 1847, the grant was duly surveyed, and the grantee placed in possession by the First Alcalde of the district in presence of the neighboring proprietors, who consented to the lines thus established.

The answer further alleges that the grant was adjudged to be valid and confirmed under the act of Congress of March 3, 1851, "to ascertain and settle the private land claims in the State of California," 9 Stat. 631, c. 41, and that the defendant A. P. More, on the 4th of March, 1858, succeeded by proper conveyances to all the interests of the grantee in the premises, and still remains the owner thereof, except as to a portion not in dispute here, which he has alienated, and as to portions which are described as belonging to the other defendants, all of whom assert title to the parcels held by them under conveyances from him.

A replication being filed, proofs were taken, from which it appears that the plaintiffs claimed under a patent of the United States, issued to one Manuel Antonio Rodrigues de Poli, bearing date on the 24th of August, 1874. It is conceded that whatever title was acquired by Poli under the patent had passed by proper mesne conveyances to them. The patent recites the proceedings taken by Poli before the Land Commissioners under the act of March 3, 1851; the filing of his petition in March, 1852, asking for the confirmation of his title to a tract of land known as the mission of San Buenaventura, his claim being founded upon a sale made on the 8th of June, 1846, by the then governor of the Department of California; the decree of confirmation rendered by the Board of Commissioners in May, 1855; the affirmation of said decree by the District Court of the United States for the Southern District of California in April, 1861, to the extent of eleven square leagues, and by the Supreme Court of the United States, as shown by its mandate issued in December, 1868; and the subsequent depositing in the General Land Office of a plat of the survey of the claim confirmed, authenticated by the signature of the Surveyor General of the United

Statement of the Case.

States for California, the descriptive notes and plat of the survey being set forth in full.

The land of which the plaintiffs claim to be the owners is embraced in this patent, and upon its efficacy in transferring the title they rely.

The defendants, as stated in their answer, claim under a grant made by Governor Alvarado to Manuel Jimeno on the 28th of April, 1840, which was confirmed under the act of Congress of March 3, 1851, to ascertain and settle private land claims in California. It appeared in evidence, a fact not averred in the answer, that the claim thus confirmed was subsequently surveyed as required by that act, and on the 22d of April, 1872, a patent of the United States therefor was issued to the claimants, Davidson and others, who had acquired by proper conveyances whatever rights Manuel Jimeno possessed under the grant. The defendants afterwards succeeded to the rights and title of these claimants.

The patent to Davidson and others recites the various proceedings taken by them for the confirmation of the claim to the land covered by the grant to Manuel Jimeno, issued by Governor Alvarado on the 28th of April, 1840, and approved in a subsequent instrument by Governor Micheltorena on the 1st of April, 1843, which two instruments are described as separate grants; the confirmation of the claim by the Board of Land Commissioners on the 22d of May, 1855, and that, an appeal having been taken to the District Court of the United States for the Southern District of California, the Attornev General of the United States gave notice that it was not the intention of the United States to prosecute it, and thereupon, at its December Term, 1857, it was dismissed by the court.

The patent also recites the subsequent proceedings taken for the location and survey of the claim, by which it appears that two surveys were made, both of which were brought before the District Court of the United States under the act of 1860; and that the one made under instructions of the United States Surveyor General in December, 1860, and approved by him in February, 1861, was adopted by the court "as the correct and true location of the lands confirmed." The descrip

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