rights, or which might be entirely reserved from public sale, from those lands which belonged to private persons either in a legal or equitable sense, under a claim of right derived from the governments of Spain or Mexico. The later California decisions accepted this rule.62 As long, however, as a grant of land in California made by Mexico was inchoate or imperfect, the Mexican government had the power to determine the validity of the grant and give it precise location as long as the territory remained under the dominion of that government. This power passed to the United States upon the cession of California, and when the power is exercised by the United States the grantee is bound by its decision.63

§ 287. Measuring of land.-If, while the ceded territory was under the dominion of Mexico, a grant of land required as one of its conditions that the land should be measured by the proper officer, and judicial possession should then be given to the grantee, the legal title remained in the Mexican government until such measurement and delivery of possession. By a grant with such a condition, the grantee acquired only an imperfect and inchoate title.64

§ 288. Titles complete at time of cession.-Titles which have become vested are not affected by the cession. Only the sovereign is displaced, but private property is not confiscated and private rights are not destroyed. The relations of the people to each other are not altered, although their allegiance may be. When territory is ceded by treaty, it is not understood that property belonging to its inhabitants is affected, because lands previously granted are not within the power of one sovereignty to

62 Botiller v. Dominguez, 130 U. S. 247, 9 Sup. Ct. Rep. 525, 32 L. ed. 926, reversing 74 Cal. 457, 16 Pac. 241; Astiazaran v. Santa Rita Min. Co., 148 U. S. 82, 13 Sup. Ct. Rep. 457, 37 L. ed. 376; Stoneroad v. Stoneroad, 158 U. S. 248, 15 Sup. Ct. Rep. 825, 39 L. ed. 969; Houston v. San Francisco, 47 Fed. 339; Anzar v. Miller, 90 Cal. 343, 27 Pac. 299; De Toro v.

Robinson, 91 Cal. 376, 27 Pac. 673; De la Guerra v. Santa Barbara, 117 Cal. 533, 49 Pac. 735; Harvey v. Barker, 126 Cal. 272, 58 Pac. 696; Ainsa v. New Mexico etc. R. R. Co., 175 U. S. 84, 20 Sup. Ct. Rep. 33, 44 L. ed. 78; Tuffree v. Polhemus, 108 Cal. 675, 41 Pac. 806.

63 De Arguello v. Greer, 26 Cal. 615. De Arguello v. Greer, 26 Cal. 615.

transfer to another.65 Still, such titles may require confirmation by the political power or some agency appointed or created by it.66

§ 289. Act of Congress in conflict with treaty of cession.—It is the duty of the courts to follow the statutory enactments of its own government when they conflict with a treaty of cession. If the government of the United States chooses to disregard the provisions of a treaty with a foreign nation, the courts have no power of constituting themselves instrumentalities for enforcing such provisions.67

§ 290. Mexican titles in California after treaty.-On March 3, 1851, Congress passed an act entitled "An act to ascertain and settle the private land claims in the state of California," which provided for the appointment of three commissioners. The act provided that every person claiming lands in California, by virtue of any right or title derived from the Spanish or Mexican government, should present the same to the commissioners with such evidence, documentary and oral, as he relied upon. The commissioners were to decide upon the validity of the claim and report the same with the reasons for the decision to the district attorney of the United States for the district for which the decision was rendered. In all cases of confirmation or rejection of any claim, either the claimant or the United States attorney, in behalf of the United States, might present a petition to the federal district court, praying it to review the decision of the commission, and to decide on the validity of the claim. The court, the act provided, should proceed to render judgment upon the pleadings and evidence, and was authorized to grant an appeal to the

Possessory rights may be protected prior to confirmation. Reynolds v. West, 1 Cal. 322; Sunol v. Hepburn, 1 Cal. 255; Gunn v. Bates, 6 Cal. 263; Soto v. Kroder, 19 Cal. 87; Wilson v. Smith, 5 Yerg. (Tenn.) 379; Pino v. Hatch, 1 N. Mex. 125; Chaves v. Whitney, 4 N. Mex. 178, 16 Pac. 608; Le Roy v. Wright, 4 Saw. (U. S.) 530, 15 Fed. Cas. No. 8273; Tobin v. Walkinshaw, McAll. (U. S.) 151, 23 Fed. Cas. No. 14,069; United States v. Parrott, McAll. (U. S.) 271, 27 Fed. Cas. No. 15,998.

Botiller v. Dominguez, 130 U. S.

247, 9 Sup. Ct. Rep. 525, 32 L. ed. 926, reversing 74 Cal. 457, 16 Pac. 241; Astiazaran v. Santa Rita Min. Co., 148 U. S. 82, 13 Sup. Ct. Rep. 457, 37 L. ed. 376; Stoneroad v. Stoneroad, 158 U. S. 248, 15 Sup. Ct. Rep. 825, 39 L. ed. 969; Rio Arriba Land etc. Co. v. United States, 167 U. S. 309, 17 Sup. Ct. Rep. 880, 42 L. ed. 179. See, also, Chavez v. Chavez De Sanchez, 7 N. Mex. 82, 32 Pac. 144; Lockhart v. Willis, 9 N. Mex. 348, 54 Pac. 337; Apis v. United States, 88 Fed. 936; Grant v. Jaramillo, 6 N. Mex. 322, 28 Pac. 511.

supreme court of the United States. The commissioners and the courts "in deciding on the validity of any claim brought before them under the provisions of this act shall be governed by the treaty of Guadalupe Hidalgo, the law of nations, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the supreme court of the United States, so far as they are applicable."

It was further provided that all lands the claims to which should be finally rejected by the commissioners, or should be finally decided to be invalid by the courts, and all lands the claims to which should not be presented to the commissioners within two years after the date of the act, should be considered a part of the public domain of the United States.68 In 1860 the act was amended by providing that whenever the surveyor-general should have caused any private land claim to be surveyed, he should give notice of the same by publication, and after the lapse of a certain time, the district courts were authorized, upon the application of any person interested, to make an order requir ing the survey to be returned into court for examination and adjudication. On the return of the survey to the court, the parties were authorized to proceed to take testimony as to any matters necessary to show the true and proper location of the claim, and if, in the opinion of the court, the location and survey are erroneous, the court was authorized to set it aside or to correct and modify it.69

§ 291. Effect of these acts.-It would be beyond the scope of this work to notice, except in the briefest possible manner, the various phases of this legislation, or to enter at length into the various cases decided by the courts. It may be said, however, that by these acts the land that was subject to claims derived from Mexico or Spain was reserved from the public domain until all the parties interested had a full opportunity to present their claims for adjudication.70 Parties interested in a claim are au

33.

9 Stats. at Large, 931.

Stats. 1860; 12 Stats. at Large,

Newhall v. Sawyer, 92 U. S. 761, 23 L. ed. 769; Hosmer v. Wallace, 97 U. S. 575, 24 L. ed. 1130; Doolan v.

Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228, 31 L. ed. 844; Middleton v. Low, 30 Cal. 596; Foss v. Hinkell, 78 Cal. 158, 20 Pac. 393. See for various cases under these statutes, Beard v. Federy, 3 Wall. (U. S.) 490, 18 L.

thorized to employ the name of the original claimant in proceedings to establish the grant.71

Nothing more was contemplated by the act to settle Mexican claims in California than to separate lands owned by individuals from the public domain, and, therefore, jurisdiction exists in courts of equity to relieve against fraud or mistake, which jurisdiction may be exercised where a patent has been procured by one which belonged to another at the time of the issue of the patent. Where the relief sought is based upon a charge of secret fraud, and within a reasonable time after the discovery of the fraud suit was instituted, the defense of laches and the statute of limitations cannot prevail, nor can persons having notice of the adverse title at the time of purchase be deemed innocent purchasers.72

§ 292. Decree has effect of judgment.-Generally, the decree has the effect of a judgment. If no appeal is taken within the period fixed by statute, or if the decision is affirmed on appeal, the decree is conclusive and binding, both upon the claimant and the United States and their privies.73 The patent, when

ed. 88; Peralta v. United States, 3 Wall. (U. S.) 434, 18 L. ed. 221; Townsend v. Greeley, 5 Wall. (U. S.) 335, 18 L. ed. 547; More V. Steinbach, 127 U. S. 70, 8 Sup. Ct. Rep. 1067, 32 L. ed. 51; United States v. Fossatt, 21 How. (U. S.) 445, 16 L. ed. 186; Swat v. United States, Hoffm. Land Cas. (U. S.) 230, 23 Fed. Cas. No. 13,680; Boulden V. Phelps, 12 Saw. (U. S.) 316, 30 Fed. 547; Frisbie v. Whitney, 9 Wall. (U. S.) 187, 19 L. ed. 668; Atherton v. Fowler, 96 U. S. 513, 24 L. ed. 732; Beley v. Naphtaly, 169 U. S. 353, 18 Sup. Ct. Rep. 354, 42 L. ed. 775; United States v. Castillero, 2 Black (U. S.), 17, 17 L. ed. 360; Mora v. Foster, 3 Saw. 469, 17 Fed. Cas. No. 9784; Hosmer v. Wallace, 97 U. S. 575, 24 L. ed. 1130; Hays v. Steiger, 156 U. S. 387, 15 Sup. Ct. Rep. 412, 30 L. ed. 463; Estrada v. Murphy, 19

Cal. 248; Rush v. Casey, 39 Cal. 339; Taylor v. Escadon, 50 Cal. 428; Hastings v. McGoogin, 27 Cal. 85; Durfee v. Plaisted, 38 Cal. 80; Wormouth v. Gardner, 112 Cal. 506, 44 Pac. 806; Watriss v. Reed, 99 Cal. 134, 33 Pac. 775; Gresar v. McDowell, 6 Wall. (U. S.) 363, 18 L. ed. 863; United States v. Ritchie, 17 How. (U. S.) 525, 15 L. ed. 236; United States v. Pacheco, 20 How. (U. S.) 261, 15 L. ed. 820; Yturbide v. United States, 22 How. (U. S.) 290, 16 L. ed. 342; United States v. Morillo, 1 Wall. (U. S.) 706, 17 L. ed. 626.

"United States v. Sutter, 21 How. (U. S.) 170, 16 L. ed. 119.

12 Meader v. Norton, 11 Wall. (U. S.) 442, 20 L. ed. 184.

13 Malarin v. United States, 1 Wall. 282, 17 L. ed. 594; United States v. Fossatt, 21 How. (U. S.) 445, 16 L. ed. 186; Boyle v. Hinds, 2 Saw. 527,