County of Amador v. Gilbert

SMITH, C.

The suit was brought to annul a deed made by the judge of the superior court of Amador County, purporting to convey to the defendant a lot or piece of land in the unincorporated town of Jackson, in said county, and to eject the defendant from the premises and remove the buildings therefrom.

The town site of Jackson was granted by the government of the United States, August 6,1870, to the county judge of Amador County and his successors, in trust, for the inhabitants of the town,—the patent being issued under the provisions of the act of Congress of March 2,1-867, “ for the relief of the inhabi

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tants of cities and towns upon the public lands.” (14 U. S. Stats, at Large, 541; U. S. Rev. Stats., secs. 2387 et seq.) Under this act, provision had been made for the entry of such lands by the county judge of the county in which they were situate, “in trust, for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state,”, etc. In pursuance of the authority thus granted, an act was passed by the legislature of the state, March 30, 1868, prescribing the duties of’the county judge in executing the trust in such cases (Stats. 1867-68, p. 692); and afterwards, by the amendatory and supplementary act of March 12, 1885, the judge of the superior court of the county was substituted as trustee in place of the county judge, whose office had been abolished. (Stats. 1885, p. 115.) At the date of the deed to the defendant, therefore, the legal title of the town site—with the exception of lands previously conveyed to occupants or others—was vested in the judge of the superior court in trust for the inhabitants of the town, and subject to the provisions of the acts of the legislature prescribing the mode of executing the trust. The question to be considered, therefore, is, whether the deed in question was authorized by the terms of the trust. Otherwise, it was void. (Civ. Code, sec. 871.)

In this case, before the passage of the last act, the trust, so far as it could be, had been executed by the county judge, who, on the issue of the patent in 1870, proceeded at once to perform, and—so far as appears—did perform, all the duties imposed on him by the original act. The trust was thus fully performed, except with reference to the “unoccupied or vacant unclaimed land within the limits of the town site” (if any) referred to in section 15 of the act; and there remained no functions to be performed by the superior judge, with reference to the land referred to, other than those prescribed by the section cited. Ordinarily, indeed, the power of the trustee to convey might exist in favor of two classes of persons; namely, original occupants, to whom the original trustee had failed to convey, as required by section 10 of the act, and purchasers under the provisions of section 15. But there is no