Dunham v. Angus

McFARLAND, J.

Plaintiff appeals from a judgment in favor of defendants and from an order denying his motion for a new trial.

The action is to quiet title to a lot of land which is a part of what is known as the beach and water-lots of the city of San Francisco. The appellant claims title through a sale of the property in contest by the commissioners of the funded debt created by an act of the legislature approved May 1, 1851. (Stats. 1851, p. 387.) Respondents claim under what is known as the “Peter Smith title,” which, as against the alleged title of the said commissioners of the funded debt, was a prominent subject of litigation during the first years of the history of California as an American state. The various statutes, ordinances, and other facts touching the controversy are fully set forth in the report of the case of

Smith

v.

Morse, 2

Cal. 524, and need not be here stated in detail. For the purpose of this decision the following brief statement is sufficient: In 1850 the city of San Francisco passed an ordinance under which certain of its property, including the lot involved in this action, was conveyed to certain trustees styled the commissioners of the sinking fund, who were given power to sell, etc. On May 1, 1851, the act of the legislature above referred to creating the commissioners of the funded debt was passed, and by that act the said commissioners of the sinking fund were directed to convey all of the property held by them under said ordinance to the commissioners of the funded debt, which was done. The commissioners of the funded debt were

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authorized to sell the property, and they did, on September 20, 1852, sell and convey the lot here in question to Joseph Hetherington, from whom the appellant has a clear deraignment of title. But in 1850 and 185-1 Peter Smith was a creditor of the city in large amounts; and on January 14, 1851,—which was before the passage of said act of May 1, 1851,—he commenced an action on a part of the indebtedness of the city to him, and on September 6, 1851, he recovered a judgment against the city for the sum of about fourteen thousand dollars; and execution was regularly issued on said judgment under which the property here in contest was sold on January 30, 1852, to David S. Douglass, who afterwards received the sheriff’s deed to the same; and whatever interest in the property Douglass thus obtained passed by mesne conveyances and vested in the defendants in this present action. Peter Smith had also in 1851 commenced two other actions for other parts of this indebtedness, in which judgments had been rendered prior to May 1,1851.