Folsom v. Root

[375]By the Court,

Bennett, J. This case is in almost all respects the same as the case of Woodworth v. Fulton, decided at the last term. The plaintiff claims title under a grant made by an American Alcalde, during the continuance of the war between the United States and Mexico, and the defendants derive their title from a justice of the peace. It clearly appears from the judgment of the court of First Instance, that the plaintiff was permitted to recover solely upon the assumption of the validity of his title, and not upon the ground that he had ever been in the actual possession of the premises, arid had been ousted by the defendants. In Woodworth v. Fulton it was held, that a title of precisely the same character as that upon which the plaintiff recovered in this suit, was void and of no effect. The defendants having been in actual possession at the time of bringing suit, they should have been protected in such possession, until some better title than their own was adduced against them. Such was not the title under which the plaintiff recovered. The judgment should, therefore, be reversed, and the defendants be restored to the possession and the rights which they respectively enjoyed at the time of the commencement of the suit.

On the re-argument the following opinion was delivered ■

By the Court,

Lyons, J. Respondent on the thirty-first day of January, 1850, filed in the court of First Instance a complaint setting forth that he is the legal owner of a certain lot of land in the city of San Francisco, more particularly described in said complaint—that his title to the same is derived (through one Walter Herron) by grant from an American Alcalde, made during the war between the United States and Mexico. And lie also avers, (fol. iii. of record,) that he was, and had been since the thirtieth day of March, 1848, in undisturbed possession— further, that appellant, claiming title to the same property, by virtue of a grant from a justice of the peace, had attempted to exercise the ownership, and had leased the lot to certain persons therein named—and that complainant’s rights were further threatened by one George W. Sands, wbo was preparing to [376]