Hayes v. Bona

Murray, C. J., delivered the opinion of the Court—Terry, J., concurring.

In Hoen v. Simmons, 1 Cal., 122, this Court held that a verbal sale of land was not valid, under the Mexican law. As a general proposition, it may be stated that, under the Spanish law, a sale of real estate by parole would not be void, per se, and that the distinction between parol contracts and specialties, known. to the common law, does not exist under the civil law, or the Mexican system of jurisprudence, heretofore in force.

By Law 29, Book 8, title 13, of the Recopilación de Indias, every sale of real estate is required to be made before the escribano of the place where the contract is entered into, or where there is no escribano, then before the Judge of the First Instance.

This law was enacted to secure a tax or revenue, on the part of the Government, arising from all sales of land, which was [159]called the Alcabala, and so stringent was the rule on this subject, that if the instrument lacked any of the requirements of the law, it was held void.

It is now contended that this law never was extended to California, and that even if it was, it never had any force or practical operation here. That the condition of the country, its illiterate population, together with the fact that there were no Escribanos or Judges of the First Instance residing in San Francisco, warrants the presumption that the law never was regarded as authoritative, and that evidence of a custom of conveyance existing for many years, by which these requisitions of the law seem to be disregarded, is sufficient to warrant us in determining that contracts for the sale of land were in no way controlled by it.

It may be admitted that there is some doubt whether this law was in force in California. From what we can learn, it was a fiscal law, and extended over all the States and Territories of Mexico. That it fell somewhat into disuse, there is no doubt; hut, so far as we are informed, contracts for the sale of land, by the custom of the country, were required to be in writing, and although all the forms prescribed were not strictly followed, still it was necessary that the instrument should contain at least the names of the parties, the thing sold, the date of the transfer, and the price paid.

In the present case, the defendants do not claim under a verbal sale, but by a written instrument, which they contend was sufficient, under the custom of the country, to operate as a deed.