McGarvey v. Little
Before: Baldwin
Synopsis
The Pulgas grant, in San Mateo county, is a grant by boundaries, and not by quantity, the description being, “ tract known under the name of Las Pulgas, the boundaries of which are, on the south the creek of San Francisquito, on the north that of San Mateo, on the east the estuaries, and on the west the cañada de Raimundo,” and “ the tract of which mention is made is of four leagues of latitude and one of longitude.”
In ejectment, where the title is of record and wholly documentary, the Court may declare the effect of the papers offered by plaintiff, and instruct the jury that plaintiff has made out his title, if they believe the land to be within the boundaries of a grant under which plaintiff claims.
Where the minutes of the Court entered of record show that plaintiff offered in evidence the patent, and certain mesne conveyances to himself, but they do not appear in the statement for new trial, and the papers are not set out in the record, and the Court charges as above, this Court will not hold that the charge was an abstraction, or that it mistook the facts, when the motion for new trial fails to set forth the grounds relied on, and the statement does not show that the testimony therein was all the testimony offered.
In ejectment, the verdict may be joint against several defendants without specifying their respective lots in a whole tract, where they file a joint answer, which contains no averment as to the particular portion of land occupied by each, no proof being offered on the point, no damages being claimed, and defendants being in possession.
Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.
This was an action of ej||tment brought for the recovery of a tract of land in San Mateo county, comprehended within what is known as the Pulgas grant. The suit was brought against several defendants. The plaintiff introduced the original patent from the government of the United States, for the Pulgas tract. The patent issued after, and in pursuance of, a final decree of confirmation.
The jury found a general verdict for the plaintiff against two defendants, not specifying the particular lots occupied by them respectively, but no damages were awarded.
1. It is assigned for error that the Court erred in its instructions to the jury. The first instruction is, that the Pulgas grant was a grant by boundaries, and not by quantity. Upon an inspection of the grant, we see no error in this charge. (See Arguello v. U. S. 18 How. 548.)
2. The fourth instruction is excepted to. This is, if the premises were within the original boundaries mentioned in the Pulgas grant, then that the plaintiff had made out his title, even though the premises were more than a league from the shore of the bay, and although an area of more than four square leagues, measured as the witness described, would exclude the premises.
We find upon the minutes of the Court, that the plaintiff offered the patent of the Pulgas ranch, Arguello’s title, to S. M. Mezes; power of attorney from S. O. De Arguello and J. R. Arguello, to S. M. Mezes, and deed from Mezes to McGarvey, were offered in evidence. We [31]see nothing of this in the statement for a new trial, nor are the documents set out. But the motion for the new trial fails to set forth the grounds upon which the defendant would rely, and the statement does not show that the testimony therein was all the testimony offered.
Under these circumstances, we are unwilling to hold that the Court gave an abstract instruction or mistook the facts. The title being matter of record and wholly documentary, the Court was authorized to declare to the jury the effect of the papers in ¡the given category.
The main question was a question of boundary, and fairly left to the jury. It was for them to decide whether the premises were within the Pulgas grant; and the evidence being conflicting, we will not review their finding.
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