Seaward v. Malotte
Before: Field
Synopsis
On appeal, the Supreme Court notices only the errors committed against the appellant, not those committed against the successful party.
Where a Mexican grant refers, in its description of the premises, to the plat or map accompanying the expediente, the plat or map becomes, for the purpose of identifying the land, as much a part of the grant itself, as if incorporated therein.
A tract of land was held by several tenants in common, and on partition, a certain portion was set apart and quit-claimed to plaintiff, representing M., who had conveyed to plaintiff as security for indorsements. Another portion of the land was set apart and quit-claimed to H. The portion thus received by H. was subsequently conveyed to plaintiff, and embraces the land in controversy. Held, that plaintiff is not mortgagee of the premises; that even if he held the premises conveyed by H. to him as security for the indorsements of M., it was as trustee of the legal title; that the title had passed from H., and had never been in M., except of an undivided interest before the partition, and was, therefore, in plaintiff, who could maintain ejectment.
Questions arising on a trial as to proper parties plaintiff, as to the validity and effect of a Mexican grant from which plaintiff deraigned title, as to its los's and contents, and as to the validity and effect of the mesne conveyances through which plaintiff claimed, and as to whether the proceedings in the Probate Court showed jurisdiction in said Court to make orders, by virtue of which sales were had, resulting in deeds, through which plaintiff in part claimed, were matters for the Court alone, and not for the jury.
It is error for the Court to instruct the jury that before the plaintiff can recover, the evidence must specifically fix and establish the eastern boundary line of the grant under which plaintiff claimed, when it appears from the evidence that the land in controversy is within that boundary line. The precise location of the line is of no moment.
A lot may be shown to be within a city, without proof of the precise location of one of its boundary lines.
Field, C. J. delivered the opinion of the Court Cope, J. and Baldwin, J. concurring.
This is an action of ejectment, to recover the possession of a tract of land situated in Yuba county, south of the Yuba river, and opposite the city of Marysville. The plaintiff deraigns his title from a grant issued to John A. Sutter, in June, 1841, by the then Mexican Governor of California. The evidence given on the trial established beyond reasonable question the former existence of the grant, its destruction by fire in Sacramento, in 1851, and the correctness, as a copy of the same, of the document produced. In the description of the premises, the grant refers to the plat or map accompanying the expediente, which thus becomes, for the purpose of identifying the land, as much a part of the grant itself, as if incorporated into it. (Ferris v. Coover, 10 Cal. 622; Davis v. Ramsford, 17 Mass. 207; Proprietors of the Kennebec Purchase v. Tiffany, 1 Greenl. 220; Thomas v. Hatch, 3 Sum. 170 ; 2 Hilliard, 348.) This map was destroyed with the grant, but the evidence introduced clearly proved that it embraced lands lying east of Feather river, including the premises in controversy, and that as early as 1843 and 1844, several settlements were made by Sutter thereon. The verdict was so palpably against this evidence, that it should have been set aside without hesitation.
Several objections, it is true, were taken to the evidence thus offered, but as they were overruled, we do not notice them. The defendants are not the appellants, and had the ruling been otherwise, it is possible [307]that other evidence might have been offered. It is not errors committed against the successful party which we notice on appeal, but those committed against the party complaining. For the same reason, we do not consider the ruling on the motion for a non-suit. We do not, however, intend to intimate that the ruling either upon the evidence or motion was in any respect erroneous.
The plaintiff was the proper party to institute the suit. He was not mortgagee of the premises. There appears to have been some confusion of ideas in this respect on the trial. The deed from Mott to the plaintiff, which was taken as security against a contingent liability as indorser of certain notes, was only of an undivided interest in a certain tract. This tract was held by several tenants in common, and on a partition, a certain portion was set apart and quit-claimed to the plaintiff—representing Mott—and another portion was set apart and quit-claimed to Hedges. The portion thus received by Hedges was subsequently conveyed to the plaintiff, and embraces the premises in controversy. If the plaintiff also held these premises as security for the indorsements of Mott, of which there is no evidence, it was as trustee with the legal title, and not as mortgagee. The title had passed from Hedges, and it never had been in Mott, except of an undivided interest previous to the partition. It was, therefore, in Seaward.
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