Ely v. Frisbie
Before: Field
Synopsis
Defendants claiming title under a Mexican grant and a patent issued upon its confirmation by the United States, bring ejectment against plaintiffs for certain premises in their occupation; plaintiffs, claiming as United States pre-emptioners, then file their bill in the same Court, to enjoin defendants from introducing in evidence or using the survey, plat or patent, on the trial of the ejectment, until the determination of an action averred to be pending in the United States Circuit Court, by the United States against defendants and others claiming with them, to annul the survey, plat and patent, on the ground of fraud in the survey, and in procuring the patent—the bill also averring such fraud: Held, that injunction does not lie; that the patent, until set aside, is conclusive evidence of the validity of the grant, of its recognition and confirmation, and also of the regularity of the survey, and of its conformity with the decree of confirmation; and that defendants claiming to be pre-emptioners upon land of the United States, have no standing in Court to resist the patent. •
The patent took effect as the deed of the United States at the date of the presentation of the claim under the grant to the Board of Land Commissioners, in August, 1852. It is the record of the Government, that on that day the land it embraces was within the boundaries designated by the grant, and subject to appropriation to satisfy the claim of the heirs of the grantee, and until vacated it imports as against the Government, and all parties claiming under the Government by title subsequent, absolute verity. It can only be impeached by the Government by direct proceedings for its annulment or limitation, and such proceedings, unless accompanied by injunction from the Court in which they are taken, cannot, before decree, impair the rights of the patentees, or those claiming under them; and the institution of the suit of the United States constituted, of itself, no ground for granting the injunction.
Defendants in this case, in answer to a rule to show cause why an injunction should not issue, filed their answer denying fully the allegations of the complaint, and verified in substance thus: “Wm. H. P., one of the defendants, being sworn, says his codefendant F. left this State for the State of Hew York before the complaint herein was filed, and is not in this State; that the foregoing answer is true, of this defendant's own knowledge, except as to the matters therein stated to be upon the information and belief of defendants, and as to those matters he, this defendant, believes the same to be true: ” Held, that the verification of the answer, though not complying in form with the exact language of the statute, is sufficient to entitle the answer to be used as an affidavit.
Held, further, that the exhibits attached to the answer—consisting of copies of the pleadings and proceedings in the action in the United States Circuit Court— needed no further verification than what arises from the statement in the answer that-they are such copies; that no distinct verification of them was requisite; and that were it otherwise, then the certificate of the United States Circuit Court Clerk was sufficient.
Field, C. J. delivered the opinion of the Court Baldwin, J. and Cope, J. concurring.
This is an appeal from an order granting an injunction restraining the enforcement of a judgment recovered by the defendants for the possession of certain premises in the occupation of the plaintiffs, situated in Sonoma county. The defendants assert title to the premises under a grant issued to José German Pina, by Manuel Micheltorena, formerly Mexican Governor of California, and a patent issued upon its confirmation by the United States. The grant bears date in October, 1843, and the claim under it was presented by the heirs of the grantee to the Board of the United States Land Commissioners for confirmation, in August 1852, and was confirmed by the Board to the claimants in June, 1855. This decision of the Board wras affirmed by the United States District Court in March, 1857, and the claim adjudged to be valid to the extent of four square leagues, provided the quantity were contained within the boundaries designated by the grant, and the map to which the grant refers. In April following, the Attorney General of the United States gave notice that an appeal would not be prosecuted in the case, and upon the stipulation of the District Attorney to that effect, the Court entered an order giving leave to the claimants to proceed upon its decree as upon a final decree. Soon after-wards the quantity specified—four square leagues—was surveyed under the directions of the Surveyor General of the United States for California, and in October, 1859, the survey was approved by that officer, and subsequently also by the Commissioner of the General Land Office at Washington. Upon the survey thus approved, and the decree of confirmation, the patent was issued on behalf of the United States to the claimants, bearing date in November, 1859. This patent embraces the premises in the occupation of the plaintiffs, and against them the defendants, who derive their title by conveyances from the patentees, instituted in July, 1860, an action of ejectment in the ordinary form. The [256]plaintiffs thereupon filed their present complaint, in which, after stating the commencement of the action of ejectment, they allege, in substance, that they are in possession of portions of the premises for the recovery of which that action is brought; that they, or the parties through whom they claim, acquired such possession in good faith, under the provisions of the Acts of Congress and of this State; that in pursuance of such provisions they became and are preemptors and settlers, and are entitled to the portions thus possessed by them ; that at the time of taking possession originally, these portions constituted part of the public lands of the United States, and but for the rights acquired by the defendants would still continue such public lands; that the defendants and others, with whom they claim title, by combination with a Deputy of the Surveyor General of the United States, fraudulently procured a survey and plot to be made, purporting to be of the tract confirmed to the heirs of Pina, but which in fact were made to include other lands than those embraced or intended to be embraced by the terms either of the decree of the Land Commission or of the United States District Court, so far as they include the lands lying in the valley of the Russian river, and occupied by the plaintiffs ; that by like combination and by fraudulent representations the defendants obtained the approval of the survey and plot by the Surveyor General, and the issuance of the patent; that, by reason of these transactions and the consequent injuries effected, the United States, in May, 1860, instituted their action in the Circuit Court of the United States, against the defendants and others claiming with them, to obtain an annulment of the survey, and plot, and patent, so far as they embrace any of the lands situated in the valley of the - Russian river ; that said action is now at issue, and before it can be determined the ejectment will be brought to trial, and upon such trial the defendants threaten and intend to use the survey, plot and patent, and thereby—such is the language of the complaint—■ “ wrongfully, and contrary to equity and justice, to obtain judgment against the plaintiffsand that without the aid of the equity powers of the Court, the plaintiffs will be unable to show or plead the fraudulent and invalid character of the survey, plot and patent, but will be subjected to their effect as evidence, and be concluded
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