Adams v. Lansing

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

This is an action of ejectment to recover five undivided ninths of a tract of land in the city of Oakland. Both parties deraign title from Luis Peralta, deceased, to whom the land was originally granted by the Mexican Government. The plaintiff claims under conveyances from certain of the heirs at law of Peralta, and the defendant under an instrument purporting to be a will executed by Peralta on the twenty-ninth of April, 1851. This instrument, after reciting that he, Peralta, had already portioned out to his sons their respective lands, contains the following clause: “ I declare that these lands comprehend all my property of the Rancho de San Antonio, the title of whose concession and possession is in the hands of my son Ygnacio, and which lands I have already divided among my sons as [639]a donation inter vivos, to their entire satisfaction, and which donation by these presents I do hereby ratify.” The grounds upon which the defendant bases his claim to a title are: Mrst, an estoppel growing out of these recitals; and, second, the ratification contained in this clause. In our view, the title is perfect upon either ground.

The case of Denn v. Cornell (3 John. Ca. 174) is directly in point upon the question of estoppel. The action was ejectment, the plaintiff claiming, as in this case, under a conveyance from the heir at law, and the defendant under a will containing a clause in these words: “ And whereas I have conveyed to my son Cadwallader my lands at Coldenham, and to my son David my lands in the township of Flushing, I give and devise all my remaining lands,” etc. The suit was brought to recover the lands referred to as having been conveyed to David, whose title had been acquired by the defendant. “ I consider,” said the learned Judge who delivered the opinion of the court, “ that the heir of the testator is estopped by the recital in the will, to deny that the premises were conveyed to David. It is an act of his ancestor, to whom he is a privy.” After referring to a number of authorities, and particularly to the ease of Shelley v. Wright, (Willes’ R. 9) he proceeded as follows: “From these authorities the Court concluded, in that case, that the defendant was estopped by the recital in a bond of a particular fact, from denying that fact. In the present case, the will contains a recital of a particular fact, viz: that he had conveyed the premises in question to David. By this recital the lessor of the plaintiff is estopped, as heir to the testator, from denying that the testator conveyed the premises to his son David.”