Rodriguez v. Comstock

By the Court, Shafter, J. This was an action of ejectment. The defendants, in their answer, denied all the allegations in the complaint, and further alleged, in effect, that the legal title to the premises demanded is in them and the plaintiffs, jointly. The answer, in addition to the claim of legal title, contains a diversity of allegations, on the ground of which the defendants claim, alternatively, that the plaintiffs hold the land in controversy in trust for them, to the extent of one undivided half thereof.

Under the view which we have taken of the case presented by the record, it is unnecessary for us to pass upon the question of the equitable rights of the defendants, and it would, [86]therefore,” be improper to do so. The case was tried by the Court, and on the findings of fact as presented in the record, the alleged trust, confessedly, cannot be upheld. Neither do the findings of the Court contain any facts showing by conclusion that the legal title to the premises is in the defendants ; and we are therefore confined to the appeal from the order refusing a new trial.

The motion for a new trial was based upon surprise, newly discovered evidence, and errors of law occurring at the trial.

We shall limit ourselves to the single point of “ surprise.”

The plaintiffs, at the trial, to make out their title as the representatives of Sebastian Rodriguez, relied upon a patent issued to him by the United States, based upon an inchoate title or grant made to him by Governor Alvarado in the year 1837.

The defendants, who claimed an older and better title than that—derived from Alexander Rodriguez, brother of Sebastian —introduced a certain petition, signed by Sebastian and Alexander, addressed to Governor Guiterez, and dated September 30th, 1836, tending to prove that they had been in the joint possession of the premises in controversy for eight years prior to said date; and further, tending to prove that such possession had been taken and held by them under a grant made in them favor; and also introduced a certain other petition of Sebastian to Governor Alvarado on the 27th of September, 1837, together with the deposition of Maximo Martinez, both tending to prove that the written evidence of such concession by Governor Arguello had been lost, and that such grant was made by him to Alexander and Sebastian jointly, in the year 1823. Thereafter, the defendants called Victorine Martinez to the stand, for the purpose of proving a delivery of juridical possession to the two brothers jointly, in 1823, by Mariana Estrada, Commander of Monterey, he acting therein by order 'of Governor Arguello.