Emeric v. Penniman

By the Court, Currey, J. This is an action of ejectment brought by the plaintiff, as administrator of the estate of Juana Sanchez de Pacheco, deceased, with the will of the deceased annexed, against the defendants, for the recovery of the possession of a portion of the tract of land in Contra Costa County, called the “ San Miguel Bancho.” From the evidence in the case introduced by the plaintiff it appears that this tract of land was granted, on the part of the Mexican Nation, to the deceased in 1834, and that in 1852 her claim to it was presented to the Land Commissioners appointed under the Act of Congress of .1851, to ascertain and settle the private land claims in the State of California, and that the same was confirmed by such Commisr sioners; that after such confirmation appeals were taken both by the claimant and the United States to the District Court of the United States for the Northern District of California, soon after which Mrs. Pacheco died, leaving her surviving a number of children and grandchildren, to whom by her last will and testament she devised the said tract of land. After [123]her death these children and grandchildren—upon their own petition, in which the executors of the testatrix’s last will and testament joined—were substituted upon the record in the District Court as the claimants of said tract of land, and after-wards such proceedings were had in the case that the claim of the children and grandchildren to the land was finally confirmed to them, and the same was laid off by a survey duly approved. .

When the plaintiff had closed his evidence the defendants moved the Court to nonsuit the plaintiff. The motion was granted, and the ruling in this particular is the ground on which a reversal of the judgment is sought.

In addition to the facts already stated, it appears that the claim of Mrs. Pacheco to the San Miguel Pancho was an inchoate and incomplete grant, which it was necessary to submit to the Board of Land Commissioners before the title to the land could become perfect and vested in any private claimant or claimants. Until a confirmation and segregation of the quantity designated by the grant, the legal title to the land remained in the Government, charged with the equity and interest of the grantee of the Mexican Government and her assigns. (Henderson v. Pointdexter, 12 Wheat. 543; Hall v. Doe, 19 Ala. 386; Minturn v. Brower, 24 Cal. 644.)

By the Probate Act it is provided that the executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased (Section 114), and he may maintain an action for the recovery of any property, real or personal, or for the possession thereof, in all cases in which the same might have been maintained by the testator or intestate. (Section 195.)