Beach v. Gabriel

By the Court, Sanderson, J. The ordinance of the 1st of December, 1849, was not the act of Antonio Maria Pico as Prefect, but was, as it purports, the act of the Ayuntamiento, attested by Antonio Maria. Pico as President of that body, and James W. Weeks as Secretary. Nor can it be construed to be a grant by the Ayuntamiento of the land in question to Maria Merced de Avila. It is. not framed in the language of a grant, either under the Mexican or American system. It is manifestly a mere conditional order or direction on the part of the Ayuntamiento to the proper functionary to the effect that a title to or grant of the land in question be made to Maria Merced de Avila, provided it should appear that no one else had a better right thereto. .It is not only not a grant, but it is manifest from the language employed that it was not intended to be. Although made in the English language, it is manifestly fashioned upon the style or mode of expression employed in the Spanish. The word “ extended ” is used in the sense of the Spanish word “ extender,” which means, when used in the connection under consideration, “ to commit to writing at length,” (Spanish and English Dictionary, by Velasquez.) The ordinance being a mere order or direction to the proper functionary to make a [585]grant to Maria Merced de Avila, if he should find that no other person had a better right thereto, no title passed thereby.

The point to the effect that the action is barred by the Statute of Limitations is not well made. It was held in Johnson v. Van Dyke, 20 Cal. 225, that the statute does not begin to run until the patent has been issued by the United States G-overnment. It appears from the finding that the patent for the land of which the land in controversy is a part had not been issued at the time this action was brought.

Judgment reversed and Court below directed to enter a judgment for the plaintiffs.

Mr. Justice Rhodes, being disqualified, did not participate in the decision of this case.