Lick v. Diaz
Before: Crockett, Rhodes, Sandersok, Sawyer
Synopsis
Alcalde’s Grant.—Although neither the delivery of an Alcalde’s grant nor the payment of the municipal fees were necessary to vest title in the grantee, yet, if immediately after a grant was made to two persons, and signed and recorded in due form by the Alcalde, the grantees appeared heforo him, and one of them verbally renounced his right in the lot granted, the Alcalde might amend his record by indorsing on the hack of the grant the renunciation, and the fact that tho other person might have the entire lot, and the lot then became the sole property of tho one not renouncing.
Power to Modify Alcalde’s Grants.—The power vested in an Alcalde to grant lots implies the power to modify the grant, with the consent of all parties in interest, while the proceedings are in fieri, and so long as anything remains to bo done by the granting power.
Idem.—It was competent for one of the grantees of a lot made by an Alcalde to two persons, at any time before the proceedings were completed to decline the grant, and consent that the grant he made to his cograntee, and the Alcalde might then modify tho grant by an indorsement thereon, making it inure to the benefit of such cograntee, and the title would then vest in him alone.
Idem.—Such modification of an Alcalde’s grant is not a transfer of title from one cograntee to another, but an exercise of the granting power.
Parol Testimony to snow Declination of Alcalde’s Grant.—The fact that ono of the cograntees in an Alcalde’s grant, heforo the proceedings to vest title were completed, appeared before the Alcalde and consented to renounce his interest in the grant, and declined the same, and requested it to be made to the other cograntee, may he shown by parol testimony, provided the Alcalde has made such modification of the grant by an indorsement thereon. Such testimony may be rebutted by parol testimony on the other side tending to show that such were not the facts.
Evidence as to Alcalde’s Grant.—Upon an issue as to whether an Alcalde’s grant was declined and renounced, evidence that at the alleged time the pueblo was a small place, and a renunciation of the lot could not well have transpired without a knowledge of the witnesses, is inadmissible.
Alcalde cannot Divest Title.—When an Alcalde has made a grant to two persons jointly, and has delivered possession and completed the proceedings, the title vests in the two jointly, and an indorsement then made by the Alcalde on the grant, without the consent of the grantees, that one of them has renounced, and that the grant shall inure to the benefit of the other, does not divest the title of the one said to have renounced.
Final Judgment by Supreme Court.—Where there are controverted facts to be decided, the Supreme Court cannot direct a final judgment to be entered.
Opinion — Crockett
By the Court, Crockett, J.: This is an action to quiet title under section two hundred and fifty-four of the Practice Act, and also to enjoin the further prosecution by the defendants of an action for partition of the premises in controversy. The plaintiff deraigns his title under Benito Diaz, one of the defendants, to whom it is alleged the lot was granted by Alcalde Hinckley, in 1844. The defendants, except Diaz, are the heirs at law of one Juan Prado Mesa, deceased, to whom they allege the lot was granted jointly with Diaz, and from whom they claim to have derived by inheritance the title to an undivided half of said premises. Diaz failed to answer the complaint, and his default was duly entered. On the first trial of the action judgment was entered for the plaintiff, and the defendants appealed to this Court. On the hearing of the appeal the judgment was reversed and the cause remanded for a new trial, (30 Cal. 65,) and on the second trial judgment was again entered for the plaintiff, from which the defendants have appealed. The proofs show that a few days before the date of the grant, Diaz, on behalf of himself and Mesa, filed with the Alcalde a written petition, soliciting that the lot be granted to the two, jointly, “en compañía.” A grant was accordingly written out in due form and signed by the Alcalde, which bears date July 19th, 1844, purporting on its [441]face to grant the lot to Diaz and Mesa jointly. If the proofs had shown nothing further, it would have been plain that whatever title was conveyed by the grant passed to the two grantees jointly. But the plaintiff claims to have established that, before the grant was delivered by the Alcalde, the two grantees appeared in person before him, and that Mesa then and there declined to accept the grant, and waived his pretensions to the lot in favor of Diaz, in which arrangement the Alcalde and Diaz acquiesced, and thereupon the latter paid the usual municipal fees and was put into possession; shortly after which he erected a house upon the lot, and he and those holding under him have ever since been in possession. In support of this theory the plaintiff put in evidence, against the objection of the defendants, a paper which was indorsed on the grant, and of which the following is a translation :
“Since the said Juan Prado Mesa renounced his.right and property in the lot specified in this document, said lot may remain in the power of Don Benito Diaz, and as his property, for the uses which may be convenient, he having paid the municipal fees.
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