Yates v. Smith

Appeal from the District Court of the Tenth District, County of Colusa.

This is an action of ejectment for a lot of land in the town of Colusa. The plaintiff claimed title under the “Colus” grant, and the defendant under the “Jimeno” grant.

The case was first tried in the District Court of Colusa County, at the ’May Term, 1868, and judgment was rendered in favor of the plaintiff. Defendant took an apjieal to this Court, and at July Term, 1869, that judgment was reversed and a new trial ordered.

At the December Term of the District Court, for 1869, a new trial was had, and judgment rendered in favor of defendant. No motion was made for new trial, but plaintiff appealed from the judgment.

The facts are stated in the cases referred to on the former appeal in this case (38 Cal. 60), and in the dissenting opinion of Mr. Justice Cbookett therein, with the exception of the additional facts introduced on the new trial from which this appeal is taken. These last are sufficiently stated in the opinions filed in-this case.

First — Neither the Jimeno survey, nor patents, purports to convey title to any land within the Colus survey — the plats or maps of said patent, being the ruling descriptive part thereof.

The Colus official survey, by tlie Act of June 14tb, 1860, is equivalent to a clear patent, without reservations or limitations. Appellant then holds the fee simple deed of the government, dated February 2d, 1861.

The respondent could only receive, and did receive two months afterwards, a limited decree of approval of the Jim-eno survey, and of consequence a limited conveyance from' the government, the executive necessarily conforming to the judicial patent. But we hold' that the decree, and approved plat, were improperly admitted in evidence, being merged in the executive patent. The party cannot have two sources of title; after accepting the patent he was bound by it.

. There was notice given, on the faces of the patent itself, that a part of the land contained in the exterior limits, had previously been finally confirmed to C. D. Semple.

Not only does the Act of 1851 reserve the rights of all third persons, which reservation is found near the end of the patent, but in this case there is an additional special reservation in favor of a particular person by name, and the boundaries of the land reserved are conspicuously set forth on the diagram of the whole grant.

It may be said that this second plat of £he Colus grant and a part of the Jimeno patent is without authority of law, and that “J. W. Edmonds, Commissioner of the General Land Office,” had no power to insert the “note” and explanatory diagram. To this we-answer that the president issued the patent and all that precedes his signature is Ms act, and moreover .the United States -District Court confirmed the plat of survey with the .Colus survey, plainly laid down upon it by name in large letters. So that in fact the president had no discretion and his officer (Edmonds), only elaborated and made more clear what the District Judge had done who located both grants, an essential part of his judgment in the Jimeno case being to see that his previous judgment in the Colus case was not disturbed or annulled. The patent to that portion covered by superior claims is to that extent inoperative, and, therefore, at least voidable in any proceeding either direct or collateral; in the case at bar it is void, because upon its face it makes the reservation of the paramount claim by name, and as remarked by Chief Justice Field, in Doll y. Meador, (16 Cal. 325); “itisitself record evi“dence of the matter which renders it a nulity.” (General Lafayettés heir v. Kenton, 18 Howard, 197; 18 Howard, 18; 6 McLean, 562; 1 Black. 150; Nelson v. Moor, 3 McLean, 819-323.)