Schmitt v. Giovanari

By the Court,

Rhodes, J.: Action of ejectment to recover possession of a portion of the Agua Caliente Rancho, which was granted to Lazaro Peña on the 13th day of July, 1840, by the Governor of California. On the 14th of December, 1839, Peña executed to M. G. Vallejo a formal conveyance, purporting to convey to him the rancho; and on the 12th of August, 1846, Vallejo executed and delivered to Andres Hoeppner an instrument in 'writing, which the plaintiff relies upon as a conveyance of the rancho. Hoeppner was then married to Anna Hoeppner, but between 1855 and 1858 he died intestate and without issue. Anna Hoeppner, December 21st, 1858, conveyed all her right, title, and interest in the rancho to Travers; and the plaintiff claims title to the undivided half of the rancho under that deed. Vallejo filed with the Board of Land Commissioners his petition for the confirmation of his claim to the rancho, and such proceedings were had in the matter that the claim was confirmed by the District Court in 1859; [621]and in 1862 the decree was affirmed by the Supreme Court. The difference between the language of the decree of the District Court and the mandate of the Supreme Court will hereafter be noticed. It may, however, be remarked here, that a confirmation of a claim or title under the provisions of the Act of Congress of March 3d, 1851, necessarily requires a confirmee. Vallejo was the only petitioner; and although the confirmation may inure in law or in equity to the benefit of other persons, either by the terms of the decree of the District Court or by operation of law, the decree confirmed the claim of Vallejo, and he will be regarded as the confirmee. The defendants deraign title through two deeds executed by Vallejo in 1863 and 1864; and they also claim through another deed, which it is unnecessary now to notice. The defendants had judgment, and the plaintiff appeals from the judgment and the order denying a new trial.

The date of the conveyance of Peña to Vallejo is 1839, while that of the grant is 1840. In confirming the grant the Supreme Court treated the date—1839—as a clerical error for 1840, and that must have been the view also of the District Court, for the claim of a petitioner will not be confirmed "unless he show a prima facie title; and we are of the opinion that it must be regarded as a clerical error, and that 1840 was the true date of the execution of the conveyance.

If, however, we are wrong in this, then the operation of the deed, which was very full and formal, caused the title, when the grant was afterwards made to Peña, to inure to the benefit of Vallejo. Under the Spanish law the vendor was under the implied obligation to make his sale and conveyance effective. He was bound to defend the title, if notified of a suit brought against the purchaser, and if unsuccessful in this he was required to indemnify the purchaser. (See Schmidt, Civ. Law of Spain and Mex., 135; Fuero Juzgo, Law 9, Book 5, Title 4; Partidas, 5, Law 32, Title 5.)