Vallejo Land Ass'n v. Viera

By the Court, Wallace, C. J.: The action is ejectment, and the premises sued for are a portion of the Suscol Banch. The asserted legal title of the plaintiff originates in a Sheriff’s deed, delivered in 1865 to a purchaser at a judicial sale held upon a decree of foreclosure, regularly entered in an action instituted against the defendant here. The decree was founded upon a mortgage deed executed by the defendant to Frisbie in 1861, to secure a balance of unpaid purchase-money—the defendant, at the time, receiving from the mortgagee a conveyance whereby he obtained the asserted title of General Vallejo to the mortgaged premises.

[578]In February, 1862, this title of Vallejo was finally rejected in the Supreme Court of the United States, and in the following month of December the decree of foreclosure was entered against the defendant, directing that the mortgaged premises be sold to satisfy the principal debt owing by the defendant, with the interest accrued thereon, and that the purchaser receive a Sheriff’s deed, and be let into possession, etc. In 1863 Congress passed the Act for the relief of the purchasers from Vallejo, ancf in 1867 the defendant, under the provisions of that Act, as being a purchaser from Vallejo, and in possession when the title, of the latter was rejected, obtained for himself the patent from the United States, purporting to convey to him the premises in controversy; and he now relies upon this patent as vesting in him the legal title, in defense of the,present action. The mortgage-deed delivered by the defendant, and through the foreclosure of which the plaintiff’s title ■ comes, purports, upon its face, to convey the premises by way of 'mortgage in fee; its language is: “ Hath granted, bargained, sold, aliened, released, conveyed and confirmed, and by these presents doth grant, bargain, sell, alien, release, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, all that certain piece or parcel of land, situate,” etc.

The action, as we have remarked already, is ejectment, and the legal title must, of course, prevail. It is conceded that the legal title is that title which is derived through the patent of the United States of the year 1867, running to the deféndant Viera on its face; and the general question for determination is, whether, in point of law, that title is, under the circumstances, to be considered as vested in the plaintiff or in the defendant.

' The thirty-third section of the statute of this State concerning conveyances is as follows: “If any person shall convey any real estate by conveyance purporting to convey the same in fee simple absolute, and shall not, at the time of such conveyance, have the legal estate in such real estate, but shall afterward acquire the same, the legal estate subsequently acquired shall' immediately pass to the grantee,