Christy v. Fisher

Morrison, C. J.: The plaintiff brought an action of ejectment, to recover the possession of certain real estate in the town of Folsom, described in the complaint as lots one to sixteen, in block seventy-three; lots one to sixteen, in block ninety-seven; and fractional lots fifteen and sixteen, in block seventy-two, and obtained a judgment therefor.

On the trial of the case, a patent for the land from the United States to Halleck, Peachy, and Van Winkle, issued on the 27th day of June, 1864, was put in evidence by the plaintiff. On the 29th day of July, 1857, Halleck and Van Winkle conveyed block ninety-seven to one Gilbert M. Cole, and on the same day they conveyed the other property described in the complaint to one E. D. Hoskins, and the said Hoskins on the 1st day of June, 1861, sold and conveyed the [257]property purchased by him from Halleck and Van Winkle to said Cole. On the 29th day of November, 1875, Cole and wife conveyed to Henry Donnelly, and on the 21st day of May, 1877, Donnelly sold and conveyed the property to the plaintiff Christy. Here we have a complete deraignment of title from two of the patentees of the United States Government down to the plaintiff.

The introduction of the patent in evidence was objected to as immaterial and irrelevant, for the alleged reasons that the parties to whom the patent was issued were not shown to be the heirs or executors of Joseph L. Folsom, deceased.

It does not positively appear in the transcript, that the patent was to them as executors, but they described themselves in their deeds to Cole and Hoskins as executors, and that circumstance coupled with the additional fact found in the objection referred to, to wit: that it was not shown that they were executors, may justify the conclusion that the patent was to them as executors. For' the purpose of this opinion we will therefore assume that the lands in controversy were patented to Halleck, Peachy, and Van Winkle as executors of the estate of Joseph L. Folsom, deceased. But would that fact in any manner affect plaintiff’s title ?

In the case of Bonds v. Hickman, 29 Cal. 465, the Court say: “We can not hold it (the patent) to be void because it was issued to the administrator of the deceased assignee of the warrant, for it is not forbidden by law to be so issued in such cases. It is not shown, upon the face of the patent, that it was issued for land to which the deceased had the right of pre-emption; and if such was in truth the case, though not recited in the patent, it is not liable to be attacked collaterally on that ground.” And in the same case when brought up on another appeal the Court held that a patent to land issued by the United States to “ James Smith, administrator of Eohert Smith, deceased,” vests the legal title to the land in James Smith, and his conveyance of the same transferred the legal title to his grantee, though it did not state that it was made as administrator. (Bonds v. Hickman, 32 Cal. 203.)