McNeil v. First Congregational Soc'y of S.F.

McKee, J. -Ejectment, to recover an undivided interest in a portion of fifty-vara lot No. 145, in the city and county of San Francisco.

From the unchallenged findings of the court, it appears that William Paty, on the 13th of November, 1849, acquired title to an undivided interest in the premises in dispute. After his acquisition of title he died, on the 14th of February, 1850, in the city of San Francisco, intestate, and leaving surviving him as his legal heirs, Martha Ann Paty, his widow, and three children, Ellen D., Charles M., and Francis W. Paty. Of these children, Charles M. died in the year 1857, a minor, unmarried and without issue. From Francis W. the plaintiffs claimed to have derived his title to the premises and they were, at the commencement of the action, vested with all the right, title and interest in said premises, which the said Francis W. inherited as the heir-at-law of his deceased father and brother. Upon the case made by them they were therefore entitled to judgment for that interest against the defendants in possession, unless the latter showed a superior right to the possession.

[107]Admittedly, the defendants were in possession, and had been, continuously, since the year 1852, by themselves and their grantor, under title to an undivided three-fourths interest in the property, derived from two of the heirs of the said William Paty, deceased. But they also claimed to have acquired the interest in the property of Francis W., as another of the heirs-at-law of said deceased. This claim of title is attempted to be derived from four sources. First—From a decree of confirmation by the Probate Court of San Francisco county of an administrator’s sale of the real estate of said deceased, made under an order of said court. Second—From a deed purporting to convey all the interest of Francis W., as an infant heir-at-law of his deceased father and brother, executed by the mother of said infant, under an Act of the legislature of the State of California, approved May 6th, 1861, entitled “ an act to authorize the guardian of Francis W. Paty to sell and convey certain real estate.” Third—From a deed purporting to convey all the premises in dispute, executed on the 28th of February, 1852, by John Paty, who was a brother and surviving partner of William Paty, deceased. Fourth—From the statute of limitations.

I. As to the first source: William Paty died February 14th, 1850, after the organization of the State government, and before there was any legislation by the State, regulating the administration, descent and distribution of the estates of persons dying intestate within the State. His estate, therefore, descended and was subject to the operation of the Mexican law in existence at the time of the cession of California to the United States. As was said in Ryder v. Cohn, 37 Cal. 87: “ It is a well-known principle, that upon a conquest or cession of a foreign territory, the laws of the former sovereign will prevail, until they are abolished or supplanted by others enacted by the new sovereign.”