Cullen v. Sprigg

Vanclief, C. 0.—■ This is an action for partition of pueblo lot No. 1111 of the lands known as the pueblo lands of the city of San Diego.

The appeal is from an interlocutory judgment determining the rights of the parties as to their respective interests in said lot, and from an order denying a new trial.

The rights of the appellants rest upon their deraignment of title from the city of San Diego under a deed from the city, executed October 25, 1869, to James W. Cullen, purporting to convey a tract in the southeastern portion of said lot, specifically described by metes and ■ bounds, and forming a rectangular piece of land forty chains in length and twenty chains in ividth.

The rights of the respondents depend upon their deraignment of title from the city under two deeds from the trustees of the city, dated March 1, 1869, to William Evans, one for “that lot of land containing sixty acres lying in block No. 1111, according to the official map of said city, made by Charles H. Poole, A. D. 1856,” and the other for “that lot of land containing forty acres lying in block 1111,” according to the same map. The deed for the sixty acres recites, in substance, that- the president and trustees, in compliance with a vote of the qualified electors of the city, at an election held May 25, 1868, in pursuance of the “act to repeal the charter of the city of San Diego, and to create a board of trustees,” approved January 30, 1852, by which they are directed, authorized, and empowered to sell pueblo or city lands, the property of said city, sold the land and premises in said deed described, “ for the sum of fifteen dollars, in gold coin of the United States of America, being at the price of twenty-five cents per acre, upon the conditions provided for and prescribed in a certain resolution or order of said board of trustees, made and entered on the eighth day of June, 1868; and said party of the second part has agreed to complete all improvements upon said [59]land by said resolution or order required to be done, and has fully paid said sum of fifteen dollars into the treasury of said city.” But these recitals precede the granting clause, to which no condition is appended, and which is in the following words: —

'' Now, therefore, the president and trustees of the said city of San Diego, parties of the first part, for and on behalf of said city, by virtue of the power and authority in them vested by the law, and for and in consideration of the said sum of fifteen dollars, gold coin of the United States, to them in hand paid by the said party of the second part, at or before the ensealing of these presents, receipt whereof is hereby acknowledged, have given, granted, bargained and sold, released and quitclaimed, and b)r these presents do grant, give, bargain and sell, release and quitclaim, unto the said party of the second part, his heirs and assigns forever, all the right, title, interest, and claim whatsoever of the said city of San Diego, of, in,and to the following described piece or parcel of land situate in the said city, and -within the limits of the pueblo lands of said city, and more particularly described as follows: Being that lot of land containing sixty acres tying in block 1111, according to the official map of said city, made by Charles H. Poole, A. D. 1856, and on file in the office of the secretary of said board, together with all and singular the tenements and appurtenances thereunto in any wise pertaining.