Blair v. Sherry

BELCHER, J. — This is an action of ejectment to recover the possession of a lot in the city of San Francisco.

The plaintiffs claim title to the demanded premises under a deed executed to them in pursuance of the provisions of the act of April 14, 1862, entitled “An act to authorize the commissioners of the funded debt of the city of San Francisco to compromise and settle certain claims to real estate, and to convey such real estate pursuant thereto.”

By the terms of that act persons claiming its benefits were required to present a petition to the commissioners of the funded debt, setting forth, among other things, that they, by themselves, their tenants or the persons through whom they claim or derive possession, have been from and including the first day of January, 1855, and still are in the actual possession of the land for which they ask a grant. The commissioners were then required to take testimony as to the matters alleged in the petition, and upon its completion, if in their judgment the claim was well founded, to enter an order in their minutes adjudging and awarding to the petitioner a grant of the land petitioned for.

Upon the award becoming final, after notice published and payments made, as in the act provided, the commissioners were to execute a deed to the petitioner, conveying to him, his heirs and assigns, all of the interest of the city and county of San Francisco, and of the commissioners of the funded debt in and to such land.-

The act then provides: “Such deed of conveyance shall contain recitals showing that the same was executed under the provisions of this act, and when the same shall contain recitals showing that all the provisions of this act have been regularly complied with, such deed of conveyance shall be deemed prima facie evidence of such facts so recited.....No conveyance of any such land, made as hereinbefore provided, shall be deemed to conclude the rights of third persons; but such third persons may have their action in the premises to deter[740]mine alleged interest in such lands against such grantee, his heirs and assigns, to which they may deem themselves entitled, either in law or equity. ’ ’

The deed to the plaintiffs contained all the recitals, contemplated in the act, and among others a recital of the presentation of “their petition in due form to said parties of the first part, commissioners as aforesaid, claiming and alleging that the said parties of the second part, by themselves and their tenants and those under Avhom they derive possession, have been from and including the first day of January, A. D. 1855, and still are in the actual possession of the premises hereinafter described.”