Gutierrez v. Brinkerhoff

McKEE, J. The case in hand arises ont of an action which was brought by the plaintiff, as widow and sole devisee of Octaviano Gutierrez, deceased, to obtain a decree annulling and setting aside certain documents affecting a tract of land in Santa Barbara county, known as the rancho La Laguna, upon the grounds that the same were obtained by fraud and without consideration. Upon a trial of the issues raised by the pleadings, decision and judgment were rendered in favor of the plaintiff. Within statutory time, defendants moved for ' a new trial upon a statement of the case, settled and certified by the judge who heard and decided the case, but, before the motion came on to be heard, his term of office ended, and the motion was argued and submitted upon the statement to his successor in office, who ordered the judgment vacated and the case to be retried. From that order the plaintiff has appealed ; and it is contended that the judge of the court below not only abused his discretion in granting a .new trial, but committed error prejudicial to the rights of the plaintiff.

The statement of the case, upon which the order was made, shows that Gutierrez claimed the Laguna ranch under two inchoate grants from the Mexican government, one of which was dated March 12, 1844, and the other November 13, 1845. The first was a provisional grant “for three leagues of land of the tract called La Laguna,” and the second a grant of the same character for “the land described and set forth in the map accompanying the grant. ’ ’ When these grants were made and delivered, Gutierrez was a married man and the husband of the present plaintiff. He and his family continued to occupy the ranch after the acquisition of California by the United States, and in 1854 he presented his grant for confirmation to the United States board of land commissioners. Confirmation of his claim to the extent of three square leagues of land was made by the board. But the ease was afterward taken into the United States district court for the eighth district of California, where a decree of confirmation was obtained as follows: “To the extent of eleven square leagues within the boundaries called for in the grant, and described in the map accompanying it, provided that should there be a less quantity than eleven square leagues contained within said boundaries, then confirmation is hereby made to such less quantity.” That confirmation became final, and un[234]der the decree the United States surveyor general for California, in October, 1860, caused a survey of the ranch to be made, which included four leagues of land. The plot of this survey was returned and filed in the surveyor general’s office at San Francisco. In December, 1860, that officer indorsed upon it his final approval, and for making the survey and the work appertaining to it he was paid by the United States government, in March, 1861. But instead of forwarding .the approved plot of the survey and the documents connected with it to the commissioner of the general land office at Washington for final approval, they were permitted to remain in the office at San Francisco.