Opinion
In banc. Appeal from superior court, Contra Costa county; Jos. P. Jones, Judge.
Partition by Edson F. Adams and others against Emily B. Hopkins and others. From the interlocutory judgment, and from orders denying a new trial, plaintiff and certain defendants appeal. Affirmed. COUNSEL
Chas. E. Wilson, J. R. Glasscock, Robert C. Porter, W. S. Tinning, John O’B. Watt, Philip G. Galpin, Clinton C. Tripp, and Sam Bell McKee, for appellants.
R. H. Latimer, A. B. McKenzie, H. V. Alvarado, G. W. Bowie, C. Y. Brown, Eli R. Chase, Rodgers & Patterson, Sydney V. Smith, W. S. Goodfellow, J. H. Moore, Mastick, Belcher & Mastick, G. H. Cabaniss, R. H. Countryman, E. W. McGraw, R. W. Hent, Myrick & Deering, Gordon & Young, James D. Thornton, John B. Mhoon, Sawyer & Burnett, J. C. Bates, M. M. Estee, A. G. Fisk, Isaac Frohman, Henry E. Monroe, C. C. Tripp, W. T. Baggett, A. Everett Ball, Philip G. Galpin, A. E. Bolton, C. S. Peery, Julius Rayer, E. S. Pillsbury, Wm. H. Chapman, Stephen L. Sullivan, Henry E. Highton, M. G. Cobb, Theodore H. Hittel, Judah Boas, Donald Y. Campbell, Theodore Wagner, Reed & Neusbaumer, Sam Bell McKee, Davis & Hill, M. C. Chapman, W. H. Waste, H. Miller, Fitzgerald & Abbott, W. S. Wells, John Reynolds, Joshua B. Webster, G. S. Langan, Louis H. Sharp, G. W. Haight, W. F. Herrin, W. H. H. Hart, H. A. Powell, E. H. Rixford, G. C. Groezinger, Edgar M. Wilson, Maria Berard, Annais Richon, and Matilda Champrey, for respondents.
OPINION
PER CURIAM.
The suit was brought for the partition of the tract of land known as the ‘Sobrante,’ granted to Juan Joséand Victor Castro by the Mexican nation, April 22, 1841, and patented August 11, 1883, for 19,982.49 acres. The appeals are from the interlocutory judgment, and (some of them) from orders denying a new trial. The original complaint was filed July 31, 1888; the amended complaint, February 19, 1894. The original plaintiff was Edson Adams, who died December 14, 1890. The present plaintiffs have succeeded to his title under his will and under that of Hannah J. Adams, one of his legatees. The original complaint excluded from the land sought to be partitioned six segregated tracts, forming part of the grant. These were afterwards included in the amended complaint, and are referred to in the findings and interlocutory judgment as ‘Specific Tracts A, B, C, D, E, and F.’ As to all of these it was found by the court that the cause of action was barred by the statute of limitations, and they were accordingly allotted to the parties in possession. No question is made as to these allotments, except in so far as they affect other questions, in connection with which they will be considered. Otherwise they may be regarded as eliminated from the case. Besides these there were some other specific allotments,— aggregating, with the others, 11,165.79 acres. The remainder of the grant, containing 8,816.70 acres, is referred to in the interlocutory judgment as the ‘Surplus Sobrante.’
The several appeals may be arranged for convenience of consideration in the following order: (1) The appeals of Wohlfrom and others, relying (mainly) on the statute of limitations, which will be considered under the head of the ‘Settlers Case’; (2) the appeals of Victor Castro and the defendants Tripp contesting the title of the plaintiffs, and of others deraigning title under the same conveyances, which will be considered under the head of the ‘Victor Castro Claim’; (3) the appeals of Fernandez, Wilson, and the plaintiffs, affecting (as expressed by the attorneys) the ‘John Wilson Title’; (4) the appeals of Rogers, Reynolds, and Mhoon and McElrath, affecting the ‘Anna Wilson Title’; and (5) appeals affecting the ‘Franklin Title.’
1. The Settlers Case. The appellants referred to under this head (with the exception of two) claimed and were allowed a small undivided interest in the ‘Surplus Sobrante’; but they claim they should have been allowed the interest (232 acres) allotted to Emily B. Hopkins. They claim, also, adversely to the title, by adverse possession and the statute of limitations; and in this we see nothing inconsistent. They were in adverse possession before they purchased an interest under the grant title; and the purchase of such interest did not necessarily render their possession the less adverse. It may therefore be assumed, under the view we take of the case, that their possessions still continued to be adverse. The decision, it is claimed, should have been in their favor on the statute of limitations. Other errors are urged; but the main contention is as to the statute, and to this our attention will first be directed.
The appellants in question appeared and answered the original complaint, which was filed July 1, 1888, within five years after issue of the patent, August 11, 1883. The plaintiffs’ action was therefore not barred at the time the suit was commenced. On this point the law is too well settled to admit of discussion. Anzar v. Miller, 90 Cal. 344, 445, 27 P. 299, and cases cited; Valentine v. Sloss, 103 Cal. 221, 222, 37 P. 326, 410; Tuffree v. Polhemus, 108 Cal. 670, 41 P. 806. What was said by the court in Emeric v. Alvarado, 64 Cal. 608, 609, 2 P. 418, referred to a survey approved by the district court under the act of congress of June 14, 1860, under which plats approved as prescribed by the act were made equivalent to a patent. It has no application to the present case. In Reed v. Ybarra, 50 Cal. 467, it was held that, even where there had been a survey thus approved, the statute commenced running only with the issue of patent.
The case was not affected by the amendment to the complaint. The allowance of the amendment was within the discretion of the court, and there was no new cause of action. The change was simply in the inclusion of the specific tracts omitted in the original complaint. As to the rest of the lands the cause of action remained the same; nor were the defendants, as adverse occupants, in any way affected by the change. It is immaterial whether the original complaint stated, or failed to state, a cause of action. In either case it was within the power of the court to allow an amendment; and, if the cause of action stated in the complaint as amended and the cause of action imperfectly stated in the original complaint are substantially the same, it will be sufficient. But we have no doubt of the sufficiency of the original complaint. There is nothing in the law that requires the whole of a Mexican grant to be included in a partition suit. All that is required is that the land sought to be partitioned comes within the description given in section 752 of the Code of Civil Procedure. The plaintiffs’ cause of action was, therefore, not barred. Nor after the commencement of the action did the statute run as to the other parties. The plaintiffs’ action is for the benefit of all persons interested in the estate, and all are actors from the commencement of the suit. Code Civ. Proc. § § 382, 753, 759. The case is substantially the same as that of a creditors’ bill, where it is held that a creditor proving his claim ‘becomes a complainant by relation to the time of the filing of the bill.’ Richmond v. Irons, 121 U.S. 51, 7 S.Ct. 788, 30 L.Ed. 864 et seq., and cases cited. See, also, Sterndale v. Hankinson, 1 Sim. 398-400.
Other objections are: That the rights of these defendants, as adverse occupants, could not be determined in this case; that at all events, on the question of title, the defendants were entitled to a jury trial; that on the death of the original plaintiff the court lost jurisdiction of the case by reason of the substitution of the executors of deceased, instead of his heirs; that the case should be dismissed for failure to serve and return summons, etc. But none of these objections are tenable. With regard to the first, it is settled in this state that the rights of adverse occupants of land sought to be partitioned ‘may be put in issue, tried and determined in such action.’ De Uprey v. De Uprey, 27 Cal. 335, 87 Am. Dec. 81; Gates v. Salmon, 35 Cal. 597, 598, 95 Am. Dec. 139; Martin v. Walker, 58 Cal. 597; Jameson v. Hayward, 106 Cal. 687, 39 P. 1078, 46 Am. St. Rep. 268. Indeed, in the partition of large tracts of land, it would otherwise be impracticable to proceed. Whether in such case parties in possession claiming adversely to the title under which partition is sought are entitled to a jury trial is an interesting question, but one that it will be unnecessary to consider. In this case the claims of the defendants rest exclusively on adverse possession, and the statute of limitations or the doctrine of prescription; but these claims, as appears from what has already been said, are on the admitted facts untenable, and there was therefore no issue with regard to them to be tried. The other objections are equally untenable. If there was error in substituting in the case the executors of the deceased plaintiff, it was cured by the subsequent amendment. With regard to the summons, that was issued within the year, which, under the law as it stood when the action was commenced (July 31, 1888), was all that was required. The affidavit for publication was sufficient in a partition suit. Code Civ. Proc. § 757.
With regard to the interest allotted to Emily B. Hopkins, both she and the appellants deraign title under deeds to their respective predecessors in interest from the same grantors (Hatch, Brangan, Brown and Coleman),— the deed to the former, of date February 29, 1877, being for the 232 acres in question; the deed to the latter, of date March 12, 1877, being for the undivided interest of the grantors in the Sobrante. The former deed was not recorded until October 10, 1878, more than a year after the record of the latter; but there is no finding that the grantees in the latter deed took without notice. Civ. Code, § § 1214, 1217; Beattie v. Crewdson, 124 Cal. 579, 57 P. 463. The deed itself is not in the record, but it is said in the brief of the respondent that the former deed is referred to in the latter, and the 232 acres conveyed expressly excepted; and we see no denial of this in the appellants’ brief.
2. The Victor Castro Claim. The question here involves the original title of Victor Castro as one of the two grantees of the Sobrante. The plaintiffs’ interest is deraigned from two sources: The one is a deed from Victor and Juan José Castro, of date November 23, 1853, to John B. Frisbie and Ramon De Zaldo, purporting to convey to the grantees all the lands embraced in the grant, except lands previously conveyed; the other, a sheriff’s deed to A. Mhoon and Edson Adams (the original plaintiff), made in pursuance of a sale, of date December 20, 1856, under a judgment foreclosing a mortgage made by Castro to Mhoon and Adams, July 22, 1853. The plaintiffs’ deraignment of title under these deeds is not disputed. If the validity of the former be assumed, it will be observed the title conveyed was not affected by the foreclosure deed,— the grantees in the former deed not having been made parties to the suit,— and it will be unnecessary to consider it. The deed from the Castros to Frisbie and De Zaldo will therefore first demand our attention. Contemporaneously with this, a deed was executed by Frisbie and De Zaldo to the Castros, reciting the former deed, and that it was made in consideration of an agreement by the grantees to pay to the grantors $40,000, to be realized from sales to be made, and not otherwise chargeable to them, and purporting to recovery the land to the Castros for the purpose of securing the said sum of $40,000. The position of the appellant rests upon the alternative contentions that the effect of the two deeds was to leave the title still in the Castros; and, if this be not the case, that the relations of the parties and the circumstances of the case were such as to make the transaction constructively fraudulent.
With regard to the latter claim, were the case a new one, and unaffected by subsequent transactions, the contention of the appellant might easily be admitted. But, it is found by the court that by an agreement subsequently made between Victor and Juan José Castro, Frisbie, and Vallejo (a grantee of De Zaldo), and Adams and other grantees of Frisbie and De Zaldo, a settlement was made of all claims and controversies between the parties relating to the Sobrante, and that this agreement was carried into effect by a written release of the mortgage by Victor, of date April 1, 1857, and an acknowledgment of satisfaction by Juan Jose, of date April 13, 1857, and by the deeds to Adams, Carpentier, and Hepburn, of April 13, 1857, and to Victor Castro, of September 11, 1858; the deeds referred to covering the whole, or nearly the whole, of the ranch. This— assuming that the deed from the Castros to Frisbie and De Zaldo passed the legal title— must, as found by the court, by taken to be a settlement and release of Victor Castro’s claims. Were it otherwise, we should have to regard the action as barred, both as a stale claim, and under the statutory limitation, by the time that has elapsed since the cause of action arose.
As to the legal effect of the deed from the Castros to Frisbie and De Zaldo, and the accompanying deed, claimed by the appellant to be a reconveyance, and by the respondent to be a mortgage, the case seems equally clear. The language used in the latter instrument has always, both here and elsewhere, been construed to constitute a mortgage; and in this state, under the provisions of section 260 of the practice act, enacted April 29, 1851, it has been uniformly held that a ‘mortgage creates a mere lien for the purpose of security, and, as in other cases of lien upon real property, can only be enforced by judicial proceedings.’ Fogarty v. Sawyer, 17 Cal. 589; 2 Notes Cal. Rep. 43. Nor, indeed, can the provisions be otherwise construed. Its terms are that ‘a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property, without foreclosure and sale’ (Prac. Act. § 260), which is but to say, in effect, that it shall not be deemed a conveyance so as to pass the title. For title is but ‘the means whereby the owner of lands hath the just possession of his property.’ Co. Litt. 349, cited Bouv. Law Dict., word ‘Title.’ The two documents are, indeed, to be construed together as one contract. But this does not alter the manifest effect of either; and though the words of conveyance be the same in both documents, yet, under settled rules, in the one they are to be construed as passing the title, in the other as merely mortgaging the land.
The Claim of C. C. and D. K. Tripp. These appellants claim under an assignment of the mortgage of Frisbie and De Zaldo to the Castros, made by the latter to one Saville, of date January 27, 1860. This was subsequent to the settlement made by the Castros with Frisbie, Adams, and others, and the release made by Victor Castro in 1857; but it is claimed there was no proof or finding that Saville had any notice of the release. This, however, could make no difference. Saville took subject to all existing equities between the parties, and could stand in no better position than his grantor. Civ. Code, § 1459. It will be unnecessary, therefore, to consider the plea of the statute of limitations.
3. The John Wilson Title. There are several appeals affecting this title, presenting different and unrelated questions. These are (1) the plaintiffs’ appeal, which attacks the title; (2) the appeals of Sarah A. Wilson and of John and C. F. Reynolds, involving the construction of the description of land in the agreement and deeds under which Wilson derived title; (3) the appeal of the former, involving also the construction of a deed from one Caryl to Venable, under which she deraigns title; and (4) the appeal of Bernardo Fernandez, involving the construction of two deeds,— one from Wilson to Narcisa Castro de Gutierrez; the other from McLane to Fernandez. The several questions thus raised will be considered in the order stated.
The Validity of the Wilson Title. This title originated in the agreement, between the Castros and Wilson, of date August 5, 1852. By the terms of this agreement Wilson, as attorney, was to prosecute to final confirmation or rejection the claim of the Castros to the Sobrante, and to receive for his services ‘one-tenth part thereof, less by six hundred and forty acres, whenever the said Wilson [should] demand the same.’ The agreed services were duly rendered by Wilson, resulting in the confirmation of the claim by the board of land commissioners; the decree becoming final April 6, 1857. Conveyances of the interest agreed upon were subsequently made to Wilson by the Castros,— by Victor, June 20, 1862; by Juan José, February 7, 1862. But these deeds, it is claimed, being subsequent to the deed of the Castros to Frisbie and De Zaldo, conveyed no title. The justice of this contention is therefore the question first to be considered. The deed referred to conveys to the grantees all the lands embraced in the grant, ‘excepting and reserving from this conveyance all lands which have been heretofore conveyed by the said parties of the first part from the above-described premises.’ The precise question is to determine the sense in which the words ‘heretofore conveyed’ were intended by the parties. The term ‘convey,’ or ‘conveyance,’ is used in several senses. In the strict legal sense, the latter term imports a transfer of the legal title to land; but it is also habitually used by lawyers to denote any transfer of title, legal or equitable, and the last is also the popular sense of the term. On the face of the deed there is nothing to determine in which of these senses the term is used, except the general principles of interpretation applying to contracts. One of these is that ‘technical words are to be interpreted as usually understood by persons in the profession or business to which they relate,’ etc. Civ. Code, § 1654. But this applies only to words exclusively technical, or that are shown to be used in a technical sense; and here the words do not come within the former description, and whether they are used in a technical sense is the very question involved. The case, therefore, comes under the rule that ‘the words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning,’ etc. (Id. § 1644); and it also comes within the rule ‘that a reservation in any grant * * * is to be interpreted in favor of the grantor’ (Id. § 1069). But the most decisive principle applying to the case is that ‘a contract must receive such an interpretation as will make it lawful’ and ‘reasonable’ (Id. § 1643); for it cannot be supposed that the parties had in contemplation the unlawful purpose of defrauding prior purchasers. Nor would the contract, thus construed, be reasonable, even from a purely selfish point of view; for, thus construed, it would simply amount to the purchase of law suits in which the grantees could have no prospect of advantage, except the possible chance of defrauding prior purchasers. We must therefore conclude from the document itself that the parties intended, as honest men under the circumstances would intend, to except from the conveyance all lands previously sold; and this conclusion becomes the more manifest when we consider the circumstances of the conveyance, for at that time the only conveyances, legal or equitable, that had been made by the Castros, or either of them, besides the Wilson contract,— and the Anna W. Wilson deed, disallowed by the court,— were (1) the agreement of Juan Joséof December 4, 1847, to convey to Smith one square league (being the ‘Specific Tract A’ of the findings); (2) the deed of the same to the Franklins, March 29, 1852, 480 acres; (3) the agreement of Victor, of August 18, 1852, to Kelly and Felton (‘Specific Tract B’), 4,098.26 acres; (4) the deed of the same to F. F. Boudrye, November 23, 1853, 100 acres; and (5) the deed of the same to the same, November 1, 1853, 200 acres. These in the aggregate disposed of about 9,306 acres of land, of which only 780 had been conveyed by deed. The balance (8,526 acres) had been fully paid for; and it cannot be supposed that it was not intended to include them in the exception. We must conclude, therefore, that the legal title corresponding to these equitable interests and to that of Wilson remained in the Castros until the execution of their deeds to the equitable owners, subsequently to the deed to Frisbie and De Zaldo. This conclusion renders it unnecessary to consider other points discussed in the briefs, and, among others, that of notice of the Wilson agreement to Frisbie and De Zaldo. With reference to this each party claims that the burden of proof was on the other; but, however this may be, the general finding (contained in the conclusions of law) that the parties deraigning title from Wilson are the owners in fee of the interests claimed must be regarded as settling this and all other questions involved in the question of title not negatived by the special findings.
The Quantity of the Wilson Interest. This question depends upon the construction of the clause in the agreement between the Castros and Wilson, heretofore cited, viz.: ‘The said parties of the first part agree to convey to the said Wilson one-tenth part thereof [referring to the Sobrante], less by six hundred and forty acres’ etc. The question is whether it was intended that the 640 acres should come out of the whole grant before division, or out of Wilson’s tenth after the division. The court adopted the latter construction, and we think rightly. The language is no doubt susceptible of the other interpretation, but the construction put on it by the court is the most obvious and natural; and it is confirmed by the circumstances that a deed of gift for 640 acres was executed contemporaneously to Ann R. Wilson, the wife of John Wilson. This was the construction placed on the agreement by Wilson himself in his deed to Tewksbury of February 13, 1854, under which the appellants deraign title.
Construction of the Caryl-Venable Deed. The description in this deed, under which the appellants Wilson deraign title, is as follows: ‘The one undivided half of all my interest in and to that certain tract or portion of land * * * known as the ‘Castro Sobrante,’ which was granted, etc., * * * meaning to convey three-fourths of one-twentieth of said rancho, less 320 acres. * * * The aforesaid 3/4 of 1/20 acres of land was heretofore conveyed to the party of the first part by Marcella B. Bradley by deed,’ etc. At the time the deed was made the whole interest of Caryl was three-fourths of one-half of the Wilson interest in the Sobrante, or, as expressed in the deed, ‘three-fourths of one-twentieth of said rancho, less 320 acres.’ The question, then, is: Was it the intention of the grantor to convey the whole of his interest, or only half? The court held the latter to be the true intent of the deed, and we think there can be no doubt this was the case. The deed is very carelessly written, and under one of the clauses relied upon by the appellants, if taken literally and held to be the paramount call, the deed would convey only three-fourths of one-twentieth, equal to three-eightieths of one acre. There was evidently an omission here; and it is almost equally evident there was an omission in the other clause.
Construction of the Wilson-Gutierrez and the McLane-Fernandez Deeds. At the date of the former deed, June 25, 1862, Wilson was still the owner of about 673 acres, undivided, of his original interest. The deed purports to be made in consideration of ‘the good will and respect which the said John Wilson entertains for the party of the second part’ (Narcisa Castro de Gutierrez), and ‘gives, sells, and conveys [to her] all his right, title, and interest * * * to three hundred and twenty acres of land, to be taken out of his interest which he now holds in a certain tract of land, etc. [the Sobrante], not to be taken where the said Wilson or any of his tenants are in possession in said grant. The right here sold is an undivided one,’ etc. It is claimed by the appellant (who has succeeded to the title of the grantee, less an interest equal to 2.30 acres previously conveyed by her to another) that this deed should be construed as a grant of 320 acres of land, undivided, of the 673 acres then owned by the grantor; but the court construed the deed as granting only his proportionate interest in the number of acres mentioned, and as equivalent to 18.05 average acres of land in the whole of said Sobrante.’ This construction, we think, is correct. The deed does not purport to convey the specified number of acres undivided, or an interest equal to that quantity of land, but only the interest of the grantor in 320 acres, to be taken by the grantee in some part of the ranch other than ‘where the said Wilson or any of his tenants are in possession.’ The authorities cited by the appellant do not sustain his position. In Grogan v. Vache, 45 Cal. 613, and in the cases there cited, there was a ‘conveyance of a definite number of acres,‘ which is different from the case here, where the conveyance is of the interest of the grantor in a specified number of acres. The deed from McLane to Fernandez does not appear in the record, but the court finds that McLane made and executed to Fernandez a deed ‘purporting to quitclaim to said Fernandez all the interest of the said grantor in and to fifty (50) acres of the Sobrante, undivided.’ The court held, in effect, that the deed conveyed to the grantee, not 50 acres of the undivided interest of the grantor, but his interest in 50 acres. The question, so far as the facts are disclosed to us by the record, is similar to the question already discussed; and we must hold, similarly, that there was no error in the ruling of the court.
4. The Anna Wilson Title. This question depends upon the construction of the deed of Juan José Castro and Victor Castro to Mrs. Ann R. Wilson, of date August 5, 1852. Whatever title vested in Mrs. Wilson by this deed, less a small interest previously conveyed by her to one Bickler, became vested prior to the beginning of the suit in the appellants Reynolds and Mhoon and McElrath. These claim that the deed conveyed to Mrs. Wilson an undivided interest of 640 acres in the Sobrante. This claim was disallowed by the court, and the question is as to the correctness of this ruling. The deed purports ‘to give, grant, and * * * donate * * * to the party of the second part’ the premises described. The description of the land conveyed, omitting parts unnecessary to consider here, is as follows: ‘The following described tract of land, containing six hundred and forty acres, being part of * * * the Sobrante grant, * * * beginning at a pile or point of rocks, * * * which pile or point of rocks is known as and called the southwestern corner of the San Pablo grant; * * * and from thence the line of the said land now granted by this deed is to run eastward along the south line of the said San Pablo grant till it reaches the western line of a piece of land lately sold by the said Victor Castro to one Henry L. Ford; and then at a stake made a corner; and thence with the said Ford’s western line in a southwardly direction till it reaches his southwesterly corner; and from thence with his southern line till it reaches his southeasterly corner; and then in the same direction up the hill as the party of the second part shall desire; and then from that point to extend her eastern line in the same direction as Ford’s eastern line extends (i. e. parallel to Ford’s eastern line); and she is also to extend her western line from the place of beginning in a southerly direction, being a little east of south, till the amount of six hundred and forty (640) acres is included in her survey, making her south line parallel with the said Ford’s south line; and reference is made to Ford’s lines, whether they are now completed or yet to be completed, as the same shall be finally settled by the parties, with all appurtenances thereunto belonging,— to have and to hold the same, etc.; * * * and as soon as the proper survey is made the parties of the first part covenant to make a new deed of the like effect with this, only more particularly describing the metes and bounds of the tract now granted; and the parties of the first part further covenant, if the land now conveyed shall not fall within the Sobrante grant as the same shall be confirmed under the laws and decisions of the United States, then the parties of the first part are to convey in place of this an equal quantity in value and extent, considered together, out of such as shall be confirmed to them in the said Sobrante grant.’ The tract of land purported to be described in the aforesaid deed, it is found by the court, ‘is not and never was any part of or portion of said Sobrante.’
The contention of the appellants is that this falls within the decision in Schenk v. Evoy, 24 Cal. 104, and similar cases. The description in the deed under consideration in Schenk v. Evoy was of a tract of land ‘situate upon the western side of San Pablo creek, in a valley known as the ‘Cruzito Valley,’ which is a part of the tract of land known as the ‘Sobrante Claim,’ and situated in Contra Costa county, and state of California, bounded and described as follows: Having for the eastern boundary thereof a line following the course of San Pablo creek, as it now runs, through the center thereof, from the northern to the soutnern extremity of said valley, and extending back westward from said line so as to include one thousand (1,000) acres of land, and no more, on the western side of said valley; said land to be laid out, as near as possible, in a square form, all the lines, except the first-mentioned line, to be straight, conforming with the cardinal points by true meridian.’ The court in that case, in commenting upon the foregoing deed, says: ‘Cruzito valley is seven or eight miles long, and runs, in its general course, north and south. The 1,000 acres called for by the deed lies in the valley, and on the west side of San Pablo creek; and by the deed they are to be laid out ‘as nearly as possible in a square form,’ the eastern side of the square resting upon the creek, ‘as it runs through the center of the valley,’ the other sides of the square ‘to be straight, conforming with the cardinal points by true meridian.’’ And the court held that the deed failed to locate the land conveyed by sufficient description, and it was, therefore, a grant of quantity, instead of any particular tract, and that the grantee thereof became interested in all the lands embraced within the larger area as tenant in common with his grantor. It will be seen, however, that the deed in this case purports to convey a specific tract of land ‘beginning at a pile or point of rocks, * * * which pile or point of rocks is known as and called the southwestern corner of the San Pablo grant.’ This starting call, it is presumed, was a known and recognized monument on the ground. The description then attempts to give the other calls, but they are too indefinite to inclose any particular tract of land. As contended by the respondents, the case falls within the rule laid down in Grogan v. Vache, 45 Cal. 610, and others in the same line. In that case the description of the deed was: ‘Commencing on the southerly side of the Paicines rancho, at a large live oak tree, marked with a (X) cross; thence running in an easterly direction, crossing the creek above the upper ford; thence in a southerly direction, and parallel with the line of said rancho, to a large white oak tree, marked with a (X) cross, at the lower ford; thence along said creek to the line of said Rancho Paicines,— containing thirty-five (35) acres, more or less.’ It was held in that case, after reviewing a number of decisions, Schenk v. Evoy included, that the deed there under consideration attempted to convey a specific tract of land, but was so defective as to fail in its purpose. The court says: ‘We find no case in which a deed, which purports to describe a specific tract of land, mentioned as parcel of a larger tract, but which fails to describe the tract intended to be conveyed in such a manner that it can be located, is held to operate, by reason of such insufficient description of the specific tract, as a conveyance of an undivided interest in the larger tract; and, in our opinion, there is no rule for the construction of deeds which will work that result.’ The land mentioned in the deed in Schenk v. Evoy was within the Sobrante rancho, whereas the land attempted to be granted in the deed containing the defective description in the present case falls entirely outside of the Sobrante. We think the ruling of the court in the premises was correct.
5. The Franklin Title. There are two appeals affecting this title, viz., that of the plaintiffs, who attack it; and that of Elizabeth A. Rodgers, to whom and another this interest was allotted, and who complains of a deduction of the quantity of her land on account of specific tracts A to F, inclusive, which were lost to the owners of the grant by the statute of limitations. These questions will be considered in the order stated.
The Validity of the Title. This question depends on the construction of a deed from Juan José Castro to Selim and Edward Franklin, from whom the respondent Rodgers deraigns title. The description in the deed, omitting immaterial parts, is as follows: ‘All my right, title, and interest to one and half square miles of farming land, * * * being a portion of the lands granted to me in 1841, etc., * * * known as the ‘Sobrante,’ running from the corral of Joaquin Castro, one and a half mile and bounded by the creek one and mile.’ This description is substantially identical with the description of the land construed in Schenk v. Evoy, 24 Cal. 109; and the court, we think, rightly construed it as conveying an undivided interest in the Sobrante.
The Quantity of the Franklin Interest. There is deducted from the Franklin interest (480 acres) a fraction of over 63 acres for loss to the owners of the Sobrante on account of the specific tracts found to be barred by the statute of limitations, which was charged proportionately to the owners of undivided interests who had not conveyed their interests in those tracts. It is objected that the court erred in holding that these tracts were barred. It is stated by the respondent’s attorneys that the deduction was made wholly on account of specific tracts D, E, and F. Whether this statement is correct, or the contrary, cannot be determined from the record. But the case seems to be the same with reference to all the tracts, and in support of the judgment we may assume such to be the case. The objection is that the findings are insufficient of support the conclusion of the court that the action was barred as to these tracts. The objection is made on the findings, the effect of which is thus stated by the appellant’s counsel: ‘As to specific tracts D, E, and F, the findings are that the original holders entered under conveyances from tenants in common having about nine-tenths of the whole Sobrante, and that those who succeeded to their interests had been in the open, peaceable, notorious, continuous occupation and possession of the several tracts, having them protected by substantial inclosures, for more than five years before the commencement of the action, as against these tracts.’ This statement is sufficiently correct as far as it goes; but it should have been stated more specifically that the periods referred to by the finding were, respectively, in the case of tract D from the year 1872, of tract E from the year 1863, and of tract F from the year 1859; and, further, that with reference to each of these tracts it is found (in the conclusions of law) that the action is barred by the provisions of sections 318, 319, 321, and 322 of the Code of Civil Procedure, and that the various parties occupying and claiming the several parts of the tract are the owners thereof. These, though placed among the conclusions of law, are findings of ultimate facts, and are to be regarded as such. Foot v. Murphy, 72 Cal. 105, 13 P. 163; Society v. Burnett, 106 Cal. 538, 39 P. 922, and cases there cited. And, as the findings are not attacked, the decision of the court must be sustained. There are some minor objections that do not require mention.
Judgment and orders appealed from are affirmed.