Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 37 Cal. 437 at 452.
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
COUNSEL:
Eugene Lies, for Appellants, argued that the certificate of Hinckley on the back of the grant was suspicious, as the grant followed a sworn petition, and the certificate narrated a renunciation; and as the grant asserted the official capacity of the grantor, while the certificate did not assert his offcial character. That the grant was attested, but the certificate was not; and the grant followed old precedents, but the certificate had no precedent to follow. He also argued that the testimony offered by defendants in rebuttal was relevant and important, and should have been admitted. He further argued that by the execution of the grant by Hinckley, even without a delivery, the title passed to Mesa and Diaz jointly, and that no certificate of the Alcalde could divest it. He argued as follows as to the manner in which a renunciation shouldbe made: I have consulted Escriche (verb. Renuncia ) and Febrero, Chapter XXVII, Vol. 2, p. 249, et seq., to little purpose, as might be expected, because these authors did not write for those parts of the Spanish empire where land was to be had for the asking, and where it sometimes happened that the grantee renounced his right. All the light I can derive from these authors is, that renouncements resemble cesiones, and that the instruments to be drawn up in these cases should follow the general rules of conveyancing. It stands to reason, however, that the evidence of renouncement should be of somewhat the same character as the evidence of the grant, i. e., should be in writing, subscribed by the party renouncing, attested at least by two witnesses, if not also necessarily by a public officer acting as a notary. The archives in the Surveyor General's office contain a few instance of renouncement. The party invariably proceeds by a sworn petition, jurando lo necesario. His signature is not attested by witnesses, for the simple reason that it becomes a part of a series of writings called expediente, where the various successive official signatures answer, betterthan that of ordinary witnesses, the purpose of authenticating the first. I have seen no instance of any renouncement not coupled with a petition for other lands.
Haight & Temple, and Wm. M. Pierson, for Respondent.
It seems to us that the title to one half the lot must still remain in the pueblo, if the Court should hold that it did not all pass to Diaz. When Mesa refused to accept the grant, Hinckley evidently intended to give it to Diaz alone, and supposed he had done so by the certificate made upon it in the nature of a correction, or a note of an alteration in the original instrument. But if the grant was made to Mesa, then we contend that the facts establish a valid transfer to Diaz. There was no Statute of Frauds under the Spanish law, and parol transfers were valid. (Hayes v. Bona, 7 Cal. 159; Mitchell v. Coxe, 10 Mo. 262. See, also, Mense v. LeRoy, 1 Cal. 220; Panurd v. Jones, 1 Cal. 508; Merle v. Matthews, 26 Cal. 456.) The transfer was reduced to writing, though not signed by Mesa, was signed by the Alcalde in his presence, and assented to by him, recited the consideration, (payment of the fees,) and stated the fact that the propertybelonged to Diaz.
JUDGES: Crockett, J. Mr. Chief Justice Sawyer delivered the concurring opinion, in which Mr. Justice Sanderson concurred.
OPINION
CROCKETT, Judge
Mr. Chief Justice Sawyer, on petition for rehearing, delivered the following opinion, in which Mr. Justice Rhodes concurred:
Upon a further consideration, I find no occasion to modify the views expressed in my former opinion in this case. For the reasons then stated, as well as those contained in the opinion of my associate, Mr. Justice Crockett, I concur in the judgment.
[The opinion and first concurring opinion in this case were delivered at the October Term, 1868. The second concurring opinion was delivered at the April Term, 1869, after Mr. Justice Sawyer had become Chief Justice. Rehearing was denied.]
CONCUR
SAWYER; SANDERSON
Mr. Chief Justice Sawyer delivered the following concurring opinion, in which Mr. Justice Sanderson concurred:
I agree that if the title to one half of the lot once vested by a valid grant in Juan Prado Mesa, there is nothing in this record to show that it subsequently passed from him. But the theory upon which the case was tried, and upon which judgment was rendered for the plaintiff, is, that the title never did vest in Mesa. To make a valid grant and vest the title in the grantee, there must, as in all other contracts, be a concurrence of the minds of both grantor and grantee; that is to say, the grantor must consent to make the grant, and the grantee consent to receive it. An acceptance is as essential as the concession. Ordinarily, doubtless, when nothing to the contrary appears, a party in whose favor a valuable grant has been made will be presumed to have accepted. In this case the plaintiff claims that the grant never was accepted by Mesa; and there is much oral testimony also favored by the condition of the written evidence of the grant, and consistent with it, to sustain the hypothesis. The brief memorandum in " Spanish Blotter B" that a grant had been made, is not the grant within the principle of Donner v. Palmer, 31 Cal. 500, or any other case decided by this Court. It is not the original proceeding (las diligencias originales ) that were taken within the meaning of the provisions of section seventeen of the ordinances relating to the Town of Petic, of November 14th, 1789, (31 Cal. 500 at 508.) It is but a brief, unsigned memorandum of the result, without the petition, grant, or any of the other proceedings in such cases; nor is it in substance, briefly stated, the grant itself.
It was, doubtless, admissible in evidence in connection with the other documentary and oral evidence, but it was not the grant itself. The entire proceeding, from the petition to the grant, inclusive, delivered to the parties, was introduced in evidence, and from this, it appears that Mesa did not sign the petition, and there is no evidence other than the act of Diaz in petitioning for Mesa as well as himself, that Mesa ever asked or desired the grant. And on the same title papers is indorsed by the Alcalde himself, who made the grant, in his own handwriting a statement as follows:
" Since the said Juan Prado Mesa renounced his right and property in the lot specified in this document, said lot may remain in the power of Don Benito Diaz, and as his property, for the uses which may be convenient, he having paid the municipal fees.
" Yerba Buena, 22d July, 1844.
" William Hinckley."
The form of expression is Spanish, and if the indorsement was made, as contended by plaintiff, before the title papers and possession were given it would be simply, in substance, a declaration that Mesa declined to accept the grant. It also states that Diaz paid the fees. There is, it is true, a figure 4 written over a figure 5 in the date. Upon this there is considerable testimony to the effect that it is in the Alcalde's handwriting, and that the alteration was made before the papers were delivered, and that the whole transaction was, in fact, made before the delivery. Although there is some conflict in the testimony on this point, the quantity of the testimony is largely in favor of the facts as claimed by the plaintiff and found by the Court. Appellant makes a vigorous attack upon the quality and credibility of this testimony; but these matters are peculiarly within the province of the District Court to consider and determine. I do not refer particularly to all the testimony on the other side bearing upon the point, and only to the character of plaintiff's testimony on the point to show that there is much testimony, in fact, tending to support his theory, and that the case is clearly one within the ordinary rule, that this Court will not nicely balance the testimony when there is a substantial conflict. I am fully satisfied that the judgment should not be disturbed on the ground of insufficiency of evidence to sustain it.
The only other questions, are, as to the ruling upon the admissibility of evidence in the progress of the trial, and on this branch of the case I am compelled to say I think there was a material error. The course of the trial was, perhaps, a little peculiar. The action is brought by the party in possession, under section two hundred fifty-four of the Practice Act, against parties setting up an adverse claim, to determine such adverse claim. The plaintiff, in his complaint, presents his case in two aspects. He alleges title derived through a grant from Alcalde Hinckley to one Benito Diaz, substantially in the manner shown by the written title delivered to the grantee, or grantees, afterward offered in evidence, and conveyances from Diaz. He, also, alleges his possession; that he entered into possession on the 5th day of February, 1848, under a conveyance from one Le Page; and that he has been in the actual, open, notorious, adverse possession ever since. He, also, alleges that the defendants set up a claim as heirs of Juan Prado Mesa to an undivided half of the premises, and are seeking a partition in another proceeding. He asks that their claim may be determined; that they may be adjudged to have no rights, etc. The defendants, in their answer, set up a grant from the Alcalde Hinckley to Diaz and Juan Prado Mesa, and deraign title to one half from Mesa. On the trial the plaintiff introduced evidence of his possession during the time alleged and rested, without presenting any evidence as to title under the grant alleged.
On the question of title under the grant, therefore, the course pursued by plaintiff compelled the defendants to take the initiative, and the burden of proving affirmatively the title, set up in their answer, under said grant, was thrown upon them. This they did by introducing the memorandum in " Spanish Blotter B," and the petition and grant delivered, excepting the memorandum indorsed by Hinckley, apparently dated July 22d, 1844, and some evidence tending to show that Mesa had complied with the conditions by building a house within a year, and rested. This, of course, made out a prima facie case. The plaintiff then introduced the said memorandum of July 22d, 1844, indorsed on the grant, and followed it by a large amount of oral testimony, including that of Diaz himself, tending to show that the indorsement of this memorandum was made by the Alcalde in the presence of both Diaz and Mesa, with Mesa's consent, before the title papers were actually delivered; that Diaz alone was put in possession; that Mesa declined to pay the fees, and they were paid by Diaz alone; that Diaz alone fenced the lot and built the house; and as corroborative of the other acts, and in harmony with the theory claimed to be supported by them, that Mesa, during his life, never claimed the lot, etc., and rested.
The defendants then, in rebuttal, offered to prove by James Alexander Forbes, " and also by John Rose, one of the attesting witnesses to the original grant previously given in evidence, and W. J. Reynolds, the following facts: that the grant of the lot in question was made by William Hinckley, Alcalde, in 1844, to Juan Prado Mesa and Benito Diaz, at the urgent solicitation and by the personal influence of said Juan Prado Mesa; that possession of said lot was delivered to them both; that the fact of their joint ownership of that grant was notorious in Yerba Buena; that said Juan Prado Mesa, before he died, made statements asserting title to the undivided one half thereof; and that he rendered special assistance to the building of the house on that lot; and that he continued to claim the lot down to the time of his death; that Yerba Buena was then a small place, and that renunciation of the lot could not well have transpired without some of those witnesses knowing of, and remembering it. To all of which evidence so offered plaintiff's counsel objected, on the ground that the same is inadmissible and incompetent; that it is in continuation of testimony offered by defendants on the same subject matter rebutting plaintiff's prima facie case, and that the defendants cannot again go into rebutting evidence. The Court sustained the objection, to which defendants then and there duly excepted."
This evidence was clearly competent and strictly in rebuttal. It is not merely cumulative, but much of it was in reply to new matter introduced for the first time by plaintiff. The defendants, as to the title, really stood in the position of actors or plaintiffs, and not in that of defendants; they produced their title first; the plaintiff then produced his evidence of title, and the evidence now offered was strictly in rebuttal to the title so produced by plaintiff, and upon the very matters upon which the contest must, and did ultimately turn. It was not only not necessary for defendants to have produced this evidence in the first instance, but it would have been out of the ordinary course of proceedings and improper to do so. This was the first suitable and orderly opportunity to present it.
The plaintiff, by compelling the defendants to assume the initiative on the title, necessarily gave them the advantage of closing with rebutting testimony, so long as they confined themselves strictly to rebutting testimony and did not offer evidence merely cumulative. There is a little of the testimony offered apparently cumulative, but that is more apparent than real. The little evidence of this kind at first introduced by the defendants, when introduced, bore directly upon the performance of the express conditions of the grant, bearing directly upon the rights of Diaz and Mesa, as related to the grantor, not the rights of Mesa alone, as related to his co-grantee. The testimony of the plaintiff, however, was directed particularly to the question as affecting Mesa's rights, as related to his co-grantee. And it was in this aspect of the case that testimony in some degree of a similar character became necessary, and assumed the character of strictly rebutting testimony.
I think the exclusion of this testimony was clearly error, and as it would bear upon the vital point in controversy, the judgment and order denying a new trial should be reversed, and a new trial granted.