Suñol v. Hepburn

• Decision Date: 01 December 1850
• Citation: 1 Cal. 254
• Court: California Supreme Court
• Parties: SUÑOL, ET AL. v. HEPBURN, ET AL.

1 Cal. 254

SUÑOL, ET AL. v. HEPBURN, ET AL.^(a)

Supreme Court of the State of California

December Term, 1850

December 1, 1850

APPEAL from the Court of First Instance of the District of San José.

The action was brought by Antonio Suñol, Pedro Sansevaine and Henry M. Naglee against James Hepburn, William Stewart and Charles Stewart, to recover possession of a lot of land, situated in the valley of San José. The action was brought and the judgment rendered before the passage of the statute adopting the common law, and was what is designated in the civil law as a possessory action. The complaint alleged that the plaintiffs, and those through whom they claimed, had been for more than three years in peaceable, public and uninterrupted possession of a certain rancho, known as "De Los Coches," of which the lot in controversy was part. The whole tract, as it appeared, contained upwards of two thousand acres. The defendant, Hepburn, had entered and taken possession of a small portion of it, and built a house thereon, and taken up his residence there, claiming that the land was part of the public domain of the United States. The plaintiffs, or one of them, had been in possession of small portions of the large tract for some time previous to the entry of the defendants, but it did not appear that either of them had ever had the actual possession of the particular parcel of land in controversy. At the time of the entry of the defendants the lot was unfenced, and uncultivated, and presented no external signs or indications of being owned or claimed by any one. It appeared, in truth, to be unoccupied wild land.

The plaintiffs, for the purpose of showing their possession of the lot, gave in evidence at the trial their title; they being unable to make out possession on their part except through the medium of their title. This was derived from a grant made by Governor Micheltoreno to an emancipated Indian by the name of Roberto. The grant was in the usual form of grants by the Government of public lands, excepting that it contained a clause prohibiting Roberto from selling, aliening, mortgaging, pledging, or encumbering or disposing of the land in any manner whatever. The clause was in the following words: "No podra venderle, enagenarle, hipotecarle, ni importer censo, vinculo, fianza, hipoteca, ni otro gravamen alguno." Roberto after- wards became iudebted to Suñol in the sum of five hundred dollars, and conveyed to him the rancho by a deed dated January 1st, 1847, in payment of the debt, and Suñol conveyed an undivided portion to the other plaintiffs by a deed bearing date the 15th day of December, 1849. The entry of Hepburn on the lot in question appears to have been made before the date of the last mentioned deed. There was no evidence showing any cause of action whatever against the co-defendants of Hepburn. The cause was tried before a jury who were unable to agree, and a verdict was taken in favor of the defendants by stipulation, to be of the same force and effect as if it had been rendered by the jury. Judgment was accordingly entered against the plaintiffs, from which they appeal.

J. M. Jones and A. P. Crittenden, for Plaintiffs,

B. A. Lockwood, for Defendants.

By the Court, BENNETT, J. On the first argument of this cause my impressions were strong, that the plaintiffs ought not to recover, and, if it had been an ordinary case, I should have had no hesitation in so deciding at once. I was not entirely satisfied, however, but that, on a reargument, additional authorities might be adduced, which would leave the case without doubt in the minds both of myself and my associates. I felt, also, in common with the Chief Justice, that there was a possibility that I might have been led into error. I thought, therefore, that the case was a proper one for reargument, and that the attention of counsel should be called to the particular points concerning which some doubts were entertained by the Court. I was the more inclined to this course, inasmuch as the cause was not argued before a full Bench, and from the conviction that a decision, which must not only settle the rights of the immediate parties to this suit, but which may determine great and important interests in all parts of the State, should receive the deliberation, and if possible, the sanction of all the members of the Court. The reargument was, accordingly, ordered, and has taken place; and the impressions which I entertained after the first hearing, have been ripened into conviction. Nothing, therefore, remains but to announce the opinion which I then had prepared.

The cause was tried in the Court of First Instance of San José, before a jury. The jury were unable to agree; and the parties stipulated that a verdict should be entered in favor of the defendants, saving to the plaintiffs the same rights which they would have had, in case the jury had actually rendered a verdict for the defendants. In strictness, this stipulation should be regarded in precisely the same light as a verdict, and should, in this Court, be followed by the same legal results. I shall, in the first place, examine the case as I should be disposed to treat it, had it been tried and the stipulation entered into under the system of practice which exists at present, and, then, consider whether there are any circumstances which should be allowed to control what would otherwise be the legal effect of the stipulation.

The claim of the plaintiffs for the destruction of certain huts mentioned in the complaint, may be dismissed from consideration. The stipulation above mentioned, standing in the place of a verdict, and finding as it does, one cent damage in favor of the defendants, puts an end to that matter.

The defendants, Charles Stewart and William H. Stewart, are, also, easily disposed of. If it is intended to charge them with taking possession of one or more parcels of land distinct from the lot on which Hepburn entered, the claim against them should not have been included in the suit against him. If they are sought to be made joint possessors with Hepburn, the complaint is unsustained by proof. In either event, the judgment of the Court of First Instance is correct, and should be affirmed with costs.

The important point, presented by the papers and argued at the bar, affects the defendant Hepburn alone. Before proceeding, however, to examine the claim of the plaintiffs against him, it is to be observed, in the outset, that no question can be made, whether the acts of Hepburn are sufficient to constitute posses- sion on his part or not; for, the suit is based solely upon the hypothesis that the affirmative is true. If he was not in possession, then, surely, there could be no cause of action against him, and the judgment in his favor would be correct. The plaintiffs cannot gainsay his possession without destroying their own case.

This is a possessory action. It is based solely upon the ground that the plaintiffs were in possession of the land on which Hepburu entered at the time of his entry, and not upon the ground that they held the property or dominion therein by a valid title. This is the proper construction to be given to the complaint, and this is the view taken by the counsel of both parties in their arguments and briefs.

As, in American law, a party, to maintain his ejectment, may rely on the strength of his title, or simply on prior actual possession, which, if his title does not appear to be defective, may enable him to sustain his action, so under the Mexican system, a party may have his possessory action, in which the possession of the plaintiff and the disturbance thereof by the defendant may be the sole questions at issue between the parties, or he may have his petitory suit founded on the claim of an indisputable title. Under the latter system, possessory suits are either plenary, being such as are prosecuted and defended in the manner and with the formalities of ordinary judicial proceedings; or summary, also termed interdicts, which are conducted without the solemnities of ordinary suits, are terminated within a short period, and either admit of no appeal, or only of an appeal without suspension of the execution of the judgment. (4 Feb. Mej. 271, Sec. 1, Ed. 1834; Escriche Dic. de Leg. Art. "Juicio Posesorio.") Whether this suit belongs, technically, to one class or the other of civil law proceedings, whether it is to be deemed a possessory action under the Mexican law, or an action of ejectment as understood in the United States, and there seems to be a mixture of the forms of both species in the proceedings, can be a matter of but little moment. The result is the same. In any event the question to be determined is one of possession.

To enable the plaintiffs to maintain the action they must establish two facts: 1st, that they were in actual possession at the time of the intrusion complained of; and 2d, that they are entitled to be reinstated in the possession from which they claim to have been illegally evicted. It results from this, that if they were not in possession at the time of the defendant's entry, they have never been in a position which could enable them to maintain this suit. How, then, stands the case in this view?

The action on the part of the plaintiffs is joint, and all must recover, or neither can. It must, consequently, appear that, at the time of Hepburn's entry, Suñol, Sansevaine and Naglee were jointly possessed of the lot in controversy. The deed from Suñol to Sansevaine and Naglee was executed on the fifteenth day of December, 1849, and thus, up to that time, the two latter had neither possession, nor right of possession, nor claim of title. If, previous to that date, either of the plaintiffs was in possession, it was Suñol alone. The conveyance to Sansevaine and Naglee cannot carry back their possession, either severally, or jointly with Suñol, beyond the period when they derived their title under it, and any entry on the land prior to the fifteenth day of...