Bouldin v. Phelps

• Decision Date: 28 March 1887
• Court: U.S. District Court — Northern District of California
• Parties: BOULDIN and others v. PHELPS.

30 F. 547

BOULDIN and others v. PHELPS.

United States Circuit Court, N.D. California.

March 28, 1887

Syllabus by the Court

The governor of California, after the passage of the colonization law of 1824, and the issue of the regulations of 1828, and prior to the acquisition of California, by the United States had no power to make grants of public lands, except in the manner and upon the terms and conditions expressed in that law and those regulations.

Power in the governor to make such a grant, after the passage of that law, will not be presumed from the fact that he made the grant.

The courts will take judicial notice of the laws of Mexico, upon which the titles to lands in California depended, prior to the cession of California to the United States.

The law of 1824 and the regulations of 1828 were, after their adoption, the only laws in force, under which public lands in California could be granted to individuals or families.

If the grant of Mare island, which purports to have been made by Gov. Alvarado to Victor Castro, in 1841, was intended to be made under the authority of the dispatch of 1838, issued by the government of Mexico, to the governor of California, it is void, for the want of power in the governor to make it. The island does not come within the words of the dispatch, as it is not a 'desert island, adjacent to the department.'

It is also void, because it was not made with the concurrence of the departmental assembly, as required by that dispatch.

The grant cannot be sustained under the colonization law of 1824 and the regulations of 1828, because, there is no sufficient evidence of its genuineness for the following, among other reasons: It is not in the usual form of such grants; it is not attested by the secretary of state; it is not upon habilitated paper; it has none of the usual conditions of such grants; it is not recited therein that it was made in exact conformity with the provisions of the laws; there is no record of the grant, nor any note thereof, in the records of the government; it has not received the approval of the departmental assembly, nor was it referred to the departmental assembly, by the governor; juridical possession of the island was not given.

By the Mexican system, under which public lands were granted juridical possession constituted the investiture of title.

Under that system grants did not become definitively valid, until they had received the approval of the departmental assembly; and if they had not been so approved before the cession of California, they could be made perfect titles only by proceedings under the act of congress of March 3, 1851.

An inchoate grant, was required by the act of congress, to be presented to the board of land commissioners, for confirmation, by parties claiming under it; and if not so presented by them, or parties under whom they claim, the land as to them is deemed public land of the United States.

The decree of confirmation rendered by the board, and the order of the district court that a decree of confirmation be entered, will inure to the confirmees and their grantees, and not to parties claiming by derivative title from the original grantee prior to the confirmees.

A decree of confirmation, and a patent in pursuance of it, vests the legal title in the confirmees. A confirmation without a patent, does not vest the legal title in any one.

In ejectment in the courts of the United States, the legal title must prevail, as against a mere equity.

The grant to Castro being inchoate, and not definitively valid, the legal title remained in the United States.

A party claiming under a Mexican grant of an imperfect or equitable title, cannot maintain ejectment against another party, claiming under the same grant, by adverse derivative title, who has presented his claim and had it confirmed, whether he acted fraudulently or otherwise.

Parties having equitable rights as against the patentees, can enforce them only by a bill in equity.

The grant by Alvarado to Castro is void. Satisfactory evidence is not adduced as to the time when the grant was made. There is not satisfactory evidence that the grant was seen by any one prior to the late spring or early summer of 1850. There is no evidence in the Mexican archives that the grant was issued; nor was it noted in the Toma de Rason, or in the Jimeno or Hartnell index. It was not written upon habilitated paper. It was written upon the back of the half sheet containing the preliminary permission to occupy the island. It is in the handwriting of Alvarado. It was not attested by the secretary of state. The handwriting of the body of the grant and the signature correspond with the handwriting of Alvarado during the period between 1843 and 1850, and not with his handwriting prior to that period. It was written with a steel pen, such pens apparently not being in use in California prior to 1844. It contained the phrase-- as translated-- 'I do by these presents,' which is not found in any Mexican document of unquestioned genuineness. Held: That the grant was not executed till 1850, after California was transferred to the United States, and it is, therefore, fraudulent and void.

Where a claim for the confirmation of a Mexican grant, by parties deriving title under the original grantee, has been presented to the board of land commissioners for confirmation, under the act of 1851, and confirmed, the United States, as grantees of the confirmees, are not estopped from showing that the grant so confirmed is fraudulent and void, in a suit brought against their representatives in possession by a stranger to the proceedings before the board for confirmation, claiming title under a prior conveyance from the original grantee, who has never presented the grant for confirmation.

Bissell and Aspinwall, claiming title as grantees of Castro, presented to the

board of land commissioners for confirmation, under the act of 1851, what purported to be a grant to Mare island from Gov. Alvarado to Castro. The grant was confirmed, and, on appeal, the district court, the United States not objecting, made an order for a final decree affirming the decree of the board; but no final decree was ever entered pursuant to said order. Pending the proceedings, and before the making of the order for a decree of confirmation, the petitioners and confirmees, Bissell and Aspinwall, conveyed the island to the United States, whereby the latter, at the time the order was made, represented both parties to the proceeding. Afterwards, the plaintiffs brought this action in ejectment against defendant, Phelps, holding possession for the United States, to recover the island, claiming title through an alleged conveyance from Castro, prior in date to that under which Bissell and Aspinwall claimed. Neither plaintiffs nor any of their grantors had ever presented the claim, under the grant to Castro, for confirmation. Held, (1) that Phelps, representing the United States, is not estopped, by a final decree of confirmation in the proceedings had by Bissell and Aspinwall, from showing, as against plaintiffs, who are strangers to these proceedings, that the grant is fraudulent and void. (2) If otherwise, a final decree having never been entered in pursuance of the order for a decree, the matter is still in the control of the court, and sub judice, and it has not yet become res adjudicata, in such sense as to be available as matter of estoppel.

Geo. Flournoy, L. B. Mizner, L. D. McKisick, and J. B. Mhoon, for plaintiffs.

S. G. Hilborn, U.S. Dist. Atty., for defendants.

A. L. Rhodes, for the United States.

Before SAWYER, Circuit Judge, and HOFFMAN, District Judge.

SAWYER, J., (HOFFMAN, J., concurring.)

This is an action to recover Mare island, embracing between five and six thousand acres of land upon which are situated the United States navy-yard, numerous buildings for quarters of officers and employes of the government, a government hospital magazines, barracks, and other works erected by the United States at an expense, in the aggregate, of several millions of dollars. A full statement of the facts will be necessary to a proper understanding of the decision.

The defendant, at the time the action was commenced, was commandant of the navy yard, appointed by the secretary of the navy, and, as such, he had possession and control of the island for the United States, under and by virtue of his authority, as commanding officer at that station. He, personally, claimed no possession, right or interest in the island, and no right, or interest, other than for the United States, as an officer of the government. The case has been very deliberately, carefully and ably tried by the numerous counsel engaged, whose efforts have been fully commensurate with the importance of the case, and the vast interests involved. The plaintiffs claim title, under a Mexican grant, alleged to have been made of the island by Gov. Alvarado on May 20, 1841, to Victor Castro, and intermediate conveyances from Castro to themselves. Plaintiffs first introduced in evidence, a petition by Castro to the 'senor prefect of the First district,' asking a grant of the island, with a marginal reference for information; which petition and reference are dated October 30, 1840; the report to the prefect thereon by PERALTA, justice of the peace, dated November 4, 1840; the further report of the prefecture to the governor by Jose Y. Castro, dated November 14, 1840; and a permission to occupy, signed by Jimeno, governor ad interim dated October 31, 1840. A translation of the petition, order of reference, informe, and permission to occupy, is in the words and figures following:

(Translation.)

'EXPEDIENTE.

'Stamp 3c.

2 Reales.

'Provisionally authorized by the maritime...