Meader Et Al v. Norton

• Decision Date: 01 December 1870
• Citation: 20 L.Ed. 184,78 U.S. 442,11 Wall. 442
• Parties: MEADER ET AL. v. NORTON
• Court: U.S. Supreme Court

78 U.S. 442

20 L.Ed. 184

11 Wall. 442

MEADER ET AL. v. NORTON.

December Term, 1870

APPEAL from the Circuit Court for the District of California.

This was a bill in equity, filed in the court below by C. E. Norton, to have the defendants, Meader and several others, declared trustees of certain real property situated in the State of California, and to obtain a decree that they convey to him the legal title held by them to the premises. The case as presented by the record was thus:

Three sisters, named respectively Maria Candida, Maria Jacinta, and Maria Los Angeles Castro, on the 13th of February, 1839, applied by petition to J. B. Alvarado, then Mexican governor of the department of California, for a grant of the land known as the Rancho El Refugio, situated in that part of California now known as the county of Santa Cruz.

This petition was immediately referred by the governor to the administrator of the adjoining mission with directions to make a report upon the same. On the 10th of March following that officer reported that the land solicited could be granted, and on the 16th of the same month the governor made a provisional concession of it to the petitioners; a concession which was subject to further action in the premises. To guide him in such further action, the governor directed the prefect of the district to report to him upon the subject. The prefect reported that a grant in fee of the land solicited could be made to the parties, as it was vacant and was not claimed by any one. Accordingly, on the 8th of April following (1839), the governor made a formal cession of the land to the three sisters by name, referring to the previous proceedings, and declaring them owners in fee and directing that the proper grant or title papers (titulo) issue to them, and that the proceedings in the case be retained for the information and approval of the Departmental Assembly. These proceedings were numbered 131. In the order of concession of the governor, the name of one of the sisters, Maria de los Angeles, was erased, and over the erasure was written the name of Jos e Bolcoff. This concession or grant of the governor was approved by the Departmental Assembly on the 22d of May, 1840. The approval in the records of the Assembly has in it the number, 131, and gives the date of the concession, and mentions the three sisters by name as the parties to whom the concession was made. On the 13th of June following the governor ordered a certificate of the approval to be given to the three sisters.

At this time one Jos e Castro was prefect of the first district, within which district the land granted was situated, and he kept a record or minute of the grants of land made in his district. His book of registry is now in the archives in the custody of the Surveyor-General of the United States for California. In this registry is entered a minute that on the 8th day of April, 1839, the governor granted to the three sisters the place called El Refugio. In this registry there is also a similar minute of eight other grants, all of which are found in the archives, and each has a memorandum indorsed upon it that it has been entered in the registry. The memoranda on these eight grants and the entries in the registry correspond.

There is also in the archives an index of grants made between 1838 and 1845, by a clerk in the office of the secretary of state of the department, and under his direction, which is commonly known as 'Jimeno's Index.' This Index gives the number of the espedientes, the names of the grantees, and the designation of the land granted. Upon the index against No. 131 is the entry of a grant of land designated as El Refugio, and the name of Jos e Bolcoff is written over an erasure. It was admitted that originally the names of the three sisters were written there.

This was the documentary evidence which the complainant produced to show that a grant of the rancho El Refugio was issued to the three sisters, under whom he claimed by sundry mesne conveyances. Parol evidence produced by him related chiefly to the possession of the premises since the concession of the governor, and various alleged admissions and acts of the sisters. It was also in evidence that in 1839 or 1840 the possession of the land was officially delivered to the three sisters, and that in this proceeding, called a delivery of juridical possession, Jos e Bolcoff appeared on behalf of the sisters, and represented them.

The defendants asserted title to the premises through Jos e Bolcoff; and of some portions of the premises they also alleged a conveyance or release from the sisters.

As documentary evidence of title they produced——

First. A paper purporting to be a grant of El Refugio to Jos e Bolcoff, by Governor Alvarado, bearing date on the 7th of April, 1841.

It was shown that there was no trace of any such document as this in the archives of the department, except what appeared over the erasure in the index of Jimeno.

Second. A certificate of Governor Alvarado, dated July 28th, 1841, stating that the grant made on the 8th of April, 1839, in favor of Jos e Bolcoff, was approved on the 22d of May, 1841, by the Departmental Assembly, and purporting to quote the language of the proceedings of that body. The certificate concluded by stating that it was issued to the party interested for his security, in consequence of the decree of the 13th of June preceding, existing in the espediente.

It is to be noticed by the reader that the certificate states that the grant made on the 8th of April, 1839, in favor of Jos e Bolcoff was approved on the 22d of May, 1841, while the alleged grant to Bolcoff produced bears date the 7th of April, 1841. The certificate purported further to quote the language used by the Departmental Assembly in this approval. It was shown that there was no session of the Assembly in 1841; at least, that there was no evidence in the archives of the department that there was a session in that year, and if the year was erroneously given, and the approval of May 22d, 1840, was intended, that related only to the grant to the three sisters, who were therein designated by name, and no such language as that given was found on the journals of the Assembly.

Third. A document purporting to be a record of juridical possession, given to Bolcoff, July, 1842.

This document bears the signature of the prefect of the district and two attesting witnesses. It appeared in evidence that one of the witnesses was unable to write, and that the body of the entire document was in the handwriting of Bolcoff. The other witness testified that he added his signature in 1851, when the document was presented to him by Bolcoff, with a request that he should sign it, inasmuch as he had not done so when the possession was given; that at this time the document had not the signature of the prefect or of the other witness, and Bolcoff stated that he was going to them for their signatures. Both of these witnesses testified emphatically that there never was but one juridical possession of the premises, and that this was delivered to the sisters. Bolcoff made oath before the land commission, that the document was signed by all the parties in the year 1842.

Fourth. A dise no or sketch of the tract El Refugio; and

Fifth. A patent of the United States, bearing date on the 4th of February, 1860, issued to Francisco and Juan Bolcoff upon the confirmation of the alleged grant to Jos e Bolcoff.

In 1822 one of the sisters, Maria Candida, intermarried with Jos e Bolcoff, and in 1839 Maria de los Angeles intermarried with one Majors. The three sisters lived together as members of the family of Bolcoff upon the land granted, Los Angeles until her marriage, and Jacinta until 1850, when she became a nun, and had not since resided upon the premises. Since some time in 1850, Majors and his wife had occupied a portion of the tract, claiming possession under the concession to the sisters.

In 1852, Francisco Bolcoff and Juan Bolcoff, sons of Jos e Bolcoff, presented a petition to the board of land commissioners, created under the act of Congress of March 3d, 1851, to ascertain and settle private land claims in California, for a confirmation of the claim to El Refugio, asserted by them under the alleged grant to their father. In support of their claim they relied upon the alleged grant of Alvarado, of April 7th, 1841, his certificate of approval by the Departmental Assembly, the record of juridical possession, and the sketch, which are mentioned above, with parol evidence of possession and cultivation. No question was raised before the board as to the genuineness of these documents, and in January, 1855, the claim was confirmed. An appeal from the decision was dismissed, and on the 4th of February, 1860, a patent of the United States was issued thereon.

In 1852 Majors presented for himself and on behalf of his wife a petition to the board for a confirmation of her claim to one-third of the tract, under the cession to her and her sisters. In support of the claim they produced the petition to the governor, the reports thereon, the provisional grant of March 16th, 1839, the formal concession of April 8th, 1839, and the order of the governor of June 13th, 1840, that a certificate of the approval of the Assembly be issued to them.

The board rejected this claim, holding, in substance, that there was no evidence that any grant was issued to the sisters; that the decree of concession found in the archives was not proof of the delivery of a title to the parties interested; that until a document as evidence of the concession was issued and delivered to the grantees the favorable action of the Departmental Assembly did not establish their title, and the concession was not completed, and the property continued part of the public domain, subject to the disposition of the authorities of the government. And the board observed that this was the view of the governor and Departmental Assembly, as...