PALMER
v.
LOW.

*9 Mr. Walter H. Smith and Mr. James K. Redington for the plaintiff in error.

Mr. S.O. Houghton, contra.

*11 MR. CHIEF JUSTICE WAITE, after stating the facts, delivered the opinion of the court.

The questions presented for decision in this case may be stated as follows:—

1. Was the entry in original "Book A" of alcalde grants admissible as primary evidence to prove a grant to Donner?

2. Did the record show a grant sufficient in form?

3. Was the grant void because made to an infant?

4. Was the action barred by the Statute of Limitations?

These questions will be considered in their order.

1. As to the admissibility of the evidence.

The point of the inquiry is whether the record of alcalde grants of the pueblo lands of San Francisco, kept by the alcalde in accordance with the requirements of Mexican laws before the incorporation of the city of San Francisco by the State of California, in the custody of the city and county recorder, and known as one of the books of the former alcalde's office turned over to the county recorder's office, pursuant to the statutes of California, can be used as primary evidence of the recorded grants, or only as secondary evidence, after sufficiently accounting for the absence of the original certificate of grant issued to the grantee.

The rank in the scale of evidence which the Mexican archives occupy has been oftentimes the subject of consideration in the courts of California. As early as 1859, in the case of Gregory v. McPherson (13 Cal. 562), the question arose in reference to the admissibility of an expediente filed in the archives of the Mexican government, to prove a grant under the colonization laws, a copy of which grant, signed by the governor and countersigned by the secretary of state, was annexed to and formed a part of the expediente. The expediente itself consisted of the petition, plat, reference, report, act of concession, approval, grant, &c. It was rejected in the court below on the ground that it was secondary evidence only, and the absence of the copy of the grant which had been issued and delivered to the grantee had not been satisfactorily accounted for; but the Supreme Court said (p. 572): "We are at a loss to know upon what grounds such a document can be denied the weight of original evidence. It was made, and signed, and authenticated *12 as a record by public officers in the discharge of public duties. The papers were retained in the custody of the appropriate public officer for the purposes of proof, and the highest and most authentic proof, of their own action. The documents receive the stamp, and the most satisfactory stamp, of official authenticity. The signatures are made on this as on the papers sent out by the department. We cannot see why such papers should be called copies, or why, in the scale of proofs, they should stand in any subordinate relation to the paper handed to the grantee. If not counterparts, or duplicates, it would seem that the original paper is the record retained by the department as part of its public records... . We cannot presume that any governmental system of granting land could be so loose as that no records were preserved by the granting power. And it follows, we apprehend, as a universal rule, that wherever the acts of public officers are authenticated by their records, these records are evidence, in all courts of justice, of those acts. If by law, or usage having the force of law, a California grant was matter of record, then it would seem to follow that the record is proof of the grant, especially where, as in this case, the record is itself an exemplification of the grant, and contemporaneously signed by the same officers issuing the grant."

Following this, in 1864, was the case of Downer v. Smith (24 Cal. 114), where the question arose upon the admissibility of an entry of a grant of land in the pueblo of San José made in the book of alcalde grants; and although it was held that a statute of the State applicable to the county in which the lands were located made the entry admissible, it was said (p. 122), "We think the court was warranted in finding that the book was one of original entries, and therefore entitled to be admitted as evidence upon that ground." In Rice v. Cunningham (29 id. 492), decided in 1866, it best suited the purposes of one of the parties to use the same "Book A" which is now under consideration, as secondary evidence to prove an alleged lost grant, and thus avoid the effect of an apparent cancellation of the grant which appeared upon the face of the record; but the court said (p. 497), "The argument of counsel for the appellant, in support of their exception, is grounded upon a false assumption. They lower `Book A' to the level of a chance copy-book, and *13 strip it of all its character and dignity as a public record of the transactions of a government official vested with the exercise of most important functions, and then seek to use it on a question not then before the court."

But in Donner v. Palmer (31 id. 500), decided in 1867, the precise question we are now considering was presented in reference to the identical grant under which the defendants in error claim, and it was held, after full argument, and with due regard to both the written and unwritten law of Mexico, including the "Plan of Pitic," so often alluded to in the argument here, that the entry was to be received as primary evidence. In the opinion, after copying the seventeenth section of the "Plan of Pitic," the court proceeds as follows (p. 508): "In view of this language, there can be no doubt as to the mode in which grants of town lots were to be made. The entire proceedings were to be first entered in the official book required to be kept for that purpose, signed and attested in due form by the proper officer. A copy or summary statement of the proceedings as contained in the official book, also duly signed and attested by the proper officer, was then to be given to the grantee as evidence of his title; and in the event of its loss, the officer in whose official custody the book might be at the time was authorized and required to give him another `like copy' of the original proceedings. The record so kept became an official and public record of the transactions of the alcaldes in the matter of granting town lots; and, as such, primary evidence of the acts they recited, under any system of law with which we are acquainted. Entries in such a book, if made in conformity with the regulations of the 14th of November, 1789, became, under the Mexican law, what is denominated an authentic instrument, that is to say, an instrument which proves itself, and, under the common law, an official record. Under both systems such entries have always been esteemed the highest and most satisfactory evidence of the facts which they recite, because they are made by the direction of the law, and are of public concern, and because they are made under the sanction of an oath, or, at least, of official duty, and made at or about the time the acts which they recite transpired. They are retained in the custody of the functionary or department by which they are required *14 to be kept, and are so retained for the express purpose of making them permanent and primary evidence of the transactions of the government. 1 Greenl. Evid., sect. 488 et seq."

The result thus reached has never been disturbed, and it is clear that a rule of property has been established by the courts of the State, binding as well upon the courts of the United States as upon those of the State. While the precise question presented to us was only decided in Donner v. Palmer, all the other cases point directly to the conclusion there reached, and it needed only the occasion to make the formal declaration. Certainly, if the Mexican archives possess the character which the courts have given them, there can be no doubt of the rank they take as evidence, under our system of jurisprudence. Hedrick v. Hughes, 15 Wall. 123. We see no error in the admission of the testimony.

2. As to the form of the grant.

There can arise here no question as to the payment of municipal fees or the delivery of the grant; for the bill of exceptions shows that the court below found as facts upon the evidence contained in the record of the grant and other evidence submitted, that the municipal fees were paid, and that the grant was actually delivered. Neither does any question arise as to the power of an American alcalde to make the grant; for the ordinance under which both parties claim, in terms confers the title upon grantees holding by such grants.

The only question then is as to the form of the instrument appearing in the record. It is certain that it does not meet all the requirements contained in the "Plan of Pitic;" but the counsel for the plaintiff in error, in their argument here, say it is "beyond the reach of contradiction, and matter of history, that the `Plan of Pitic' was not pursued by Mexican alcaldes in San Francisco. Grants were made in a very different manner, and quite repugnant to its requirements. A long-established custom pursued by these alcaldes, under Mexican rule, modified and superseded the `Plan of Pitic.'" What these modifications were we have not been informed. No authorities are cited upon the subject except those which go to show that after the conquest the American alcaldes usually followed the American system of conveyancing and registration. Donner *15 v. Palmer, supra; Montgomery v. Bevans, 1 Sawyer, 653. We are then left to inquire whether the language of the grant is sufficient to pass the title, if there was no statute or custom prescribing the form in which such conveyances should be made. The government of the United States had not undertaken to regulate this subject, and the Mexican law, whatever it may have been, whether enacted by statute or established by custom, was in force; for the rule is well settled that the laws of a conquered territory, which regulate private rights, continue in force after the conquest until they are changed by the act of the conqueror. American Insurance Co. et al. v. Canter, 1 Pet. 511.

The language of this grant is: "I, the undersigned alcalde, do hereby give, grant, and convey unto George Donner, his heirs and assigns for ever," &c. These are the operative words of a present grant in fee-simple, and, being found in an official public record, will be presumed, in the absence of any thing to the contrary, to be sufficient to accomplish the purpose the parties had in view. While the alcalde was not the sovereign, he was the officer designated by law to make distribution of this kind of property among those to whom, under the Mexican law, it belonged; and the official record of his official acts, which the law requires him to keep, carries with it the presumption that his acts were in form such as was necessary to give full effect to what he was attempting to do.

This same question was presented to the Supreme Court of California in Donner v. Palmer (supra), and the same conclusion reached. As the point decided is one which relates to the effect to be given the statute of the State accepting and confirming the Van Ness ordinance, if not in fact the construction of a State statute absolutely binding upon us, it ought not to be disregarded except for imperative reasons.

3. As to the infancy of Donner.

We are not advised that the Mexican law prohibited such a grant to an infant. The distribution was to be made to "settlers," and was evidently left largely to the "wise judgment" of the "commissioner in charge." If he erred in his judgment, it might be cause for setting aside the grant in some appropriate direct proceeding for that purpose; but so long as the grant *16 remained uncancelled and duly recorded, it would certainly be a grant within the letter of the Van Ness ordinance, and it was so decided by the Supreme Court of California in Donner v. Palmer, supra. While infants cannot make grants, they may accept them. A grant to an infant is voidable, not void. The grant in this case has never been avoided, but, on the contrary, affirmed, and that, too, long before the Van Ness ordinance was confirmed by Congress. The title of Donner, therefore, from whom these defendants claim, was superior to that of the plaintiff under the ordinance.

4. As to the Statute of Limitations.

The nature of the title of San Francisco to her pueblo lands has often been the subject of consideration in this court, and was carefully stated by Mr. Justice Field in Townsend v. Greeley, 5 Wall. 326, and Grisar v. McDowell, 6 id. 363. At the time of the conquest, the pueblo, of which the city of San Francisco became the successor, did not have an indefeasible estate in the unconveyed portion of these lands, but only a limited right of disposition and use, subject in all particulars to the control of the government of the country. "It was a right which the government might refuse to recognize at all, or might recognize in a qualified form." 6 Wall. 373. Upon the conquest, the United States succeeded to the rights and authority of the Mexican government, subject only to their obligations under the treaty of Guadalupe Hidalgo. As before that time the fee had not passed out of the government of Mexico, it was transferred to the United States by the conquest and the treaty which followed. Before, therefore, the estate of the pueblo could become absolute and indefeasible, some action was required on the part of the United States. It is conceded that this action was not taken until the act of July 1, 1864. Down to that time the city held under its original imperfect Mexican title only. Afterwards it was possessed of the fee "for the uses and purposes specified" in the Van Ness ordinance.

In Henshaw et al. v. Bissell (18 Wall. 255), we held in effect that the State Statute of Limitations did not begin to run against the title thus perfected until July 1, 1864; and this decision was followed by the Supreme Court of California in *17 Gardiner v. Miller, 47 Cal. 576. After the act of Congress no survey or patent was necessary for the consummation of the title. Ryan et al. v. Carter et al., 93 U.S. 78; Morrow v. Whitney, 95 id. 551. But independently of this, and looking only to the statutes of the State, it is clear that, after 1855 until the act of 1863, there was no statute of limitations in California affecting titles derived from the Spanish or the Mexican government before their final consummation by the government of the United States. The act of 1863 gave a right of action upon such titles for five years after the date of its passage; and within the five years, to wit, May 8, 1867, Donner, under whom the defendants claim, was put in actual possession of the premises, and he and they have continued in possession claiming title ever since. The statute runs only so long as the adverse possession continues. When the possession is ended the operation of the statute ceases, except in respect to titles previously acquired under it; for in California it is held that adverse possession for the requisite length of time transfers a title to the possessor, which may be asserted affirmatively against an otherwise valid record title. Arrington v. Liscom, 34 Cal. 366.

It follows, then, that Palmer acquired no title by his possession from 1851 to 1867, as against the Donner title, if that title was derived "from the Spanish or Mexican government, or the authorities thereof;" and it seems to us clear that it was. It was so expressly decided by Mr. Justice Field in Montgomery v. Bevans (supra); and the cases of Townsend v. Greeley (supra), Grisar v. McDowell (supra), and Merryman v. Bourne et al. (9 Wall. 592), evidently proceeded upon that assumption. Donner claimed under the city of San Francisco, and the city under its equitable title derived from the Mexican government, finally ratified and confirmed by the United States. Whatever rights the city had under the Mexican title it held for the use and benefit of the inhabitants; and the United States, by the act of 1864, relinquished and granted all their right and title for the same uses and purposes. Clearly, therefore, the act of Congress could not have been intended as the grant of a new right, but simply as the confirmation of the old one. The title of the city is the old imperfect title from Mexico, confirmed by the *18 authoritative recognition of Congress. Previous to the passage of this act, the city had prosecuted its claim against the United States under the act of March 3, 1851, to ascertain and settle private land-claims in California, and that action was still pending when this confirmatory statute was passed. The original claim being for a larger quantity of land than was embraced in this relinquishment, the suit went on in the courts until March 8, 1866, when the United States, by another statute "to quiet the title to certain lands within the corporate limits of the city of San Francisco" (14 Stat. 4), in terms confirmed the claim of the city to all the lands embraced in the decree of the Circuit Court then pending here on appeal. It is clear, therefore, that the case is within that part of the statute which relates to titles derived from the Mexican government.

One other question, arising under the Statute of Limitations, remains to be considered, and this grows out of the last clause in the proviso of the act of 1863, in which five years is given to the holder of a title derived from the Spanish or the Mexican government "to make his defence to an action founded upon the title thereto." If we understand correctly the position taken by counsel, it is that the holder of a title under a Mexican grant will not be permitted to set up his grant as a defence to an action brought against him for the recovery of the property granted, unless he makes his defence within five years after the date of confirmation, whether the suit in which the defence is to be made was commenced within that time or not. The courts of California have had no little difficulty in giving a construction to this and other kindred portions of this statute; but whatever else it may mean, we think it clear that it cannot be what the plaintiff claims. The facts in this case present, in the strongest light, the utter absurdity of such an interpretation. The plaintiff's grantor entered into the possession of the premises in 1850 or 1851, without a shadow of title, and remained until May 8, 1867, when he was ousted. He acquired no title by his possession. The title under which he was ousted was a Mexican grant, not confirmed until July 1, 1864. The owner of this grant remained in peaceable possession, claiming title, until April 30, 1872, when this suit was begun. This was more than five years after the date of the *19 confirmation of the grant, but less than that time by eight days from the commencement of possession. As the possession of the owner had not ripened into a perfect title, he was driven to his defence under the grant. The plaintiff, a mere trespasser originally, having no right whatever except that of prior naked occupancy, purposely delaying his action for more than five years from the date of the confirmation of the grant, now seeks to get rid of the grant as a defence to his action, because it is more than five years old. If this be the operation of the statute, it has, in a single line, made substantially worthless as muniments of title all confirmed Mexican grants, and that, too, in a State where titles are so largely drawn from such sources. It would be monstrous to suppose the legislature could have been guilty of such folly.

The pleadings are sufficient to enable the defendants to avail themselves of their proof. In ejectment, the plaintiff recovers upon the strength of his own title, and not upon the weakness of that of his adversary. The plaintiff declared generally upon his title, without setting out the particulars. The answer of the defendant was a general denial. The plaintiff undertook to establish his title under the Van Ness ordinance, by proving the requisite possession. To rebut the effect of this evidence the defendants made proof of the grant, under which they claimed, to show that the title under the ordinance did not pass to the plaintiff. Until the plaintiff put in his testimony, there was nothing upon the record to show what his claim of title was. Certainly, under such circumstances, it was not incumbent on the defendant to state in his answer the matters on which he relied, to defeat any title that might be developed upon the trial.

Judgment affirmed.