Carpentier v. Montgomery, 80 U.S. (13 Wall.) 480

Carpentier v. Montgomery et al.

1. Where a Spanish or Mexican grant of lands in California does not identify the precise tract of land granted, either by description or by reference, the title is an imperfect one, needing the further action of the United States government to make it perfect. Such is the case where one side of the tract is undefined, or one of the exterior boundary lines cannot be located. An. authoritative survey is required to demonstrate the particular tract granted.

2. A confirmation of a Spanish or Mexican grant of land in California segregates the land, when surveyed, from the public domain, and invests the confirmee with the legal title. It entitles him to a patent for the land as soon as the requisite survey has been made. No other title, not clothed with equal solemnities, can be set up against the confirmee, or his assigns, in an action of ejectment.

3. But the equitable rights of third persons, under the same title, are not cut off". They will be sustained in a court of equity as against the confirmee and his assigns, who are chargeable with knowledge of the said equities. The position of a confirmee is analogous to that of a patentee under a pre-emption right. Equity will hold him as a trustee for those who have equitable rights in the land, to the extent of their interests. 4. Equitable interests must be sought, not in an action of ejectment, but in an equitable proceeding, where they can be properly investigated with a due regard to the rights of others which may have intervened, such as those of bond, fide purchasers, &c., ignorant of the equities existing between the original parties.

Error to the Circuit Court for the District of California.

Carpentier brought suit against Montgomery and a number of other defendants to recover certain lands in their possession, lying on the east side of the bay of San Francisco, and described in the complaint. Answers were put in b} the defendants, severally claiming distinct portions of the lands.

On the trial the plaintiff deraigned title under the chil ren of Maria Teodora Peralta, a deceased daughter of Luis Peralta, and proved mesne conveyances from them to the extent of an undivided five and a half ninths of one-nin of the land in question. But whether the children of ana Teodora Peralta were entitled to any estate in the an s, upon which the plaintiff could sustain an action of ejectme against the defendants, was the question.

Luis Peralta, the father of Maria Teodora, died in August, 1851, in possession of the rancho called San Antonio (of which the premises in question were a part), leaving four sons and four daughters, and several grandchildren by a de ceased daughter, the said Maria Teodora. The four sons presented their petition for the confirmation of their claim for the entire rancho to the board of commissioners, organized under the act of Congress of March 3d, 1851, founding their claim upon certain documents establishing their father’s right to the rancho, and upon an alleged devise thereof to them. Upon this petition the rancho was confirmed to the said sons in divided parcels, the portion embracing the premises in question being confirmed to Domingo and Vim cente Peralta by final decree of this court in December Term, 1856.* No final approved survey, however, took place under the confirmation. The defendants held under the confirmees.

On the trial the plaintiff showed by documentary evidence from the archives, that on 20th June, 1820, Luis Peralta, who was then sergeant of the presidio near San Francisco, and commissioner of the pueblo of San José, presented a petition to Pablo Vincente de Sola, then Governor of California, in which he stated that, “ at the distance of eight eagues from the mission of San José, in a northerly or northwesterly course along the coast, there is a creek named by the reverend fathers of the aforesaid mission, San Leandro, and from this to a little hill adjoining the sea-beach, in the same direction and along the coast, there may be four or ve leagues, more or less (or about), which place and land ie asks and solicits may be granted to him that he may es.- a ish a lancho, and place thereon all his goods and chattels.” 6

Governor Sola, on the 3d of August, 1820, ordered Capain uis Antonio de Arguello, commandant of the presidio, of th^°iln^ aU °®cer Sergeant Peralta “in possession e ands petitioned for, giving previous notice of it to

Carpentier v. Montgomery. [Sup. Ct

the reverend fathers, the missionaries of the missions bor< dering on said land, and then place landmarks on the four points of the compass, that it may be known at all times, the extent of said lands which have been granted, to him.”

On the 10th, Arguello appointed Lieutenant Martinez to execute this decree.

On the 16th, Father Duran certified, on behalf of the mission of San Jose, that there was no objection, on the part of that mission, to the grant asked for by Peralta.

On the same day Martinez certified that, having given due notice, he “proceeded to the said place, and in presence of the two witnesses, Nicholas Berreyesa and Juan Miranda, the boundaries which separate his (Peralta’s) land were marked out to him, to wit: The deep creek called San Leandro, and, at a distance from this (say about five leagues), there are two small mountains (cerritos). The first is close to the beach; next to it follows that of San Antonio, serving as boundaries, the rivulet which issues from the mountain ranges, and runs along the foot of said small mountain of San Antonio, dividing or separating the land; and, at the entrance of the little gulch, there is a rock elevating itself in the form of a monument, and looking towards the north. On both boundaries were fixed firm landmarks; and, inasmuch as this individual does not prejudice any of the adjoining neighbors, and bj virtue of the authority on me conferred, and in the name of our Catholic Monarch, Senor Don Ferdinand VII (whom God preserve), I put in possession of the said land the above-named Luis Peralta.”

This return was signed by him and the witnesses in testimony of the facts.

On the 30th of August Governor Sola, reciting that Father Chabot, of the mission of San Francisco, alleged that Don Ignatio Martinez had not fulfilled his decree of the 3d of August, and that through this fault possession had been given to Peralta of some lands pertaining to said mission, ordered that these should be withdrawn from those w ic were assigned to Peralta, and remain, as they were before, in favor of the neophytes of said mission.

In a paper elated September 14th, 1820, Fathers Chabot and Ordaz, on behalf of the mission, certified that inasmuch as the mission had had possession since the month of November of the previous year, granted by the superior government for agricultural purposes and the feeding of sheep, as far as a rivulet at the distance from the house of the rancho some three and a half to four leagues in the direction of San Jose, there was “no objection to set the boundaries of Sergeant Luis Peralta from that place up to the creek called San Leandro.”

On the 16th of September, 1820, Lieutenant Martinez reported that, in the presence of the same witnesses, he had executed the order of the governor of the 30th August, “ by appointing to him (Peralta) anew the boundaries at about one and a half league from the hill of San Antonio towards that part of San Leandro serving as the dividing-line, a rivulet (the Temescal) issuing from the mountain or hill-range, which runs down to the beach, where there is a willow grove, fixing in said place the four landmarks, which shall be valid, and not those that were designated before on the little mountain of San Antonio.”

On the 18th October, 1822, Governor Sola certified that “this day was issued, in favor of Sergeant Luis Peralta, by the governor of this province, the certifying document for the land which has been granted to him., as appears in this folio, by the writ of possession, which the lieutenant of his company, Don Ignacio Martinez, gave him agreeably to an order issued him by the government.”

On the 14th of October, 1820, Sergeant Peralta addressed a letter to his captain, Arguello, complaining of having been dispossessed of the land which had been assigned to him. In that letter he insisted that he had a right to the land, and declared that he yielded up the possession only because he was compelled to do so. He replied also to the allegations of the fathers, that he did not need so much land, by saying that “ five leagues does not seem to me much, in a narrow tract, as you know it is, from the beach to the mountain range,” &c. On 23d June, 1821, Captain Arguello transmitted the memorial of Peralta to the governor, gave the history of Peralta’s application, insisted upon his right to the land, and stated his claim upon the government for long and meritorious services as a soldier.

On the 15tb of May, 1823, Peralta petitioned the governor directly, praying that “ the land may be returned” to him, showing that the reverend father of the mission had practiced a fraud to induce the governor to dispossess him, by which he says, “ I was deprived of the best land which had been granted to me.’’ He again refuted the charge that the tract was too large, by saying, “ though it appears to be large, it is not so, for two reasons—1st, because it is situated on the coast, and the shore between the beach and the top of the mountains (La Sierra} is too narrow; 2d, because in the space lying from San Leandro to the said cerrito redondo theie is a great part of it forming high lands, ravines, and inlets, which are not suitable for the purpose,” &c. Upon this pe tition, on the 30th November, 1823, the following oi ei or decision was made:

“ Let the land which by order of my predecessor, Señor Pablo Vincente Sola, was taken from this claimant, after oeen granted him and possession given, for that reason eJeU to him. He shall apply with this decree to the judge t en missioned (Lieutenant Martinez) for the said possession,

may comply with it. When this be done, he shall annex all the proceedings to the expediente already formed.

“Arguello.”

On the 24th December, 1824, Martinez, who was the person formerly commissioned as the judge to deliver the possession, certified that “ in compliance with the foregoing superior decree of the superior chief of the province, Captain Don Luis Antonio Arguello, the land which by order of Colonel Don Pablo Vincente de Sola had been taken from Sergeant Luis Peralta, has hereby been returned to him, and he has newly been put in possession of the place called Cerrito de San Antonio and the rivulet which crosses the place to the coast where is a rock looking to the north ; said Peralta has received lawful possession in presence of the same witnesses who assisted when the first possession was given to him.”

On the 7th of October, 1827, Governor Echandia issued an order requiring every individual in possession of a rancho to make a statement describing the boundaries thereof, annexing thereto the title of his possession and the foundation be may have for such possession.

In pursuance thereof Peralta returned “a description showing the extent of the lands granted me and of which I was placed in possession since the year 1820, to wit: Along the coast of the mission of San José, in a northwesterly course, there is a deep creek called San Leandro, forming the dividing boundary of said mission of San José, thence to

a small, round mountain called San Antonio, the dividing oundary with my neighbor, Francisco Castro, which space 18 a little over four leagues long, and as it is the narrowest portion of the coast, it at most contains half a league in breadth, from the mountain io the sea.” On the 11th of February, 1844, Ignacio Peralta, a son of

The governor referred this petition to Jimeno, then Secretary of State, who reported that the land shown by the plat presented had been granted twenty-two years previously, and had been occupied by the grantee since 1819, and that there was no objection whatever to the grant of a new title. The governor ordered the title to issue on the 13th of February. An instrument was accordingly drawn, which was found in the archives, declaring that Luis Peralta wras “ the owner in fee of said land, which is bounded as follows, namely: On the southeast by the creek of San Leandro, on the northwest bv the creek of Los Cerritos de San Antonio (the small hills of San Antonio), on the southwest by the sea, and on the northeast by the tops of the hill range,” and directing that this expediente be submitted to the Departmental Assembly. But this paper was not signed by the governor.

The plaintiff gave also parol testimony tending to prove the following facts:

That by the grant of Sola, and the other documents connected with and preceding that grant, and which had been given in evidence, the natural objects described in the oug inal concession, and in the possession given by Martinez, could be ascertained upon the land, and that the objects called for in the second, and reduced or limited possession ordered and given on the representation of the fathers o the mission of San Francisco, and which was intended to e covered by, and included in, the final grant of Sola, cou also be ascertained on the ground.

That thè boundaries of the restricted possession were the San Leandro Creek on the south, southeast, and east, the Temescal Creek on the north and northwest, and the bay of San Francisco on the west, and that the possession was reduced to the line of the Temescal Creek.

That the sources of the San Leandro Creek and Temescal Creek spring near each other, with merely a narrow dividing ridge between them, not more than a quarter of a mile from the source of the one to the other, and that they both empty into the bay of San Francisco.

He also introduced the evidence of witnesses tendinee to prove the delivery of possession of the rancho of San Antonio to Luis Peralta, by Lieutenant Martinez, in 1820, and that possession was formally given, and the boundaries designated by Martinez, in accordance with the description thereof, first herein above set forth.

The plaintiff having rested his case the defendants moved the. court to strike out all the evidence introduced by the plaintiff, on the ground that the same did not establish nor tend to establish a right in the plaintiff to a verdict.

The court having heard counsel thereon denied the motion, on the ground that the same was irregular in practice, and an evasion of the rule against nonsuits; but stated that, t e defendants would submit their case without evidence on t eir part, it would instruct the jury to render a verdict tor the defendants, to which the plaintiff excepted.

ie defendants thereupon declined to offer any evidence on their part, and the evidence was closed.

Messrs. M. Blair and F. A. Dick, for the plaintiff in error, insisted that Luis Peralta's title was a perfect title under the Spanish and Mexican laws, and was protected by the treaty of Guadalupe Hidalgo, and that the confirmation of it, on the application of the sons, could not add to its strength, and could not take away the right of the daughters as coheirs of their father; and, whether so or not, that the confirmation of the title enured to the benefit of those really entitled under the original grant, their heirs and assigns; and that as no devise from Luis to his sons was exhibited on the trial of this cause, that the plaintiff was entitled to recover under the hereditary right of Maria Teodora’s children.

Mr. 8. 0. Houghton, contra, for the defendants, denied that the title of Luis Peralta was a perfect title; and contended that even if it was, the claim of the daughters could not avail in an action of ejectment against the award of the commissioners in favor of the sons of Luis, which gave them the legal title.

Mr. Justice BRADLEY delivered the opinion of the court.

To show that Luis Peralta’s title was a perfect one the plaintiff produced in evidence the documents on which it was founded. They are set out in the bill of exceptions, and are the same that were before this court in the case of United States v. Peralta,* when the claim was confirmed. In that case the court intimated an opinion that the title was perfect for at least a part of the rancho (embracing a pait of the premises now in question), but the point was not material in the case, because the claimants were equally entitle to a confirmation, whether their father’s title was perfect or imperfect, legal or equitable; so that the intimation wai

*19 Howard, 343.

nothing but an obiter dictum of the judge who delivered the opinion. The title, in some of its aspects, again came before the Supreme Court of California, in 1864, in the case of Minturn v. Brower * but, as both parties in that case deemed it their interest to concede the title to be a perfect one, the observations of the court on the subject cannot be regarded as precluding further examination. Such examination, exhaustive in its character, was given in 1870 by the same court on this identical title, and on the very point in question, in the case of Banks v. Moreno and the court, with all the documents before it which have been proven in this case, decided that the title was imperfect. If this were a case depending merely on the local land laws of California, we should be bound by that decision. But as the appellant, in case the title is adjudged a perfect one, invokes the guaranty stipulations of the treaty of Guadaloupe Hidalgo in his favor, independent of any action of the commissioners, the question ceases to be a mere local one, and devolves upon this court the duty of deciding it on its merits. An examination, however, of the reasoning of the Supreme Court of California, in the case last cited, satisfies us of its soundness. The point of the decision is, that the rancho of San Antonio never had any clearly defined boundary on the east. In this we concur with that court. The new claim now made to extend that boundary beyond the crest of the mountain, and to take in the eastern slope on the pretence that the Leandro leek is the boundary to its ultimate source, is itself conclusive to show the uncertainty with which it has alwavs been invested.

Luis Peralta s occupation of the rancho goes back to 1820. n that year he presented to Governor De Sola his petition oi a giant, describing the tract as follows : “ At the distance eight leagues from the mission of San Jose, in a northJ or northwesterly course, along the coast, there is a creek anie by the reverend fathers of the aforesaid mission, San an ro, and from this to a little hill adjoining the sea<

Upon this petition, the governor, by an order of August 3d, 1820, directs Captain Arguello to appoint an officer to put Sergeant Luis Peralta in possession of the lands petitioned for, and to “ place "landmarks on the four points of the compass, that it may be known at all times the extent of said lands which have been granted to him.” Lieutenant Martinez being detailed for this service, on the 16th of August, 1820, reports his action as follows: “The boundaries which separate his land were marked to him,to wit: The deep creek called San Leandro, and at a distance from this (say about five leagues), there are two small mountains (cerritos). The first is close to the beach; next to it follows that of San Antonio, serving: as boundaries, the rivulet which issues from the mountain ranges, and runs along the foot ot sai small mountain of San Antonio, dividing or separating the land; and at the entrance of the little gulch there is a rock elevating itself in the form of a monument, and looking towards the north. On both boundaries were fixed fii® landmarks. . . I put in possession of the said land the above named Luis Peralta.” Here we have, again, the two extremities of the tract along the bay, the creek San Leantho, at one end, and the rivulet that runs by the cerritos, at t e other, and nothing more.

On the 18th of October an entry was made in the public records to the effect, that “this day was issued in favor of Sergeant Luis Peralta, by the governor of this province, the certifying document for the land which has been granted to him, as appears in this folio by the writ of possession, which the lieutenant of his company, Don Ignacio Martinez, gave him agreeably to an order issued by the government.” We also have the certifying document itself of the same datej which adds nothing to the definiteness of the description.

Now the grant on which the appellant’s counsel relies as conferring perfect title is not the certifying document above referred to, but the previous act of directing possession to be given to Peralta, and the actual delivery of possession to him. It is perfectly manifest that Peralta could not have been put into manual possession of several leagues of land. He could only have been put into possession of a certain part or parts in the name of all; and the exterior boundaries of the tiact must have been indicated by language or monuments. But we have no evidence of any description of oundaiies, or monuments to designate them, except the ay on one side, and the extreme limits of the tract along e ay. The interior line between those limits is entirely wanting in all the documents thus far presented. The title e le on, tbeiefore, is necessarily imperfect, and requires ome authoiitative survey to distinguish what was intended o be granted from what remained in the public domain.

1 we examine the remaining documents we shall not enve any material aid to help us out of the difllculty.

In 1823, whilst the revolution was in progress, Peralta’s captain, Arguello, had become Governor of California, and Peralta renewed his application to have the curtailment of his rancho annulled. He speaks of the tract which he originally applied for, as follows: “Which tract of land, though it appears to be large, is not so, for two reasons: 1st. Because it is situate on the coast, and the space between the beach and the top of the mountain is too narrow/9 This would indicate the top of the mountain as his supposed boundary. The governor promptly made an order that the part which had been taken from him should be restored, and Lieutenant Martinez put him in possession accordingly; but nothing yet appeals in the lieutenant’s return or elsewhere to identify or fix the eastern boundary of the rancho, much less to fix it beyond the eastern slope of the mountain, as since claimed by t e parties.

In 1827 some new regulations made it necessary foi everj< proprietor to make a return of all lands occupied by him, with the titles annexed; and, in December of that year, Pe ralta made a return accordingly, describing his rancho as follows: “Along the coast of the mission of San José, m a northwesterly course, there is a deep creek called San Lean dro, forming the dividing boundary of said mission of an José; thence to a small round mountain called San Antonio, the dividing boundary with my neighbor Francisco which space is a little over four leagues long, and, as i the narrowest portion of the coast, it at most contains a league in breadth from the mountain to the sea.

order was not signed by the governor, and seems never to

have been carried into execution. And this is the last of

the documents on w'hich the plaintiff, the now appellant,

reiied for a perfect title. Leaving out the proceedings of

1844, which are admitted to be imperfect, no human being

can tell, from the language of the various documents, what

was the eastern boundary of the rancho. It certainly would

seem not to embrace the eastern slope of the hills, as is now

claimed; but what it did embrace, or where it did run, is

not ascertainable from any of the documents which have

been adduced; and no parol testimony can aid this defect as

legards the question now under consideration. Parol testi-

mony was very properly adduced before the commissioners

foi the purpose of showing where equity required that the

line should be run, in order to separate the rancho from the

public domain. But it cannot make that title perfect which

was not perfect before.

The Supreme Court of California, in Banks v. Moreno,*

well observed: “The precise point under discussion is,

whether or not the title of Peralta, as exhibited by the

p aintiff, was a perfect title conveying the fee, and which

invested him with absolute dominion over a specific parcel

ot land without any further action on the part of the United

ates; or whether, at the time of the cession of California,

met nng remained to be done by the government which necessary to invest Peralta with a complete legal title to the specific tract. PiarJ?- ennhi la.?ha*

ci to be identified. In grants of real estate it is not

* 39 California, 239, 240.

We entirely concur in these views; and, therefore hoi

that the title of Peralta was an imperfect title, and necessarily required confirmation in order to vest a full lega estate in private parties. , But it is contended that the confirmation of the title enure

This language is utterably irreconcilable with the hypothesis that the legal estate devolves, upon the confirmation, to any other parties than the confirmees. The patent is to be given to them, and the legal title cannot be separated from the patent.

It is true that the fifteenth section of the act declares that the decree of confirmation shall be conclusive between the United States and the claimants only, and shall not affect the interests of third persons. But this was intended to save the rights of third persons not parties to the proceeding, who might have Spanish or Mexican claims independent of or superior to that presented by the claimant; or the equitable rights of other parties having rightful claims under the title confirmed. The former class could still present their claims without prejudice within the time limited by the statute. The latter class, those equitably entitled to rights m lan<^ under the title confirmed, were not to be cut off*.

heir equities were reserved. But they must seek them by a proceeding appropriate to their nature and condition.

This view of the relative position of the parties is supported by the weight of authority. The case of Wilson v. Castro* is directly in point to show the form of proceeding proper for those who claim against the confirmee. In that case the claim was confirmed to the widow, who realty had no interest. The brother and sister of the owner, as his heirs at law, brought a suit in equity against the widow, and obtained a decree declaring her to be seized, as trustee, for their use. In Estrada v. Murphy,^ the court says: “ A court of equity will control the legal title in his [the confirmee s] hands, so as to protect the just rights of others. But in ejectment the legal title must prevailand it decided the Case accordingly against the plaintiff in ejectment. In Banks v. Moreno,the same conclusion was reached. In that case, as in this, the plaintiff claimed under the daughters of Luis Peralta; the defendant under the sons; and it was held that the action did not lie. The same view was taken by this court in Beard v. Federy,§ and Townsend v. G^seley.\\ In the last case the court uses this language: “The confimi ation only enures to the benefit of the confirmee so far as the legal title is concerned. It establishes the legal title m him, but it does not determine the equitable relations e tween him and third parties.” .

The case is somewhat analogous to that of patents gran e upon a pre emption right for public land. Whilst the paten^

* 81 California, 420. f 19 Id- 272. I ^9 Id. 2 2 3 Wallace, 478. j| 5 Id. 326.

in that case confers the legal title, and admits of no averment to the contrary, the patentee may be subjected in equity to any just claim of a third party, even to the extent of holding the title for his sole use. The grounds of equitable jurisdiction in such cases are stated in the opinion of this court in the recent case of Johnson v. Towsley*

The action of ejectment in this case cannot be maintained. The judgment of the Circuit Court is