Bollo v. Navarro

33 Cal. 459

• Court: California Supreme Court
• Decided: October 15, 1867
• Status: Published

Opinions

By the Court, Sanderson, J.:

The point that the Court below could not try title in this action is answered by the cases of De Uprey v. De Uprey, 27 Cal. 329, and Morenhout v. Higuera, 32 Cal. 289.

Whether Alcalde grants were required to be in writing it is unnecessary to consider. The plaintiff failed to show any grant in writing to Carmen Navarro, and if his counsel is correct in his point, that Alcalde grants could be made only by an instrument in writing, it follows that Carmen, under whom he claims, had no title, or at least only such as may be founded upon possession only. We do not consider the proceedings of the Ayuntamiento upon the petitions of Manuel Valencia and another at its sessions in 1846 and 1847, as amounting to a grant by that body to Carmen Navarro. The question before the Ayuntamiento was whether the lot should be granted, not to Carmen Navarro, but to another party, and they resolved not to grant it to that party, but to return to him his petition and leave Carmen undisturbed in the possession, for certain reasons therein set forth. Instead of amounting to a grant to Carmen, those proceedings show that she had no title, for it is therein so expressly recited.

The title, then, as between Carmen and Dolores, rests upon the parol grant of the Alcalde Lugo and the delivery by him of the possession. Whether that amounted to a good title or not is of no consequence in this action. If it is good for one party it is good for the other. We may, therefore, assume it to be good. Then the only question is, was it made to Carmen or Dolores ? If the latter, the plaintiff has no interest in the lot. The referee found that Lugo granted or gave the lot to Dolores, and delivered to her the possession, and it is sufficient to say that we are entirely satisfied with his finding.

It is not necessary to specially notice the plaintiff’s objections to certain portions of the defendant’s testimony. The plaintiff claims under Carmen, and the admissions made by her in her lifetime while living upon the lot, to the effect that it belonged to or was in the possession of Dolores, was competent evidence against him.

Judgment and order affirmed.

Mr. Justice Rhodes did not express an opinion.