Br the Court—Mr. Chief Justice Murray :
This was an action of ejectment, brought to recover two tracts of land situated in Sacramento county. On the trial, the plaintiff intro[269]*269duced in evidence a grant from Manuel Micheltorena, Governor of California, to Sheldon, and also proved an occupation of a portion of the land described in said grant, though not of the premises in controversy. The grant is in the usual form, and there is no dispute as to its authenticity. To its introduction the defendants object: First, that it was conditional; that it was not shown that the conditions had been complied with, and that it was not evidence of title. Second, that at best, it conveyed but an inchoate title, insufficient to maintain an action of ejectment, and inadmissible to qualify the plaintiff’s actual possession. Several other errors have been assigned, which we will notice in their order.
In Leese and Vallejo v. Clark, 3 Cal. R., I had occasion to examine the character of these grants, and it was there decided, that a mere concession of land by the Departmental Governor of California, did not convey an absolute title in fee simple; that to entitle the grantee to an indefeasible title, it was necessary that all the requirements and conditions of his grant should be complied with. Regarding the grant in that case as incomplete, and conveying but an inchoate title, we held that it was insufficient to sustain an action of ejectment, which counts on legal title alone. In passing, it may not be improper to remark, that one of the strongest arguments urged against that decision, was the fact that these titles conveyed a species of property, which the United States had guarantied by treaty to protect, and that the local tribunals were bound to respect such rights. Th.e obvious answer to this proposition I conceive to be, that this Court had no legislative functions. It was bound to administer rights according to the remedies provided by the Legislature; that it would have been competent and highly proper for that body to have provided for this class of cases, but having failed to do so, and left the parties to the old action of ejectment, we wore bound by the rules governing that action.
In arriving at this conclusion, I felt that I was fully warranted by the previous decisions of the Supreme Court of the United States, in somewhat similar cases, arising from grants of land in Florida and Louisiana. I have never had reason to doubt its correctness, notwithstanding the decision of the Supreme Court of the United States in the case of Ritchie v. the United States, and the United States v. Fremont, 17 Howard.
At the risk of exposing myself to the ridicule or censure of many, for what may be considered temerity on my part in questioning the soundness of these decisions, I cannot refrain from the opinion that in these cases the Supreme Court have taken a new departure, and entirely disregarded their previous decisions. It is, however, a matter of congratulation to myself to know that this wholesale abandonment of principles, so long and satisfactorily settled, was not unanimous, and that one of the Judges on that Bench, better acquainted, probably, than any of his associates with this class of cases, and who has almost given shape to the law of this subject, together with another Judge, second to none in point of ability upon that or any other Bench in the [270]*270United States, both dissented from the opinions in the case of Fremont, and for reasons substantially the same as those which influenced the decisions of this Court.
It is not my purpose to re-examine this question at any length, as I do not now consider it open to discussion. I shall simply advert to a few cases which governed me in arriving at my former opinion, and leave the matter to rest as the Supreme Court of the United States have determined it. The policy of Mexico, like that of Spain, was to secure immigration by liberal donations of land to actual settlers. To this end, these grants were made upon certain conditions, and although they were for the most part gratuitous, yet the performance of the condition was always considered as necessary as the payment of money; having, in fact, been substituted in preference to any other payment, in pursuance of the settled policy of the government, it is but fair to presume that they were expected to be scrupulously fulfilled.
In such cases it can hardly be supposed that the Government would part with the fee, until the sole consideration of the grant had been complied'with. In fact, no doubt was ever entertained as to the necessity of a compliance with such conditions, until the doctrine was, for the first time," broadly asserted and boldly maintained, that a mere concession, bearing on its face the conditions on which the title should become definitely valid, providing for the approval of the Departmental Assembly, and issued in conformity with a law declaring in what event the grant should become void and the land subject to denouncement, operated a grant in fee simple in presentí, and that, too, where the land had never been surveyed, occupied, or in any way segregated from the public domain. The necessity of a performance of these conditions, as well as of definitive boundaries by which the land granted could be located and surveyed, has been rigidly maintained by the Supreme Court of the United States in its previous decisions. U. S. v. Kingsley, 12 Peters; U. S. v. Wiggings, 14 Peters; U. S. v. Boisdon, 11 Howard. Authorities might be cited without number to these propositions, but I deem it unnecessary to adduce any others, except the dissenting opinions of Judges Catron and Campbell in the case of Fremont v. the United States, in which Judge Catron uses this language : “ At law this claim has no standing, it cannot be set up in an ordinary judicial tribunal. It addresses itself to us, founded on an equity, incident to it by mere force of the contract, no part of which was ever performed. The claim is as destitute of merit as it can be, and has no equity in it, nor is it distinguishable from that of Glamorgan, which was pronounced invalid in the case of Glener et al. v. the United States.
“ If this claim is maintained, all others must likewise be, if the first step of making the concession is proved to have been performed by the acting Governor, as no balder case than the one before us can exist in California, where the grant is not infected with fraud or forgery/'’
It is contended, however, that this decision is not binding on this Court, inasmuch as it has already been held by us in the case of Gordon [271]*271v. Johnson, that no appeal lies from the decisions of the Courts of this State to the Supreme Court of the United States, and by following the opinion of the Supreme Court of the United States in this case, (which is acknowledged to be in contravention with our own,) we indirectly do that which we have refused to sanction or permit directly.
This argument arises from an imperfect understanding of the doctrine established in Gordon v. Johnson, which was, that no cause could be transferred from a State Court to any Court of• the United States, and that neither a writ of error, nor an appeal would lie, to take a ease from a State Court to the Supreme Court -of the United States. It was not held, that we would not follow the decisions of the Federal Courts, in matters appertaining exclusively to their own jurisdiction.
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Br the Court—Mr. Chief Justice Murray :
This was an action of ejectment, brought to recover two tracts of land situated in Sacramento county. On the trial, the plaintiff intro[269]*269duced in evidence a grant from Manuel Micheltorena, Governor of California, to Sheldon, and also proved an occupation of a portion of the land described in said grant, though not of the premises in controversy. The grant is in the usual form, and there is no dispute as to its authenticity. To its introduction the defendants object: First, that it was conditional; that it was not shown that the conditions had been complied with, and that it was not evidence of title. Second, that at best, it conveyed but an inchoate title, insufficient to maintain an action of ejectment, and inadmissible to qualify the plaintiff’s actual possession. Several other errors have been assigned, which we will notice in their order.
In Leese and Vallejo v. Clark, 3 Cal. R., I had occasion to examine the character of these grants, and it was there decided, that a mere concession of land by the Departmental Governor of California, did not convey an absolute title in fee simple; that to entitle the grantee to an indefeasible title, it was necessary that all the requirements and conditions of his grant should be complied with. Regarding the grant in that case as incomplete, and conveying but an inchoate title, we held that it was insufficient to sustain an action of ejectment, which counts on legal title alone. In passing, it may not be improper to remark, that one of the strongest arguments urged against that decision, was the fact that these titles conveyed a species of property, which the United States had guarantied by treaty to protect, and that the local tribunals were bound to respect such rights. Th.e obvious answer to this proposition I conceive to be, that this Court had no legislative functions. It was bound to administer rights according to the remedies provided by the Legislature; that it would have been competent and highly proper for that body to have provided for this class of cases, but having failed to do so, and left the parties to the old action of ejectment, we wore bound by the rules governing that action.
In arriving at this conclusion, I felt that I was fully warranted by the previous decisions of the Supreme Court of the United States, in somewhat similar cases, arising from grants of land in Florida and Louisiana. I have never had reason to doubt its correctness, notwithstanding the decision of the Supreme Court of the United States in the case of Ritchie v. the United States, and the United States v. Fremont, 17 Howard.
At the risk of exposing myself to the ridicule or censure of many, for what may be considered temerity on my part in questioning the soundness of these decisions, I cannot refrain from the opinion that in these cases the Supreme Court have taken a new departure, and entirely disregarded their previous decisions. It is, however, a matter of congratulation to myself to know that this wholesale abandonment of principles, so long and satisfactorily settled, was not unanimous, and that one of the Judges on that Bench, better acquainted, probably, than any of his associates with this class of cases, and who has almost given shape to the law of this subject, together with another Judge, second to none in point of ability upon that or any other Bench in the [270]*270United States, both dissented from the opinions in the case of Fremont, and for reasons substantially the same as those which influenced the decisions of this Court.
It is not my purpose to re-examine this question at any length, as I do not now consider it open to discussion. I shall simply advert to a few cases which governed me in arriving at my former opinion, and leave the matter to rest as the Supreme Court of the United States have determined it. The policy of Mexico, like that of Spain, was to secure immigration by liberal donations of land to actual settlers. To this end, these grants were made upon certain conditions, and although they were for the most part gratuitous, yet the performance of the condition was always considered as necessary as the payment of money; having, in fact, been substituted in preference to any other payment, in pursuance of the settled policy of the government, it is but fair to presume that they were expected to be scrupulously fulfilled.
In such cases it can hardly be supposed that the Government would part with the fee, until the sole consideration of the grant had been complied'with. In fact, no doubt was ever entertained as to the necessity of a compliance with such conditions, until the doctrine was, for the first time," broadly asserted and boldly maintained, that a mere concession, bearing on its face the conditions on which the title should become definitely valid, providing for the approval of the Departmental Assembly, and issued in conformity with a law declaring in what event the grant should become void and the land subject to denouncement, operated a grant in fee simple in presentí, and that, too, where the land had never been surveyed, occupied, or in any way segregated from the public domain. The necessity of a performance of these conditions, as well as of definitive boundaries by which the land granted could be located and surveyed, has been rigidly maintained by the Supreme Court of the United States in its previous decisions. U. S. v. Kingsley, 12 Peters; U. S. v. Wiggings, 14 Peters; U. S. v. Boisdon, 11 Howard. Authorities might be cited without number to these propositions, but I deem it unnecessary to adduce any others, except the dissenting opinions of Judges Catron and Campbell in the case of Fremont v. the United States, in which Judge Catron uses this language : “ At law this claim has no standing, it cannot be set up in an ordinary judicial tribunal. It addresses itself to us, founded on an equity, incident to it by mere force of the contract, no part of which was ever performed. The claim is as destitute of merit as it can be, and has no equity in it, nor is it distinguishable from that of Glamorgan, which was pronounced invalid in the case of Glener et al. v. the United States.
“ If this claim is maintained, all others must likewise be, if the first step of making the concession is proved to have been performed by the acting Governor, as no balder case than the one before us can exist in California, where the grant is not infected with fraud or forgery/'’
It is contended, however, that this decision is not binding on this Court, inasmuch as it has already been held by us in the case of Gordon [271]*271v. Johnson, that no appeal lies from the decisions of the Courts of this State to the Supreme Court of the United States, and by following the opinion of the Supreme Court of the United States in this case, (which is acknowledged to be in contravention with our own,) we indirectly do that which we have refused to sanction or permit directly.
This argument arises from an imperfect understanding of the doctrine established in Gordon v. Johnson, which was, that no cause could be transferred from a State Court to any Court of• the United States, and that neither a writ of error, nor an appeal would lie, to take a ease from a State Court to the Supreme Court -of the United States. It was not held, that we would not follow the decisions of the Federal Courts, in matters appertaining exclusively to their own jurisdiction.
To illustrate the difference between that case and this, it is necessary to state, that by the treaty with Mexico, all the public lands passed to the United States, reserving to the inhabitants of this State their rights of property, before that time existing by the laws of the ceded territory. There was at the date of the treaty, as it was supposed, from all the analogies existing between the mode of granting lands in California, and in Florida and Louisiana, at least two kinds of titles, one perfect, and the other incomplete. The owner of the perfect title was fully protected, both by the laws of Mexico, and the laws and usages of nations; and his title was not, neither could be, divested by the treaty or any subsequent Act of Congress. Inchoate titles were such as rested upon the first incipient steps for confirmation, where the fee of the land had never parted from the government, and depended for their completion upon some political act of the authority granting. In these cases, the authority of the Mexican Government to ratify and confirm, was passed to the Government of the United States, subject to the equities of the claimants, which she may disregard, but is bound in good faith to maintain. Conceding then, for the present, that all the lands in California, except perfect titles made before the acquisition, passed to the United . States, and that this State has no interest or title to the public domain, (a question which is not raised in this ease, and on which we express no opinion,) it follows, that whenever a title to land is drawn in question, it must rest for its foundation either upon a Mexican grant, a patent from the United States, or from this State in some few excepted cases.
If a party seeks to maintain his action on a Mexican grant, an outstanding title may be set up in the United States; but how are we to determine whether the United States have such a title as would defeat the recovery ? Surely, the adjudication of her own tribunals, which have been appointed to determine these questions between her and the claimants, when adverse to her interest, and the rule of construction adopted by her in relinquishing her rights, may be looked to in ascertaining the rights of the only remaining party claiming through title.
The land either belonged to the United States, or to the claimant under the Mexican grant. If the Federal Government accedes to the right of the grantee, not on the ground of a confirmation of prior equitable in[272]*272terest, but on the ground that he held a perfect title, who shall gainsay it ? Certainly, not a mere intruder. It would appear strange at least, where the Federal Government had established a tribunal, with authority to decide these questions, that the Courts of this State should be found arrayed against those decisions, questioning 'the rule by which she voluntarily abandoned her claim of title, and asserting for her, rights which she had already disclaimed through the solemn adjudication of her Courts. There can be no subserviency of opinion, in this Court yielding to a decision made between the United States, (to her prejudice,) and one of her own subjects, when they alone are interested, and the interference of the judiciary of California, under such circumstances, would be Quixotic in the extreme.
Again, admitting the grant in question does not convey a perfect legal title, but only an equitable one, still it was admissible to establish the extent of the plaintiff’s claim. In case of an entry on land under color of title by deed, the possession is deemed to extend to the bounds of that deed, although the actual settlements and improvements are only on a small part of the tract. In such cases where there is no adverse possession the law construes the entry to be co-extensive with the grant of the party, on the ground that it is his clear intention to assert such possession. Ellicot v. Pearl, 10 Peters, 412.
This doctrine has never, within our knowledge been doubted in this Court. In the ease of Sunol v. Hepburn, 1 Cal., the opinion of the Court turned upon the point, that the deed through which the plaintiff claimed, was void, and therefore could not qualify the possession. In Plume v. Seward, 4 Cal., the plaintiff relied upon his actual possession, and did not attempt to extend it by paper title.
The Court properly refused the instructions asked by the defendant. The law does not require that the whole tract should be enclosed; it is sufficient if the grant under which the plaintiff entered, calls for distinct boundaries, neither should the plaintiff’s recovery be limited to the size of a usual farm; there is no principle we know of which should thus alter the rule we have laid down; besides, at the time of the execution of this grant the land was designed for grazing and not agricultural purposes, and the grant was less than the usual size of concessions for such purposes. The second instruction assumes, that “ the plaintiff standing by and permitting the defendant to settle upon the land, is a circumstance tending to establish an abandonment, and he will be estopped from asserting his possession against the defendant.”
This instruction is not sound in law, nor warranted by the facts of the case. Estoppels in such cases proceed on the ground of fraud or culpable silence, which are facts for the jury and not matters of legal construction for the Courts.
The instructions, substituted by the Court below, were correct, and put the case properly before the jury.
The objection that the Court admitted hearsay evidence on the part of the witness, Norris, of the boundaries of the grant, is not maintained by the record; he simply swears to the boundary recognized by Shel[273]*273don and himself, he being an adjoining proprietor. The objection to Sutter’s testimony concerning the delivery of juridical possession was not well taken. He testified that he put the party in possession by virtue of his military authority, which at that time was omnipotent, and that he never made any record of it. This requisition might have been dispensed with by the general customs of the country, and it is not important, treating the title as merely inchoate, or perfect, under the decisions of the Supreme Court of the United States.
Judgment affirmed.