Mr. Justice Heydenfeldt delivered the opinion of the Court.
Mr. Justice Terry concurred.
The appellants cite and rely upon the case of Touchard v. Touchard, 5 Cal. R., as being conclusive of this. In that case a subsequent grant of a lot by a municipal corporation was held valid against an older grant, on the ground of the non-performance of the conditions by the elder grantee. The only question made there in favor of the first grant was that the Mexican law, which then prevailed, required the proceeding of denouncement before there could be a legal forfeiture of the grant. But we held that that proceeding only applied to grants made by Government, and was totally inapplicable to the contracts of private individuals. A denouncement was never made by the grantor, but always by some person who desired to obtain the land for himself.
In that case it was also shown in evidence, that it was the custom, upon the part of the authorities of the pueblo, to re-grant lots when the first grantee had failed to occupy, or otherwise comply with the conditions of the grant, without resorting to any other step whatsoever, to indicate a forfeiture, or a determination on the part of the grantor to resume the ownership. And there was also given in evidence an admission, on the part of the first grantee, that he had forfeited the lot; and that decision might well have been placed on the ground of abandonment.
The case before us shows no such state of facts; but now the respondents insist, and so it was held by the District Court, that in order to invalidate the first grant there must have been a re-entry by the grantor, or some other notorious act, in order to show the intention by the grantor, to forfeit the grant, and resume the estate upon the ground of the non-performance of the conditions, and that the subsequent grant is no proof of such intention.
This position would be unassailable if we were at liberty to apply the principles of the common law to this case, but the facts all arose before the adoption of the common law, and must be governed by the rules of the civil law.
We have said before that the Mexican civil law having been the law of this State at the time of the adoption of the Constitution, we are bound judicially to know it, and however indisputable is that legal [526]*526maxim, yet it is sometimes very difficult to make a practical application of this knowledge.
• The civil law, as a system, is so variant from the common law, and having its manifest influence upon the forms and modes of making contracts, makes it often difficult to discover a rule which is at all cognate to a well understood one of the common law. And therefore we discover no rule whatever at the civil law, answering to the common law doctrine of re-entry to produce a forfeiture. It does not follow, however, that that system was destitute of principles which, to an equal extent were potent to secure and enforce the rights of litigants in like cases. And so we find that instead of an unbending rule which disregards material clashing circumstances, each case was determined according to its own facts, by those principles which every system would admit to be the immutable laws of right and wrong.
In reflecting that those laws were to be applied in view of the facts in every casfe, according to the various moral instincts and powers of perception of different judges, it may well be disputed, when placed in apposition with the symmetry and certainty of the common -law, which system is capable of conferring the most solid advantages and lasting benefits to society. Not to digress further into the region of legal dialectics, I propose now to consider the facts of the case before us, and according to those facts to determine the right.
The plaintiffs claim title from one Pell, who, in January, 1847, obtained a grant from the city authorities to the lot in question, upon the usual condition, that he should, within one year, build a house upon it. Pell never took possession of the lot, although it was unoccupied until 1849, when the grantors of the defendant went into possession and built a house. Then Pell attempted to get possession by suit, but was unable to do so. In his petition to the Alcalde for the grant, he represented the lot as vacant. No further attempt was made by him to get possession, and in 1854, nearly eight years after his grant, when the value of the lot had reached the sum of thirty thousand dollars, he sold to the plaintiffs for the sum of fifteen hundred dollars.
The defendants claim, through several mesne conveyances, from one Bee. The latter applied for and obtained his" grant in 1843, with the usual condition of building a house within a year. Possession was delivered him with all the formalities which the law required, and he soon afterwards commenced building on it, constructed an adobe foundation for his house, and had lumber placed upon the lot. The breaking-out of a revolution checked his progress in building, and he did not afterwards resume it. He resided at San Jose up to the time he sold the lot; but he continuously claimed it, had an agent to see to it for him, visited it usually when he came to San Francisco, and it was commonly known as his, and called Bee's lot. He testified that he could obtain no grant to any other lot on account of his ownership of the one in question. In 1849 he sold it to parties through whom the defendants claim, who immediately went into actual possession, which has been held ever since uninterruptedly by them and their grantees.
[527]*527It appears, further, that Pell’s deed was never recorded, and has been lost. That in 1847 the Alcalde, ascertaining that mistakes had been made in granting the same lots to more than one person, arising from the re-survey of the city and the numbering of the lots, gave notice to all those who held grants which had issued before the re-survey, to appear before him and have their grants adjusted, offering to those who had grants of lots which had before been granted, to take other lots in their places. This was only about six months after the grant to Pell. He neglected to take any action under this notice, but Bee went forward and presented his deed, and the Alcalde ordered the syndic to put him again in possession, which was done.
The grant to Bee, then, was the elder grant, and must have the right, unless it has been legally deprived of it. This might occur in two ways, by abandonment or by forfeiture. There is no attempt to insist upon the former; all the facts show a continous claim of property and a continuous care and interest in it.
But it is urged that he had forfeited his right by failing to comply with the condition named in the grant, requiring him to build a house within a year ; and that the grantor had, therefore, taken advantage of the condition broken, and for that reason had made a new grant to another, and by making the latter grant had evinced the design of enforcing the forfeiture.
Now, by the rules of the civil law, the mere non-performance alone, within the stipulated time, does not annul a contract, ipso facto, unless, indeed, the time is of the very nature and essence of the contract.
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Mr. Justice Heydenfeldt delivered the opinion of the Court.
Mr. Justice Terry concurred.
The appellants cite and rely upon the case of Touchard v. Touchard, 5 Cal. R., as being conclusive of this. In that case a subsequent grant of a lot by a municipal corporation was held valid against an older grant, on the ground of the non-performance of the conditions by the elder grantee. The only question made there in favor of the first grant was that the Mexican law, which then prevailed, required the proceeding of denouncement before there could be a legal forfeiture of the grant. But we held that that proceeding only applied to grants made by Government, and was totally inapplicable to the contracts of private individuals. A denouncement was never made by the grantor, but always by some person who desired to obtain the land for himself.
In that case it was also shown in evidence, that it was the custom, upon the part of the authorities of the pueblo, to re-grant lots when the first grantee had failed to occupy, or otherwise comply with the conditions of the grant, without resorting to any other step whatsoever, to indicate a forfeiture, or a determination on the part of the grantor to resume the ownership. And there was also given in evidence an admission, on the part of the first grantee, that he had forfeited the lot; and that decision might well have been placed on the ground of abandonment.
The case before us shows no such state of facts; but now the respondents insist, and so it was held by the District Court, that in order to invalidate the first grant there must have been a re-entry by the grantor, or some other notorious act, in order to show the intention by the grantor, to forfeit the grant, and resume the estate upon the ground of the non-performance of the conditions, and that the subsequent grant is no proof of such intention.
This position would be unassailable if we were at liberty to apply the principles of the common law to this case, but the facts all arose before the adoption of the common law, and must be governed by the rules of the civil law.
We have said before that the Mexican civil law having been the law of this State at the time of the adoption of the Constitution, we are bound judicially to know it, and however indisputable is that legal [526]*526maxim, yet it is sometimes very difficult to make a practical application of this knowledge.
• The civil law, as a system, is so variant from the common law, and having its manifest influence upon the forms and modes of making contracts, makes it often difficult to discover a rule which is at all cognate to a well understood one of the common law. And therefore we discover no rule whatever at the civil law, answering to the common law doctrine of re-entry to produce a forfeiture. It does not follow, however, that that system was destitute of principles which, to an equal extent were potent to secure and enforce the rights of litigants in like cases. And so we find that instead of an unbending rule which disregards material clashing circumstances, each case was determined according to its own facts, by those principles which every system would admit to be the immutable laws of right and wrong.
In reflecting that those laws were to be applied in view of the facts in every casfe, according to the various moral instincts and powers of perception of different judges, it may well be disputed, when placed in apposition with the symmetry and certainty of the common -law, which system is capable of conferring the most solid advantages and lasting benefits to society. Not to digress further into the region of legal dialectics, I propose now to consider the facts of the case before us, and according to those facts to determine the right.
The plaintiffs claim title from one Pell, who, in January, 1847, obtained a grant from the city authorities to the lot in question, upon the usual condition, that he should, within one year, build a house upon it. Pell never took possession of the lot, although it was unoccupied until 1849, when the grantors of the defendant went into possession and built a house. Then Pell attempted to get possession by suit, but was unable to do so. In his petition to the Alcalde for the grant, he represented the lot as vacant. No further attempt was made by him to get possession, and in 1854, nearly eight years after his grant, when the value of the lot had reached the sum of thirty thousand dollars, he sold to the plaintiffs for the sum of fifteen hundred dollars.
The defendants claim, through several mesne conveyances, from one Bee. The latter applied for and obtained his" grant in 1843, with the usual condition of building a house within a year. Possession was delivered him with all the formalities which the law required, and he soon afterwards commenced building on it, constructed an adobe foundation for his house, and had lumber placed upon the lot. The breaking-out of a revolution checked his progress in building, and he did not afterwards resume it. He resided at San Jose up to the time he sold the lot; but he continuously claimed it, had an agent to see to it for him, visited it usually when he came to San Francisco, and it was commonly known as his, and called Bee's lot. He testified that he could obtain no grant to any other lot on account of his ownership of the one in question. In 1849 he sold it to parties through whom the defendants claim, who immediately went into actual possession, which has been held ever since uninterruptedly by them and their grantees.
[527]*527It appears, further, that Pell’s deed was never recorded, and has been lost. That in 1847 the Alcalde, ascertaining that mistakes had been made in granting the same lots to more than one person, arising from the re-survey of the city and the numbering of the lots, gave notice to all those who held grants which had issued before the re-survey, to appear before him and have their grants adjusted, offering to those who had grants of lots which had before been granted, to take other lots in their places. This was only about six months after the grant to Pell. He neglected to take any action under this notice, but Bee went forward and presented his deed, and the Alcalde ordered the syndic to put him again in possession, which was done.
The grant to Bee, then, was the elder grant, and must have the right, unless it has been legally deprived of it. This might occur in two ways, by abandonment or by forfeiture. There is no attempt to insist upon the former; all the facts show a continous claim of property and a continuous care and interest in it.
But it is urged that he had forfeited his right by failing to comply with the condition named in the grant, requiring him to build a house within a year ; and that the grantor had, therefore, taken advantage of the condition broken, and for that reason had made a new grant to another, and by making the latter grant had evinced the design of enforcing the forfeiture.
Now, by the rules of the civil law, the mere non-performance alone, within the stipulated time, does not annul a contract, ipso facto, unless, indeed, the time is of the very nature and essence of the contract. Domat says: “In all covenants, in which one of the contractors is obliged to do or give a thing, or to accomplish in any other manner that which is agreed on; and especially in those in which the non-performance is to be attended with a dissolution of the contract, or with some other penalty, it is equitable, and for the public interest, that the covenant, be not immediately dissolved, nor the penalties incurred, for every sort of non-performance indifferently. Thus, for example, if the buyer does not pay the price at the time appointed, the sale shall not be instantly annulled, even although it had been so agreed on; but a certain time is allowed to the buyer to pay the price before the sale be made void. And in the other eases of backwardness, whether of payment or delivery of anything, the judge ought, in prudence, to grant such delays as may be reasonable, according to circumstances.” Domat, Tit. 1, Sec. 8, Art. 15.
In Tit. 1, Sec. 4, Art. 19, he says further: “ Clauses of nullity and penal clauses are not always executed to the rigor; and covenants are not dissolved nor penalties incurred in the very moment which the contract bears, even although it should be agreed on that the contract should be void by the bare deed, and without any ministerial act of justice.”
See, also, Tit. 1, Sec. 4. Art. 16.
From these authorities it is very evident that there was no forfeiture of Bee’s grant, on the ground of non-performance within the time, [528]*528unless something else was done to produce it. Now, if the grantor of an estate upon condition subsequent, does not complain of a breach, it does not lie in the month of any one else to do so. Therefore, in this case, it is necessary to examine the conduct of the grantor, for the purpose of ascertaining if it designed to avail itself of the non-performance, and assert its legal advantage arising therefrom.
To show this, the simple fact of a grant to another is relied on. But what are the accompanying circumstances ? The alcalde who made the second grant was a stranger, had been in the country but a short time, but recently had gone into the office which made him the representative of the city, and the petition sent to him described the land as vacant.
Now, instead of these facts showing any intention to forfeit the former grant, or to complain of the former grantee, it merely discloses a total want of knowledge on the subject, a total ignorance of the fact that the lot had been already granted, and a consequent mistake in granting it again. But, if this were not enough, what occurred six months subsequent to it places it beyond any doubt whatever. The then acting alcalde discovered that mistakes of this kind had been made. Representing the pueblo, he gave notice to all who had deeds prior to the new survey of the city, to come in and have these mistakes corrected. And, as if to add more weight to this distinct admission, the first grantee went through the formula of being once more put in possession by the regular officer of the law.
Under this view of the case, I can come to no other conclusion than that the grantor made the second grant by mistake—that it never complained of the first grantee’s non-performance of conditions, nor ever designed to avail itself of any advantage therefrom; that the second grantee was perfectly aware of the invalidity of his grant, and either did not make any legitimate effort to recover possession, or if he did, and failed in doing so, the subject is res adjudicata, and he would be barred on that ground.
Judgment affirmed.