By the Court, Crockett, J.:
This is an action to quiet title under section two hundred and fifty-four of the Practice Act, and also to enjoin the further prosecution by the defendants of an action for partition of the premises in controversy. The plaintiff deraigns his title under Benito Diaz, one of the defendants, to whom it is alleged the lot was granted by Alcalde Hinckley, in 1844. The defendants, except Diaz, are the heirs at law of one Juan Prado Mesa, deceased, to whom they allege the lot was granted jointly with Diaz, and from whom they claim to have derived by inheritance the title to an undivided half of said premises. Diaz failed to answer the complaint, and his default was duly entered. On the first trial of the action judgment was entered for the plaintiff, and the defendants appealed to this Court. On the hearing of the appeal the judgment was reversed and the cause remanded for a new trial, (30 Cal. 65,) and on the second trial judgment was again entered for the plaintiff, from which the defendants have appealed. The proofs show that a few days before the date of the grant, Diaz, on behalf of himself and Mesa, filed with the Alcalde a written petition, soliciting that the lot be granted to the two, jointly, “en compañía.” A grant was accordingly written out in due form and signed by the Alcalde, which bears date July 19th, 1844, purporting on its [441]*441face to grant the lot to Diaz and Mesa jointly. If the proofs had shown nothing further, it would have been plain that whatever title was conveyed by the grant passed to the two grantees jointly. But the plaintiff claims to have established that, before the grant was delivered by the Alcalde, the two grantees appeared in person before him, and that Mesa then and there declined to accept the grant, and waived his pretensions to the lot in favor of Diaz, in which arrangement the Alcalde and Diaz acquiesced, and thereupon the latter paid the usual municipal fees and was put into possession; shortly after which he erected a house upon the lot, and he and those holding under him have ever since been in possession. In support of this theory the plaintiff put in evidence, against the objection of the defendants, a paper which was indorsed on the grant, and of which the following is a translation :
“Since the said Juan Prado Mesa renounced his.right and property in the lot specified in this document, said lot may remain in the power of Don Benito Diaz, and as his property, for the uses which may be convenient, he having paid the municipal fees.
“Yerba Buena, 22d July, 1844.
“ (Signed,) William Hinckley.”
This indorsement was proved to be in the handwriting of Hinckley, the Alcalde. Benito Diaz was put upon the stand by the plaintiff, and testified in substance that after the grant was written out and signed by the Alcalde, but before its delivery, Mesa became dissatisfied with the lot, because it was partially subject to inundation, and concluded not to accept the grant nor to pay any part of the municipal fees therefor; that in pursuance of this determination Mesa appeared jointly with Diaz before the Alcalde, and in the presence of the Alcalde verbally declined to accept the grant, and renounced all claim to the lot, and thereupon Diaz paid the fees, and the Alcalde made the indorsement on [442]*442the grant quoted, delivered it to Diaz and put him in possession of the lot, and shortly thereafter Diaz inclosed the lot and erected a house upon it, and he and his grantees have ever since been in possession.
This testimony was objected to as incompetent, on the ground that under the decision of this Court in Donner v. Palmer, 31 Cal. 500, neither the actual delivery of the grant nor the payment by the grantee of the municipal fees was necessary to vest the title in Diaz and Mesa; and it is insisted that the title under the grant having once vested, the certificate of the Alcalde indorsed on the grant is inoperative in law to divest the title of Mesa, even though the facts were precisely as testified to by Dias. In Donner v. Palmer we said: “We understand that the title under the grant vests the moment it has received the stamp of the last act required to completely authenticate the instrument, and that a delivery is not necessary. Suppose from any cause after the entry in proper form of the proceedings in the book kept by the Alcalde, he should fail to deliver the pape'r to which the grantee is entitled under the regulations of 1789, could it be claimed with any show of reason that thereby the grant was defeated or made inoperative or void ? We think not. If not, it follows that no delivery of such a paper need be shown.” In respect to the payment of the municipal fees as a condition precedent to the vesting of the title, we say in that case: “We are satisfied that the payment of the tax was a matter of no consequence so far as the validity of the grant was concerned, and that the plaintiff was not bound to prove that it was paid, nor were the defendants entitled to prove that it was not.”
But these propositions do not cover this case. If the grant was made, signed, and recorded in due form by the Alcalde, and nothing further appeared, it may tie conceded, for the purposes of this case, that the title vested in the grantees, even though it should appear affirmatively that the paper was not actually delivered to them, and that the fees were not paid. But if the grantees immediately afterwards ap[443]*443peared in person before the Alcalde and declined to accept it as made, and desired a modification of the grant, we know of no rule which prevented him from amending or adding to the record of his proceedings, so as to make them conform to the wishes of the parties. If the proceeding had been before the Governor, and if the two grantees, after the grant was signed and noted of record, and before acceptance, had gone before him and requested him to modify the grant so that it would inure to the benefit of one of the grantees only, and if he had accordingly, by a proper indorsement on the grant reciting the facts, have decreed that it should inure to one of them to the exclusion of the other, we apprehend it would be held to be a legitimate exercise of the granting power, and that it would be a valid and operative grant to the one grantee only. To hold the contrary would be to maintain that upon signing the grant and noting it of record, without any acceptance by the grantees, the Governor had exhausted his power over the subject; and even with the consent or on the request of the parties in interest, he could not, on the next day or at any future time, modify the grant in any particular whatever. However applicable so inflexible a rule might be to our system of granting the public domain, where the grant consists of a series of acts to be performed by several agents or officers, and all culminating in a patent to be issued by the President, we think it can have no application to the Mexican system, where the granting power was lodged solely in the Governor, or, in a certain class of cases, in subordinate officers, of whom the Alcalde was one, and who had an absolute discretion either to reject or accede to petitions for grants and to impose such conditions in respect to future improvements as the spirit of the colonization laws demanded.
The power to grant, lodged in a single officer, implies the power to modify the grant, with the consent of all the parties in interest, whilst the proceedings are in fieri, and so long as anything remains to be done by the granting power.
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By the Court, Crockett, J.:
This is an action to quiet title under section two hundred and fifty-four of the Practice Act, and also to enjoin the further prosecution by the defendants of an action for partition of the premises in controversy. The plaintiff deraigns his title under Benito Diaz, one of the defendants, to whom it is alleged the lot was granted by Alcalde Hinckley, in 1844. The defendants, except Diaz, are the heirs at law of one Juan Prado Mesa, deceased, to whom they allege the lot was granted jointly with Diaz, and from whom they claim to have derived by inheritance the title to an undivided half of said premises. Diaz failed to answer the complaint, and his default was duly entered. On the first trial of the action judgment was entered for the plaintiff, and the defendants appealed to this Court. On the hearing of the appeal the judgment was reversed and the cause remanded for a new trial, (30 Cal. 65,) and on the second trial judgment was again entered for the plaintiff, from which the defendants have appealed. The proofs show that a few days before the date of the grant, Diaz, on behalf of himself and Mesa, filed with the Alcalde a written petition, soliciting that the lot be granted to the two, jointly, “en compañía.” A grant was accordingly written out in due form and signed by the Alcalde, which bears date July 19th, 1844, purporting on its [441]*441face to grant the lot to Diaz and Mesa jointly. If the proofs had shown nothing further, it would have been plain that whatever title was conveyed by the grant passed to the two grantees jointly. But the plaintiff claims to have established that, before the grant was delivered by the Alcalde, the two grantees appeared in person before him, and that Mesa then and there declined to accept the grant, and waived his pretensions to the lot in favor of Diaz, in which arrangement the Alcalde and Diaz acquiesced, and thereupon the latter paid the usual municipal fees and was put into possession; shortly after which he erected a house upon the lot, and he and those holding under him have ever since been in possession. In support of this theory the plaintiff put in evidence, against the objection of the defendants, a paper which was indorsed on the grant, and of which the following is a translation :
“Since the said Juan Prado Mesa renounced his.right and property in the lot specified in this document, said lot may remain in the power of Don Benito Diaz, and as his property, for the uses which may be convenient, he having paid the municipal fees.
“Yerba Buena, 22d July, 1844.
“ (Signed,) William Hinckley.”
This indorsement was proved to be in the handwriting of Hinckley, the Alcalde. Benito Diaz was put upon the stand by the plaintiff, and testified in substance that after the grant was written out and signed by the Alcalde, but before its delivery, Mesa became dissatisfied with the lot, because it was partially subject to inundation, and concluded not to accept the grant nor to pay any part of the municipal fees therefor; that in pursuance of this determination Mesa appeared jointly with Diaz before the Alcalde, and in the presence of the Alcalde verbally declined to accept the grant, and renounced all claim to the lot, and thereupon Diaz paid the fees, and the Alcalde made the indorsement on [442]*442the grant quoted, delivered it to Diaz and put him in possession of the lot, and shortly thereafter Diaz inclosed the lot and erected a house upon it, and he and his grantees have ever since been in possession.
This testimony was objected to as incompetent, on the ground that under the decision of this Court in Donner v. Palmer, 31 Cal. 500, neither the actual delivery of the grant nor the payment by the grantee of the municipal fees was necessary to vest the title in Diaz and Mesa; and it is insisted that the title under the grant having once vested, the certificate of the Alcalde indorsed on the grant is inoperative in law to divest the title of Mesa, even though the facts were precisely as testified to by Dias. In Donner v. Palmer we said: “We understand that the title under the grant vests the moment it has received the stamp of the last act required to completely authenticate the instrument, and that a delivery is not necessary. Suppose from any cause after the entry in proper form of the proceedings in the book kept by the Alcalde, he should fail to deliver the pape'r to which the grantee is entitled under the regulations of 1789, could it be claimed with any show of reason that thereby the grant was defeated or made inoperative or void ? We think not. If not, it follows that no delivery of such a paper need be shown.” In respect to the payment of the municipal fees as a condition precedent to the vesting of the title, we say in that case: “We are satisfied that the payment of the tax was a matter of no consequence so far as the validity of the grant was concerned, and that the plaintiff was not bound to prove that it was paid, nor were the defendants entitled to prove that it was not.”
But these propositions do not cover this case. If the grant was made, signed, and recorded in due form by the Alcalde, and nothing further appeared, it may tie conceded, for the purposes of this case, that the title vested in the grantees, even though it should appear affirmatively that the paper was not actually delivered to them, and that the fees were not paid. But if the grantees immediately afterwards ap[443]*443peared in person before the Alcalde and declined to accept it as made, and desired a modification of the grant, we know of no rule which prevented him from amending or adding to the record of his proceedings, so as to make them conform to the wishes of the parties. If the proceeding had been before the Governor, and if the two grantees, after the grant was signed and noted of record, and before acceptance, had gone before him and requested him to modify the grant so that it would inure to the benefit of one of the grantees only, and if he had accordingly, by a proper indorsement on the grant reciting the facts, have decreed that it should inure to one of them to the exclusion of the other, we apprehend it would be held to be a legitimate exercise of the granting power, and that it would be a valid and operative grant to the one grantee only. To hold the contrary would be to maintain that upon signing the grant and noting it of record, without any acceptance by the grantees, the Governor had exhausted his power over the subject; and even with the consent or on the request of the parties in interest, he could not, on the next day or at any future time, modify the grant in any particular whatever. However applicable so inflexible a rule might be to our system of granting the public domain, where the grant consists of a series of acts to be performed by several agents or officers, and all culminating in a patent to be issued by the President, we think it can have no application to the Mexican system, where the granting power was lodged solely in the Governor, or, in a certain class of cases, in subordinate officers, of whom the Alcalde was one, and who had an absolute discretion either to reject or accede to petitions for grants and to impose such conditions in respect to future improvements as the spirit of the colonization laws demanded.
The power to grant, lodged in a single officer, implies the power to modify the grant, with the consent of all the parties in interest, whilst the proceedings are in fieri, and so long as anything remains to be done by the granting power. The plaintiff claims that in this case something remained to be [444]*444clone by the Alcalde when the grant was modified, to wit: to deliver the possession of the lot to the grantees; and that before the proceedings were complete Mesa declined to accept the grant and consented to its modification. In general, a party in whose favor a grant is made will be presumed to have accepted it, nothing appearing to the contrary. But if it affirmatively appears that he refused to accept it, we are not aware of any principle of law by which a title is thrust upon an unwilling grantee; and particularly where it is a pure donation, and no matter of contract is involved. We think, therefore, it was competent for Mesa, at any time before the proceedings were completed by delivering possession of the lot, to decline the bounty of the Government and to refuse to pay the municipal fees, and upon making that fact known to the Alcalde, and consenting that the lot should be granted to Diaz alone, it was competent for the Alcalde to modify the grant, as he is alleged to have done. His indorsement on the grant is, therefore, not to be treated as a transfer of title from Mesa to Diaz, but as an exercise of the granting power whereby he modified the grant, with the consent of Mesa,-who declined to accept it or to pay his portion of the municipal fees. If, therefore, the facts were conceded to be as testified to by Diaz, our conclusion would be that the title vested in Diaz alone, and that Mesa, at the time of his death, had no interest in or title to the lot. In the absence of findings, we must presume, in support, of the judgment, that the Court below so found the facts, and that judgment was properly entered for the plaintiff, unless material errors occurred at the trial, which were properly presented on the motion for new trial.
On looking into the record, we find that after the plaintiff rested, the defendants introduced evidence and rested, and thereupon the plaintiff introduced evidence in rebuttal, after which the defendants offered to prove that the grant was made to Diaz and Mesa at the urgent solicitation and by the personal influence of Mesa; that possession of the lot was delivered to both; that the fact of their joint ownership was [445]*445notorious in the neighborhood; that Mesa, before he died, claimed to own one half the lot, and continued to claim it to the time of his death; that he assisted in building the house on the lot; that Yerba Buena was then a small place, and that Mesa could not well have renounced his title without the knowledge of the witnesses. This evidence was objected to as inadmissible and incompetent, and on tho ground that it was in continuation of testimony offered by defendants on the same subject matter in rebuttal of the plaintiff’s prima facie case. The Court ruled out the testimony; but on which of the grounds alleged does not appear.
That a portion of the testimony was competent we entertain no doubt. If it was true that the grant was made to the two jointly, at the urgent solicitation of Mesa, and that possession of the lot was delivered to the two jointly, and that Mesa assisted in building the house, and claimed, up to the time of his death, to be a joint owner with Diaz, it cannot be denied that these facts not only tended strongly to contradict Diaz, but also to show that Mesa never refused to accept the grant or agreed to renounce his claim to it; and it would further establish the important fact that the possession of the lot was delivered to the two jointly. Assuming these facts to be true, they would tend to show that the Alcalde exceeded his jurisdiction in attempting to divest Mesa, without his consent, of a title which had already become complete, by a formal execution of the grant and a delivery of the possession under it. But the plaintiff objects that the offer of the defendants was not only out of time, but was made as a whole, and that if any part of it was inadmissible, the Court properly denied the whole. It is always within the discretion of the Court which tries the cause whether testimony shall be admitted out of its proper order; and except in cases of a manifest abuse of its discretion, this Court will not disturb the ruling of the lower Court in that respect; and if it appeared in this case that the testimony offered by the defendants was out of its proper order and was rejected for that reason, we should not be inclined to set [446]*446aside the action of the District Court. But it does not appear from the record that the evidence was excluded on that ground, and we cannot assume that it was, nor are we satisfied that the offer was not made in time. BTor does it clearly appear that the offer was intended to be to.prove all the facts included in the offer as a whole, and not each fact seriatim. Unless it distinctly appeared that the offer was to prove all the facts as a whole, or none of them, we should construe the offer liberally, and hold it to be an offer to prove each fact seriatim; and we so construe the offer in this case. We hold, therefore, that the Court erred in excluding the evidence referred to; that is to say, such portions thereof as we have indicated were admissible. But that portion of the offer which was to the effect that Yerba Buena was then a small place and that a renunciation of the lot by Mesa could not well have transpired without the knowledge of the witnesses, was properly rejected. Such evidence was too vague to be entitled to be considered.
The counsel have urged us, in view of the protracted and expensive litigation which has already occurred about this lot, to render a final judgment in the case, if practicable. But the result must depend on controverted facts which it is not our province to decide, and it is therefore impracticable for us to render a final judgment.
In order to avoid any possible misapprehension of our views of the law of the case, we repeat that if, on another trial, it shall appear to the satisfaction of the Court that after the grant to Diaz and Mesa was written and signed, but before delivery of the paper and before possession of the lot was delivered, Mesa and Diaz appeared in person before the Alcalde, and thereupon Mesa voluntarily refused to accept the grant, and consented that the title should inure to the exclusive benefit of Diaz, and if the Alcalde and Diaz acquiesced in this arrangement, and thereupon the Alcalde made the indorsement of the 22d July, 1844, on the grant, and placed Diaz in possession of the lot, the plaintiff will be entitled to judgment. On the other hand, if it shall appear [447]*447that Mesa did not appear before the Alcalde and refuse to accept the grant, and that possession of the lot was delivered to the two grantees jointly, or to one of them for the benefit of both, then the title under the grant vested in the two jointly, and the writing indorsed by the Alcalde on the grant was inoperative in law to divest the title of Mesa.
Judgment reversed and cause remanded for a new trial.