McGarrahan v. New Idria Mining Co.

California Supreme Court

McGarrahan v. New Idria Mining Co.

49 Cal. 331

CourtCalifornia Supreme Court

DecidedJuly 1, 1874

DocketNo. 4,091

StatusPublished

Cited by4 cases

This text of 49 Cal. 331 (McGarrahan v. New Idria Mining Co.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGarrahan v. New Idria Mining Co., 49 Cal. 331 (Cal. 1874).

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Opinion

By the Court, McKinstry J.:

For the purpose of this decision only, we shall consider the record in the volume in the General Land Office at Washington, kept for the recording of patents of the United States issued upon California confirmed Mexican, grants, as constituting the original patent.

The patent is evidence of the series of proceedings recited in it; and as the deed of the United States took effect by relation as of the date of the presentation of the petition for confirmation of the grant to the Board of Land Commissioners. (Leese v. Clark, 18 Cal. 535.) Indeed, it is only by virtue of this application of the doctrine of relation [335]*335that the plaintiff can hope to recover, since his deed from Gomez, the original grantee, only purports to convey “the right, title and interest ” of Gomez at the date of the conveyance, which preceded several years that of the alleged patent. (Gee v. Moore, 14 Cal. 472; Kimball v. Semple, 25 Cal. 440; Morrison v. Wilson, 30 Cal. 344.) The patent, as we have seen, is not only the deed of the United States—it is evidence of the proceedings recited in it, and is a solemn record of the government, of its action and judgment, with respect to the title of the claimant. As such, it imports absolute verity. (Teschemacher v. Thompson, 18 Cal. 11.) It follows that both the officers of the government and the grantee, as well as those in privity with him, are bound by the recital of facts contained in the patent.

Neither the President, however, nor any officer has other power to dispose of the public domain, or to sign, or cause the seal of the Land Office to be affixed to patents, than such as is conferred by statutes of the United States. (Parker v. Duff, 47 Cal. 554.)

Under the Act of Congress of 1851, “To ascertain and settle private land claims in California,” a patent can only issue after the final confirmation of a Mexican grant. While therefore the recitals of fact are binding on all concerned, an opinion of the executive officers in respect to matters of law, as indicated either by the ultimate act of issuing the patent or by recitals inserted in that instrument, is not— and from the nature of the powers and duties of such officers—cannot be conclusive. (Foscalina v. Doyle, 47 Cal. 437.)

It appears from the alleged patent that on the 25th of August, 1862, an order was made in the District Court allowing an appeal to the Supreme Court of the United States in the case The United States v. Gomez; and that at the December Term, 1862, the District Court made an order purporting to set aside the order of the 25th August.

The order of the 25th day of August, 1862, was valid and effectual to transfer the cause to the Supreme Court of the United States for final disposition, subject only to the appeal being dismissed for want of prosecution, without prej[336]*336udice to a new appeal within five years- after the decree of the District Court. (United States v. Gomez, 3 Wall. 673; McGarrahan v. Maxwell, 28 Cal. 89.) It does not appear in the patent, nor in the findings of the Court below, that any disposition has been made of the appeal of the 25th of August by the Supreme Court of the United States. On the appeal being granted by the District Court, the jurisdiction of the Supreme Court attached, and the appeal could be dismissed only on application to the Supreme Court. The District Court could not, just before the expiration of the five years, set aside its order granting an appeal, and thus deprive a party of a sacred right guaranteed by the statute. An appeal constitutes a bar to the execution of the judgment of the inferior Court. (United States v. Pacheco, 20 How. 263.) Its effect' is to suspend all proceedings in the Court below. (Thornton v. Mahoney, 24 Cal. 569; McGarrahan v. Maxwell, supra.) It must be effectual to prohibit any action of the District Court setting aside an order which has already operated to transfer the cause to the Appellate tribunal.

The claim to the rancho “Panocho Grande” was not finally confirmed, therefore, when the alleged patent was issued, and the same is void.

Judgment affirmed.

Mr. Chief Justice Wallace, being disqualified, did not sit in this cause.

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By the Court, McKinstry J.:

For the purpose of this decision only, we shall consider the record in the volume in the General Land Office at Washington, kept for the recording of patents of the United States issued upon California confirmed Mexican, grants, as constituting the original patent.

The patent is evidence of the series of proceedings recited in it; and as the deed of the United States took effect by relation as of the date of the presentation of the petition for confirmation of the grant to the Board of Land Commissioners. (Leese v. Clark, 18 Cal. 535.) Indeed, it is only by virtue of this application of the doctrine of relation [335]*335that the plaintiff can hope to recover, since his deed from Gomez, the original grantee, only purports to convey “the right, title and interest ” of Gomez at the date of the conveyance, which preceded several years that of the alleged patent. (Gee v. Moore, 14 Cal. 472; Kimball v. Semple, 25 Cal. 440; Morrison v. Wilson, 30 Cal. 344.) The patent, as we have seen, is not only the deed of the United States—it is evidence of the proceedings recited in it, and is a solemn record of the government, of its action and judgment, with respect to the title of the claimant. As such, it imports absolute verity. (Teschemacher v. Thompson, 18 Cal. 11.) It follows that both the officers of the government and the grantee, as well as those in privity with him, are bound by the recital of facts contained in the patent.

Neither the President, however, nor any officer has other power to dispose of the public domain, or to sign, or cause the seal of the Land Office to be affixed to patents, than such as is conferred by statutes of the United States. (Parker v. Duff, 47 Cal. 554.)

Under the Act of Congress of 1851, “To ascertain and settle private land claims in California,” a patent can only issue after the final confirmation of a Mexican grant. While therefore the recitals of fact are binding on all concerned, an opinion of the executive officers in respect to matters of law, as indicated either by the ultimate act of issuing the patent or by recitals inserted in that instrument, is not— and from the nature of the powers and duties of such officers—cannot be conclusive. (Foscalina v. Doyle, 47 Cal. 437.)

It appears from the alleged patent that on the 25th of August, 1862, an order was made in the District Court allowing an appeal to the Supreme Court of the United States in the case The United States v. Gomez; and that at the December Term, 1862, the District Court made an order purporting to set aside the order of the 25th August.

The order of the 25th day of August, 1862, was valid and effectual to transfer the cause to the Supreme Court of the United States for final disposition, subject only to the appeal being dismissed for want of prosecution, without prej[336]*336udice to a new appeal within five years- after the decree of the District Court. (United States v. Gomez, 3 Wall. 673; McGarrahan v. Maxwell, 28 Cal. 89.) It does not appear in the patent, nor in the findings of the Court below, that any disposition has been made of the appeal of the 25th of August by the Supreme Court of the United States. On the appeal being granted by the District Court, the jurisdiction of the Supreme Court attached, and the appeal could be dismissed only on application to the Supreme Court. The District Court could not, just before the expiration of the five years, set aside its order granting an appeal, and thus deprive a party of a sacred right guaranteed by the statute. An appeal constitutes a bar to the execution of the judgment of the inferior Court. (United States v. Pacheco, 20 How. 263.) Its effect' is to suspend all proceedings in the Court below. (Thornton v. Mahoney, 24 Cal. 569; McGarrahan v. Maxwell, supra.) It must be effectual to prohibit any action of the District Court setting aside an order which has already operated to transfer the cause to the Appellate tribunal.

The claim to the rancho “Panocho Grande” was not finally confirmed, therefore, when the alleged patent was issued, and the same is void.

Judgment affirmed.

Mr. Chief Justice Wallace, being disqualified, did not sit in this cause.

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