Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.
This is an action to recover the possession of a tract of land near the City of San Francisco. The case was tried before a referee, who reported a judgment in favor of the plaintiff. The defendants moved for a new trial, which was denied, and they appeal from the judgment and the order refusing a new trial, to this Court.
The plaintiff claimed title to the premises in controversy, under a grant from the Mexican Government to José 0. Bernal, dated on the tenth day of October, 1839. Bernal died in 1850, and his heirs filed a claim under the grant, before the Board of United States Land Commissioners, which was duly confirmed by said Board, and also on appeal, by the United States District Court, and afterwards, on the thirty-first day of December, 1857, the Government of the United States, in pursuance of such decree of confirmation, issued a patent therefor to Carmen Sibrian de Bernal and José Jesus Bernal, the heirs of José C. Bernal. This action was commenced on the twenty-seventh day of December, 1860, more-than two years after the date of the patent. The defendants [109]*109pleaded the two years’ statute of limitations, prescribed by Sec. 11 of the Act of March 26th, 1856, and the main point in the, present case is whether the decision of this Court in the case of Lathrop v. Mills (19 Cal. 513), in which it was held that this Sec. 11 of the Statute of March 26th, 1856, was unconstitutional and void, shall be overruled or not. The appellant contends vigorously that that decision is erroneous and should be overruled ; that the referee and the Court below erred in not sustaining the validity of that section of the statute, and therefore the judgment ought to be reversed. The case of Lathrop v. Mills was decided at the October Term, 1861, of this Court, after a full discussion of the question by the counsel on both sides, and all the Judges of the Court united in rendering the opinion. The point involved in that case was fully considered by the Court, and a lengthy opinion was filed, giving the reasons and grounds of the decision. The power of the Legislature over the whole subject of limitation of actions was not denied. Since the rendition of that decision two sessions of the Legislature have been held, and the time for limitation of actions upon patents has not been changed, but left to be determined by the general statute of limitations, which covers the whole subject matter. That the Legislature could enact a law providing that actions for the possession of land, founded upon patents, should be brought against parties in adverse possession at the time, within two years from the date of the patent, which would be constitutional and valid, does not seem to have been doubted by the Court in that case. Yet no attempt has been made by the Legislature, since the invalidity of the Act of March 26th, 1856 was declared by this Court, to reenact the same in a form free from constitutional objections. Under these circumstances this Court is asked to review its decision in that case, and to overrule it. It is now nearly two years since that decision was rendered, and, without doubt, many suits have been deferred relying upon its being sustained, and if it should be overruled now, great injury would undoubtedly be inflicted upon many parties throughout the State who have relied upon it. Under such circumstances none but the strongest reasons would justify the Court in taking such action as is asked by the appellant. Fickleness in Courts is always to be [110]*110deprecated, but especially in matters relating to titles to real estate. Stability is required in such cases above all others. One of the greatest evils the people of this State have suffered, has been the uncertainty of its land titles, and the greater the precision and certainty of the rules of law upon the subject of titles to real estate, the more security will all classes feel in their transactions and dealings in land. Therefore, no well considered decision ought to be overruled unless it clearly violates some well established rule of law and great evils are likely to flow from suffering it to stand as a rule of property.
In the present case we have the less hesitation in refusing to overrule the decision in Lathrop v. Mills, because that was a construction of a statute, and in such cases it is within the power of the Legislature to prevent any evils likely to flow from the decision, and to correct any misconstruction of their intention by the Court, by enacting a proper law, expressing such intention in unmistakable terms, and free from the objections upon which the decision of the Court is founded. In this case the Legislature has had abundant opportunities, had it so desired, or had they deemed it for the interest of the people, to have enacted a law upon the subject, clear in its terns, and free from constitutional objections. But they have not done so, and we therefore do not hesitate in declining to overrule that case.
It is also insisted by the appellant that the referree erred in refusing to dismiss the action as to James Paul, one of the defendants, on the ground that in his answer he disclaims all right, title, and interest in the premises. It is true that the answer of this defendant closes with a disclaimer of this kind, but it also contains a general denial of all the allegations in the complaint, and then avers that “ he was and still is lawfully seized and in possession” of the lands in controversy. It also appears that he was in possession of the land at the commencement of the action and continued in possession up to the trial. Under these circumstances his disclaimer of title was no defense to a demand for a judgment for the possession and damages for the detention of the land. He was a necessary party to the action, being in possession, and was therefore properly made a defendant with the others.
[111]*111On the trial the defendant offered to prove that the grant to Bernal was invalid on several grounds. He had previously offered in evidence the patent to Bernal’s heirs from the Government. The referee refused to receive the proof, and this refusal is assigned as a ground of error. This Court has decided that a patent cannot be attacked in this manner in a collateral proceeding. (Doll v. Meader, 16 Cal. 324; Mott v. Smith, 16 Id. 548; Yount v. Howell, 14 Id. 467; Boggs v. Merced Mining Co., Id. 363; Natoma Water and Mining Co. v. Clarkin, Id. 551; Waterman v. Smith, 13 Id. 419; Moore v. Wilkinson, Id. 487; Teschemacher v. Thompson, 18 Id. 11; Leese v. Clark, Id. 535; Leese v. Clark, 20 Id. 387.) These decisions clearly sustain the action of the referee on this point.
It is also urged that the City or Pueblo of San Francisco is now prosecuting a claim to several leagues of land, including the premises in controversy, in the District Court of the United States for the USTorthern District of California; that it is anticipated that the claim will be confirmed, and that a patent will be issued by the United States; that the defendants will be entitled to all the benefits of such patent, and therefore have a right to show the invalidity of the grant to Bernal and the patent to his heirs. We see no evidence in the record of any title in the City of San Francisco to the premises in controversy, or of any offer to introduce any such evidence; and this Court cannot take judicial notice of such facts, if they exist.
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Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.
This is an action to recover the possession of a tract of land near the City of San Francisco. The case was tried before a referee, who reported a judgment in favor of the plaintiff. The defendants moved for a new trial, which was denied, and they appeal from the judgment and the order refusing a new trial, to this Court.
The plaintiff claimed title to the premises in controversy, under a grant from the Mexican Government to José 0. Bernal, dated on the tenth day of October, 1839. Bernal died in 1850, and his heirs filed a claim under the grant, before the Board of United States Land Commissioners, which was duly confirmed by said Board, and also on appeal, by the United States District Court, and afterwards, on the thirty-first day of December, 1857, the Government of the United States, in pursuance of such decree of confirmation, issued a patent therefor to Carmen Sibrian de Bernal and José Jesus Bernal, the heirs of José C. Bernal. This action was commenced on the twenty-seventh day of December, 1860, more-than two years after the date of the patent. The defendants [109]*109pleaded the two years’ statute of limitations, prescribed by Sec. 11 of the Act of March 26th, 1856, and the main point in the, present case is whether the decision of this Court in the case of Lathrop v. Mills (19 Cal. 513), in which it was held that this Sec. 11 of the Statute of March 26th, 1856, was unconstitutional and void, shall be overruled or not. The appellant contends vigorously that that decision is erroneous and should be overruled ; that the referee and the Court below erred in not sustaining the validity of that section of the statute, and therefore the judgment ought to be reversed. The case of Lathrop v. Mills was decided at the October Term, 1861, of this Court, after a full discussion of the question by the counsel on both sides, and all the Judges of the Court united in rendering the opinion. The point involved in that case was fully considered by the Court, and a lengthy opinion was filed, giving the reasons and grounds of the decision. The power of the Legislature over the whole subject of limitation of actions was not denied. Since the rendition of that decision two sessions of the Legislature have been held, and the time for limitation of actions upon patents has not been changed, but left to be determined by the general statute of limitations, which covers the whole subject matter. That the Legislature could enact a law providing that actions for the possession of land, founded upon patents, should be brought against parties in adverse possession at the time, within two years from the date of the patent, which would be constitutional and valid, does not seem to have been doubted by the Court in that case. Yet no attempt has been made by the Legislature, since the invalidity of the Act of March 26th, 1856 was declared by this Court, to reenact the same in a form free from constitutional objections. Under these circumstances this Court is asked to review its decision in that case, and to overrule it. It is now nearly two years since that decision was rendered, and, without doubt, many suits have been deferred relying upon its being sustained, and if it should be overruled now, great injury would undoubtedly be inflicted upon many parties throughout the State who have relied upon it. Under such circumstances none but the strongest reasons would justify the Court in taking such action as is asked by the appellant. Fickleness in Courts is always to be [110]*110deprecated, but especially in matters relating to titles to real estate. Stability is required in such cases above all others. One of the greatest evils the people of this State have suffered, has been the uncertainty of its land titles, and the greater the precision and certainty of the rules of law upon the subject of titles to real estate, the more security will all classes feel in their transactions and dealings in land. Therefore, no well considered decision ought to be overruled unless it clearly violates some well established rule of law and great evils are likely to flow from suffering it to stand as a rule of property.
In the present case we have the less hesitation in refusing to overrule the decision in Lathrop v. Mills, because that was a construction of a statute, and in such cases it is within the power of the Legislature to prevent any evils likely to flow from the decision, and to correct any misconstruction of their intention by the Court, by enacting a proper law, expressing such intention in unmistakable terms, and free from the objections upon which the decision of the Court is founded. In this case the Legislature has had abundant opportunities, had it so desired, or had they deemed it for the interest of the people, to have enacted a law upon the subject, clear in its terns, and free from constitutional objections. But they have not done so, and we therefore do not hesitate in declining to overrule that case.
It is also insisted by the appellant that the referree erred in refusing to dismiss the action as to James Paul, one of the defendants, on the ground that in his answer he disclaims all right, title, and interest in the premises. It is true that the answer of this defendant closes with a disclaimer of this kind, but it also contains a general denial of all the allegations in the complaint, and then avers that “ he was and still is lawfully seized and in possession” of the lands in controversy. It also appears that he was in possession of the land at the commencement of the action and continued in possession up to the trial. Under these circumstances his disclaimer of title was no defense to a demand for a judgment for the possession and damages for the detention of the land. He was a necessary party to the action, being in possession, and was therefore properly made a defendant with the others.
[111]*111On the trial the defendant offered to prove that the grant to Bernal was invalid on several grounds. He had previously offered in evidence the patent to Bernal’s heirs from the Government. The referee refused to receive the proof, and this refusal is assigned as a ground of error. This Court has decided that a patent cannot be attacked in this manner in a collateral proceeding. (Doll v. Meader, 16 Cal. 324; Mott v. Smith, 16 Id. 548; Yount v. Howell, 14 Id. 467; Boggs v. Merced Mining Co., Id. 363; Natoma Water and Mining Co. v. Clarkin, Id. 551; Waterman v. Smith, 13 Id. 419; Moore v. Wilkinson, Id. 487; Teschemacher v. Thompson, 18 Id. 11; Leese v. Clark, Id. 535; Leese v. Clark, 20 Id. 387.) These decisions clearly sustain the action of the referee on this point.
It is also urged that the City or Pueblo of San Francisco is now prosecuting a claim to several leagues of land, including the premises in controversy, in the District Court of the United States for the USTorthern District of California; that it is anticipated that the claim will be confirmed, and that a patent will be issued by the United States; that the defendants will be entitled to all the benefits of such patent, and therefore have a right to show the invalidity of the grant to Bernal and the patent to his heirs. We see no evidence in the record of any title in the City of San Francisco to the premises in controversy, or of any offer to introduce any such evidence; and this Court cannot take judicial notice of such facts, if they exist. If such evidence exists the defendants should have offered it, and then it could have been considered. If the City of San Francisco has a title to this land, superior to that derived under the grant to Bernal, and a patent shall hereafter issue under such superior title from the United States Government to the City of San Francisco, and the defendants shall obtain that title from the city, then such title may be asserted in a subsequent action, if necessary, by the defendants, against any person claiming under an inferior title. But that is not an issue presented in this suit.
It is also insisted that the plaintiff failed to prove a proper conveyance of the title from the patentees to himself. His chain of title is as follows: Deed from patentees to Harvey S. Brown, dated June 4th, 1857; deed from Harvey S. Brown to J. Mora Moss, [112]*112dated September 30th, 1858 ; deed from J. Mora Moss to the plaintiff, dated January 2d, 1860. The first objection is, that at the date of the deed to Brown, the patentees had no title to the premises, and that their deed, therefore, conveyed none. It seems that on the tenth day of September, 1853, the patentees conveyed the land to Josselyn Hutchinson, and took back a mortgage to secure the purchase money. They commenced an action to foreclose the mortgage, and before the decree assigned the mortgage to Samuel Moss, Jr. A decree was duly rendered foreclosing the mortgage, and at the sale under the decree the patentees bid off the property, and on the sixth day of February, 1856, they obtained a deed from the Sheriff therefor. It is asserted by the appellant that they bid off the property “ as judgment creditors.”. We see no evidence in the record to sustain this assertion, and if there was, we do not perceive that it would make any difference. The title conveyed by them to Hutchinson, was revested in them by the Sheriff’s deed of February 6th, 1856. If Samuel Moss, Jr., was in any way injured in these transactions his legal representatives can enforce his rights, in a proper action, but they afford these defendants no ground for impeaching the Sheriff’s deed to the patentees.
The next objection to the plaintiff’s chain of title is, that the deed from Moss to the plaintiff, though dated before the commencement of the suit, was not in fact executed and delivered until the date of the acknowledgment, which was nearly a year after the suit had been pending. The witness, Applegate, testified that although this deed was not executed until after the time it bears date,' yet it “ was executed and delivered a considerable time before the complaint in this action was drawn or filed.” These objections to the plaintiff’s title are therefore untenable.
We have thus noticed all the material points presented by the appellant, and as no error has been shown in the proceedings of the Court below, the judgment is affirmed.