Younger v. Pagles

60 Cal. 517, 1882 Cal. LEXIS 500

• Court: California Supreme Court
• Decided: May 29, 1882
• Docket: No. 6,922
• Status: Published

Opinions

McKinstry, J.:

1. The case does not show that the claim to the Eancho Arroyo del Eodeo has been finally confirmed by the authorities of the United States. The Court below found: “On the seventh day of March, 1856, the United States, by the regularly authorized District Attorney, gave regular notice of appeal, upon the part of the United States, from the decision and decree of said District Court to the Supreme Court of the United States. And said cause was regularly appealed by the United States from the said District Court to the Supreme Court of the United States. That thereafter and upon the -of-, 1857, at a subsequent term of said United States District Court, the said District Court of the United States made an order that said appeal was thereby dismissed, and the said claimants had leave to proceed as upon the final decree.”

The order of the District Court was absolutely void if the appeal to the Supreme Court was pending when the order was made, and the conclusive presumption is, that the appeal is still pending, in the absence of a direct finding to the contrary. (McGarrahan v. New Idria Co., 49 Cal. 381.) There is no finding that the appeal has ever been dismissed, or that any disposition has been made of it in the Supreme Court.

Mor can we resort to any presumption to help out the defective finding so as to make it sufficient to sustain the judgment. The order of the District Court does not recite or refer to any remittitur or mandate of the Supreme Court of the United States or pretend to assert that an order of dismissal had been made in the latter Court. No law of the United States has been called to our attention, or any practice in the Federal Courts, showing that such an order of the District Court followed, in the usual course, the dismissal of the appeal in the Supreme Court. The order does not purport to rest upon any previous action of the appellate tribunal, but implies, by its very terms, the exercise of an inherent and independent jurisdiction to put an end to the appeal and make final the judgment already entered. To hold that the order of the District Court conclusively proves that the appeal had been dismissed, is to overthrow the presumption arising from the fact that the appeal had been taken, and by means of a new presumption, to inject into the order a meaning entirely different from that which is expressed by its unambiguous language. Even if the order of the District Court can be treated as evidence tending to prove that the appeal had been dismissed, yet, as it does not conclusively establish the dismissal, the finding of the probative fact can not be substituted for a finding of the ultimate fact. (Coveny v. Hale, 49 Cal. 552.)

2. The plaintiff is not barred by lapse of time. The action was commenced at a date less than five years after the passage of the Act of April 18, 1863. (Statutes of 1863, p. 325.) The sixth section of that Act reads: “ The time that shall have already run under the act of which this is amendatory, when this Act takes effect, shall be taken and computed as a portion of the time in this Act limited for the commencement of an action, or the making of a defense thereto; * * * provided, that any person claiming real property, or the possession thereof, or any right or interest therein, under title derived from the Spanish or Mexican Governments, or the authorities thereof, which shall not have been finally confirmed by the Government of the United States, or its legally constituted authorities, more than five years before the passage of this Act, may have five years after the passage of this Act in which to commence his action for the recovery of such real property, etc.; and, provided further, that nothing in this Act contained shall be so construed as to extend or enlarge the time for commencing actions for the recovery of real estate, or the possession thereof, under title derived from Spanish or Mexican Governments, in a case where final confirmation has already been had, oilier than is now allowed by the act to which this Act is amendatory.” (Act of April 11, 1855.)

The seventh section of the Act of 1863 defines “ final confirmation ” within the meaning of the Act, and declares that final confirmation “ shall be deemed to be the patent issued by the Government of the United States,” or “ the final determination of the official survey” under the provisions of the Act of Congress approved June 14, 1860.

There can be no misapprehension of the language employed in the first of the two provisos above recited. Every person claiming under a Spanish or Mexican grant or title, was given full five years after the Act of 1863 took effect, to bring his action, unless the grant or title was “ finally confirmed” more than five years before the Act of 1863 took effect.

There is nothing in the other proviso which necessarily derogates from or destroys the effect of the first, upon a title in the condition of that of the plaintiff. The ordinary time within which must be brought an action for the recovery of real property, or its possession, is five years. The second proviso declares that this time shall not be extended by the Act of 1863, in any case in which it would not be extended by the Act of 1855. But by the Act of 1855 the time was extended in every case until a patent should issue. (Johnson v. Van Dyke, 20 Cal. 225; Davis v. Davis, 26 id. 46; Beach v. Gabriel, 29 id. 580.) No patent has ever been issued to plaintiff, or his grantors. Hence, by holding that by virtue of the first of the provisos quoted from the sixth section of the Act of 1863, the time for plaintiff to bring his action was extended for five years from the taking effect of that Act, we do not construe the Act of 1863 as extending or enlarging the time in a case in which it was not allowed under the Act of 1855.

It is not our task to harmonize the provisos. It is enough to say that the first gave to the plaintiff five years to bring his action after the Act of 1863, and the second did not take the right away from him.

It follows, from what has been said, that, even if the claim to the rancho had been confirmed by final decree of the Supreme Court of the United States prior to the alleged publication of the survey under the Congressional law of 1860, the plaintiff would have five years to bring this action after the statute of the State, of 1863, took effect.

If a case presented the fact of a patent having been issued less than five years before the Act of 1863, it might be necessary to determine whether the time between the date of the patent and the Act of 1863 should be included as a part of the five years’ limitation, notwithstanding the language of the first proviso, which gives to one to whom a patent has been issued within five years, five full years to bring his action, after the Act of 1863 took effect. But the question does not arise here, since no patent has yet been issued to the plaintiff.

There is, 'however, a conclusive answer to the suggestion, that the period of limitations began to run at the expiration of the publication of the survey in 1861. None of the Acts of Congress to which reference has been made authorize a survey, or segregation of lands granted by the Spanish or Mexican Governments until after the claim has been declared valid by the proper authorities of the United States.

Ross, McKee, Thornton, JJ., and Morrison, C. J., concurred.