Pacific Coast Law Journal.

VOL. 2.

JANUARY 11, 1879.

No. 20.

Current Topics.

THE interest and importance of the case of Palmer vs. Low et al., appearing in this number, justifies the great space we have given to it. It is our duty to give to the profession all the decisions that affect or discuss the titles to lands in our State, coming from such a source as the Supreme Court of the United States.

WE have often urged the necessity of a syllabus of the points decided in every case where there is a written opinion by the Supreme Court of our State, and now express our pleasure in giving a copy of a new rule (39) just adopted by the court in respect to such matters. The language of the rule seems to convey the idea that it applies only where one of the Justices delivers a written opinion, and does not extend to what may be termed the "court opinions." Every written opinion should be accompanied with a syllabus of the points decided. The following is the rule referred to:

A syllabus of the points decided shall be stated in writing by the Justice delivering a written opinion in any case, and a general concurrence by other Justices shall be deemed to be a concurrence only in the points stated in the syllabus.

Ordered: That the foregoing rule (No. 39) be, and the same is, hereby adopted.

WALLACE, C. J., CROCKETT, J., RHODES, J., NILES, J., MCKINSTRY, J.

Supreme Court of California.

NOVEMBER TERM, 1878.

[No. 6,291.]

[Filed November 27, 1878.]

GOODHUE, RESPONDENT, Vs. RICE, APPELLANT.

1. APPEAL WHEN TRANSCRIPT MUST CONTAIN BILL OF EXCEPTIONS.-The adjudication of a defendant's bankruptcy is not an issuable fact to be submitted to a jury or determined by the findings. So, where an appeal is taken by a defendant who interposed such a defense, it must be presented to the appellate court by a bill of exceptions.

2. SAME. An application for stay of proceedings when defendant has been adjudged a bankrupt is a motion, and evidence given by him in support of such motion will not be considered on appeal unless contained in a bill of exceptions.

Appeal from the Fourteenth Judicial District, county of Placer.

The plaintiff sued the defendant on a promissory note March 3, 1878. The defendant answered that at the commencement of the action he was and still is a bankrupt; that on the 4th day of May, 1878, he filed his petition in the United States District Court alleging his bankruptcy, and that thereafter he was adjudged a bankrupt. He charges, therefore, that the State District Court has no jurisdiction to proceed with the cause, and asks that the cause be dismissed.

The court below found that said note was due and unpaid; that said petition had been filed and the defendant adjudged a bankrupt, and that said note was on schedule "A" of said petition; but further finds that no order staying proceedings in this action was ever made or claimed to exist by said defendant. Judgment was given for plaintiff, from which the defendant appealed.

The transcript on appeal contains only the complaint, answer, findings, judgment, notice of appeal, and clerk's certificate.

Hale & Craig, for appellant.

B. F. Myers and James Moore, for respondent.

PER CURIAM.

The point urged by appellant could only have been properly presented to this court by a bill of exceptions. The adjudication of defendant's bankruptcy, was not an issuable fact to be submitted to the jury, or to be determined by the findings a jury being waived.

The application of a defendant for a stay of further proceedings in the action on the ground that he has been adjudged a bankrupt, is a motion, and the evidence given by him in the District Court of the State in support of this motion, can be considered here only when contained in a bill of exceptions duly settled and certified by the judge of the court below. Judgment affirmed.

Supreme Court of the United States,

OCTOBER TERM, 1878.

DANIEL PALMER, PLAINTIFF IN ERROR,

VS.

JOSEPH W. LOW, CHARLES L. KELLOGG, S. O. HOUGHTON, GEORGE B. BRADFORD, CYRUS PALMER, C. W. KINSMAN, W. L. PALMER, J. W. KNOX, CHARLES CLAYTON, AND S. H. HARMON.

1. The entry in original "book A" of alcalde grants is admissible as primary evidence to prove such a grant.

2. In the absence of anything to the contrary, this language of a grant by an alcalde, to-wit: "I, the undersigned alcalde, do hereby give, grant, and convey unto —, his heirs and assigns forever, etc.," is sufficient in form to accomplish the purpose of the parties.

3. The Mexican law did not prohibit such a grant to an infant, and until avoided, is valid.

4. The Statute of Limitations, under the Act of the Legislature of California of 1863, commenced to run as to such lands as are granted by Act of Congress of July 1, 1864, from the date of that Act of Congress.

5. The last clause in the proviso of the Act of 1863, in which five years is given to the holder of a title derived from the Spanish or Mexican Government "to

make his defense to an action founded upon the title thereto," does not prevent a defendant from setting up such title, who went into possession before five years had elapsed from the passage of said act, although more than five years had elapsed from the confirmation thereof to the commencement of the action. Query-What is meant by said provision of the Act of 1863? [EDITOR.]

In error to the Circuit Court of the United States for the District of California.

Mr. Chief Justice WAITE delivered the opinion of the court.

This was an action of ejectment, commenced April 30, 1872, by Palmer, the plaintiff in error, to recover possession of a portion of one hundred vara lot No. 39, part of the pueblo lands of San Francisco, lying east of Larkin Street, and northeast of Johnston Street. The city of San Francisco was first incorporated by the State of California, April 15, 1850, with certain defined boundaries. (Acts of 1850, p. 223.) The city was the successor of the Mexican pueblo of Yerba Buena, or San Francisco. The original charter was repealed, and a new one granted April 15, 1851. (Acts of 1851, p. 357.) The premises in controversy were within the boundaries of the city, as defined in this last act of incorporation, and constituted part of the lands claimed from the United States by the city on account of its succession to the property and rights of the Mexican pueblo.

On the 20th of June, 1855, the City Council of San Francisco passed an ordinance, known as the Van Ness Ordinance, the sections of which material to the present controversy are as follows:

"Sec. 2. The city of San Francisco hereby relinquishes and grants all the right and claim of the city to the lands within the corporate limits to the parties in actual possession thereof, by themselves or tenants, on or before the first day of January, A. D. one thousand eight hundred and fifty-five, and to their heirs and assigns forever, excepting the property known as the slip property, and bounded on the north by Clay Street, on the west by Davis Street, on the south by Sacramento Street, and on the east by the water-line front; and excepting, also, any piece or parcel of land situated south, east, or north of the water-lot front of the city of San

Francisco, as established by an Act of the Legislature of March twenty-sixth, A. D. one thousand eight hundred and fifty-one: Provided such possession has been continued up to the time of the introduction of this ordinance in the common council; or, if interrupted by an intruder or trespasser, has been or may be recovered by legal process; and it is hereby declared to be the true intent and meaning of this ordinance that when any of the said lands have been occupied and possessed under and by virtue of a lease or demise, they shall be deemed to have been in the possession of the landlord or lessor under whom they were so occupied or possessed. Provided, That all persons who hold title to lands within said limits by virtue of any grant made by any ayuntamiento, town council, alcalde, or justice of the peace of the former pueblo of San Francisco, before the seventh day of July, one thousand eight hundred and forty-six, or grants to lots of land lying east of Larkin Street, and northeast of Johnston Street, made by any ayuntamiento, town council, or alcalde of said pueblo, since that date and before the incorporation of the city of San Francisco by the State of California; and which grant, or the material portion thereof, was registered, or recorded, in a proper book of record deposited in the office, or custody, or control of the Recorder of the county of San Francisco, on or before the third day. of April, A. D. one thousand eight hundred and fifty; or by virtue of any conveyance duly made by the commissioners of the funded debt of the city of San Francisco, and recorded on or before the first day of January, one thousand eight hundred and fifty-five, shall, for all the purposes contemplated by this ordinance, be deemed to be the possessors of the land so granted, although the said lands may be in the actual occupancy of persons holding the same adverse to the said grantees.

"Sec. 3. The patent issued or any grant made by the United States to the city shall inure to the several use, benefit, and behoof of the said possessors, their heirs and assigns, mentioned in the preceding section, as fully and effectually, to all intents and purposes, as if it were issued or måde directly to them individually and by name.