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city of San Francisco, as defined in the act incorporating said city, passed by the legislature of the State of California on the 15th of April, 1851, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinances of said city ratified by an act of the legislature of the said State, approved on the 11th of March, 1855, entitled 'An Act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city,' there being excepted from this relinquishment and grant all sites or other parcels of lands which have been or now are occupied by the United States for military, naval, or other public uses, or such other sites or parcels as may hereafter be designated by the President of the United States within one year after the rendition to the General LandOffice by the surveyor-general of an approved plat of the exterior limits of San Francisco, as recognized in this section in connection with the lines of the public surveys: And provided, that the relinquishment and grant by this act shall in no manner interfere with or prejudice any bona fide claims of others, whether asserted adversely under rights derived from Spain, Mexico, or the laws of the United States, nor preclude a judicial examination and adjustment thereof."

Both parties claim title under this ordinance and this legislation of the State and of Congress. A jury was waived on the trial below, and the court made and filed its finding of facts, from which it appears,

1. That the grantors of the plaintiff entered into the possession of the premises in controversy, without title, about the year 1851 or 1852, and they and the plaintiff continued in the exclusive and adverse possession thereof down to the 8th of May, 1867, when the grantor of the defendant, S. O. Houghton, was placed in possession thereof by the sheriff of the city and county of San Francisco, under legal process issued in the case of Donner v. Palmer et al., to which suit neither the plaintiff nor any of his grantors deriving title from any party to the suit after the commencement thereof was a party.

2. On the 19th of July, 1847, George Hyde was the duly qualified and acting alcalde of the pueblo of San Francisco, and, as such alcalde, on the day last mentioned granted the premises in controversy to George Donner, by a grant thereof duly made, recorded, and delivered by the alcalde; and the

material portion of the grant was registered and recorded in a proper book of records, deposited in the office and in the custody and control of the recorder of the county of San Francisco, before the third day of April, 1850, and which book remained in the office and in the custody and control of the recorder until and on the third day of April, 1850, and has continued so to remain from that date.

3. That the defendant, S. O. Houghton, has, through mesne conveyances, acquired all the right, title, and interest of Donner in the premises, and that the defendants other than Houghton were, at the time the action was commenced, in possession as tenants under him.

4. At the time of the alleged grant to him, Donner was an infant of about ten years of age.

To prove the grant to Donner, the defendants offered in evidence an entry on "Book A" of original grants, from the custody of the county recorder of the city and county of San Francisco, which is as follows:

"LOT No. 39.

"Whereas George Donner has presented a petition soliciting for a grant of a title to a lot of ground as therein described, therefore I, the undersigned alcalde, do hereby give, grant, and convey unto the said George Donner, his heirs and assigns for ever, lot number thirty-nine (39), one hundred varas square, in the vicinity of the town of San Francisco, subject to all the rules and regulations governing in such cases.

"In testimony whereof, I have hereunto set my hand as alcalde, this nineteenth day of July, A.D. 1847.

"GEORGE HYDE, 1st Alcalde."

In connection with this offer, it was satisfactorily shown that "Book A" was part of the archives of the office of the city and county of San Francisco, and it was admitted that the book was the original "Book A" of alcalde grants in the custody of the city and county recorder, and known in the office as one of the books turned over to the county recorder's office in pursuance of the directions of the statutes of California, as one of the books of the former alcalde's office. It was satisfactorily proved that the signature of George Hyde to the alcalde entry

of grant, or memorandum of grant, is in his handwriting, and his genuine signature, and that at the date of the entry he was the acting alcalde of San Francisco.

To the introduction of this entry in "Book A" plaintiff's counsel objected, "on the ground that it was incompetent, irrelevant, and immaterial, also on the ground that it is not primary evidence, or the best evidence, of a grant having been made to George Donner; that it is but secondary evidence, for the introduction of which no foundation had been laid; that there has been no proof of the loss or destruction of the original instrument, of which the said entry is a mere memorandum; that the entry in Book A' of original grants is a mere memorandum made by the alcalde; that the grant should have been made and signed by both parties, the grantor and grantee, and should have been attested by parties as witnesses of the fact; that the whole proceeding should have been set out on that book; that if it be a mere memorandum-book, it was indicative merely that there was some other instrument which had to be executed and delivered, and which is primary evidence in the case."

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These objections were overruled by the court, and an exception was then and there taken by the plaintiff.

Sect. 6 of an act of the legislature of California, "defining the time for commencing civil actions," passed April 22, 1850, is as follows:

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"SECT. 6. No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the premises in question, within five years before the commencement of such action." Acts of 1850, 344, sect. 6.

On the 11th of April, 1855, this section was amended by adding the following proviso:

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"Provided, however, that an action may be maintained by a party claiming such real estate, or the possession thereof, under title derived from the Spanish or Mexican governments, or the authorities thereof, if such action be commenced within five years from the time of the final confirmation of such title by the govern

ment of the United States, or its legally constituted authorities." Acts 1855, 109, sect. 1.

On the 18th of April, 1863, this proviso was repealed, and the following enacted as a substitute:

"SECT. 6. ... And provided further, 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, or the possession thereof, or any right or interest therein, or for rents or profits out of the same, or to make his defence to an action founded upon the title thereto. . . .

"SECT. 7. Final confirmation, within the meaning of this act, 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, entitled 'An Act to amend an act entitled an act to define, &c., approved June 14, 1860.'" Cal. Acts 1863, 327.

Upon this state of facts the court below found as conclusions of law,

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"1. That defendant, S. O. Houghton, by virtue of said grant to said Donner, the said ordinance of the city of San Francisco, and the said acts of the legislature of California and of Congress, and the said mesne conveyances from said Donner to him, is the owner of, and has the legal title to, said demanded premises, and that the defendants are lawfully and rightfully in the possession thereof.

"2. That the Statutes of Limitations have not run in favor of the plaintiff, by reason of his own and his grantor's possession, from 1851 or 1852 to May 8, 1867, and that such possession gives him no title as against defendants."

Judgment having been rendered in favor of the defendants in accordance with this finding, the plaintiff below sued out this writ of error, and assigns, in substance, for error the ruling of the court admitting "Book A" as primary evidence to prove

the grant to Donner, and the judgment for the defendants upon the facts as found.

Mr. Walter H. Smith and Mr. James K. Redington for the plaintiff in error.

1. Both parties claim under the Van Ness ordinance of June 20, 1855, the California act of March 11, 1858, and the act of Congress of July 1, 1861, confirming the title of San Francisco to certain lands.

As the plaintiff had actual, adverse, and exclusive possession of the demanded premises from 1851 to 1867, the enacting clause of that ordinance relinquished and granted to him the claim and right of the city to them. He therefore made out a clear prima facie title to recover.

2. The defendant cannot defeat that prima facie title, unless he produces first a grant of the premises, and, secondly, a record, showing that the "grant, or a material portion of it, was registered." These two substantive and independent facts must be established by legal evidence, to bring his case within the proviso to that ordinance.

The grant must, of course, be in such form as would possess intrinsic validity and transfer the title, if the alcalde had been vested with power to make it, and the grantee must have been competent to take.

The "Plan of Pitic," founded upon a royal ordinance, was not pursued in later years by the Mexican alcaldes in San Francisco, but was partially superseded by a custom which prevailed in July, 1846, when Upper California was conquered by the military forces of the United States. Dwinelle, Col. Hist. of San Francisco, 111. By that custom the only document containing the "entire proceedings" was "signed and attested in due form by the proper officer," and delivered to the grantee; whilst the record-book contained a mere condensed copy or summary statement, often not signed at all, and it omitted the condition that the grantee should build a house on the land within a year, and conform to the police regulations. Id. 162-165. The grant was not produced nor its absence accounted for; and the pretended grantee, under whom the defendant claims, was then a child ten years old, and consequently incapable of performing the required condition.

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