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PALMER v. Low.

1. Under Donner v. Palmer (31 Cal. 500), which establishes a rule of property in California, the courts of the United States accept as competent primary evidence of alcalde grants of the pueblo land of San Francisco, the record of them, which, in accordance with the requirements of Mexican laws, was kept by the alcalde before the date of the incorporation of the city of San Francisco by that State, and which record, now in the custody of the city and county recorder, is known as one of the books of the former alcalde's office, the same having been, pursuant to law, turned over to the county recorder's office.

2. A grant appearing in that record is in the following form:


"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


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

"GEORGE HYDE, 1st Alcalde."

Held, that the terms used are sufficient to pass a title in fee to the land, and that, in the absence of any thing to the contrary, the instrument must be presumed to be sufficient in form to give full effect to the evident intention of the parties.

8. That grant was made to an infant, but it has remained uncancelled, and was affirmed before the ordinance of the city council, known as the Van Ness 1


ordinance, passed June 20, 1855, was approved by Congress. Held, that his title is superior to that of a party who, without right, entered upon the land, and whose claim thereto, arising out of his possession thereof, is grounded solely upon the enacting clause of that ordinance.

4. In ejectment, commenced April 30, 1872, it appearing that the grantors of the plaintiff entered without title, in 1851 or 1852, and that they and he continued until May 8, 1867, in the exclusive and adverse possession of the land covered by that grant, when said Donner, under whom the defendant claimed title, was placed in possession by the proper officer, under legal process issued in a suit to which neither the plaintiff nor any of his grantors deriving title from any party to the suit after the commencement thereof was a party. Held, that as the title did not pass out of the United States until the passage by Congress of the act of July 1, 1864 (13 Stat. 332), to "expedite the settlement of the titles to lands in the State of California," the Statute of Limitations of that State did not run in favor of the plaintiff, by reason of his own and his grantors' possession, so as to transfer to him a title which could be asserted against the record title of the defendant.

ERROR to the Circuit Court of the United States for the District of California.

This was an action of ejectment, commenced April 30, 1872, by Daniel Palmer, the plaintiff in error, against Joseph W. Low, S. O. Houghton, and others, to recover possession of a portion of a 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. It 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 are within the boundaries of the city, as defined in this last act of incorporation, and constitute part of the lands claimed from the United States by the city, on account of its succession to the property and rights of the 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:

"SECT. 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. 1855, and to their heirs and assigns for ever, 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 26, A.D. 1851: 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, 1846, 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. 1850; 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, 1855, 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.

"SECT. 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 made directly to them individually and by name."

"SECT. 10. Application shall be made to the legislature to confirm and ratify this ordinance, and to Congress to relinquish all the

right and title of the United States to the said lands, for the uses and purposes herein before specified.

"SECT. 11. Nothing contained in this ordinance shall be construed to prevent the city from continuing to prosecute to a final determination her claim now pending before the United States land commission for pueblo lands, for the several use, benefit, and behoof of the said possessors mentioned in sect. 2, as to the lands by them so possessed, and for the proper use, benefit, and behoof of the corporation as to all other lands not herein before released and confirmed to the said possessors."

On the 11th of March, 1858, the legislature of the State of California passed "An Act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city," whereby this ordinance was in all respects ratified and confirmed. Sect. 2 of that act is as follows:

"SECT. 2. That the grant or relinquishment of title made by the said city in favor of the several possessors by sects. 2 and 3 of the ordinance first above recited shall take effect as fully and completely, for the purpose of transferring the city's interest, and for all other purposes whatsoever, as if deeds of release and quitclaim had been duly executed and delivered to and in favor of them individually and by name; and no further conveyance or other act shall be necessary to invest the said possessors with all the interest, title, rights, benefits, and advantages which the said order and ordinances intend or purport to transfer or convey, according to the true intent and meaning thereof: Provided, that nothing in this act shall be so construed as to release the city of San Francisco, or city and county of San Francisco, from the payment of any claim or claims due or to become due this State against said city, or city and county, nor to effect or release to said city and county any title this State has or may have to any lands in said city and county of San Francisco." Cal. Acts 1858, p. 52.

Afterwards, on the 1st of July, 1864, Congress passed “An Act to expedite the settlement of the titles to lands in the State of California" (13 Stat. 832), sect. 5 of which is as follows:

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"SECT. 5. And be it further enacted, that all the right and title of the United States to the lands within the corporate limits of the

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