Government repudiated the title, the parties were to divide the loss. On the whole, these documents, not only do not tend to disprove the existence of the grant, but they establish conclusively, the bonna fides of the grantees in asserting their title from 1844 to the present time. But it will perhaps be insisted, that under the recent decisions of this Court, no parol evidence is sufficient to supply the place of record evidence of the grant. We propose to examine these decisions, and think no such inference can be deduced from them. Before proceeding, however, to this examination, we remark, that there is maintained throughout these decisions, a distinction between equitable and legal titles and the character of the evidence by which they are supported. Under the laws, regulations and usages of the Mexican Government, no record was ever preserved of an unfinished "expediente." When the petition was presented, a marginal decree was endorsed upon it, by the Governor, referring it to some official person for the proper information. The original paper, with the marginal decree, was usually delivered to the petitioner, that he might procure the proper reports. When the reports were made, all the papers were returned to the Governor, who then made his decision. If he denied the application, the "expediente" which consisted of the petition, marginal decree, reports and the Governor's final decree, was filed and remained in the Secretary's office; but no record was made of the proceedings, and none was required by any law or usage. If the Governor acceded to the petition, he usually made a decree of concession, commencing with the words, "vista la peticion," which was annexed to the "expediente," but was not recorded, nor required to be, in any book. On the contrary, the whole "expediente" was frequently delivered to the claimant, to serve as evidence of his title, until it should be perfected. Usually, however, it remained in the Secretary's office until the final grant issued; the issuance of which was, generally, though by no means universally, noted briefly in a book called the "Toma de Razon." The original grant on stamped paper was then delivered to the claimant, and sometimes a copy of it was annexed to the " expediente," and remained in the archives. This was the course of proceding in making these grants, as is well known to all familiar with the subject; and, as has been frequently deposed to in the numerous cases before the courts. It will be observed, that no record was ever kept, in any book, of these proceedings, prior to the issuance of the grant, and of that, only a brief entry of two or three lines, was made in the "Toma de Razon," giving the date of the grant, the name of the grantee, and the name of the place granted, with its quantity. This Court has uniformly held, that where the usual preliminary steps were taken, and the petition was acceded to, but no final grant had issued, the claimant acquired an equitable title, which ought to be confirmed, and especially when accompanied with long possession. In such cases, it is not required that the record of the proceedings should be established, because, as we have shown, no such record was ever kept, or was required to be kept. To require record evidence of an unfinished " expediente," would be to require an impossibility, and would defeat every such title in California. That this Court does not require it, is manifest from the case of the United States vs. Alviso, 23 How. 318. In that case there was not only no grant, or decree of concession, but the "expediente" was produced by the claimant, and was not found in the archives, nor was there any record or note of it in any book. But being satisfied that the petition, and the permission of the Governor for the claimant to occupy the land provisionally, were genuine, and the possession having been uninterrupted for a series of years, the Court held that these facts established in the claimant an equitable title. Alviso could have produced no evidence whatever, that any trace of his provisional title, was found in the archives, because there was no law, regulation, or usage, requiring it. The case at bar has far stronger equities than these, even in the absence of a grant. The archives of the former 66 Government not only discloses the fact that the preliminary steps were taken, but their petition was actually assented to, and they immediately entered into possession, made extensive improvements, and have occupied the land from 1844 to the present time. If the title rested. alone on these preliminary proceedings, accompanied with a long and peaceable possession, the claim should be confirmed on the authority of the case of Alviso. In other cases however, where the title rested on an alleged grant, not accompanied with possession, and where the grant nor any trace of it, was found in the archives, the Court has established a more stringent rule. Such were the cases of United States vs. Fuentes, 22 How. 445. United States vs. Bolton, 23 How. 341. United States vs. Luco, 23 How. 615. In all these cases the grants were produced from the custody of the claimants, and no trace of them was found in the archives. The claim for confirmation was based, not upon a merely equitaable title, supported by a long possession, and requiring no record, and the evidence of which may properly have come from from the custody of the claimant, but upon a strict legal title, evidenced by a grant in due form. When the party relies upon his legal title alone, he is held to strict proof of it. He must show affirmatively, that the preliminary steps were taken; that the grant issued at the time when it purports to have issued, and, as a general rule, he must show that it was recorded as required by the regulations of 1828. The 9th article of these regulations, is the only one which relates to the recording of grants and is in the following words: "The necessary record shall be kept in a book, destined for the purpose, of all the petitions presented, and grants made, with the maps of the lands granted, and the circumstancial report shall be forwarded quarterly to the Supreme 4 Government." This regulation was never literally complied with in a single instance in California, and if compliance with its terms be exacted, no grant of land in this State would stand. No book was ever kept, in which the petitions and grants were copied, or in which the maps were delineated. The only book ever used as a record of grants was the "Toma de Razon," and this contained no copy of any petition, grant or map, nor any reference to the map; but only brief memoranda of the names of the grantees, the dates of the grants, and a short description by name or quantity, of the land granted. When, therefore, the Court, in the cases above cited, requires proof that the grant was recorded, it must be understood to refer to the "Toma de Razon," which was the only record of any grant ever issued by the Mexican Government in California. But we do not understand these decisions as establishing an inflexible rule, that no grant will be deemed valid, unless some memorandum of it was made at the time in the "Toma de Razon.” This was a mere ministerial act, over which, the grantee had no control; and it would be an extremely harsh rule, which would annul an honest and formal title, accompanied with long possession, and obtained in the usual mode, after all the preliminary steps were taken, simply because some negligent clerk in the office of the Secretary of State, had omitted to enter in the "Toma de Razon," a brief memorandum of the grant. We do not understand the decisions of this Court to have established so hard and inflexible a rule. On the contrary, they go only to this extent, to wit, that if the claimant rely on his legal title alone, and if his claim be devoid of the equities which arise from the usual preliminary steps to obtain the title, and particularly if it have no support from long possession, honestly acquired, and maintained in good faith, then, in order to avoid the frauds which might be perpetrated by simulated and ante-dated grants, the Court as a general rule will require proof that the grant was recorded according to the usage of the Mexican Government, or in other words, was noted in the "Toma de Razon," which was the only book of record. The case at bar is not such case. On the contrary, the preliminary steps were taken; the petition, marginal decree, and reports from the proper officers, are produced, and their authenticity is not denied and is fully established. The grantees immediately entered into possession, and have ever since maintained it in good faith. Their possession was notorious, actual and exclusive, and commenced under the authority, and with the consent, of the alcalde, whose duty it was to deliver such possession. Their title was recognized by the "colindantes" and all others, during the Mexican dominion, and has not been questioned except by the Government in this proceeding. It has been litigated and maintained in respect to the boundaries in the action of ejectment referred to in the record. These facts present far stronger equities. than were established in the case of Alviso; and with such equities to support the claim, the presumption is strong that the grant issued. The parol proof appears to be conclusive on that point, and if the Court is satisfied that the grant did in fact issue in 1844, or about that time, it would not declare it a nullity, because the clerk whose duty it was to register it in the "Toma de Razon," omitted to do it. The failure so to register it is the only omission in the whole proceeding; and the question is, whether this omission is, of itself, necessarily fatal to the grant, conceding it to have issued, or whether it raises so strong a presumption that the grant never issued, as that it cannot be overcome by parol proof. We have endeavored to show, that if the grant did in fact issue, it would not be void simply because it was not registered; and we think the evidence in the cause establishes conclusively the issuance of the grant in 1844, and its subsequent loss. But, in conclusion, we repeat that if there was no grant in form, the claimants have a valid equitable title which ought to be confirmed. CROCKETT & CRITTENDEN, Of Counsel for Appellants. |