Statement of Facts. States for the Northern District of California, dated August 11th, 1856, confirming the said claim, petition, and decree. Plaintiff then called Ignacio Bernal, who testified: Joaquin Bernal at his death left surviving him his widow, Josefa Sanchez de Bernal, and children: 1st, Augustin; 2d, Juan Pablo; 3d, Bruno; 4th, Jacoba; 5th, Zacharias; 6th, Petra; 7th, Madelina; 8th, Encarnacion; 9th, Pilar; 10th, Marcellina; 11th, Dolores. Encarnacion, Jacoba, Marcellina, Dolores, and Bruno are all dead; they were all married, and left heirs. The plaintiff offered and read in evidence a deed from Josefa Sanchez de Bernal to Nicholas Valencia, dated April 6th, 1853, duly executed, acknowledged, and recorded, purporting to convey a tract of eight hundred acres, including the premises in controversy, part of the "Rancho Santa Teresa." The plaintiff then offered in evidence deeds showing a deraignment of title to the demanded premises from said Valencia to him. The plaintiff rested. It was admitted that at the commencement of the suit the defendants held and hold title to an undivided interest in the Rancho Santa Teresa, including premises in controversy, under some of the heirs of Joaquin Bernal. They had not acquired title derived from the widow Josefa Bernal. any The Court rendered judgment for the defendants, and the plaintiff appealed from the judgment and from an order denying a new trial. The other facts are stated in the opinion of the Court. B. 8. Brooks, for Appellant. C. T. Ryland, for Respondents. Opinion of the Court - Sanderson, J. By the Court-SANDERSON, J.: The only question presented by the record in this case is whether, under the grant from the Mexican nation to Joaquin Bernal, the Rancho Santa Teresa became the separate property, or the common property of himself and his wife, Josefa Sanchez de Bernal. On the part of the appellant a very able and learned argument has been presented in support of the latter view, and also in support of the point that we are not concluded upon the question by the previous decisions of this Court. The distinction attempted is, we think, a little too nice. Upon a careful review of the several cases in which the question has been considered, we are unable to say, with counsel for appellant, that this case is not within the rule there stated, nor that the question was not in those cases. There is no distinction between this case and Scott v. Ward, on the ground that the grant to Alviso (which was before the Court in that case) was not a colonization grant, while the grant to Bernal is. While the record does not, as in the case of Scott v. Ward, contain the petition and reports of the Council of the Pueblo de San José Guadaloupe and the Reverend Father, Minister of the Mission of Santa Clara, showing that the land for which Bernal petitioned was a part of the commons of the Pueblo of San José, the grant itself shows that it was, or that it was supposed that it might be, and that it was granted upon that theory. In his brief, counsel for the respondents asserts the fact that the land belonged to the Pueblo, and that these missing documents show it to be so; and further states that they have not been brought up because counsel for the appellant never claimed that there was any distinction between the Alviso and Bernal grants until the case reached this Court. This statement is not denied, and while the uncontradicted statements of counsel cannot be taken as a part of the record, they may be referred to as tending to show that an inference drawn from a record which does not profess to disclose all the facts is not unfounded. But independent of this, we are of the opinion that Scott v. Ward does determine that land granted under the colonization laws of Mexico to married men became their separate property, and not the common property of themselves and their wives. Whether the grant, then, before the Court was a colonization grant or not, it was so regarded by counsel and Court. It was the law of those grants which was debated by counsel and declared by the Court, and whether the correct result was reached or not, we do not feel at liberty to disturb it. Being of this opinion, a rediscussion of the question would be idle and out of place. The rule in Scott v. Ward has been repeated in Noe v. Card, 14 Cal. 576; Fuller v. Ferguson, 26 Cal. 546; and Wilson v. Castro, 31 Cal. 433, and must now be accepted as a finality. Judgment and order affirmed. INDEX. ACCORD AND SATISFACTION. Bee POWER OF ATTORNEY, 2. ACCOUNT. L. SPECIAL Deposit of GoLD-If one making a special deposit of gold coin, ACCOUNT STATED. 1. ACCOUNT STATED.-An account stated alters the nature of the original iD- ACTION FOR MONEY HAD AND RECEIVED. 1. ACTION FOR MONEY HAD AND RECEIVED.- Where the complaint charges that ACTIONS EX CONTRACTU. See PLEADINGS, 11. ACTION TO TRY TITLE. Bee PARTITION, 1; SPECIFIC PERFORMANCE, & ACTION AGAINST COMPANY. See COMPANY NAME, 1, 2. VOL. XXXIII.— 45. |