Colton v. Seavey

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action to recover the possession of a tract of land— part of the Rancho Laguna de San Antonio—in Sonoma County.. The case was tried by the Court, who found for the plaintiff, and judgment was rendered accordingly; from which, and from an order denying a new trial, the defendant appeals. Both parties claim title under Bartolomé Bojorques. It appears that on the twentieth day of November, 1851, he executed to José Geraldo Bojorques, and seven others, a deed for the eight-ninths of said rancho. On the twenty-sixth day of June, 1852, José Geraldo Bojorques, Bartolomé Bojorques, and the other grantees in the former deed, with their wives, executed a deed to Barbara Ann Lewis for a part of the rancho, including the premises in controversy, and the plaintiff claims his title under this deed. On the seventh day of January, 1857, Bartolomé Bojorques executed a deed to José Geraldo Bojorques for the undivided one-ninth of the above named rancho; and on the same day the latter and his wife conveyed to Hamilton Gaston and eleven others the undivided one-ninth of said rancho, with this exception, “ saving and excepting from this sale eight hundred and seventeen acres heretofore conveyed [501] by the said parties of the first part.” The defendant claims Ms title under one of the parties to this deed. The defendant contends that the deed to Barbara Ann Lewis, under which the plaintiff claims, conveyed no title, and is inoperative and void against the defendant. It is objected that the evidence does not prove that more than five of the grantors executed it, and that unless all executed it, it is inoperative and void. Several cases are cited relating to the execution of bonds by several parties, but such cases have no application to conveyances. Even if the evidence had shown that this deed was executed by only a few and not all of the grantors named in it, we thmk it clear that it would be good as to those who did execute and deliver it, and sufficient to convey then interest in the property. (Scott v. Whipple, 5 Greenl. 336; Jackson v. Stanford, 19 Geo. 14.) It appears to have been properly acknowledged by all the grantors, before a Justice of the Peace, and the signatures of all, by then marks, appear to the deed, which shows that it was duly executed by all of them. " It is, however, objected that the land described in the deed then lay in Marin County; that this acknowledgment was taken by a Justice of the Peace of Sonoma County, and therefore it affords no proof of the execution of the deed, and does not authenticate it so as to authorize its registry m Marin County. The one hundred and thirty-fifth section of the Act of 1851, respecting Courts of Justice (Stat. 1851, 29, 30), provides that the Judges of the Supreme and certain other Courts “ shall have power in any part of the State, and Justices of the Peace witMn their respective counties,” to take and certify “ the proof and acknowledgment of a conveyance of real property, or of any other written instrument.” It is contended that under this provision a Justice of the Peace could only take an acknowledgment of a conveyance of real property situated in the county where he held Ms office. In this the appellant is mistaken. We think the intention of the Legislature is clearly expressed, that a Justice of the Peace might take the acknowledgment and make Ms certificate thereof anywhere within the county where he held Ms office, without regard to the locality of the land conveyed, but that he could not, like the Judges of the other Courts, take and certify [502] such acknowledgments in other parts of the State outside of his own county. In the deed to Barbara Ann Lewis, the first and second lines of the tract conveyed are described as follows: “ Beginning at a stake near the old corral of José Jesus Lopez, running thence easterly to the head of the cañada, thence westerly, including the cañadas, to a stake, so that a line running from thence to the Dos Pedros will pass about two hundred yards from the present new corral of the said José Jesus Lopez,” etc. It seems that this second line, instead of being in a westerly course, is, in fact, about north-east, as shown by the natural landmarks stated in the deed, and that if this line was run a west course it would not include the premises in controversy. The appellant contends that the description by course must govern. It is clearly established that “ when a deed of land describes the subject matter by monuments clearly identified, such as a river, a spring, a stream, a mountain, a marked tree, or other natural object, and courses, distances, and quantity are likewise inserted, which disagree with the monuments, the description by monuments shall in general prevail; for it is more likely that a person purchasing or selling land should make mistakes in respect to course, distance, and quantity than in respect to visible objects, which latter, from being mentioned in the deed, are presumed to have been examined-at the time.” (2 Phillips’ Ev. C. H. and E.’s Notes, 783, note 520: citing numerous cases.) This rule applies to all objects visible, fixed, and clearly ascertained, such as the lands of other individuals or them corners, clearings, a stake, post, or stone, or a road. (Id.) So lines, comers, and stations actually run and marked will prevail over courses and distances. (2 Hill, on Real Prop. 254; 2 Greenleaf’s Cruise, 338.) The evidence shows that the objects called for in the description of this second line are sufficient to control the course stated therein, and it should be construed accordingly. The testimony of the witnesses Martin, Lewis, and Tustin, in explanation of the location of the objects set forth in the description of the several lines in this deed, was properly admitted. The deed under which the plaintiff claims, having been executed prior to the one from the common grantor under which the defend [503] ant claims, it is urged that this prior deed cannot be attacked by the defendant without showing that he and. those under whom he claims were bona fide purchasers, without notice, for a good and valuable consideration actually paid; and the defendant insists that the acknowledgment of the receipt of the purchase money in the deed, which is in the usual form, is sufficient evidence of the payment of such consideration. It is true that in some cases, between a certain class of parties, the ordinary acknowledgment in a deed of the receipt of the purchase money, is prima facie evidence of payment. But this rule does not apply to a case like the present. The plaintiff claims under a deed executed by Bartolomé, José Geraldo Bojorques, and others, dated June 26th, 1852; Bartolomé afterwards, on the seventh day of January, 1857, conveys the one-ninth of the ranch to José Geraldo, who, on the same day, makes a conveyance under which the defendant claims. Admitting that these latter deeds include the premises conveyed by the first, it follows that at the date of these last deeds neither Bartolomé nor José Geraldo had any title which they could convey in the land described in the first deed. But if the defendant or his grantor purchased the property in good faith, without either actual or constructive notice of the prior deed, and for a good and valuable consideration actually paid, then in equity he has the better right. But he has no right to claim as against this prior deed until he proves those facts. The acknowledgment of the payment of the purchase money by the grantors in these subsequent deeds is no evidence of the fact as against those holding under the prior deed, because it is a mere declaration or admission made by the grantors after they had conveyed- the property; and it is a rule of law well settled that such admissions or declarations are not admissible as evidence to defeat the rights of them vendee acquired under their prior deed. A contrary rule would enable a vendor or assignor to defeat the title of his own purchaser after he had parted with all his interest, which would enable them to perpetrate a fraud. (Nolen v. Gwyn’s Heirs, 16 Ala. 725; McGintry v. Reese, 10 Id. 137; Willard’s Equity, 256.) We are aware that there are some decisions which conflict with this view, but we are satisfied that the rule as thus laid down is correct upon principle. The deed from José Geraldo Bojorques, [504] under which the defendant claims, contains an exception which it would seem was intended to apply to the land the grantor had previously conveyed by the deed under which the plaintiff claims; at least no other deed was shown to which it could properly apply. If that was not the tract excepted, the defendant should have shown by proper evidence what tract it did apply to. It follows, therefore, that the tract described in the deed of June 26th, 1852, was not in fact conveyed by the subsequent deed made in 1857, but was excepted out. This deed of June 26th, 1852, appears to have been executed by all the owners, who were tenants in common, of the entire estate. The title of the plaintiff is not, therefore, an undivided interest or a tenancy in common. But even if it was, the defendant, as we have shown, acquired no title under his deed, and he was not therefore a tenant in common with the plaintiff, and it was not necessary to prove an actual ouster by the defendant. We have carefully examined all the material questions raised by the appellant, and find no valid ground for disturbing the judgment, and it is therefore affirmed.