McCreery v. Sawyer

The recitals in the deed were not sufficient evidence of the truth of the same, and these recitals should have been proved. The City of San Francisco was a trustee, and its deed, as such, must show the procuration on its face and be accompanied by proof of strict observance of all pre-requisites. Wilson & Wilson, for Despondent. A party not showing himself entitled to a deed from the city and county cannot question the right of a party receiving such deed. The deed itself is sufficient evidence as against the city or a stranger. (Leroy v. Cunningham, 44 Cal. 600; Low v. Lewis, 46 Ibid. 549; Van Hastrup v. Madison City, 1 Wall. 297; Dupond v. Barstow, 45 Cal. 451; Doll v. Meador, 16 Ibid. 325; Randall v. Austin, 46 Ibid. 269; Wetherbee v. Dunn, 32 Ibid. 108; Flint v. Clinton, 12 N. H. 430; Dillon on Cor. 435-6.) By the Court : 1. The conveyance running to the plaintiff from the City and County of San Francisco was properly admitted in evidence. When it was offered, and admitted, the defendant did not appear to have any claim to the title conferred on the city by the Act of March 8th, 1866, and conveyed to the plaintiff by the deed in question, and it was, therefore, no concern of his whether the plaintiff had been rightfully determined to be a beneficiary under the Act of 1866 or not. “ That was a question ” (as was said here in Le Roy v. Cunningham) “ for the Board of Supervisors, in which the defendant had no concern, inasmuch as he was not entitled to the conveyance.” (44 Cal. 609.) 2. The motion for nonsuit, as made in the Court below, when the plaintiff rested, was but a repetition in another form of the objections made to the conveyance—“ that the plaintiff had not proved title or right of possession to the demanded premises.” The motion assumed that the conveyance made by the city to the plaintiff was inoperative, because it had not been shown by evidence dehors the deed and its recitals, that the plaintiff was a beneficiary under the act, and it also assumed that the defendant was in a position to litigate that question. The views we have expressed under the first point arc decisive against the appellant upon this point. 3. It is next claimed by the appellant in his printed points, that he offered to show that “ he. was in the actual, bona fide possession of the demanded premises on the 8th of March, 1866, and claimed a right under the Act of Congress of that date.” The bill of exceptions, as found in the record, however, docs not support the claim of the appellant in this respect. Its language upon this point is as follows: “ In defense, defendants offered to prove that they had been in the actual, exclusive, and adverse possession of the demanded premises for five years and upwards, next before the filing of the complaint herein.” The offer, as thus made to the Court below, was objectionable in two prominent particulars: (a.) It did not state that such possession as the defendant had was bona fide. [262] (5.) Inasmuch as the action was commenced in December, 1873, the offer, as made, did not carry the possession of the defendant, such as it was, as far back as the 8th day of March, 1866. The offer, as made, was not, therefore, an offer to show that the defendant was, or might justly claim to be, a beneficiary under the Act of Congress of March 8th, 1866, and was for that reason properly excluded by the Court below. 4. The last point made by the appellant is that he “ should have been allowed to prove five years’ adverse possession.” The only plea found in the record upon which it is claimed that this proof was admissible is as follows: “Further answering this defendant avers, that he is, and was at the time of the filing of the complaint in this action, and for more than five years immediately prior thereto, the owner, seized in fee, and entitled to the possession of the lands and premises in the first count of said complaint described, and of every part thereof.” It is obvious that this defense, as thus pleaded, is not a plea of the Statute of Limitations. Judgment affirmed. Remittitur forthwith.