Weisenberg v. Truman

Morrison, C. J.: Plaintiffs brought this action of ejectment in the District Court of Los Angeles County, for the recovery of a certain ■ tract of land situate in the City of Los Angeles. The action was tried by the Court, findings were filed by the Judge, and [67] upon such findings judgment was entered in favor of the defendants. The appeal is on the judgment roll, consisting of the complaint, answer, findings, and judgment. The following are the findings in the case: " This cause was duly tried and submitted to the Court on the 6th day of June, 1878, a jury trial having been regularly waived, and all parties being present by counsel, and the evidence and pleadings and argument having been duly heard and considered, the Court now makes the following findings of fact, viz.: “ 1. The lands described in the complaint are a part of the pueblo lands of the City of Los Angeles, and have been duly patented by the United States Government to the authorities of said city. “ 2. In the year 1857 the authorities of said city set apart the lands described in the complaint as a public cemetery, and in pursuance of said action caused the same to be conveyed by a good and sufficient deed to three trustees, namely, N. A. Potter, J. S. Mallard (a defendant), and Ralph W. Emerson, in trust for the public use and for the purposes of a cemetery, which deed has never been recorded. “ 3. Thereafter said tract was used for cemetery purposes, and bodies were interred there until the year 1861, when the City Council resolved to discontinue said cemetery and to remove the bodies already interred there to another place; since which time no further interments have taken place in said grounds. A number of the bodies were removed, and some still remain there interred. “4. On the 14th of November, 1870, the City of Los Angeles, for a valuable consideration, made a deed of quitclaim to said tract to one T. A. Sanchez, describing the premises in said deed as the ‘ ten-acre tract of land formerly dedicated by the City of Los Angeles for a public cemetery, bounded by the homestead tract of J. S. Mallard and wife, and situated between Pico and Sixth streets; the same being the premises particularly described in the complaint as amended.’ That this is the deed that was mentioned in and confirmed by the Act of February 13, 1872 (Laws of 1871-72, p. 93), and that plaintiffs have duly succeeded to the title of said Sanchez, through mesne conveyances before [68] the commencement of this suit; that Isaac Slessinger, now deceased, was, under said Sanchez title, a tenant in common with plaintiffs (except Cohn) and that plaintiff, B. Cohn, is his duly appointed, qualified, and acting administrator. “5. That defendants were, at the commencement of this action, and axe now, in possession of the premises in controversy, except the defendant Nichols, who is not, and has not heen in possession of any part thereof; that defendant Truman holds under defendant Mallard, who conveyed a portion of the premises to the former in the year 1876. “6. That neither of said defendants have held adverse possession of said premises for more than five years at any time before the commencement of this action. "7 That plaintiffs were purchasers under Sanchez for a valuable consideration by them paid; and at the time of purchasing and recording their deeds did not have actual notice of the deed formerly made by the City of Los Angeles to the trustees, Potter, Mallard, and Emerson; but did know that the premises had been dedicated and used as a cemetery; and they had notice of facts sufficient to put them upon inquiry as to the true state of the title. “ From these findings the conclusion of the Court is, that the legal title to the premises in controversy is vested in Potter, Mallard, and Emerson, and not in the plaintiffs. “ That the effect of the act of February 13th, 1872 (see finding 4), was merely to confirm to Sanchez such title as the city had to convey at the time the deed was made to him; that the city had at the time no title, and therefore conveyed none. And it results that judgment should be entered in favor of defendants, dismissing the action and for costs; and it is so ordered.” It is contended, on behalf of the appellants, that the deed of trust from the City of Los Angeles to Mallard and his associates was ultra vires, and therefore void. By the act to incorporate the city of Los Angeles, passed April 4,1860, it is provided that “ The corporation created by this act shall succeed to all the rights, claims, and powers of the Pueblo de Los Angeles, in regard to property, and shall be subject to all the liabilities incurred, and obligations created by the ayuntamiento of said pueblo.” [69] That such a conveyance by the pueblo would have been good,we have no doubt. (Hart v. Burnett, 15 Cal. 542; Payne and Dewey v. Treadwell, 16 id. 221; Scott v. Dyer et al., 54 id. 430.) And the City of Los Angeles, by virtue of the authority conferred upon it by its charter, possessed the same power over its lands that appertained to it as a pueblo under the Mexican law. Indeed it was eminently fit and proper, that a cemetery should be established by the city for the interment of its dead, and that such cemetery should be placed in the possession and under the control of suitable trustees, who were willing to devote the time and trouble necessary to its proper management. We can see no objection to the deed of trust mentioned in the second finding of the Court, and it vested the legal title to the land in the trustees for the purposes of the trust. It is claimed, however, that the purposes of the trust have been fully accomplished, and that the public use for which the dedication was made and accepted has long since ceased. But the findings do not sustain this conclusion. It is true that the cemetery is no longer used for the interment of the dead, but the findings show, that some of the bodies still remain interred therein. It is the right and duty of the trustees to protect those bodies from unlawful desecration, and it is their right to hold the property in order that that duty may be properly performed. The next point made is, that plaintiffs had no notice of the dedication. But it is perfectly apparent that the deed from the city, under which plaintiffs claim title, gave them sufficient legal notice of that fact. Finding 4 is: That “on the 14th day of November, 1870, the city of Los Angeles, for a valuable consideration, made a deed of quitclaim to said tract to one T. A. Sanchez, describing the premises in said deed as the ‘ ten-acre tract of land formerly dedicated by the city of Los Angeles for a public cemetery, bounded,’ ” etc. This deed imparted notice of the fact that a dedication of the land had been made by the city, for a specific purpose, and the property had been used for that purpose, as was apparent from the fact that there were graves [70] there at the time Sanchez took his deed. If, therefore, the deed from the city to Mallard, and others, had been recorded, the notice of the dedication would not have been more complete. We are of the opinion that the deed from the city of Los Angeles to Mallard and his associates passed the legal title, and that the trust thereby created is still in force, or was at the time this suit was tried. It will be time enough for the city, or its subsequent grantees, to assert title to the premises, after the bodies now lying in the cemetery have been decorously removed to another resting-place, and the purposes of the trust have fully terminated. Judgment affirmed. Ross, J., and Myrick, J., concurred. McKinstry, J., concurring: I concur in the judgment.