MUMFORD V. WARDWELL, 73 U. S. 423 (1867)

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U.S. Supreme Court

Mumford v. Wardwell, 73 U.S. 6 Wall. 423 423 (1867)

Mumford v. Wardwell

73 U.S. (6 Wall.) 423


1. Where a paper in the form of a special verdict -- except that after stating the facts, it did not refer the decision on them to the court in the conditional and alternative way usual in such verdicts, but found "a general verdict for the plaintiff subject to the opinion of the court upon the foregoing recited facts" -- was "agreed to as a special verdict" by counsel in the cause, filed of record and passed on as an agreed case by the court below, this Court -- remarking that as a special verdict the paper was defective because not ending with the usual conclusion -- in view of the facts just mentioned considered it as a special verdict or agreed case, and on error to a judgment given on it below adjudged the case presented by it.

2. Where a statute gave to a city named certain lands of the state, excepting such as had been sold or granted by a certain body or certain officers in accordance with terms specified, or had been sold or granted by a certain officer and confirmed by a certain body, but declared also that the deed by which any of the excepted lands were conveyed by such body or officer should be "prima facie evidence of title and possession, to enable the plaintiff to recover possession of the land so granted," held that the deed made under the statute being in evidence, a compliance with the terms upon which sales were to be made (such as sufficient notice) was, under its terms, primarily to be presumed, and that it was cast upon anyone alleging noncompliance to prove it.

3. Where a statute of California, passed in 1851, granted certain lands, excepting from the grant such as had been granted by a particular officer,

Page 73 U. S. 424

and "registered or recorded on or before April 3, 1850, in some book of record now in the office &c., of the recorder of the county," held that the term "book" was satisfied, within the meaning of the act, by copies of the deeds on sheets not bound or fastened together in any manner, but folded, the name of the purchaser and number and designation of the class of the lot sold being endorsed thereon, each distinct class being kept in a separate bundle, and the sheets not being bound up in the form of books, until 1856, when they were so bound, each class forming a separate volume.

Mumford -- plaintiff both below and in error here -- brought ejectment against Wardwell for a "one hundred-vara lot," No. 186 on the official map of San Francisco. Plea, possession as owner under a good title. The record showed that the case was set down on that issue for trial August 26, 1863, when the jury found a verdict in these words:

"J. E. Mumford v. C. Otis Wardwell, United States Circuit Court"

"Northern District of California"

"We, the jury, find a verdict for the plaintiff, subject to the opinion of the court."


"SAN FRANCISCO, August 26, 1863."

The finding set forth no case, nor had any been previously stated. This verdict was entered of record, but no notice apparently taken afterwards of it. Subsequently, on the 29th August, by consent of counsel, it was ordered that the further hearing of the cause should be set down for September 5. The record went on:

"And afterwards, to-wit, on the 5th day of September A.D. 1863, the following special verdict, by stipulation of counsel, was duly entered of record in said cause, to-wit:"


"In the Circuit Court of the United States for the Northern District of California. "

Page 73 U. S. 425

"JAMES E. MUMFORD, Plaintiff v. CHAS. O. WARDWELL, Defendant"


"And now, on this 26th day of August, A.D. 1863, come the parties aforesaid by their respective attorneys, and thereupon come a jury, to-wit: [the names of the jurors were here given], twelve good and lawful men, who, being duly elected, tried, and sworn, the issues herein joined between said parties well and truly to try, and a true verdict to render according to the evidence, after hearing the evidence of said parties respectively, the jurors aforesaid upon their oaths aforesaid to say . . ."

Following this was set forth the titles of the respective parties to the lot in controversy. The document ended thus, the signatures of the respective counsel being appended at the end:

"And the jurors aforesaid, upon their oaths aforesaid, do further say that they find a general verdict for the plaintiff, subject to the opinion of the court upon the foregoing recited facts."

"The above is agreed to as a special verdict in this cause."

It will be observed that in what was here agreed to "as a special verdict" there was no such conclusion as is technically usual in special verdict actually found by a jury -- that is to say the finding did not, after presenting the case, refer the decision of it to the court, with the conditional and alternative conclusion that if the court should be of the opinion, in view of the facts, that the plaintiff was entitled to recover, then they found for the plaintiff, but if otherwise, they found for the defendant.

But this matter was not the subject of remark either by counsel here or apparently by them in the court below, and the paper agreed to was treated everywhere as a case agreed on and stated for the opinion of the court.

The title of the respective parties as set forth in the case as settled was as follows, that of the defendant, for more clearness, being here stated first:

1. Defendant's title. The lot was what was called a water lot

Page 73 U. S. 426

-- that is to say, formed part of certain flats, situated below the high water mark of San Francisco Bay. The conquest of Mexico in 1846 having put the whole region about San Francisco into the control of the military authorities of the United States, General Kearney, then acting as Military Governor of California, by deed reciting that he was acting in virtue of authority vested in him by the President of the United States, conveyed these flats (with some unimportant reservations) to the Town of San Francisco, a proviso being attached to the grant that they should be divided into lots, and after three months' notice sold at auction to the highest bidder for the benefit of the town. On the 1st day of December, 1849, the ayuntamiento or town council of San Francisco ordained:

"That two hundred fifty-vara town lots be sold at public auction on Friday, the 10th instant."

On the same 10th of December, 1849, General J. W. Geary, then acting as alcalde of San Francisco (under which title the municipal authority of that city was exercised by officers, either appointed by the military commandant or elected by the people) -- by deed reciting that the ayuntamiento or town council of San Francisco, by resolution passed on the 1st day of December, 1849, had ordered that certain town lots should be exposed to public sale and sold to the highest bidder, and that after due public notice &c., one of the said lots, No. 186, so ordered to be sold, was sold to D. O'Brien &c. -- granted and conveyed the said lot, No. 186, to O'Brien aforesaid.

This deed, like every other deed made by Alcalde Geary during his term of office, consisted of a printed blank on one sheet, filled up at the time it was issued, and like them was not registered or recorded except in the following manner, that is to say copies of the deeds consisting of similar blanks, filled up in like manner by the clerk of Alcalde Geary, were retained in the office of the alcalde. These copies were folded up, the name of the purchaser and number

Page 73 U. S. 427

of the lot and designation of the class to which it belonged -- that is to say, whether one hundred-vara, fifty-vara, or water lot -- being endorsed thereon, and those of each distinct class were kept in said alcalde's office in a separate bundle, but these several copies were not bound or fastened together in any manner. In that state they passed into the office of the county recorder, on its organization in 1850, where they continued to remain until 1856, when they were bound up in the form of books, each class forming a separate volume. The grant to O'Brien was filled up in the manner above stated, and a copy of it also, made as above stated, was kept in like manner in the bundle composed of copies of grants of one-hundred-vara lots, and so continued until the time it with the other copies was bound up as above said, in 1856.

Whether General Kearney had authority to make a grant such as he did make to the Town of San Francisco, or whether the ayuntamiento or town council of San Francisco ever directed a sale of the lot in question -- which it will be remembered was a hundred-vara lot, not a fifty-vara one -- the case agreed on as a special verdict did not state.

Sometime after the sale, that is to say, on the 26th of March, 1851, the Legislature of California granted these flats, including this lot, to the City of San Francisco for ninety-nine years. But the statute contained (§ 2) two exceptions. It excepted from its operation those portions of the flats which had been either,

"First, sold by authority of the ayuntamiento, or town or city council, or by any alcalde of the said town or city, at public auction, in accordance with the terms of the grant known as Kearney's Grant to the City of San Francisco,"


"Second, sold or granted by any alcalde of the said City of San Francisco, and confirmed by the ayuntamiento or town or city council thereof, and also registered or recorded on or before the 3d day of April, A.D. 1850, in some book of record, now [that is, on the 26th day of March, A.D. 1851] in the office, or custody, or control of the Recorder of the County of San Francisco. "

Page 73 U. S. 428

It contained also (§ 3) this enactment as to the effect, viewed as evidence, of any deed, by which any of the lands excepted were conveyed or granted by any ayuntamiento, common council, or alcalde, declaring that it

"Shall be prima facie evidence of title and possession to enable the plaintiff to recover possession of the land so granted."

Such was the title of Wardwell, defendant below and here.

2. The plaintiff's was a sheriff's deed for the lot, on execution upon a judgment against the City of San Francisco, all confessedly regular, but all subsequent to the statute above quoted.

On this case, the court below entered judgment for the defendant Wardwell.

Page 73 U. S. 431

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