MERRYMAN V. BOURNE, 76 U. S. 592 (1869)

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U.S. Supreme Court

Merryman v. Bourne, 76 U.S. 9 Wall. 592 592 (1869)

Merryman v. Bourne

76 U.S. (9 Wall.) 592


1. In California, a judgment in ejectment has the same conclusiveness as a judgment in any common law action, and in determining its effect, the same principles are applied which control the result of the like inquiry in other cases. A defeated plaintiff may bring a new action upon an after-acquired title with the same effect as a stranger, in whom, such title

Page 76 U. S. 593

might have been vested, and the former judgment will not be a bar to the new action.

2. If a party who has entered into possession of land as a tenant under another is threatened with suit upon a paramount title, the threat, under such circumstances is equivalent to eviction. He may thereupon submit in good faith, and attorn to the party holding a valid title, to avoid litigation. In such case, it is incumbent upon him, and those who have profited by his submission, to show the existence and superiority of the title in question.

3. In this case, W. had recovered in ejectment upon an adverse title against some of the parties in possession of the premises holding under one F., and he threatened suit against the others, who to avoid expensive litigation acknowledged the title of W., and took leases from him, and at the expiration of the leases surrendered the possession to him. This possession is found to have been fairly and honestly acquired, without force, fraud, or surprise. Held that if the holding of the parties under F. was that of tenants, the relation of landlord and tenant between them was thus extinguished; but if the holding by them was as grantees in fee, they were not estopped from denying F.'s title. Grantees in fee hold adversely to all the world, and have the same right to deny the title of their vendors as the title of any other party.

4. The alcalde was the chief executive officer of the pueblo of San Francisco, and as such had authority to make grants of the pueblo lands subject to the authority lodged in the ayuntamiento, and the still higher authority of the departmental governor and assembly.

5. The ordinance of the Common Council of San Francisco known as the Van Ness ordinance gave to parties holding alcalde grants within certain defined limits in that city, where the grants had been recorded in the proper books, deposited with the recorder of the County of San Francisco, on or before April 3, 1850, a new title upon which an action would lie, if the grants were by themselves without that ordinance ineffectual to pass the title.

6. The Act of Congress of July 1, 1864, is a confirmation of the title held under the Van Ness ordinance, and took effect by relation as of the time when the act of the legislature of the state confirming the ordinance was passed.

Merryman brought ejectment, in April, 1860, against Bourne and several others for a parcel of land situated within the corporate limits of the City of San Francisco, as defined by her charter of 1851. The case was tried by the court without a jury, by stipulation of parties in writing. The facts found by the court, and its conclusions of law, were as follows:

Page 76 U. S. 594

1st. That on the 15th day of April, 1847, there was duly issued by Edwin Bryant, then alcalde of the Town of San Francisco, to S. E. Woodworth, one of the defendants, in due form, a grant in fee of a one hundred vara lot, [Footnote 1] within the corporate limits of said town, which embraced the premises described in the complaint in this action, and which grant was registered and recorded in a proper book of records deposited in the office, or custody, or control of the recorder of the County of San Francisco, on or before the 3d day of April, A.D. 1850.

2d. That soon after this grant was issued the said S. E. Woodworth entered into possession of the said lot, and enclosed the same with a fence, and so continued in possession for some months then next ensuing.

3d. That subsequently the fence, having either fallen down or been removed by trespassers, one Fulton, claiming under a grant issued by one Colton, a justice of the peace, for said lot, entered on a portion of the lot; and thereupon Woodworth, in the year 1850, brought an action of ejectment against Fulton in the Court of First Instance, at San Francisco, to recover the possession of the premises, in which action judgment was rendered in favor of Woodworth, on which a writ of restitution issued, by virtue of which Woodworth was restored to the possession, after which Fulton appealed to the supreme court of the State of California, by which court the judgment was reversed and the cause remanded, whereupon a final judgment was afterwards rendered in the lower court in favor of Fulton, and by virtue of process issued thereon Fulton was restored to his possession, and he and those claiming under him continued in possession until they were ejected as hereinafter stated.

4th. That in January, 1852, the said S. E. Woodworth, by a good and sufficient deed of bargain and sale, conveyed the said one hundred vara lot, including the premises in controversy, to F. A. Woodworth, now deceased, who, in the years 1853 and 1854, instituted in the District Court of

Page 76 U. S. 595

the 4th Judicial District in San Francisco, actions of ejectment against some of the parties in possession of the premises claiming under Fulton, and recovered judgments on which writs of restitution were issued and served, by virtue of which F. A. Woodworth was restored to the possession of the premises occupied by the defendants in said writs, and the remaining persons in possession of said premises under said Fulton, and who were not included in said ejectment suits, on being threatened with suits by said F. A. Woodworth to recover the possession of the premises held by them, and with a view to avoid expensive litigation, acknowledged the said Woodworth's title and took leases from him, at the expiration of which leases they surrendered the possession to him, Woodworth; and the possession of said Woodworth, so obtained under writs of restitution and by surrender, was fairly and honestly acquired, without force, fraud, or surprise.

5th. That on the 12th December, 1849, Colton, justice of the peace, already mentioned, issued a grant to one Atwill for the said one hundred vara lot, and on the 11th February, 1850, Atwill conveyed to the said Fulton whatever title he acquired by the grant in and to the premises in controversy; and the plaintiff, before and at the time of the institution of this suit, had acquired and held by regular mesne conveyances all the title of Fulton.

6th. That at the time of the commencement of this action the said F. A. Woodworth, and the other defendants under a license from him, were in possession of the premises in controversy.

And as conclusions of law from the facts aforesaid, the court found:

1st. That the grant from Colton, the justice of the peace, to Atwill was void, and conveyed no title to the premises; and that the judgment in the suit of Woodworth v. Fulton was in no respect an affirmance of the validity of the title of Fulton, but only a disaffirmance of the validity of the title of Woodworth, the plaintiff in that suit, as the title was then set up and held by him.

Page 76 U. S. 596

2d. That as against the defendants in this suit, peaceably in possession of the premises in controversy, the plaintiff must recover on the strength of his own title; that the title set up by him was invalid, and the judgment aforesaid did not estop the defendants to deny the validity of said plaintiff's title.

3d. That the judgment aforesaid was a decision that the defendant Woodworth's title, as then held by him, was invalid, but it did not estop him to set up any title to said premises acquired since the said judgment.

4th. That by virtue of an act of the Legislature of the State of California, entitled "An act concerning the City of San Francisco, and to ratify and confirm certain ordinances of the common council of said city," approved March 11, 1858, and by virtue of the ordinances referred to in said act, and of the 5th section of the act of Congress entitled "An act to expedite the settlement of titles to lands in the State of California," approved July 1, 1864, all the title of the United States, and of the City of San Francisco, in and to the premises in controversy, became and was vested in F. A. Woodworth, and by virtue thereof the defendant, S. E. Woodworth, as executor of the said F. A. Woodworth, deceased, was entitled to the possession of the premises described in the complaint and every part thereof. [Footnote 2]

Judgment was accordingly rendered for the defendants, and the plaintiffs brought the case to this Court on writ of error.

Page 76 U. S. 598

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