The first error assigned is the admission of the deed from the city to the plaintiff.
After the Act of March 8, 1866, various orders were adopted by themunicipal authorities of San Francisco for carrying its purposes into effect, among others Order No. 800, which was ratified by the Legislature, (Stat. 1867-8, p. 379) and Order No. 866, which was reenacted by the Legislature (Stat. 1869-70, p. 353). By the former of these orders it was provided (Sec. 11) that upon certain events the title (without any conveyance) was released to the person named in the Act of Congress, and it was further enacted by the Legislature that " all proceedings heretofore had and which have taken place, or shall hereafter take place, under its provisions are ratified and confirmed."
And by the Act of March 14, 1870, all orders conflicting with Order No. 866 are repealed, but it was expressly declared (Sec. 6) that " such repeal shall not invalidate any of the proceedings instituted under the Order of which No. 866 is amendatory; " and also (Sec. 5), " that a conveyance executed in pursuance of the provisions of this Act shall operate as an acknowledgment that the title to the land has passed under and by virtue of the Order No. 800."
The recitals in the deed in question show that it was a portion of the " proceedings instituted under" Order No. 866, and also that it was executed " in confirmation of" the provisions of Order No. 800, and consequently is within the operation of both of the aforesaid Acts of the Legislature.
The motion for a nonsuit was properly denied by the Court.
The motion was made upon the ground that " none of the defendants were in possession or shown to have been in possession at the time of the commencement of this action."
It was not necessary to show an actual personal occupancy of the land in order to entitle the plaintiff to recover. A constructive possession is sufficient. And if a person asserts that he is in possession, or does such acts as imply that he is in possession, or claims to be in possession, or such acts as are inconsistent with a denial of such possession, he is said to have constructive possession, in the same manner that a denial of plaintiff's title is regarded as equivalent to proof of an ouster. (Crane v. Ghirardelli , 45 Cal. 235.)
Kindred to the foregoing point is the specification in the statement that the evidence was insufficient to show that the defendants were in possession of any portion of the premises at the commencement of the action. They endeavoredto show that because McGrath happened to be in Napa on the day the complaint was filed therefore he was not then in possession of the land.
The Court, however, was satisfied from the evidence on that subject that the pretended change of possession from McGrath to his son was a fraudulent and similated one, and that, in fact, his possession was continuous from the date of his entry under the lease, in May, 1870, to the time of the trial. The finding of the Court upon the conflict of evidence on this issue is conclusive on the point. (Ellis v. White , 47 Cal. 75.)
As was said by this Court, upon a similar attempt by a father to abandon his possession in favor of his son who was living with him, " Courts would cease to be courts of justice if such proceedings were countenanced." (Keller v. Kerry , 6 P. C. L. J. 864.)
The finding that the plaintiffs have been seised in fee and the owners of the premises since the sixth day of April, 1870--the action having been brought in 1873--is a sufficient finding on the issues of the statute of limitations. ( C. C. P. § 321; S. F. v. Fulde , 37 Cal. 349.)
It will be noticed that the answer only pleads theprovisions of Sections 318 and 319 of the Code of Civil Procedure, which in no way refer to any possession by the defendants; and in the absence of any allegation on that point, it was unnecessary to find thereon.
JUDGES: Ross, J. McKinstry and McKee, JJ., concurred.
OPINION
ROSS, Judge
The lands in controversy in this action, and in a number of other actions now pending before us, form a part of what was known as the " outside lands" of the City and County of San Francisco. After the passage of the Act of Congress of March 8, 1866, in relation to those lands, the Board of Supervisors passed, among other orders, Order No. 866, by which provision was made for the presentation of petitions by the respective claimants, the making of proofs, the making and publication of awards of the land, to be followed by deeds by the Mayor. It is contended on behalf of the appellants that this Order--No. 866--was never authorized or ratified by the Legislature, and that, as a result, the deeds issued by the Mayor pursuant to its provisions were unauthorized and void.
In effect Order 866 was ratified and re-enacted by the Act of the Legislature approved March 14, 1870. (Statutes 1869-70, p. 353.) By the first, second, third, fourth and fifth sections of that Act the order was substantially re-enacted, and by the sixth section the Legislature repealed all Orders and parts of Orders of the Board of Supervisors conflicting with Order 866, accompanying the repeal, however, with the proviso that such repeal should not invalidate any of the proceedings instituted under the Order of which Order 866 was amendatory, and expressly authorized such proceedings to be continued under the provisions of said Order 866. This was in effect a legislative ratification of the provisions of Order 866, for it can not be held that the Legislature intended to authorize any proceedings to be conducted under an unauthorized or invalid Order. Besides the whole scope of the Act of March 14, 1870, manifests the intent on the part of the Legislature to ratify and continue the provisions of Order 866. The intent is manifested, in the first place, by the repeal of all Orders and parts of Orders in conflict with it, with the saving clause that all proceedings instituted under the Order of which it was amendatory should be unaffected by the repeal and be continued under its provisions; and, in the second place, by the re-enactment in statutory form of the provisions of the said Order.
Our conclusion is, that the deeds under which the plaintiff claims were not unauthorized, and that they were properly admitted in evidence. (McCreery v. Sawyer , 52 Cal. 257; Le Roy v. Cunningham , 44 id. 609; Kraft v. Driscoll , 1 P. C. L. J. 24.) We have looked into the evidence, and cannot say the findings of the Court of possession of the premises by the appellants at the time of the commencement of the action, was not justified. As respects the finding in relation to the statute of limitations, it is sufficient to say that if there was a plea of the statute, the finding covered it.
Judgment and order affirmed.
Paul Rousset et al. v. J. W. Reay et al., No. 6984; Theodore Lieberman v. J. W. Reay et al., No. 6983; Simon Held v. J. W. Reay et al., No. 6984; William Thurmauer v. J. W. Reay et al., No. 6985; E. S. Freeman v. J. W. Reay et al., No. 6986; William J. Adams v. J. W. Reay et al., No. 6987; J. M. Forrest v. J. W. Reay et al., No. 6988; Patrick F. Butler v. J. W. Reay et al., No. 7282; presenting the same points and argued by the same counsel as Rousset v. Reay (No. 6891) supra, were affirmed on the authority of that case.