I contend that the words in the ordinance, " conditioned and provided that if no other may show forth a better right," are merely declaratory of what the law is; and if they had not been inserted, the rights of the party would not have been changed. If any other person had a prior or better right, whenever they could show it in a Court of judicature, they would obtain a judgment for the premises; that the recital in the grant made by the Alcalde is no evidence against the respondents; that, so far as this case is concerned, the naked grant, stripped of the recital, is all that the Court can consider. Appellants' title is, then, a subsequentiy acquired one.
The Court cannot presume that the Alcalde had the consent of the Ayuntamiento to make the grant to Rufina Garcia. There can be no presumption against a given fact. The fact is, that the Ayuntamiento had given their consent to another, namely, Avila; and before it can appear that the Ayuntamiento gave their consent subsequently to another, that fact must be affirmatively shown.
Suppose the ordinance under which Maria Avila claims thepremises is a " conditional order," what legal proof is there that any condition arose which could divest her of her vested rights? I submit, not the slightest.
Granting for the sake of the argument that it was a conditional order, what proof is there that Garcia showed a better right? Avila was entitled to be heard on that question. Did she ever have such a hearing?
The Alcalde was not authorized by the law of the land to decide whether Avila or Garcia was entitled to the premises. That would have been exercising judicial functions--passing upon the title to property, of which Courts of First Instance only could take original cognizance. It was the duty of the Alcalde to have reported to the Ayuntamiento that another party claimed it, if such were the fact. The so-called conditional order in favor of Avila did not authorize the Alcalde to grant the premises to Garcia. He was only the executive officer of the pueblo. The granting power was in the Ayuntamiento. The Alcalde could only execute grants in accordance with their will and consent. The import of the said " order" was not, " that if Avila is not entitled to it, Garcia is." It must appear by affirmative proof, orby facts from which the Court will presume that the Ayuntamiento gave their consent that Garcia should have the title, before the appellants can prevail. They are plaintiffs; and before they can sustain an action of ejectment they must show a perfect title. They never were in possession. As I have before said, there can be no presumption in this case in favor of Garcia, because it affirmatively appears that the Ayuntamiento gave their consent that Avila should have the title.
JUDGES: Sanderson, J. Mr. Justice Rhodes, being disqualified, did not participate in the decision of this case.
OPINION
SANDERSON, Judge
The ordinance of the 1st of December, 1849, was not the act of Antonio Maria Pico as Prefect, but was, as it purports, the act of the Ayuntamiento, attested by Antonio Maria Pico as President of that body, and James W. Weeks as Secretary. Nor can it be construed to be a grant by the Ayuntamiento of the land in question to Maria Merced de Avila. It is not framed in the language of a grant, either under the Mexican or American system. It is manifestly a mere conditional order or direction on the part of the Ayuntamiento to the proper functionary to the effect that a title to or grant of the land in question be made to Maria Merced de Avila, provided it should appear that no one else had a better right thereto. It is not only not a grant, but it is manifest from the language employed that it was not intended to be. Although made in the English language, it is manifestly fashioned upon the style or mode of expression employed in the Spanish. The word " extended" is used in the sense of the Spanish word " extender," which means, when used in the connection under consideration, " to commit to writing at length," (Spanish and English Dictionary, by Velasquez.) The ordinance being a mere order or direction to the proper functionary to make a grant to Maria Merced de Avila, if he should find that no other person had a better right thereto, no title passed thereby.
The point to the effect that the action is barred by the Statute of Limitations is not well made. It was held in Johnson v. Van Dyke, 20 Cal. 225, that the statute does not begin to run until the patent has been issued by the United States Government. It appears from the finding that the patent for the land of which the land in controversy is a part had not been issued at the time this action was brought.
Judgment reversed, and Court below directed to enter a judgment for the plaintiffs.