With all deference to the learned counsel, we submit that all through their argument they have confounded the real question in this case, which is: " To what extent did Garcia intend to alienate this lot to Nye, whether in fee, or by way of lease, or by way of use?" with another question of no importance to the case, which is: What was the consideration which induced the alienation?
It is evident that on the question of extent of alienation, the price or motive which induced the alienation has no bearing.
Thus, counsel say: 1st. This instrument has no price contained in it: therefore it is not a sale. 2d. It does not state that the land was alienated for something else than money: therefore it was not an exchange. 3d. It does not contain words indicating the intention to make a present: therefore it was not a donation.
That is, counsel say in substance: " Garcia did not intend to alienate this land in fee to Nye, because in the instrument Garcia did not name a price or a consideration, or say that it was without a consideration."
Now, we submit that all this matter of price, or want of price, has nothing to do with the real question in this case, which is, " To what extent did Garcia, whether gratuitously or not, intend to alienate the land?"
Now, we deny that an instrument under the Mexican law, in order to be a good conveyance, must contain the price or the consideration on which it was made. If the intention to make an absolute conveyance is apparent on its face, then that intention will be carried into effect.
The absence of a price in the instrument does not show that it was not a sale or a barter. The absence of words indicating a benevolent intention does not show that it was not a donation. But the presence of words showing an intention to convey in fee simple does not demonstrate that the contract is either a sale, or a barter, or a donation, it is immaterial which, since all of these contracts are valid.
Counsel seem to find something in the expression in this instrument, " Por lo que dicho Capitan hace uso quando se convenga," " Wherefore said Captain makes use whenever he may see fit," indicative of an intention to create a use only.
But this expression, " hace uso," is exactly equivalent to the English phrase, " tohis use and behoof." It is found in almost all Spanish conveyances.
" Enagenacion--The act by which the property in a thing by lucrative title is transferred as a donation, or by onerous title, as by sale or barter.
" This word, taken in a more extended sense, comprises, also, the lease, the pledge, the mortgage, and even the creation of a servitude on an estate. It follows herefrom that a person who cannot alienate a thing can neither pledge, hypothecate, nor incumber with servitudes. The person who is disabled from alienating a thing, says the law, can neither sell, nor barter, nor hypothecate the same, nor create any servitude thereon, nor have the same assessed to any persons who are disabled from alienating the same."
Now, this definition does not say nor imply that the word alienation, by itself, ever means a lease, or a mortgage, or a pledge. It only says that, taken in a sense wider than its ordinary sense, it embraces or comprehends all these smaller interests; so that a person who by law is disabled from alienating his property, is disabled also from alienating any interest therein.
In other words, the word alienation is a broad word of transfer, embracingall transfers, qualified or absolute, by which property can be affected.
The same is true of the English word alienation; though the word used without restriction means the complete and full transfer of the thing alienated, yet, in a broader sense, it embraces all the modes by which property is transferred for a time, or to an extent less than the entire ownership.
JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for rehearing.
After a careful reconsideration of our former opinion, with the aid of the elaborate argument in the petition for rehearing, we are fully satisfied with the conclusions before attained. We are satisfied that the instrument upon which the controversy arises did not create a use, or any other inferior estate in the land. If a valid instrument, it transferred the fee. That Garcia intended to alienate the land--to transfer the fee--we have no doubt. And this intention is manifest from the instrument in the record. But whether the transfer was for a money consideration, by way of barter or exchange, or as a donation, neither the instrument nor the record afford the means for determining. Nor do we deem it necessary to the decision that we should determine that question. Nye went into possession under the instrument, and he and his grantees have held under it, claiming title ever since. This makes their possession adverse. And such adverse possession was held for more than five years after the Statute of Limitations was in force, and before the commencement of this suit. The bar arises under the statute, and not under the Mexican law relating to prescription.
Only one point more in the petition for rehearing requires notice. It is said that this Court assumed the functions of the District Court, and found a fact in determining the intent with which the instrument between Garcia and Nye was executed. The Court below found as a fact that the instrument was executed, and that Nye entered into possession under it. The very purpose of construing an instrument is to ascertain the intent of the parties--the object to be accomplished by it. " When it is necessary to give an opinion upon the doubtful words of a deed, the first thing we ought to inquire into is, what was the intention of the parties?" (Brannan v. Mesick , 10 Cal. 105; Willes, 322.) The real question in this case was whether this instrument manifested an intent to convey the land, or only to create a use--an easement or servitude on the land. It was clearly within the province of this Court to construe the language of the instrument and from its language determine that question. And this was precisely what we did. Nor did the Court go outside of the instrument to ascertain the intent. It did, however, after an examination and determination of the meaning of the instrument from its language, for the purpose of verifying and confirming its own conclusions, consider the acts of the parties, and the circumstances surrounding them, at the time of its execution, and subsequent thereto, and from those acts and circumstances concluded that the parties put the same construction upon it as that adopted by the Court. But were the meaning doubtful, it is well settled that such acts of the parties may be looked at to aid the construction, as is shown by the authorities cited, and many others might be cited to the same effect.
Rehearing denied.
Mr. Justice Shafter, having been of counsel, did not participate in the decision of this case.
Mr. Justice Rhodes expressed no opinion.