I. The Court will not set aside the judgment; because there was a special finding upon conflict of testimony as to the fact of prior possession, with nothing kept from the jury proper for their consideration, nor anything submitted to them not proper for them to have considered, either in the testimony, or the Judge's charge, or instructions prayed.
The plaintiffs claimed by virtue of prior possession. They offered no paper title, nor evidence of anything but possession. Defendants denied possession, and offered evidence to show that White never had any. Upon this issue, the Court ordered the jury to find specially whether White, or Hubbard and Templeton, or either of them, were in actual possession prior to the possession taken by the United States at the time of preparing to erect the Marine Hospital. The jury found a general verdict for defendants, and answered this special question in the negative.
II. Upon the general verdict, aside from the special finding, the judgment must stand; the verdict being neither against law norevidence.
It is said that the Ordinance of the Common Council of the city of San Francisco, of Dec. 10th, 1852, authorizing a conveyance of the premises to the United States, and the deed under it by the Mayor, dated Dec. 11th, 1852, were irrelevant; because,
First. The title to the premises was in the Commissioners of the Funded Debt of the city of San Francisco at the date of the deed, and could not be disposed of by the ordinary authorities of the city.
Second. The deed did not consummate a sale at auction--the only mode by which the city could dispose of its property, according to the sixth section of the sixth article of the City Charter of 1851. (Session Acts, 1851, 366.)
If the deed to the United States is void, and so irrelevant, the argument which proves it is so is suicidal.
If the title at the date of that deed was in the Funded Debt Commissioners and the premises were conveyed to them on the twenty-fourth of May, 1851, it remains in them by legal intendment, unless the plaintiffs have shown that they themselves have received it; and the defendants being in possession, under color of title, the plaintiffs cannot recover.
There is no pretensethat the plaintiffs have received the title from the Funded Debt Commissioners, except by force of the Van Ness Ordinance and the statute adopting it. And neither the one nor the other of these has any application to property already conveyed on the first of January, 1855.
If the Van Ness Ordinance could convey the interest of the city in the premises, reversionary upon the payment of the city's debt, then the Ordinance of December 10th, 1852, and the Brenham deed could also convey, and did convey, to the United States. (City v. Beideman , 17 Cal.)
By the affirmative showing of the plaintiffs, the title is in the Funded Debt Commissioners, if not in the United States. There is no force in the suggestion that the premises were not sold to the United States at auction.
Non constat it was not, if transferred by sale at all, duly sold at auction. There is no evidence on the subject, and the sale will be presumed to have been regularly made. It is not a sale, however; it was a gift. It is true, the consideration of one dollar is expressed, but the passing of a money consideration is inconsistent with the ordinance recited in the deed; at least, the deed, in expressinga consideration, goes beyond the ordinance. The ordinance says nothing of a consideration, and the Mayor was not authorized to insert it. His doing so cannot change the character of the instrument. As a deed of gift, it can be supported, in view of its eleemosynary object, upon the general powers of the corporation. As a sale, it might be invalidated by proof of its not having been made at auction.
To hold that the United States must buy at auction would deprive them of the privilege of selecting the property they might wish for purposes of a public nature.
They were authorized to purchase--as applied to a given piece of property; it might well become a barren privilege if they must buy at auction.
The general powers of the city of San Francisco, under the charter of 1851, were conferred by the first section of that act. (Session Acts, 366.) They comprised the power " to sell or otherwise dispose of the city property for the common benefit."
If the Brenham deed cannot be supported because it was not the consummation of a sale at auction, it is good, in view of the benefit to the city derived from the proximity of the hospital to the port, as a reservation for municipalpurposes, and is authorized by the charter, and forever exempted from execution. (Charter of 1851; Funding Act, sec. 11, 390.)
This view of the case--even if the Funded Debt Commissioners had the title, which we deny, because the deed to them by the Commissioners of the Sinking Fund was void--harmonizes everything. It shows a right of possession in the United States, which, if not a fee simple as set up in the answer, may yet be proved under that allegation; it shows, also, that the premises, through the agency of the United States and their officials, were occupied by the city herself, January 1st, 1855, and could not, therefore, have been the subject of the Van Ness Ordinance.
Besides, it establishes a direct privity and connection between the defendants and the outstanding title proved--a circumstance not necessary under the decisions of this Court, but mentioned out of deference to what I consider a misapprehension of Doll v. Meador , 16 Cal. 295.
The Van Ness Ordinance could do White's alleged possession no good, because: 1st. It did not apply to lands the title to which was in the United States, by deed, as the premises were by the Brenham deed. 2d. Itdid not apply to lands conveyed to the Funded Debt Commissioners, in whom the title rested, if not in the United States by the Brenham deed. 3d. Because his possession was lost in fact when his fence was no longer kept up, and he unable to recover upon it alone. 4th. Because his possession was abandoned, and he could not recover upon it alone. 5th. Because it inured to the benefit of the United States, if to that of any one, since they were in possession January 1st, 1855, and no one was able to recover the possession from them, unless the city herself could do so.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
Upon this petition, Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.
Petition for rehearing. In this case, the point decided by this Court, in its opinion, distinctly arose upon the facts. It is immaterial whether the point was taken in the argument or not, as the Court is bound to decide according to the law of the whole case, and not according to the views or reasoning of counsel. Indeed, in the case of San Francisco v. Beideman , 17 Cal. 444, we took the same ground as that in the opinion here. We do not see how the plaintiff can avail himself of the position that the act of 1851 transferred this property to the Commissioners of the Funded Debt; for if this were true, the title would be in the Commissioners, and the plaintiff could not maintain his action; since, even if the Legislature had the power to divest this title by the act confirming the Van Ness Ordinance, that ordinance and the Act of 1858 only profess to give the occupants the right, title, and interest of the city in the land so held.
But this deed to the Commissioners for the payment of the city debts would seem, upon general principles, to be a conveyance in trust for the purposes for which it was executed, leaving the residuary interest, after satisfying or discharging the trust, in the city; and it would seem that, subject to this right of the Commissioners--supposing it to exist--the city could still, without objection from third persons, control the subject of the trust. But it is clear that the plaintiff, claiming through the Van Ness Ordinance the right and title of the city, is not in a position to dispute that the city had, at the time of the passage of the ordinance, no title or claim to the premises.
Rehearing denied.