Merryman v. Bourne
ERROR to the Circuit Court for the District of California.
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: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,  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 inclosed 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 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.
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 11th, 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 1st, 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. 
Judgment was accordingly rendered for the defendants, and the plaintiffs brought the case to this court on writ of error.
Mr. Cushing (who filed a brief of Messrs. Turner, Patterson, Jarboe, and Harrison), for the plaintiff in error:
The decision by the Supreme Court of California  in the case of Woodworth v. Fulton, was a final judgment, involving and determining the invalidity of the grant which is relied upon as a defence to this action. That determination was (and is) not only the law of that case but the law of that piece of property.
The defendant, Woodworth, and all claiming under him, as against Fulton and the plaintiff (here), who is in privity with him, are barred from asserting that title. The same evidence which Woodworth relied upon in Woodworth v. Fulton, i. e., the alcalde grant, is now relied on as a defence to this action.  The facts in Woodworth v. Fulton, as to Woodworth's title and right of possession, are the same as in this case, and the decision in that case was upon the law of the alcalde grant.  It will not be pretended that while Fulton and his tenants and privies were in possession, under the writ of restitution and judgment in Woodworth v. Fulton, they were trespassers on the said premises, or that a judgment for mesne profits could have been recovered against them? The law after a solemn determination placed them there, and they were therefore rightfully there. When did that right cease? Never by any act of theirs.
In California the action of ejectment, as at common law, was never used. There it is 'an action for the recovery of real property; or of an estate or interest therein; or for the determination in any form of such right or interest.' 
The facts found as to the mode in which F. A. Woodworth obtained possession of part of the premises from Fulton's tenants his threats and compromises-show a tampering with them; and, having entered under our tenants, he himself becomes our tenant, and is estopped from asserting that the plaintiff is not entitled to possession.
Conceding that, by the later decisions of California, an alcalde grant, such as was here set up, may be valid, those decisions cannot affect the prior unreversed case of Woodworth v. Fulton, in which it was held otherwise.
So far as the act of Congress of July 1st, 1864, is relied on, it is enough to say, that it was passed more than four years after the institution of this suit. Of course, it cannot be considered.
Mr. G. H. Williams, contra.
Mr. Justice SWAYNE delivered the opinion of the court.
^1 A one hundred vara lot is a lot 275 feet square.
^2 For a more minute statement of the provisions of the Van Ness ordinance and act of Congress, see Lynch v. Bernal, supra, p. 315.
^3 1 California, 295.
^4 Broom's Legal Maxims, 229; Eastman v. Cooper, 15 Pickering, 285; Baker v. Rand, 13 Barbour, 152; Burkland v. Brown, 5 Sandford, 134.
^5 Betts v. Starr, 5 Connecticut, 550; Pleak v. Chambers, 7 B. Monroe, 566.
^6 Vide Practice Act.