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United States Supreme Court

73 U.S. 423

Mumford  v.  Wardwell

ERROR to the Circuit Court for the Northern District of California.

Mumford-plaintiff both below and in error here-brought ejectment against Wardwell for a 'one hundred-vara lot,' No. 186 on the official map of San Francisco. Plea, possession as owner under a good title. The record showed that the case was set down on that issue for trial August 26th, 1863, when the jury found a verdict in these words:

J. E. Mumford v. C. Otis Wardwell, United States Circuit Court, Northern District of California.

We, the jury, find a verdict for the plaintiff, subject to the opinion of the court.


SAN FRANCISCO, August 26th, 1863.

The finding set forth no case, nor had any been previously stated. This verdict was entered of record; but no notice apparently taken afterwards of it. Subsequently, on the 29th August, by consent of counsel, it was ordered that the further hearing of the cause should be set down for September 5th. The record went on:

'And afterwards, to wit, on the 5th day of September A. D. 1863, the following special verdict, by stipulation of counsel, was duly entered of record in said cause, to wit:


In the Circuit Court of the United States for the Northern District of California.

JAMES E. MUMFORD, Plaintiff, v. CHAS. O. WARDWELL, Defendant.


And now, on this 26th day of August, A. D. 1863, come the parties aforesaid by their respective attorneys, and thereupon come a jury, to wit: [the names of the jurors were here given], twelve good and lawful men, who, being duly elected, tried, and sworn, the issues herein joined between said parties well and truly to try, and a true verdict to render according to the evidence, after hearing the evidence of said parties respectively, the jurors aforesaid upon their oaths aforesaid to say;'

Following this was set forth the titles of the respective parties to the lot in controversy. The document ended thus, the signatures of the respective counsel being appended at the end:

'And the jurors aforesaid, upon their oaths aforesaid, do further say that they find a general verdict for the plaintiff, subject to the opinion of the court upon the foregoing recited facts.

'The above is agreed to as a special verdict in this cause.'

It will be observed that in what was here agreed to 'as a special verdict,' there was no such conclusion as is technically usual in special verdict actually found by a jury; that is to say, the finding did not, after presenting the case, refer the decision of it to the court, with the conditional and alternative conclusion, that if the court should be of the opinion, in view of the facts, that the plaintiff was entitled to recover, then they found for the plaintiff, but if otherwise, thy found for the defendant.

But this matter was not the subject of remark either by counsel here or apparently by them in the court below; and the paper agreed to was treated everywhere as a case agreed on and stated for the opinion of the court.

The title of the respective parties as set forth in the case as settled was as follows, that of the defendant, for more clearness, being here stated first:

1. Defendant's title. The lot was what was called a water-lot; that is to say, formed part of certain flats, situated below the high-water mark of San Francisco Bay. The conquest of Mexico, in 1846, having put the whole region about San Francisco into the control of the military authorities of the United States, General Kearney, then acting as Military Governor of California, by deed reciting that he was acting in virtue of authority vested in him by the President of the United States, conveyed these flats (with some unimportant reservations) to the town of San Francisco; a proviso being attached to the grant that they should be divided into lots, and after three months' notice sold at auction to the highest bidder for the benefit of the town. On the 1st day of December, 1849, the ayuntamiento or town council of San Francisco ordained:

'That two hundred fifth-vara town lots be sold at public auction on Friday, the 10th instant.'

On the same 10th of December, 1849, General J. W. Geary, then acting as alcalde of San Francisco (under which title the municipal authority of that city was exercised by officers, either appointed by the military commandant or elected by the people)-by deed reciting that the ayuntamiento or town council of San Francisco, by resolution passed on the 1st day of December, 1849, had ordered that certain town lots should be exposed to public sale and sold to the highest bidder, and that after due public notice, &c., one of the said lots, No. 186, so ordered to be sold, was sold to D. O'Brien, &c.-granted and conveyed the said lot, No. 186, to O'Brien aforesaid.

This deed, like every other deed made by Alcalde Geary during his term of office, consisted of a printed blank on one sheet, filled up at the time it was issued; and like them was not registered or recorded except in the following manner, that is to say: Copies of the deeds consisting of similar blanks, filled up in like manner by the clerk of Alcalde Geary, were retained in the office of the alcalde. These copies were folded up, the name of the purchaser and number of the lot and designation of the class to which it belonged-(that is to say, whether one hundred-vara, fifty-vara, or water-lot) being indorsed thereon, and those of each distinct class were kept in said alcalde's office in a separate bundle; but these several copies were not bound or fastened together in any manner. In that state they passed into the office of the county recorder, on its organization in 1850, where they continued to remain until 1856, when they were bound up in the form of books, each class forming a separate volume. The grant to O'Brien was filled up in the manner above stated, and a copy of it also, made as above stated, was kept in like manner in the bundle composed of copies of grants of one-hundred-vara lots, and so continued until the time it with the other copies was bound up as above-said, in 1856.

Whether General Kearney had authority to make a grant such as he did make to the town of San Francisco, or whether the ayuntamiento or town council of San Francisco ever directed a sale of the lot in question,-which it will be remembered was a hundred-vara lot, not a fifty-vara one,-the case agreed on as a special verdict did not state.

Some time after the sale, that is to say, on the 26th of March, 1851, the legislature of California granted these flats, including this lot, to the city of San Francisco for ninety-nine years. But the statute contained (§ 2) two exceptions. It excepted from its operation those portions of the flats which had been either,

First, 'Sl d by authority of the ayuntamiento, or town or city council, or by any alcalde of the said town or city, at public auction, in accordance with the terms of the grant known as Kearney's Grant to the City of San Francisco,' or

Second, 'Sold or granted by any alcalde of the said city of San Francisco, and confirmed by the ayuntamiento or town or city council thereof, and also registered or recorded on or before the 3d day of April, A. D. 1850, in some book of record, now [that is, on the 26th day of March, A. D. 1851] in the office, or custody, or control of the recorder of the county of San Francisco.'It contained also (§ 3) this enactment as to the effect, viewed as evidence, of any deed, by which any of the lands excepted were conveyed or granted by any ayuntamiento, common council, or alcalde; declaring that it

'Shall be prima facie evidence of title and possession to enable the plaintiff to recover possession of the land so granted.'

Such was the title of Wardwell; defendant below and here.

2. The plaintiff's was a sheriff's deed for the lot, on execution upon a judgment against the city of San Francisco, all confessedly regular, but all subsequent to the statute above quoted.

On this case the court below entered judgment for the defendant, Wardwell.

Mr. T. Ewing, Jr., for the plaintiff in error, Mumford:

It will be conceded by opposing counsel, that General Kearney, as military commandant, had no power to make such a grant as he did. The grant was void. The flats or ground under a navigable bay, remained the property of the United States. On the admission of California into the Union, they became hers. She granted them to the city of San Francisco, and under the sheriff's deed the title is in the plaintiff, unless the defendant brings himself within one of the two exceptions of the statute of 1851. The burden of doing this is on him. Prima facie the case is with the plaintiff.

Plainly the defendant cannot bring himself within the first exception. General Kearney's grant required in terms three months' notice of the sale to be given. Of this sale but ten days' notice, at most, was given. The defendant would therefore bring himself doubtless within the second exception. Admitting then-which we do not admit-that the particular lot described in Geary's deed was ever in fact sold or granted by that alcalde; still the sale does not come within the second exception, and is inoperative, because 1. It was never 'confirmed' in any manner by the ayuntamiento or town or city council of San Francisco. Indeed, no 'confirmation'-that is, no approval subsequent to the sale-was ever perhaps thought of. Alcalde Geary plainly supposed that he was selling under the authority previously given in the ordinance of 1st December, 1849-which ordinance indeed he recites as the authority for his act. But this was a mistake. The ordinance authorized sales of fifty-vara lots alone. The record, which appears, of an ordinance, passed 1st December, to sell fifty-vara lots, is convincing proof that there was no ordinance of the same day to sell hundred-vara lots. Both would have been recorded as certainly as the one was. The sale of hundred-vara lots was therefore supra vires; and void as in excess of the power given.

2. In no sense in which the words in question could have been used by the legislature, does the case stated show a registering or recording of the deed in a 'book of record.' The word 'book' has always signified a number of sheets of paper or parchment, if not bound, yet at least sewed or attached together in some manner, so as to constitute a volume; something that can be opened, turned over, and read. It has never signified, nor been applied to a bundle of folded papers; still less to a single sheet in such bundle. [1]

Messrs. Botts, Dwinelle, and Lake, contra:

We concede that the attempt of General Kearneyt o bestow these lands upon the town of San Francisco was ineffectual. [2] We concede, too, that the State of California, when admitted into the Union, succeeded the United States as sovereign proprietor of all lands situate below ordinary high-water mark and within its borders; including, of course, these flats. [3] The only question then is whether the defendant is included within either of the exceptions of the statute of 1851. . . . We submit that he is within both; or if not, cer tainly that he is within the second.

1. The State of California, who owned the land, had a right to grant the lots to the city-the grant being a pure bounty-on what terms she pleased. She does so grant them. She declares that the deed itself 'shall be prima facie evidence of title.' The effect of this enactment is, that confirmation by the ayuntamiento is primarily to be presumed. The plaintiff must show, affirmatively, that there was no such confirmation. The deed itself, which is of a hundred-vara lot, recites a resolution of the town council, passed December 1st, A. D. 1849, ordering a sale of the lot in question. That a resolution was passed by the council on the same day, ordering a sale of fifty-vara lots, is unimportant. That resolution shows that fifty-vara lots were ordered to be sold, but does not exclude the idea of a resolution being passed at the same meeting ordering hundred-vara lots to be sold.

2. Was the deed 'registered or recorded in some book of record?' We submit that it was so; at least was so within the design of the act. Binding does not constitute a book. A book may be a bound book, but it may also be one not bound; a book stitched or even yet in sheets. The sheets in the recorder's office furnished materials ready to assume the form of bound books, which they did assume under the binder's hands in 1856. The thing to be attained was the preservation of record evidence of the grant in an authentic, permanent, and accessible form; and the purpose evidently was, not to give constructive notice of the existence of such grants, but to prevent the fabrication of spurious titles. They were already 'records,' whether bound or not. [4] Interpreting, then, the statute according to its spirit and intent, these two 'separate bundles' of official copies of official grants, constituted two separate 'books of record.' Suppose a book of records falling to decay, and the sheets becoming loose during the period between the destruction of the old binding and the rebinding, would there be no 'book of records?'

Reply: 1. Whatever might be reasonably argued under the prima facie effect given by the statute to the deed, if there was no evidence of any order of sale by the ayuntamiento on the 1st December, 1849, we submit that by the admitted order to sell fifty-vara lots-the only order in the case-the prima facies of an order to sell one-hundred vara lots on that same day is rebutted. In other words, when we showed a resolution of a public body like the ayuntamiento, passed December 1st, 1849, ordering a sale of town lots of one sort to take place December 10th, 1849, corresponding exactly with the resolution recited by the alcalde, as his authority for making a sale of another and different kind, the presumptions made it incumbent on defendant to put in evidence a resolution of the same date authorizing a sale of the different kind. It is a case where the expressio unius infers the exclusio alterius.

2. A bundle of copies of deeds is a very important part of the 'materials' by the aid of which a book of copies of deeds may be made; but bundled up and 'not fastened together in any manner,' they are not, in that condition, a 'book' in any sense.

Mr. Justice CLIFFORD delivered the opinion of the court.


^1  Chapin v. Bourne, 8 California, 296.

^2  Wilcox v. Jackson, 13 Peters, 512, 513; United States v. Fitzgerald, 15 Id. 421; United States v. Hare, Circuit Court of the United States for California, October, 1867; MS.

^3  Pollard's Lessee v. Hagan, 3 Howard, 212.

^4  Kyburg v. Perkins, 6 California, 674.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).