Ejectment to recover a tract of about forty acres of land within the city and county of San Francisco. Plaintiffs recovered judgment, and from said judgment, as well as from an order denying their motion for a new trial, defendants appeal.
The land in controversy is part of the five hundred thousand acres granted to the state for school purposes, under the act of Congress of 1841, for which the state of California issued two patents, the first to P.L. Weaver, dated February 21, 1874; the second to Richard Wagner, dated January 24, 1881, both patents being recorded immediately after their respective dates.
Plaintiffs deraign title through the Wagner patent and by various mesne conveyances thereunder, which vested in them whatever title Wagner acquired under his patent.
Independent of this regular deraignment of title under said patent, plaintiffs introduced in evidence, for the purpose of connecting themselves with the elder Weaver patent, a quitclaim deed made to them by one J.W. Shanklin in 1894. It was admitted that the defendants were at the time, and *Page 276 prior to the commencement of this action, in possession of the property. With this showing plaintiffs rested their case.
The defendants claim solely under the Weaver patent, and to maintain their title thereunder introduced in evidence, besides that instrument, a certificate of purchase issued by the register of the state land office in favor of said Weaver, dated August 3, 1872, in the usual form, and containing the usual recitals of payment for the land, compliance with the law regarding its purchase, and of his right to a patent on surrender of the certificate. This was followed up by a deed of grant, bargain, and sale from said Weaver to James W. Shanklin, dated October 12, 1872, a similar deed from Shanklin to W.B. Swain for an express consideration of fifteen hundred dollars, dated January 14, 1873, together with a deed of gift from said Swain to defendant Amelia G. Webber, his daughter, dated December 22, 1892, all of which conveyances were of the lands in controversy.
In addition, defendants offered in evidence certified copies of records in the office of the surveyor-general of the state of California, showing, among other things, a certificate therein from the register of the United States land office that a notice of election of the lands in controversy, together with other lands, had been made by the state of California in 1864, at which date the lands had been surveyed by authority of the United States; that at the date of the register's certificate (April 18, 1872,) there was no evidence in his office that any pre-emption, homestead, or other right had attached to the land, and that the official plat of survey of the township in which the lands were located had been on file in that office for "more than three months." Also, that an application for location under the state, dated December 20, 1871, and entitled "Location No. 93, amending No. 14," was filed by said Weaver for the land in dispute, which application showed that he had already surrendered to the state a school-land warrant for three hundred and twenty acres of land under an application of which this was amendatory; also, a certificate that said application was accepted by the surveyor-general, and a further certificate by said surveyor-general, dated August 3, 1872, that he had located three hundred and twenty acres of land (which included the lands in dispute), at the request and for the use of said *Page 277 Weaver. Upon this showing defendants rested their case. It will be observed that the defendant Young does not seem to be in any wise connected with the record title to the property, and is probably simply a party in possession.
In rebuttal the plaintiffs then offered, and the court allowed, in evidence, over defendants' objections, two instruments executed by William B. Swain, grantee under the deed from Shanklin. They were both contracts made by Swain with one W. Meeks, in which the former, in consideration of certain payments to be made by Meeks, agreed to convey him the premises in controversy. In the first contract, dated January 14, 1873, Swain agreed to convey the land "according to a certain conveyance made to me this day by James W. Shanklin, which said conveyance was made to secure the payment to me of the sum of $700 and interest from date." In the second, dated July 2, 1877, which appears to have been a renewal of the first, Swain agreed, on payment of a given amount, to convey the land "according to certain conveyance made to me on the fourteenth day of January, 1873, which said conveyance was made to secure the payment to me of the sum of . . . . dollars, and interest added to date would make the sum of $1,075.50, as above mentioned." The last instrument alone seems to have been recorded, and this was done March 2, 1894.
This constituted all the evidence — which was entirely documentary — introduced on the trial.
Appellants challenge, among others, the finding of the court that plaintiffs were at the commencement of this action entitled to the possession of the property in dispute, and contend, in addition, that the court erred in admitting in evidence the instruments purported to have been executed by Swain; and we think both points are well made.
On this appeal each party assails the validity of the patent under which the other claims; in fact, the plaintiffs, although claiming not only under the Wagner patent, but through the Shanklin deed under the Weaver patent, even question the validity of the latter.
We are unable to discover that the evidence discloses any invalidity in the Weaver plant. It is regular on its face, and antedates the patent to Wagner almost seven years. *Page 278
The rule is so well established as hardly to need mention that upon the production of a patent regular on its face the presumption arises that it is valid and passed the legal title, and is of itself further prima facie evidence that all the steps prescribed by law for its proper issuance had been regularly taken before the title was perfected through the patent. (Heinlenv. Heilbron, 97 Cal. 105; Marshall v. Farmers' Bank of Fresno,115 Cal. 335.)
Plaintiffs contend, however, that this presumption is overcome by the records from the surveyor-general's office which the defendants offered in connection with their proofs of title, and claim that it appears therefrom that at the time the application of Weaver was filed, the lands had not become subject to sale by the state, because there was no approval or filing of the official plat. If this point was of any moment (Roberts v.Columbet, 63 Cal. 22), there is nothing to show that the official plat was not on file when Weaver's amendatory location was filed. The certificate of the register, dated April 18, 1872, (Weaver's amendatory application was filed as early as December 20, 1871,) states that the plat had been on file in his office "more than three months." How long before does not appear. Weaver's amendatory application had been on file less than four months when the certificate was made; and if it was legally essential that the plat should have been on file before the officers were warranted in making the location or issuing the patent, it is to be presumed that their official duty in this was regularly discharged (Watkins v. Lynch, 71 Cal. 24), and the issuance of the patent was additional evidence confirmatory of the presumption. (Heinlen v. Heilbron, 97 Cal. 105; Marshall v.Farmers' Bank of Fresno, 115 Cal. 335.) Aside from these considerations, however, it does not appear that the proceedings produced by defendants were all the proceedings in the land office pertaining to Weaver's application, and, from the filing of the amendatory location by him, it is apparent they were not. It is at least to be assumed from the contents of his amendatory location that some initiatory proceedings were taken by him prior thereto. How long before, or under what act of the legislature providing for the sale of these lands, is not apparent. His original application *Page 279 may have been made under any of the various acts of the legislature from 1852 to 1868, and under the saving clause of the latter (Stats. 1867-1868, chap. 528) he would be entitled to a patent. But it did not devolve on defendants to show these things. Claiming under the elder patent, they were protected by the prima facie regularity of its issuance, with the attendant presumption of equal regularity in all preliminary proceedings in that regard, and why they made proof of them as far as they did is difficult to understand. Their case did not seem to require it. It was incumbent on the plaintiffs, who were assailing the patent, if they wished to overcome these presumptions, to show that some of the necessary preliminary proceedings to its issuance were not taken, and so to make it appear that it was issued without authority or contrary to law. (Collins v.Bartlett, 44 Cal. 383; Watkins v. Lynch, 71 Cal. 24; Levinston v.Ryan, 75 Cal. 297.) No such showing was made, and in its absence the presumption of regularity is not disturbed, and hence, as the patent to Weaver was valid, it conveyed to him all the right of the state to this land, and it necessarily follows that the subsequent patent to Wagner by the state was void, and plaintiffs obtained no title to the premises under it.
But, as stated above, in addition to their claim of title under the Wagner patent, plaintiffs claim title under the Weaver patent, through the deed from Shanklin, which deed was made over twenty-one years after his prior deed to the defendant's grantor, Swain.
The theory of plaintiff, as far as this deed to them is concerned, is, that Shanklin's deed to Swain, while on its face an absolute conveyance of this land, was in fact a mortgage, and it was upon this theory that the court permitted the introduction of evidence of the agreements between Swain and Meeks as tending to show such fact. But this very position of the plaintiffs relative to their claim under Shanklin's deed, taken in connection with the pleadings, admission of possession, and presumptions from the evidence, precludes them from raising this question in an action of ejectment. As they acquired no title under the Wagner patent, their sole claim of right to possession of the premises is under the Shanklin deed, and their sole claim under it is as successors to Shanklin's interest as mortgagor under the alleged mortgage to *Page 280 Swain. Whatever the true character of the conveyance made by Shanklin to Swain was, the defendant Webber, through her conveyance from the latter, succeeded to all his right and interest. If such conveyance was in fact a mortgage, she succeeded to Swain's rights as mortgagee. It is conceded in the case, that at and prior to the commencement of this action, the defendant Webber was in possession of the premises, and while it is true that the execution of a deed, absolute in form, but in fact a mortgage, does not warrant the grantee or mortgagee in taking possession of the mortgaged premises, still the mortgagee may agree or assent to such occupation. No presumption will be indulged in that one in possession of property is unlawfully or wrongfully there. On the contrary, the presumption is, that such possession is right and lawful. This presumption, in the absence of any showing to the contrary, must be indulged in here. Assuming the Shanklin deed to Swain to have been a mortgage, as contended for by plaintiffs (which, of course, we are not called on to determine, and do not), still, as the defendant Webber succeeded to Swain's rights as mortgagee, and is in possession, it must be presumed that she took such possession with the assent of the mortgagor, after breach of the conditions of the mortgage. When possession is so held by the mortgagee, the law is clearly settled that an action in ejectment cannot be maintained by the mortgagor to recover the possession until the debt is paid, and there is no pretense that this has been done in the case at bar.(Frink v. LeRoy, 49 Cal. 322; Spect v. Spect, 88 Cal. 444;1Peshine v. Ord, 119 Cal. 314.2)
We do not discuss the sufficiency of the evidence introduced by plaintiffs to support their contention, that the Shanklin deed to Swain was a mortgage, because it is not pertinent to a disposition of the case, and in an action brought to redeem the question whether the deed to Swain was or was not a mortgage will be a vital question, upon which either additional or different evidence may be introduced.
We simply decide, — 1. That plaintiffs acquired no title under the patent to Wagner, as it was void, because a valid patent had previously been issued to Weaver by the state; and 2. That as the admissions and presumptions in the case, *Page 281 even on plaintiff's theory that the deed to Swain was a mortgage, show that the defendant Webber, as successor to all the rights of Swain, is in possession of the premises as mortgagee, the finding of the court that the plaintiffs were entitled to the possession of said premises is not sustained, but is contrary to the evidence.
The judgment and order appealed from are reversed and the cause remanded.
McFarland, J., and Henshaw, J., concurred.
Hearing in Bank denied.
Shaw, J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 17th of October, 1903: —
1 22 Am. St. Rep. 314.
2 63 Am. St. Rep. 131.