(dissenting.) The plaintiffs sued to recover a tract of land, alleging that for more than two years they had been in the peaceable, public, and uninterrupted possession of the land, as owners, and that, shortly before the commencement of their suit, the defendants forcibly entered upon and detained it, and that, when the plaintiffs had erected a building upon the land, the defendants came with force and drove away the plaintiffs’ workmen, and destroyed their building. The plaintiffs seek to be restored to the possession, and to recover damages. The defendants deny all the allegations of the petition, and claim back one hundred and sixty acres of the land under the pre-emption laws of the United States. The defendant Hepburn justifies the destruction of the plaintiffs’ building on the *286ground that it was erected within the furrow which marked the lines of his settlement, and was a nuisance. The other defendants justify as his agents and servants. He also claims damages in re-convention from the plaintiffs, on the ground that they have erected another building within his enclosure. The record contains all the evidence given on the trial. The plaintiffs insist that the verdict is contrary to the law. and evidence. The law of evidence in actions of ejectment at common law has been appealed to on the argument of this cause and an effort made to place the plaintiffs in the position of parties setting up title, and seeking to acquire possession, but we should look to the remedies existing at the time when the action was brought under the system of jurisprudence then in force. The Spanish law as modified by statute, and not repugnant to the Republican institutions of Mexico, was the law of California up to the time of the acquisition of the country by the United States. (1 Alvarez, 16—5 Col. de Dec. 1—1 Febrero Mexicano, 27.) And that acquisition effected no change in the law regulating the rights or relations of individuals. (Hal. Dig. 200—411 Vatel—3 Part. 199, 200, 201—1 Pet. R. 57, 542, and other cases cited in 6th, 7th, 9th, 10th, 12th, Pet. Rep.)
The different kinds of possession for the recovery of which possessory actions are sustained in the Spanish and eiyil law, the two interdicts summary and plenary instituted for the recovery of such possession, are fully examined in my dissenting opinion in the case of Woodworth v. Fulton et al., to which case reference is now made, for a better understanding of the rights and remedies of a party despoiled of possession of immoveable property. This action is purely a possessory one, the plenary interdict. Ho title in the plaintiffs is alleged, but a possession under a claim of title in good faith for more than a year and a day.
To maintain their right to recover it is only necessary in this action for the plaintiffs to show their own possession for that length of time, and the entry of the defendants. The question of title cannot be raised. In Louisiana, whose system of law is derived from the same source as that which prevailed here, pos*287session for a year gives presumptive title ; upon proof of such possession in a possessory action brought within a year, a party can recover the possession even against the true owner, who would not be permitted to set up his own title as a defense, but would be driven to his petitory action. (Code of Pr. 46, 47, 49, 53.) The distinction between petitory and possessory actions is so well marked, that these actions cannot be joined unless by consent. (C. P. Art. 55.) That in the latter class of actions the defendant cannot plead title has been repeatedly decided in the Louisiana courts. (7 N. S. 486; 7 L. R. 415; 10 L. R. 140.) Nor can the jury examine as to title. (6 L. R. 559.) Nor is either party allowed to introduce evidence of title. (C. P. Art. 53; C. C. 3418; 7 L. T. 415.) Though an exception to this last rule would probably take place when the extent of possession is disputed. (6 L. R. 56.) The Spanish law equally recognizes this distinction between suits claiming possession and those claiming property. (3 Part. tit. 2, C. 27; Dic. de Esc. “ Juicio petitorio;” 1 Febrero Tapia, 227.) It is adopted by special enactment in Mexico. (8 Col. de Dec. 227.) It will be seen by reference to these authorities, that, when an action is brought to recover the possession, the right to the possession must be determined before the right to the property. The same terms are employed in the Spanish law as in that of Louisiana to distinguish these actions. (Dic. de Esc. “ Juicio petitorio y posesorio.”) As to the forms of proceedings in these actions, see same work, (“ Juicio pet.f “ Inter dicto,” “ Despojo.”) To entitle a person to recover in either of these forms of action, possession for a year and a day is sufficient. (Same work above cited; and 1 Febrero Tapia, 229; 1 Feb. Nov. 353-355.) The only difference observable between the Spanish law and that of Louisiana, is that, in the latter, a defendant is not permitted to offer evidence of title, while in the former, as appears from an authority quoted, he may defend himself on the ground of title, if ready to establish it immediately by satisfactory proof. (3 Part. tit. 2, c. 27.) It is said, however, that this authority is not sustained by any other.
But the defendants set up title. They claim a right by virtue *288of the pre-emption laws, to enter upon the premises as a part of the public domain. Such a claim can hardly be urged seriously, as it is well known that no pre-emption law was, or is, in force in this country.
The land in controversy, a half league, was granted in 1844, by the government to Roberto, an emancipated Indian, and was subsequently conveyed by him to Suiiol, one of the plaintiffs, who sold an undivided interest in it to the other plaintiffs. The act of emancipation of Roberto, the grant to him, his conveyance to Suiiol, the confirmation of that conveyance by his heirs, the order of the Alcalde putting Suiiol in judicial possession, and the survey of the land were given in evidence to show that these parties claimed as owners under title and in good faith, and to show the extent of their possession. It appears from the testimony that there was an actual occupation of portions of the land by Roberto or those who claim under him from the time of the grant, and even before it, down to the time when this suit was commenced, and a constant exercise of acts of ownership over the whole tract until the defendants entered. The defendants entered that portion of the land which had, prior to their entry, been surveyed into a town, and after their entry the survey stakes were visible. On the 14th of Dec. 1849, the day prior to Sufiol’s conveyance to Raglee and Sansevaine, Naglee, in company with Whiting, examined the premises. Ledbetter’s survey was completed on that day. Hepburn’s house was not then on the land, but it seems he occupied a tent on the alameda, a few yards from the line and limits of the town survey and tract of land claimed by the plaintiffs. The defendants, therefore, must have known and had notice of plaintiffs’ claim to possession at least, and this was acknowledged to one of defendants’ witnesses.
Does this evidence prove a sufficient possession'? or is it requisite that the whole tract should have been inclosed, or cultivated ? In Louisiana an actual occupation is not required. Possession of part with a claim of title to the whole, or where there has been a natural possession not abandoned, a civil possession only is sufficient. (C. P. 49; C. C. 3394, 3389-90-91, *2893417; Bernard v. Shaw, 9 M. R. 79; Mayfield v. Morris, 10 L. R. 442, and 15 L. R. 561; 19 L. R. 253.) Under the Spanish law, too, a mere civil possession is sufficient, provided the possessor hold in good faith and by virtue of a title transla-tive of property. And it seems, without these qualities, one who holds property holds it precariously. He is not a possessor. His occupancy will not grow into a right of possession in any length of time short of that required to prescribe for the property in the land. [Esc. Dic. “ Posesion,” 543; same 534; 3 Part. tit. 30, c. 1, 6; 1 Febrero Tapia, 229, 231, 230; 7th Febrero Tapia, 32, sec. 11; Ordenanzas de Tierras y Aguas, 12, 13, 17, 18.) In the whole Spanish law there is nothing as yet submitted to this court that will justify the opinion that possession must be an actual occupancy or it cannot be asserted. The term actual possession is not unknown to that law, but it has a peculiar and technical meaning. {Die. de Esc. “ Bosesion Aetnal, Artificiosa.”)
But from the. testimony it is evident that the plaintiffs had the actual possession, at the time of the entry of the defendants. The part inclosed by defendants’ furrow was in their actual occupancy, having been surveyed into a town. Stakes and maps existed indicating especially to the defendants, whose tent was but a few feet from the line, the possession of the plaintiffs. As to these defendants, then, without proof of any other possession or acts of ownership, at common law, the plaintiffs could recover in a summary action. It was not necessary that the -premises should be actually inclosed with a fence; any improvements or monuments which show the land to have been occupied by another, and there being no evidence of an abandonment, are sufficient. (See cases cited in Woodworth v. Fulton, decided at this term; Ellicott & Meredith v. Pearl, 10 Pet. Rep. 441; Ewing v. Burnet, 11 Pet. Rep. 52.)
The fact of possession in the plaintiffs being established, either natural or civil, to a part of the land granted to Huberto, it becomes perhaps the most difficult question in this case to ascertain the extent of such possession. Both the Spanish and common law writers agree that he who is in possession of a *290part of a tract of land under claim of title in good faith, with specified metes and bounds, possesses to the extent thereof. (See authorities referred to in Woodworth v. Fulton.)
The plaintiffs have a deed executed in the usual form to impart title, {Apt to transfer property,) describing the premises by certain monuments, courses, and distances, not very distinctly defined however, nor clearly understood, but perhaps sufficient with the aid of oral proof.
But it is said the deed from Roberto to Suiiol is void, as an Indian could not alienate his property but in the manner prescribed by law ; that Suiiol was bound to know the law, and to know that the conveyance of Roberto was void, and transferred no title. Suiiol not only purchased of Roberto, but also of his heirs, after his decease. The other plaintiffs purchased of Suiiol. If these conveyances do not furnish colorable title which would be sufficient in adverse possession or prescription, then the decisions of the courts in the case of Jackson v. Newton, (18 Johnson’s Rep. 355;) Northrop v. Wright, (7 Hill, Rep. 468-9;) La Frambois v. Jackson (8 Cowen, 589;) and the doctrines of the Spanish law writers referred to in Woodworth v. Fulton, and the uniform decisions of the courts of Louisiana, are not law.
The idea that an Indian could not convey land is derived from the various laws and royal ordinances relating to (he government of the Indians, which were promulgated at different periods between the years 1551 and 1787. (Ord. de Tierras y Aguas, 97, 112; 2 White’s Recop. 703.) One of these (24 May, 1571) prescribes the formalities which shall be observed by the Indians in making sales of their property, and declares void all sales made without those formalities. These regulations were intended for the protection of those Indians who formed separate communities, and lived in the Pueblos, as the mere occupants of the lands from which they had never been ejected, and the title to which was in the crown. That this is the object of those laws is apparent from their perusal.
Admitting that a conveyance by an Indian was prohibited by the law, it was for the benefit of the Indian that the prohi*291bition was made. Though his deed might be void as to himself and his heirs, it was good as to all others. There are two cases in the decisions of the supreme court of Louisiana to this effect. In the case of Martin v. Johnson et al., (5 M. R. 655,) the defendants claimed under a deed from Indians. It was objected that the deed did not transfer the title, as such alienations were prohibited by law, unless the sale was made at auction, which was not the case here. The court held, that if the objection was well founded “ the Indians would not have been “ legally divested of their title, and could, perhaps, take ad- “ vantage of it against the defendants ; but until then the cle- “ fendants held in their right and cannot be disturbed by “ others.” In Spencer's heirs v. Grimball, (6 N. S. 355,) where the plaintiffs claimed under such a deed, the court said, “ If a “ sale by the Indians wa9 followed by payment of the price “ and delivery of the property, no person can take advan- “ tage of an informality in the mode of making it but the In- “ dians.” In this case the court makes a distinction between a nullity which is absolute, and one which is relative—founded upon the object of the law which prohibits an act and declares it void. Where the act is prohibited from motives of public policy, the nullity is absolute; when the intention is to give protection to individuals, it is relative. In the former, the act is absolutely void, in the other, it is voidable only, as a deed by a minor, which no one can avoid but the minor himself, and even he is bound by it after he arrives at his majority, if he do not dissent.
The Indians were considered as persons under legal disability, and their legal protectors stand in the light of guardians, and although of age, they enjoyed the rights of minors to avoid contracts or other disposition of their property, particularly real, made without the authority of the judiciary, or the intervention of their legal protectors. (2d White’s Recop. 704.)
These laws then would not render absolutely void a deed from an Indian, but voidable only, as in the case of infants under guardians. The Indians were under a state of pupilage. But in this case the Indian, Roberto, as he is called, was, at the time of his sale to Suñol, under no such disability. He was an *292emancipated Indian, having no legal protectors. Upon an examination of the decisions in the courts of Louisiana it appears that they are all made in cases where the lands in controversy were Pueblo lands, or those in the occupancy of an Indian tribe or community. It is believed that there is a manifest distinction between such cases and that of a grant by the government to an Indian as a settler or citizen.
It is argued with much plausible reasoning, the correctness of which cannot well be controverted, that the grantee, Roberto, was a Mexican citizen according to the terms of the constitution ; that it was only as a Mexican citizen that such a grant could be made to him, it being expressly prohibited by the.colonization law to all others than Mexican citizens ; and that the grant was made by the competent authority, whose acts are to be presumed to be valid.
Upon the point that Roberto was under no disability, reference is made to 1 Febrero Mexicano, p. 96, sec. 48 : “ In “the ancient laws other distinctions are made between men on “account of their races and colors, and of these the principal “ was the one between Indians and Spaniards. So odious a “classification has not existed in the republic since it declared “ itself sovereign and independent, and principally since the “ Plan of Iguala declared all inhabitants to be equal in rights “without distinction between Europeans, Africans and Indians.*’ The 12th article of the Plan of Iguala declares, “ all the inha- “ bitants of Mew Spain, without distinction between Europeans, “Africans or Indians, are citizens of this monarchy, with a “ right to hold office according to their merit and virtues.” (1 Col. de Dec. 4.) In the same work, (p. 257, sec. 1,) it is said, “ Anciently the Indians also were reputed minors under the “ age of five and twenty years, although they were above that “ age ; but now it is expressly declared that, allowing them to “ be equal to other citizens, they are no longer in a state of “minority;” and this clause refers to a circular of 11th of January, 1821. The Indian, then, rests no longer under that state of pupilage in which the law formerly placed him.
It seems that the grant to Roberto contains conditions prohi*293biting an alienation, and for this reason, it is said, the sale to Simol was void. What right or authority had the governor to impose such an odious incumbrance on a grant? No authority has been shown, no statute or decree of the general government prescribing such to be the form of grants to emancipated Indians ; and it is believed no law can be referred to which will authorize the introduction of such odious conditions in a grant. These conditions were and are absolutely void, interposed without authority of law, and the grant is to be construed as if no such obstacles had been inserted.
The Indian Roberto was a citizen of the Republic, enjoying all the rights and privileges of any other citizen of Mexico, and was eligible to office according to his merits and virtues. This is admitted. Yet it is said that a Mexican citizen, because he happens to be of Indian blood, or an emancipated Indian, shall not, and carmot, transfer his property in real estate, without permission, and under the direction of a judicial officer, as if he were an insane person, lunatic, or infant. It appears evident that to be a citizen, enjoying equal rights with other citizens of the Republic, the Indian must enjoy the right to alienate his property without restraint—the right to think and act for himself. It is matter of history that some of the wealthiest citizens of this state, at the present time, are either Indians of full or half blood. They are men of wealth, intelligence, and education, and yet. by the Plan of Iguala, as well as by the principles of the Republican Institutions of Mexico, they have no superior social rights to the Incl ian Roberto, nor any higher legal privileges.
The policy of the Royal government of Spain, regulating the intercourse with the Indians, humane as it may have been, differed widely from the system of trade and intercourse with the Indian tribes adopted by the government of the United States.
• The United States have never elevated the Indian to an equality in rights and privileges with the white race; if so, trade and traffic in property, real and personal, would be free, and not positively inhibited by the National Legislature.
Entertaining these views, and governed by the law as I understand it, I believe the following conclusions to be correct:—■
*2941st, If the grantee Roberto were under the disability sought to be established, the plaintiffs having purchased in good faith, have a colorable claim of title.
2d. That, if under such incapacity, no third party can take advantage of it; the sale could be avoided only by Roberto, his heirs, or the government,
3d. That all restraints upon Indians, in the alienation of their real property, appear to have been abolished.
4th. That the plaintiffs had, at the time of the entry of defendants. actual possession of a part of the premises conveyed, in the name of the whole.
5th. That such possession is good for the entire tract within the specified metes and bounds.
6th. That they can sustain their action to oust any intruder without title.
I think, therefore, the judgment of the court of. First Instance should be reversed, and a new trial had. (a)
After the decision of the above cause, another motion for a re-hearing was made, on which occasion the opinion of the court was delivered by
Bennett. J. This cause has been twice argued; once by counsel for both parties, and again ex parte, on behalf of the plaintiffs. An application is now made for a re-hearing. No new arguments are advanced, and no additional authorities cited. Indeed, the plaintiffs state, in their petition for a re-hearing, that u no new views “ are sought to be offered/* The old views have been twice presented to the* court, and twice considered by it, and as the court is satisfied that its former decision is in conformity both with law and justice, it sees no reason why that decision should be disturbed.
It is proper, however, to observe that our former judgment did not pretend to define the quantity of land of which the defendant was in possession. This could not well have been done under the pleadings. It barely deckles that the plaintiffs showed no right to oust the defendant from any portion of the land claimed by the plaintiffs, the actual possession of which the defendant. Hepburn, had at the time the suit was brought.
Re-hearing denied.