Cope, J. concurring.
The first objection urged in this case is to the ruling of the Court below in allowing the Alcalde grant to be read in evidence, without proof of the order of the Town Council directing the sale which is recited in the grant.
The Alcalde states in the grant that he makes it by virtue of the authority in him vested, and in pursuance of the order of the Town Council. If the Alcalde had authority to make grants of the pueblo lands, the former of these powers was sufficient to sustain this grant, although the latter may not have existed. The law upon this point, whatever may be the opinions of individuals, or the determinations of tribunals not governed by our judgments, must be considered settled so far as it depends upon the decision of this Court. In the case of Cohas v. Raisin (3 Cal. 443) the Court announced these among other propositions: “ 2d. That the Alcaldes were the heads of the Ayuntamientos, or Town Councils, and rightfully exercised the power of granting lots.” “ 4th. That a grant of a lot by an Alcalde, whether a Mexican or any other nation, raises the presumption that the Alcalde was a properly qualified officer, that he had authority to make the grant, and that the land *41was within the boundaries of the pueblo.” These propositions have not since been overruled, but have more than once been affirmed. In the case of Dewey v. Lambier, (7 Cal. 347) which was an action to recover a lot granted by Leavenworth, Alcalde, the Court, speaking of the case of Cohas v. Raisin, say: “ We take this occasion to approbate the same, and to announce our determination of adhering to it.” In the case of Welch v. Sullivan (8 Cal. 197) the Court say: “ It is a misnomer to call these titles American Alcalde grants. They were the grants of the pueblo of its own properly, which it had the right to transfer by virtue of the municipal law which was continued in force by the new sovereign until 1850. As to all grants made by the Alcaldes, it must be presumed that they were municipal lands which these officers had a right to grant, until the contrary is shown.” In the case of Payne and Dewey v. Treadwell, (16 Cal. 232, 239) which was an action to recover a lot held under a grant by an American Alcalde and decided as late as 1860, the Court say: “ Now, that the Alcalde is the proper officer to make the grant is 'unquestionable. The same presumptions in regard to the regularity and effect of his proceedings attach to him as to other officers.” “ Our conclusion is, that upon two distinct and independent grounds, the validity of these Alcalde grants may be safely rested: 1st, upon the title of the pueblo and the presumed authority of the Alcaldes, as the proper granting officers to grant lots within the pueblo.” In the case before us nothing appears in the record restricting the ordinary powers of the Alcalde as the proper granting officer to grant lots within the pueblo, and under the law as settled by the authorities above cited the Alcalde grant was properly admitted in evidence without proof of the order of the Town Council.
It is secondly objected that the plaintiffs are bound by the recitals in the grant under which they claim, and by which it appears that the grant was-made upon a sale at auction; that it has been settled by the case of Hart v. Burnett (15 Cal. 530) that the pueblo lands cannot be sold on execution against the town to satisfy its debts, and that it follows as a necessary result of that decision, and that the language of the Court authorizes the conclusion, that the town *42could not sell the lands at auction to procure funds for the use of the town, and that hence the grant in question is void.
The case of Hart v. Burnett decided that the pueblo held its land in trust for the use and benefit of the people thereof, and not in absolute ownership for its own use, like an individual or private corporation, and that such lands could not be sold on execution against the will of the town to satisfy its debts. And although the Court say that the town could not sell out its lands to an individual in gross, it nowhere says that the town could not voluntarily convey a lot to a citizen for a consideration, or voluntarily sell the lots to raise funds for the use of the town in any appropriate way not inconsistent with the growth and prosperity of the town. But in various parts of the opinion the Court speaks of these lands as being held in trust to be granted to settlers or others in limited quantities, or disposed of for the support of the municipality. (See pages 580, 582, 594.) The fact, therefore, that the lot in question was sold at auction by direction of the Town Council, does not render the grant of the Alcalde void.
The defendants were not entitled to have the value of the improvements put upon the premises by them deducted from the damages, because it does not appear that they held “ under color of title adversely to the claims of the plaintiff in good faith.” No such averment is made in the answer, or proof made at the trial. The answer, in addition to a general denial, sets up title under Limantour (of which no proof was given) and a five years’ adverse holding. The proof shows that the entry of the defendants was upon a lot within the limits of an incorporated city, and no presumption can arise that they entered bona fide under any supposed right amounting to a color of title adverse to the owner.
It is fourthly objected that there was no evidence to warrant the jury in finding that the defendants Banks and Winter were in possession of the premises at the time this action was brought, and we think this objection well taken. The notice seen by the witness Thibault on the lot was by itself no evidence against any person not proved to have authorized it to be placed there, and the declarations made to Thibault by persons not at the time on or in the vicinity of .the premises, and whom he supposed to be these defendants, but as *43to one of whom he says he did not know him, and that his name might have been Munson instead of Banks; and as to the other, he does not say that he knew him, but simply speaks of him as Mr. Winter, do not amount to proof that either of these two defendants were in possession. If there had been no question at the trial as to the identity of these persons, the reference to one of them as Mr. Winter might have implied a knowledge by the witness that he was the defendant in this action, but when this identity was disputed, and another person of the same name was a witness in the case, and testified that he was the person with whom Thibault had his conversation, there should have been some more direct evidence by Thibault that he knew the person, to entitle that person’s declaration to the weight of evidence against the defendant Winter.
The judgment against Banks and Winter must, therefore, be reversed; but the counsel on both sides in the briefs filed in this case having conceded that a judgment might in this case be entered for and against such of the parties as the facts appearing in the record should warrant, we shall order the judgment to be affirmed as to the defendants Moses and Wheaton, and reversed as to the defendants Banks and Winter, and that the Court below render judgment in favor of Banks and Winter for then costs in the Court below, and that they also have execution for then costs on tins appeal.