Cope, J. and Norton, J. concurring.
These two actions turn upon the same question, and by stipulation of the parties have been presented and argued together. The first is a bill in equity to subject the property held by the defendant to certain trusts in his hands, and to compel the execution to the plaintiff of a deed of an undivided interest therein. The second is an action of ejectment, to which the defendant therein sets up as an equitable defense substantially the same matters which are urged for relief in the first action. A demurrer to the complaint in the first case, and to the answer in the other, was sustained, and judgments entered thereon.
*539As appears from the documents annexed to the complaint, and constituting part thereof, in July, 1843, José and Sisto Berreyesa presented a petition to the Governor of California for a grant of land known hy the name of Las Putas, of about eight leagues in extent, referring in their petition to a previous provisional permission to occupy the same given by the Military Comandante of Sonoma. Upon this petition the Secretary gave a favorable report, and in October, 1843, the Governor made an order that a title issue to the petitioners for so much of the land as they could “ settle.” It does not appear that any title was ever issued upon this order, but for some reasons, which are not stated, the petitioners seemed to have considered the concession which it directed as embracing four leagues of the tract solicited; and on the following day they presented a second petition to the Governor, asking a grant of the other four leagues. Upon this petition the Secretary made a favorable report, and on the third of November, 1843, the Governor ceded to the petitioners the entire tract, and on the same day issued to them a formal grant of the premises.
The position of the appellants is that this grant was intended, not merely for the benefit of the grantees named therein, but also for the benefit in equal shares of all the members of the Berreyesa family—the fathers, brothers, and children of the grantees. In support of this position they rely upon three circumstances:
First, the implied refusal of the Governor to grant the entire tract of eight leagues solicited in the first petition of the two Berreyesas;
Second, the language of the second petition and the report of the Secretary made thereon; and
Third, the recital in the grant itself.
We have carefully considered these circumstances, and do not find in them any support to the position taken.
1. There is nothing in the order of the Governor directing a title to issue to the petitioners for so much of the land solicited as they could “ settle,” which justifies the inference that he refused to grant the entire tract in consequence of the limited quantity of stock which the petitioners possessed. The report of the Secretary upon the petition presented refers only to the character of the petitioners *540and the improvements they had made or commenced. It contains no allusion to their property or ability to stock or otherwise use the land. Ear does the Governor intimate any reasons for the order he made. It is a sufficient answer to the argument which rests upon the character of this order, to observe that no action was based upon the order. The grant which transferred the title was not issued upon it.
2. The second petition presents circumstances for the considerar tion of the Governor, in addition to those urged in the first petition. The Berreyesas sought a grant of the tract of eight leagues, and in them first petition they merely represented that they were married, and had children, and also had a considerable number of cattle and horses, and needed land on which to place them. This representation did not secure the desired concession. The petitioners therefore presented a second petition on the subject, in which they put forward the further consideration, that their families were very large, and included them parents, children, and brothers, and besides that there were more than one hundred uncivilized Indians in them neighborhood, whom it was necessary to maintain, and that the four leagues ceded were insufficient for their purposes. The report of the Secretary upon this petition speaks of it as one presented for .the benefit of the petitioners, and of them parents, children, and brothers; but the petition itself shows that the parents, children, and brothers were referred to only as inducements for enlarging the bounty of the Government. It was necessary for the petitioners to provide for their large family, and also for the maintenance of the neighboring Indians, and therefore they asked for the entire tract. The report of the Secretary, read in connection with the petition, only means that the petition showed that the parties, who constituted the family of the petitioners, would be benefited by the grant, not that the title was sought in the names of those parties. The benefit to the parents, children, and brothers was one which would flow from the means which the grant would furnish to the petitioners for their support.
3. The recital in the grant does not control the direction of the title. The petition was presented by the two Berreyesas; the concession of the Governor preceding the issuance of the grant in form *541, declares them by name to be the owners of the land; the grant designates them as the parties to whom the land is ceded; the conditions annexed refer to them alone; they are not to alienate or incumber it; they may inclose it; they shall enjoy it freely and exclusively; they are to build a house upon it; they shall solicit the juridical possession; they shall lose the right to the land if they violate the conditions; and it is to them that the grant in question is to serve as a title. Language could hardly be used, as counsel very justly observe, more absolutely excluding the idea that any other person than the two Berreyesas were to become invested with the title. The recital discloses the inducements which operated upon the Governor to-make the grant, but these inducements have no effect upon the character of the grant or the course of the title. In Frigue v. Hopkins (4 Martin, N. S. 214) it was claimed that land granted to the ancestor of the plaintiff by the King of Spain was common property, and in considering the question presented, the Court said: “ By the regulations of the Spanish Government, if the individual who applied for land was unmarried, a certain quantity of land was given to him; if he had a wife, this quantity was increased; and if he had children, an additional number of acres was conceded. Kow, if the circumstance of his being married made the thing given become the property of both husband and wife, we must, on the same principle, hold, that where children were the moving cause, they too should be considered as owners in common of the land conceded. But that such was the effect of the donee having a family, we believe was never even suspected—it certainly is unsupported by law. Many donations are made, in which the donee’s having a wife, and being burdened with a large family, is a great consideration for the beneficence of the donor; but this motive in him does not prevent the person to whom the gift is made from being considered its owner, nor prevent the thing given from descending to his heirs.”
The Mexican Regulations of 1828 require the applicant for lands, whether he be an empresario, head of family, or private person, to set forth in his petition to the Governor “ his name, country, profession, the number, description, religion, and other circumstances of the families or persons with whom he wishes to colonize ;” and *542though these particulars constituted considerations with the author-, ities in whom the granting power was vested, it was never supposed that they in any respect controlled the course of the title against the operative words of transfer in the grant. To positions of this nature the language from the Louisiana case may be repeated—the cause moving to the grant “ does not prevent the person to whom the gift is made from being considered its owner, nor prevent the thing given from descending to his heirs.” As it “ was never even suspected,” says the Court in that case, that the land granted became common property, from the fact that the donee had a family, so it may with equal truth be said in the present case, that it would never be suspected, except for the very ingenious and learned argument of counsel, that the land granted was owned by the parents, brothers, and children, in equal shares with the petitioners, from the fact that they constituted a portion of the family of the latter.
The grant to gutter and the petition upon which it was issued furnish an illustration of the views we have thus expressed. The grant and petition are both found in the report of the case of Ferris v. Coover (10 Cal. 592). In the petition Sutter states that he solicits the land for the enlargement of his enterprise and the establishment of twelve families. The grant recites that he asked the land for “ bis personal benefit and that of twelve families,” and cedes the land to him “ for himself and his colonists.” Yet the Board of Land Commissioners held that the title vested solely in Sutter, and that the peculiar language of the recital of the grant in no respect impaired his rights, or conferred any special rights upon the other settlers. In considering the nature of the grant, Mr. Thompson, of the Commission, after observing that the Mexican Regulation of 1828 makes no distinction in the legal effect of the several classes of grants provided for by it, said: “ The only difference is in the purposes for which it is made, and the consequent variance in the character of the conditions imposed or implied by it. A grant to an individual imposed the condition of occupation or cultivation, as the consideration on which it was founded, and was usually made to him for his own benefit and that of his family; but it has never been contended that the rights of the grantee in the premises were in any degree impaired by the use of *543this language, or that it conferred any special rights, legal or equitable, on his family. The full right of property vested in the grantee, subject only to the general provisions of the laws on the subject. So in the case of an empresario grant, it involved the condition of the introduction and settlement of the land of twelve or more families, according to his stipulation; and it might, as in the present case, be made to the grantee for his own benefit and that of 'his settlers; but the use of this language would not, any more than in the former case, confer any special rights on the settler. The words of grant apply to the grantee alone, and those which follow were probably inserted to indicate the nature of the grant and the purpose for which it was made.” And again: “In relation to the terms and conditions on which the settlement was to be made, the regulations are entirely silent. The only provision we have been able to find on that subject is contained in the fourth article of the law of August, 1824, which simply guarantees the contracts which the empresario may make with his settlers, and imposes no restrictions on such contracts, further than that they shall not be contrary to the laws of the Republic. From this it would appear that the matter was left entirely to the empresario, to make such arrangements with the colonists in conformity with the law and objects of the grant, as might be satisfactory and advantageous to the parties. After a careful examination of this branch of the subject, we are satisfied that the effect of the grant was to vest the right of property in the grantee, Sutter, subject to the condition of settling twelve families on the premises granted; and that in making such settlements he was at liberty to make such contract with his settlers as might be mutually agreed on between them, provided they were not contrary to the law of the land, nor inconsistent with the purposes and intent of the grant.”
The decree of the Commission confirming the title to Sutter alone, so far as it rested upon the grant mentioned, was affirmed by the Supreme Court of the United States; and we are not aware that the correctness of its views upon the nature and operation of the grant has been called in question by any tribunal.
Judgment affirmed.