*655This is an action of ejectment brought to recover the possession of a specific part of the “ Encinal of San Antonio,” which is a portion of a larger tract of land called the “ Rancho de San Antonio,” situated in the County of Alameda. The plaintiff claims title to the demanded premises under Antonio Maria Peralta, one of the sons of Luis Peralta, deceased. The defendants claim title to five ninths of the same premises, derived' by conveyances from the daughters and certain grandchildren of the same ancestor. Luis Peralta died in 1851, leaving him surviving four sons and four daughters, and the children of a deceased daughter, as his heirs at law.
After the cause was at issue upon the complaint and the answers first made and filed by the defendants, each of the defendants, by leave of the Court, amended his answer by adding thereto a further defense, alleging that the demanded premises was a part of the “ Rancho de San Antonio,” granted in or about the year 1820, by the Spanish Government to the said Luis Peralta, who died intestate in August, 1851, leaving him surviving children and grandchildren as his heirs at law; and that when he died he was seized in fee and possessed of the lands in controversy. That in 1852 the decedent’s sons presented to the Board of Land Commissioners appointed under the Act of Congress of March 3, 1851, the title to said rancho for confirmation, and that the same was confirmed first by the Commissioners and afterward by the United States District Court, as good and valid. That these sons, in fraud of the rights of the other heirs, by the use of a simulated, false, and fraudulent document, purporting to be the last will and testament of the deceased, which was never proved nor admitted to probate, procured a confirmation of said rancho in parcels to themselves, and that the portion embracing the demanded premises was confirmed in the name of Antonio Maria Peralta. That the facts as to the means by which the confirmation was thus obtained were fully known to the plaintiff and his grantors at and before they or either of them acquired any claim or interest in the land. The amended answers also show that each of the defendants had *656succeeded to whatever rights and interests the daughters and grandchildren of Luis Peralta had in the parcels of land of which the defendants respectively had the possession long before the action was commenced. And in conclusion they pray that plaintiff be compelled to release to the defendants respectively any right in the premises in controversy that he may wrongfully have acquired by the confirmation, and for general relief.
To the amended answers the plaintiff demurred on the grounds: First—That the same did not state facts sufficient to constitute a defense to the action, or to entitle them to relief in equity. Second—That it appeared by the amended answers that there were devisees and heirs at law of Luis Peralta who were indispensable parties, but who were hot made parties thereto. Third—That more than three years had elapsed since the commission of the alleged fraudulent acts mentioned in the amended answers. Fourth—That more than four years had elapsed since the alleged cause of equitable relief accrued.
The Court sustained the demurrer, and the defendants excepted.
At the trial it appeared on the part of the plaintiff, that in 1852 Antonio Maria Peralta applied, under the Act of Congress passed on the third of March, 1851, entitled “An Act to ascertain and settle private land claims in the State of California,” for the confirmation to him of a certain and specific part of the “ Rancho de San Antonio,” embracing the land in controversy ; and such proceedings were had concerning the matter that his claim thereto was finally confirmed by the proper authorities of the United States as a valid claim, and after-wards a survey was made of the land by the Surveyor-General of the United States for California, which was approved by the United States District Court.
After the plaintiff had produced further evidence in the case and had rested, the defendants, for the purpose of showing that the daughters of Luis Peralta, deceased, through whom they respectively claimed, had a perfect legal title to an undi*657vided share and interest in the demanded premises by .descent cast, offered in evidence duly certified copies of certain documents which were in the archives of the office of the Surveyor-General of the United States for California, which are set forth in the transcript of the record in this case. This documentary evidence is the same that was before the Supreme Court of the United States in the .case of The United States v. Ter alta, 19 How. 344, and is conceded to establish that the title of Luis Peralta to the Rancho de San Antonio was a grant in fee to a specific tract of land.
And the defendants further offered to prove that Don Luis Peralta, the grantee of the lands of “ San Antonio,” died intestate in the year 1851, seized of said lands, and that he left surviving him four sons and four daughters, and the children of a deceased daughter, all of whose names are mentioned ; and following this, the defendants offered in evidence deeds of conveyance duly acknowledged and recorded, by which they succeeded to all the right, title, and interest which the daughters and grandchildren of Luis Peralta acquired in and to the demanded premises upon the death of their ancestor.
The counsel for the plaintiff objected to the evidence so offered and to every part of it, and the objection was sustained by the Court. To this ruling the defendants’ counsel duly excepted.
In reviewing this case we shall first consider the question presented by the exception to the ruling of the Court in excluding the evidence offered on the part of the defendants. It is a question of great importance and of more than ordinary interest. It involves a determination of the force and effect of a final confirmation and approved survey under the Act of Congress on the one hand, and the rights of those having perfect titles to lands in California when this territory was ceded by Mexico to the United States, who have omitted to submit them to be adjudicated upon, as indicated by the Act of Congress of 1851, on the other.
It is maintained on the part of the appellants that Luis Peralta acquired from the Government of Spain, while the *658province of California belonged to that nation, a perfect title, or in the language of common law, a title in fee simple, to the “ Ranhco de San Antonio,” and that this title was subsisting and indefeasible when California was acquired by the United States ; and the counsel for the respondent concedes the fact so to be, but contends, notwithstanding this, that the United States in its sovereign and governmental capacity had the right, in order to ascertain the extent and limits of its own lands, to require the owners of private land claims in this State, whether by perfect or imperfect titles, to present them for adjudication to the Commissioners and the Courts appointed for the purpose of passing upon their validity, and to declare, as a consequence of an omission to comply with this requirement within the time specified, that such lands “shall be deemed, held, and considered as part of the public domain of the United States.”
At the time of the ratification of the treaty entered into between the United States and Mexico, by which the former nation acquired California, it must. be presumed it was well known to the high contracting parties that portions of the ceded territory had become the property of individuals, and though it may not have been necessary under the circumstances of the acquisition to have provided by treaty stipulations for the protection of private property, still it was deemed but just to place the subject beyond the questioning of those who claim for conquering nations unlimited powers over and respecting the property of the citizens of the conquered country, and hence we may suppose the Mexican nation, with a deep solicitude for the welfare of its citizens who were then residents of the territories about to be ceded to the United States, proposed the Vlllth and IXth Articles of the treaty of Guadalupe Hidalgo, and that the justness of the provisions therein contained was freely acknowledged and -agreed to on the part of the Government of the United States in the creation of this solemn compact.
The portion of the Vlllth Article of the treaty which par*659ticularly bears upon the question under consideration is as follows:
“ Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof and removing the proceeds wherever they please without their being subjected on this account to any contribution, tax, or charge whatever.”
By the IXth Article, the same care was manifested for securing the rights of Mexicans who might, in consequence of the transfer of the dominion and property of the territories about to be ceded, lose the character of citizens of the Mexican Republic before they were admitted “to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution.” It was therefore stipulated that during the contemplated interval such Mexicans “ shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.”
That it was intended by the treaty that Mexicans then established in California, and having property therein, should retain and enjoy it or dispose of it as to them might seem proper, the language of the treaty places beyond controversy.
Then, did the Congress of the United States intend, by the Act of March 3d, 1851, to compel persons of the class mentioned in the treaty, who at that time held lands in possession by perfect titles, derived from the source of paramount proprietorship, to submit them to the Board of Commissioners appointed under that Act, or else to forfeit their lands to the ■ G-overnment?
In Strother v. Lucas, 12 Peters, 438, the Supreme Court of the United States said, that “ in following the course of the law this Court has declared that even in cases of conquest the conqueror does no more than displace the sovereign and assume
*660dominion over the country.” And in .Perehman's Case, 7 Peters, 86, Mr. Chief Justice Marshall said: “ A cession of territory is never understood to be a cession of the property of its inhabitants. The King cedes only that which belongs to him ; lands he had previously granted were not his to cede. Neither party could so understand the treaty; neither party could consider itself as attempting a wrong to individuals condemned by the whole civilized world.” And in Strother v. Lucas, Mr. Justice Baldwin said: “No construction of a treaty which would impair that security to private property which the laws and usages of nations would, without express stipulation, have conferred, would seem to be admissible further than its Positive words require * * *. Without it, the titles of individuals would remain as valid under the new Government as they were under the old; and those titles, so far at least as they are consummate, might be asserted in the Courts of the United States, independently of the treaty stipulation.” (12 Peters, 438 ; 7 Peters, 88; 9 Peters, 133 and 734.) Treaties, like the Constitution itself, are declared by that instrument to be the supreme law of the land. (Article VI.) The treaty of Guadalupe Hidalgo, as we have already seen, stipulates that Mexicans established in the territories then thereby ceded, might retain the property which they possessed, or dispose of it if they elected so to do; that they should be maintained and protected in the free enjoyment of their liberty and property without restriction.
The law deems every man to be in the legal seizin and possession of land to which he has a perfect and complete title; this seizin and possession is co-extensive with his right, and continues until he is ousted thereof by an actual adverse possession. This is a settled principle of the common law. (United States v. Arredondo, 6 Peters, 743; Mitchel v. United States, 9 Peters, 734.)
The cases of Arredondo and Perchman involved the construction of the treaty between Spain and the United States, by which Florida was ceded to the latter, relative to grants of land in the ceded territory, made by the King of Spain, or by *661his lawful authorities therein, before the 24th of January, 1818. The treaty was drawn up in both the English and Spanish languages, and both of them were considered, in Perchman’s case, as originals. The lid Article contained the cession of the territory, and the VIIIth, stipulations respecting the titles to lands in the territory ceded. The English part of the VIIIth Article was as follows: “All grants of land made before the 24th of January, 1818, by his Catholic Majesty, or by his lawful authorities in the said territory ceded by his Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty.” The Spanish part of this Article was the same as that in English, except the words “shall be ratified and confirmed” were “shall remain ratified and confirmed;” and Mr. Chief Justice Marshall, in speaking of this difference in language, said: “Although the words ‘shall be ratified and confirmed’ are -properly the words of contract, stipulating for some future legislative act, they are not necessarily so. They may import that they shall be ratified and confirmed by the instrument itself.”
In Foster and Elam v. Nelson, 2 Peters, 314, the Court considered the words, “shall be ratified and confirmed,” as importing contracts, and in that case the same illustrious Judge said: “ Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in Courts of justice as equivalent to an Act of the Legislature, wherever it operates of itself without the aid of any legislative provision. But when the terms of stipulation import a contract, where either of the parties engages to perform a particular act, the treaty addresses itself to the political not the judicial department; and the Legislature must execute the contract before it can become a rule of the Court.” And he further said, had the Article declared that all the grants made by his Catholic Majesty before the 24th of January, 1818, shall be valid to the same extent as if the ceded territory had remained under his domin*662ion, it would have acted directly on the subject; and in Perchman’s Case, 7 Pet. 89, he said if .the circumstances of the difference of the language referred to between the English and Spanish parts of the treaty had been known in deciding Foster and Elam v. Nelson, he believed it would have produced the construction which was given to the VIIIth Article by the Court in Perchman’s Case.
In United States v. Wiggins, 14 Pet. 349, Mr. Justice Catron said: “ The object of the Court in the cases of Arredondo and Perchman was to exempt perfect titles from the operation of the VIIIth Article of the treaty under consideration' in these cases, for the reason that they were perfect titles by the laws of Spain when the treaty was made ; and that when the soil and sovereignty of Florida were ceded by the lid Article, private rights of property were by implication protected;” and he further said: “ The Court, in its reasoning, most justly held that such was the rule by the laws of nations, even in case of conquest, and undoubtedly so in case of cession; therefore, it would be an unnatural construction of the VIIIth Article to hold that perfect and complete titles at the date of the treaty should be subjected to investigation and confirmation by the Government; and to reconcile the Article with the laws of nations, the Spanish side of the Article was referred to in aid of the meaning of the American side, when it was ascertained that the Spanish side was in the present tense; whereupon the Court held that the implication resulting from the lid Article, being according to the laws of nations, that and the VIIIth Article were consistent, and must be so recognized by the United States in its Courts.” And further on he used this language : “ That the perfect titles made by Spain before the 24th of January, 1818, within the ceded territory, are intrinsically valid and exempt from the provisions of the VIIIth Article, is the established doctrine of this Court, and that they need no sanction from the legislative or judicial departments of this country.”
Where the claim of an individual to lands was of the nature of an inchoate or incomplete grant, which was of such *663a character as to have bound the conscience of the former sovereign to perfect it, the United States, having acquired the territory, received it charged with the duty of carrying out in good faith the obligation of the former Government to its grantee, existing a.t the time of the cession. The former Government never having parted with the title, and the United States having acquired the territory, with all the rights and obligations of the old Government, could, in its political capa•city, prescribe the proceeding necessary to accomplish thé duty which devolved upon it to invest the grantee with a'perfect title; and hence the same political authority could impose such terms and conditions upon the claimant, for the' speedy accomplishment of the end in view, as might be just to him and conducive to the'public- interests; and claimants under such grants could not complain if the Government upon which they depended for the perfection of their claims should provide a tribunal to examine their fairness, and should make their validity depend on their being submitted to such tribunal. (Henderson v. Poindexter, 12 Wheat. 543 ; McCulloch v. State of Maryland, 4 Wheat. 409 ; Hall v. Doe, 19 Ala. 386.) But the rule that applies to cases of inchoate titles can have no just application to titles that were already perfect and which stood confirmed by the treaty acting at the time of its creation, eo instanti, directly upon the subject.
It is argued by the counsel for the plaintiff that as the Constitution of the United States provides that “ the Congress shall have power to dispose of and make all needful rules and regulations respecting the' territory or other property belonging to the United States,” and as the sole power of providing for the primary disposition of the public lands devolves upon Congress, that therefore, in order to ascertain what is and what is not public land, Congress can exercise the means that may be necessary for such purpose, and that the Act of 1851 prescribed the means for the ascertaining not only who had the legal titles and merely equitable claims to lands, but thereby provided the mode by which thé Government could ascertain the limits and extent of its own lands ; and he further argues
*664that “ the Government which has a right to do an act, and has imposed upon it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.” (4 Wheaton, 409, 410.) While the soundness of the doctrine urged is admitted, it could not be justly claimed that Congress could, in the proper exercise of its power, prescribe means imposing conditions which, if disregarded, would operate to divest the titles that were perfect and stood protected by compact beyond the repealing power of Congress. By the common law, the King has no right of entry on lands which are not common to his subjects; the King is put to his inquest of office, or information of intrusion, in all cases where the subject is put to his action; their rights are the same, though the King has more convenient remedies in enforcing his. If the King has no original right of possession to lands, he cannot acquire it without office found, so as to annex it to his domain. (3 Black. Com. 257, 258; Mitchel v. United States, 9 Peters, 742.) If the King could not recover lands without an affirmative proceeding on Ms behalf, so as to annex them to his domain, who will say that the Congress of the United States intended, or could, if such was the mtention, by conditions negative in their character, divest the owner in fee sinrple of lands of his title thereto, and transfer the same to the United States ?
That the citizen of the Mexican Republic who was seized in fee simple absolute of lands in California at the date of treaty, and who thereafter elected, according to its provisions, to become a citizen of the United States, could, if he chose to do so, have submitted his title and claim to such lands to be passed upon by the Commissioners and the proper Courts, under the Act of 1851, we have no doubt; but that he was bound to do so or lose his lands, we cannot believe was intended by the Act of Congress, nor do we conceive that a construction of the Act which would so result is authorized by its language or spirit.
The eighth section of the Act of 1851, it is true, provides that “ each and every person claiming lands in California by *665virtue of any right or title derived from the Spanish or Mexican Government, shall present the same to the said Commissioners when sitting as a Board,” whose duty it shall be “ to decide upon the validity of said claim.” And the thirteenth section declares that “ all lands the claims to which have been finally rejected by the Commissioners in manner herein provided, or which shall be finally decided to be valid by the District or Supreme Court, and all lands the claims to which shall not have been presented to the Commissioners within two years after the date of this Act, shall be deemed, held, and considered as part of the public domain of the United States.”
The language of these sections seems sufficiently comprehensive to include titles and claims of all possible classes, and if these sections of the Act were to be interpreted without reference to other portions of it, or to the treaty or the law of nations affecting the subject, or could be considered independently of the principles of common right or right by the common law, we should not hesitate in coming to the conclusion that all titles and claims to lands, whether perfect or imperfect, were inexorably required to be presented to the Commissioners sitting as a Board, in order to save their forfeiture to the United States.
That Congress could select the means and prescribe the mode for perfecting just claims to lands that were imperfect and incomplete, in fulfilment of the Government’s obligations, and could limit the holders of such claims to the means and mode provided, no one, we apprehend, for a moment would suggest a doubt. It may be observed that the many Acts that have been passed by Congress establishing Commissioners for the ascertainment and settlement of land claims in territories acquired by the United States by cession, have been passed for the benefit of persons whose claims to land were of that' inchoate and incomplete character that required action on the part of the Government before they could become invested with the legal title thereto.
In Henderson v. Poindexter, 12 Wheat. 54-3, the Court considered the effect of certain Acts of Congress requiring per*666sons having claims to lands which needed confirmation to render them titles at law, to perform certain specified conditions within a time prescribed, that the Government might determine the question _ of their rights; and these Acts declared that in case of neglect to comply with the requirements enumerated therein such claims should become void and thereafter be forever barred. It will be seen, by reference to these Acts, that their object was twofold: first, to regulate grants of land in the ceded territory; and second, providing for the disposal of the lands of the United States in the same territory. The Chief Justice, in passing upon the case before the Court, first declared that the land claims which were confirmed as provided for in those Acts derived no validity from any other source than through the proceedings ordained by Congress, and then said : “ The whole legislation on this subject requires that every title to lands in the country which had been occupied by Spain should be laid before the Board of Commissioners. The motives for this regulation are obvious; and as the titles had no intrinsic validity, it was opposed by no principle. Claimants could not complain if the law which gave validity to their claims should also provide a Board to examine their fairness, and should make the validity depend on their being laid before that Board.”
In Strother v. Lucas both parties claimed under the same inchoate or incomplete title, and one of them had obtained under the Act of Congress a confirmation of his claim, while the other failed to present his to the Commissioners. In reference to his omission to present his claim to the Commissioners, Mr. Justice Baldwin said: “ We find by various Acts the time of filing such claims is limited, after which they are declared void so far as they depend on any Act of Congress, and shall not be received in evidence in any Court against any person claiming by a grant from the United States. These,” he said, “are laws analogous to Statutes of Limitations for recording deeds or giving effect to the awards of Commissioners for settling claims to land under the laws of the States; *667the time and manner of their operations and the exceptions to them depend on the sound discretion of the Legislature, according to the nature of the titles, the situation of the country, and the emergency which calls for them enactment. Reasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned. Cases may occur where the provisions of a law may be such as to call for the interposition of the Courts, but these under consideration do not.”
The case of Barry v. Gamble, 3 How. 32, is similar to that of Strother v. Lucas, and the Court decided that the claim of the party who relied upon an incomplete foreign title became barred by neglecting compliance with the requirements of the Act of Congress to deliver to the proper officer by a given day and year a prescribed notice with the muniments of his right, to be recorded.
It will be seen by a careful examination of these authorities, and others of a like character, that the Court was dealing with imperfect titles. In one case they were said to have “ no intrinsic validity,” (12 Wheat. 543) and in others they were denominated “inchoate and incomplete;” and we have not been able to find a case, nor has the learned counsel for the plaintiff, than whom no one is more thorough is his researches, furnished us with one where the question was involved, in which it was held that a perfect title could become extinguished and its holder divested of his property by omitting to submit it for adjudication to a Board of Commissioners or to a Court appointed for the purpose. In Clarke's Case, 8 Peters, 444, in which it was said: “ The grant which constitutes the foundation of the petitioner’s claim is a complete title, subject to no condition whatever,” which had been presented to a Board of Commissioners, the Chief Justice, while approving of the Acts of Congress appointing Boards of Commissioners for the purpose of ascertaining and determining as to the validity of titles to lands, in order that there might be no conflict between these and those which might be acquired under the United States, said: “But neither the law of nations, *668or the faith of the United States, would justify the Legislature in authorizing these Boards to annul pre-existing titles which might consequently be asserted in the ordinary Courts of the country against any grantee of the American Gfovernment.”
It must be admitted that if a perfect title be required to undergo the ordeal of a Board of Commissioners, it might be declared invalid, notwithstanding it, before then, stood confirmed by the treaty; and'hence it is that the Supreme Court of the United States, respecting the obligations of treaties and the binding force of law, as well as the rights of the citizen, have uniformly maintained that persons holding perfect titles to lands could not be deprived of their property otherwise than by due course of law; and to attribute to Congress the intention of'imposing upon persons having perfect titles to lands in California at the date of the treaty, and who in due time became citizens of the United States, the necessity of submitting them to the Board of Land Commissioners to save their property from forfeiture to the United States, we should deem a grave charge, unsupported by a fair construction of the Act of 1851.
In addition to the provisions of the Act of 1851, to which we have already directly referred, we must, in the construction of the Act, consider all its provisions, and determine from it as a whole its meaning and intent. By the fifteenth section it is provided “ that the final decrees rendered by the said Commissioners, or by the Distict or Supreme Court of the United States, or any patent to be issued under this Act, shall be conclusive between the United States and said claimants only, and shall not affect the interests of third persons.”
If such only can be the effect of decrees and patents, and the interests of third persons are not to be affected thereby, then who are these third persons, and what is the character of the interests that stand unaffected ? Third persons must be regarded to be all persons who were not parties to the proceeding before the Land Commission, or standing in any such relation with those who were parties thereto, as to *669become affected and bound as privies; and the interests of third persons that remained unaffected by the final confirmation and patent are those subsisting in perfect titles derived from a source of paramount proprietorship, which could be used in resisting successfully any action of the Government respecting them. (Waterman v. Smith, 13 Cal. 419, 420; Biddle Boggs v. Merced Mining Co., 14 Cal. 362; Leese v. Clark, 20 Cal. 42-5.) In the case last cited, Mr. Chief Justice Field said: “ The acquisition of California by the United States did not affect the rights of the inhabitants to their property. The inhabitants retained all such rights, and were entitled by the law of nations to protection in them to the same extent as under the former Government.” (Teschemacher v. Thompson, 18 Cal. 22.) And in respect to the “third persons” mentioned in the fifteenth section of the Act of 1851, he said: “ The term ‘third persons’ refers not to all persons other than the United States and the claimants, but to those holding independent titles arising previous to' the acquisition of the country. The latter class are not bound by the decree and patent, for they do not hold in subordination to the Government, nor by any title subsequent, but by title arising anterior to the conquest.”
We are aware that the impression prevails to some extent that the same learned Judge, in Estrada v. Murphy, 19 Cal. 269, gave countenance to the idea that all land claims, whether resting on perfect or imperfect grants, had to be presented to the Commissioners in order to save such lands from passing to the United States; but we think such an impression is not justified by his opinion in that case, for he was then dealing with the question as involved in a case arising upon the failure of Estrada to present an imperfect or inchoate title to the Land Commission; and after having referred to the language of the Supreme Court of the United States in the cases of Fremont and Fossatt, suggested that doubts might exist as to the validity of the legislation of Congress, so far as it required the presentation to the Board of claims where the *670lands were held by perfect titles acquired under the former Government.
It may, perhaps, be supposed that the observations of the Chief Justice in the case • of Fremont, 17 How. 553, and of Mr. Justice Campbell in the case of Fossatt, 21 How. 447, are opposed to the views we have expressed as to the import and effect of the eighth and thirteenth sections of the Act of 1851. In the former case, the Chief Justice, after observing that the eighth section embraces not only inchoate or equitable titles, but legal titles also, and requires them all to undergo examination and to be passed upon by the Court, says: “The object of this provision appears to be to place the . titles to lands in California upon a stable foundation, and to give to the parties who possess them an opportunity of placing them on the records of the country in a manner and form that will prevent future controversy.” And in Fossatfs Case, in reference to the same subject, Mr. Justice Campbell says that the claims to be submitted to the inquiry and 'determination of the Board of Commissioners, it will be understood, comprehended all private claims to land in California, and that the effect of the inquiry and decision of these tribunals upon the matter submitted is final and conclusive, and referring to the Acts of Congress on the subject, he says : “ These Acts of Congress do not create a voluntary jurisdiction that the claimant may seek or decline. All claims to land that are withheld from the Board of Commissioners during the legal term for presentation are treated as non-existent, and the land as belonging to the public domain.”
It will be observed, by reference to the history of those cases, that both the claims of Fremont and Fossatt were of the class that required action on the part of the Government before they could become perfect and the land to which the claimants were respectively entitled could be segregated from the Government domain ; and the question that exists in the case under consideration was in nowise involved in the determination of those cases.
If the opinions thus expressed in the cases of Fremont and *671Fossatt could be considered an authoritative construction of the Act of 1851, holding that lands belonging in fee to Mexican citizens at the date of the treaty became forfeited to the United States by reason of failure to present them for adjudication to the Board of Commissioners, we should acquiesce with that spirit of obedience which we freely acknowledge should actuate us in the presence of authority which we are not disposed to question.
It is true, as we have already observed, that the language of the eighth section of the Act is sufficiently comprehensive to embrace all classes of titles, and that titles not submitted to the judgment of the Commissioners should, by the thirteenth section, be deemed, held, and considered a part of the public domain; but, as we have seen, the fifteenth section provides that neither the final decrees rendered nor any patent issued shall conclude third persons or affect their interests. That the fifteenth section contemplated the existence of a class of persons and a quality of interests that could be conserved by its saving provisions, there can be no doubt; otherwise we would be inevitably impelled to the conclusion that this section was without design.
The Act of 1851 nowhere provides, as was the case by the Acts considered in Henderson v. Poindexter, and Strother v. Lucas, that by failing to present his claim to land to the Commissioners the possessor of the title should not be permitted to use it as evidence in an action for the maintenance of his right; and no other consequence for the omission is declared by the thirteenth section than that the land shall be deemed, held, and considered as part of the public domain. If it were necessary to construe this provision as working an annulment of a perfect title, we should be compelled to hold it to be repugnant to the stipulations of the treaty, which are of paramount obligation ; and we believe it would be so held by the Supreme Court of the United States, if directly presented to that tribunal.
The decisions to which we have referred, and to which others might be added, we regard as declaring principles and *672rules of law which constrain us to hold that perfect titles to lands which existed at the date of the treaty of Guadalupe Hidalgo in Mexicans then established in California, were guaranteed and secured to such persons, not only by the law of nations, but also by the stipulations of that treaty acting directly on the subject and operating as a confirmation in presentí of such title.
We think the original and amended answers filed by each of the defendants constituted a defense to the action of the plaintiff, and that the Court erred in sustaining the demurrer to the amended answers, and, also, in refusing to admit the-evidence offered by the defendants in their defense; and that the judgment should be reversed and the cause remanded for a new trial.
There are other points presented by the record as grounds on which the defendants ask this Court to reverse the judgment, respecting which it is not necessary to say more than that the ruling of the Court on such points was correct.
The judgment is reversed and the cause remanded for a new trial.