Pacific Coast Law Journal.

VOL. 2.

NOVEMBER 30, 1878.

No. 14.

Current Topics.

We are pleased to see that the Supreme Court have adopted the system of writing a short but clear and intelligible statement of their reasons for affirming judgments in almost all the cases decided by them. They have long since been accustomed to writing their opinions in reversal, and doubtless, on account of the pressing demand by the bar and the people, as positively shown by the report of the Judiciary Committee of the Convention, and its adoption by the Convention in Committee of the Whole, the court now seeing the true desire in this regard, have willingly consented to add this much more to their already onerous duties. Regretting that anything which will entail further labor on the court should be found necessary, yet the good to result from such a system justifies us in expressing our pleasure in its adoption.

THE following is a synopsis of the recent decision by the U. S. Supreme Court in the case of Palmer vs. Low et al., error to the California Circuit: This was an action of ejectment to recover possession of a portion of one hundred vara lot, No. 39, a part of the Pueblo lands of San Francisco. The decision is in favor of the defendants in error, the court holding that, as grantees or tenants of one Houghton they are entitled to the legal estate, notwithstanding the long adverse possession of the plaintiff, Houghton having derived title by a Mexican grant made to one Donner, which was sufficient in form, and properly evidenced by

the original entry in the books of the alcade recording the grant, and by action of the city of San Francisco, and that the grant was not invalidated because Donner was at the time an infant, as nothing appeared to show that this circumstance, if true, would affect the title given by the grant, the Mexican law not appearing to forbid a grant to an infant. The Statute of Limitations did not run in favor of the plaintiff, it is said, because the title of the defendant is derived from a Mexican grant, to which it is not applicable. Affirmed. The Chief Justice delivered the opinion.

Supreme Court of California.

NOVEMBER TERM, 1878.

[No. 8,797.]

[Filed November 21, 1878.]

CRUZ, APPELLANT, VS. MARTINEZ, RESPONDENT.

PATENTS WHAT IS PRESUMED IN THEIR SUPPORT-AS TO WHAT CONCLUSIVE.— A patent duly signed and recorded in the proper book in the General Land Office vests the legal title to the lands therein described; and the patent being regular on its face, it will be presumed in support of the patent that the proper officers of the Land Department determined, prior to the signature of the patent, that due publication of the survey had been made. Upon the question whether they erred in such determination, the patent is conclusive upon the grantee and those claiming under him.

Appeal from Seventeenth District Court, Los Angeles County.

Action for the possession of lands within the limits of the pueblo lands of Los Angeles. The defendant pleads the Statute of Limitations.

It is admitted that the land was held by the defendant adversely for more than five years prior to the commencement of this suit, and that the plaintiff is bound by the Statute of Limitations, unless it can be sustained that the patent to the city for its pueblo lands was issued within five years.

The plaintiff then read what purported to be a patent for said lands to the city, dated August 4, 1875.

The defendant read in evidence a certified copy of a patent, dated August 9, 1866.

To prove this patent void, the plaintiff offered to read the report of the Commissioner (as his deposition, by agreement), and other evidence, to prove that no publication of the survey under the Act of Congress of July, 1864, was made until after the year 1866. The defendant objected, and the court sustained the objection, and excluded the evidence as inadmissible.

A. J. King and S. M. White, for appellant.

Glassell, Chapman & Smiths, for respondent.

PER CURIAM.

The patent to the City of Los Angeles, bearing date the 9th day of August, 1866, having been duly signed and recorded in the proper book in the General Land Office, vested in the city the legal title to the lands therein described. This proposition is fully sustained by Chipley vs. Farris (45 Cal. 527); Le Roy vs. Clayton (2 Sawyer, 496); Le Roy vs. Jameson (3 Id. 391); Miller vs. Ellis (51 Cal. 74); Houghton vs. Hardenburg, No. 3961 (decided at the July Term, 1878).

The plaintiff, who claims under the city, for the purpose of showing that the patent is void, offered evidence to prove that the survey therein recited had not been published as required by law, but it was excluded by the court. The patent is regular on its face. It is not required to recite that the survey had been published, and assuming that the law required a publication of the survey, it will be presumed, in support of the patent, that the proper officers of the Land Department determined, prior to the signature of the patent, that due publication of the survey had been made. The question whether they erred in such determination is not open to inquiry in this action. Upon that question the patent is conclusive upon the city and also upon the plaintiff claiming title under her. (Chipley vs. Farris, supra; Johnson vs. Fowsley, 13 Wal. 72; French vs. Fyan, 93 U. S. 169;

Doll vs. Meador, 16 Cal. 324; Durfee vs. Plaisted, 38 Cal. 80.) The evidence was properly excluded.

Judgment affirmed.

[No. 6,235.]

[Filed November 20, 1878.]

ESTATE OF AVELINE, DECEASED.

ADMINISTRATION-PUBLIC ADMINISTRATOR-HIS POWERS AFTER EXPIRATION OF HIS TERM.-A Public Administrator has authority, after the expiration of his term of office, to petition for, make sale, and receive the purchase money therefor of real estate belonging to an estate of which he had been appointed administrator during his term.

SURETIES ON OFFICIAL BONDS.-The sureties on the official bonds of a Public Administrator are liable for the neglect of a faithful performance of his duties as such Administrator after the expiration of his term of office as during the

term.

IDEM-NOTICE-SETTLEMENT OF ACCOUNT OF ABSCONDING ADMINISTRATOR.If an absconding Administrator is cited by either actual or constructive notice to appear and render his account, a settlement in his absence will bind him and his sureties. If no citation issue, then neither is bound by an order fixing the amount due by the Administrator. The creditors, however, are not parties to such proceedings, and can not, in their own names, move to set such order aside.

Appeal from the Probate Court of the County of San Bernardino.

Albert Rogers was elected Public Administrator for the County of San Bernardino in September, 1873, and entered upon his duties in March, 1874. His term ended on the first Monday in March, 1876. One Rousseau was the successor of Rogers, and qualified, gave bond, and entered upon his duties on the first Monday in March, 1876. On March 13, 1876, Rogers petitioned the Probate Court for an order to sell all the personal and real estate of the said estate of Aveline that had come into his hands. Said petition was granted, and the sale made and approved by the court. Rogers fled the country without rendering any account of the condition of the estate. One Fulwiler petitioned the court to revoke the letters issued to Rogers, and for his appointment as administrator instead. Said petition was granted, and a

decree rendered September 24, 1877, fixing the amount due the estate from Rogers, and authorizing said Fulwiler to collect the same from Rogers or his sureties on his official bond.

The petitioners in this action are the sureties on the bond of said Rogers, and ask the court to set aside the order of September 24, 1877, fixing their liability on said bond, for want of notice of time and place of hearing, or the rendition of said order fixing their liability. Also that the court had no jurisdiction to order the sale asked for by Rogers after the expiration of his term of office.

The court denied the motion.

Talbot & Harris, for appellant.

(Civil Code, Art. 2, Sec. 2836-37; 5 Cal. 107; 6 Howard, 292; 9 Wheat. 680; 3 Cal. 69; 19 Cal. 422; 50 Cal. 396.) As to notice Allen vs. Tiffany (P. C. Law Journal, 238); 7 Cal. 241; C. C. P. 1653.

PER CURIAM.

Rogers, after his election, was appointed as the administrator of the estate of Aveline, deceased; and, after the expiration of his term of office, he petitioned for and obtained an order for the sale of certain real estate, and thereafter sold the same and received the purchase money therefor. His authority as such administrator continued, notwithstanding the expiration of his term for which he was elected (Rogers vs. Hoberlin, 11 Cal. 120; Estate of Hamilton, 34 Cal. 468); and his official bond was as obligatory for the faithful performance of his duties as such administrator after the expiration of his term of office as during the term. The sureties upon the bond remained such sureties for the faithful performance by Rogers of his duties as the administrator of said estate.

It may be assumed, that had Rogers, who had fled the country without having rendered any account”—as is recited in the order-been duly cited to render this account, the settlement of his account by the court in his absence would have bound him, and would also have been conclusive and binding upon his sureties, in an action against them. But