Summary
In Mulford v. Le Franc, 26 Cal. 108, it was held that the word " cedo" --here translated " I cede" --was the ordinary word used in Mexican conveyances to pass title to lands; and we see no reason to doubt the correctness of that decision.
Summary of this case from Schmitt v. GiovanariOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 24 Cal. 88 at 111.
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
COUNSEL:
The paper from Garcia to Nye is the foundation of the plaintiffs' claim. If that paper is a valid conveyance of the title, transferring the absolute dominion of the property from the former to the latter, it is conceded the plaintiffs have no case. For the plaintiffs it is claimed that this paper, on its face, purports to be only a lease or license, and not a conveyance in fee; and it is further claimed that even though it purport to be a conveyance, it is void under the Mexican law, because no price is named. For defendants we insist the paper is, in terms, an absolute conveyance, and that it is not void because no price is named in it. The paper being in a foreign language, its true meaning is to be arrived at only by means of the testimony of experts in that language, and the definitions of the termsemployed, as found in approved standard works. Tested by the first method, we may confidently claim that our construction is the proper one. On the face of the paper there is nothing to indicate that it was intended as a lease. No term is specified and no rent reserved, nor is there any stipulation to restore the possession, nor any provision against waste. In short, it lacks every element of a lease. It is equally obvious that it is not simply a license to enter and occupy. Terms are employed which plainly indicate that some estate or interest passed. Apt phrases are not employed to indicate a license. The concluding sentence empowers Nye to use the property when or as he pleases; and Garcia, in order to obviate any doubt as to his intention, puts over his signature the word " Cedo," " I grant," " I convey," and there is no provision that Nye is at any time to surrender the possession or to hold on sufferance.
But if the instrument is so doubtful that no certain interpretation can be given to it, the doubt must be solved in favor of the grantee. Doubtful phrases are construed most strongly against the grantor, and construing the instrument by this rule, there can be no doubt thatit should be held to be an absolute conveyance.
The argument for the respondents is that this paper is a lease or license, and that Nye and his vendees having entered under it, they are estopped by it from denying Garcia's title. But if by straining the sense of certain words and phrases in the instrument it can, by any ingenuity, be tortured into a lease or license, no one, I apprehend, will venture to claim that it is clear, precise, and definite in its terms, and free from ambiguity. On the contrary, it is not only extremely vague, but employs words admitting of several significations, which would vary the sense as you attach to these words the one or the other meaning. If this instrument be valid as an estoppel, it would be difficult to conceive of one too obscure to accomplish the same result.
If the paper created a tenancy at will, or on sufferance, or was a mere license to enter, Nye had no assignable interest, and his vendees were disseizors; and if they entered as purchasers, claiming the fee, and held adversely, the Statute of Limitations commenced to run from the time the landlord had notice of these facts. (4 Kent, 114; Tay. Land. and Ten., Sec. 112; 14 Pet. 162; 1 Greenl. Cruise, 266; 6 Greenl. 12.)
The Statute of Limitations was a bar to plaintiffs' action. (Wood's Dig. p. 46, Sec. 6.)
Nye did not enter as tenant of Garcia; he claimed to have a deed of sale from Jose Manuel Garcia, and entered claiming the title. He purported to convey the title in fee simple absolute, and his several conveyances were by deed of grant, bargain and sale. The grantees assumed to and believed they were purchasing the fee. The deeds purport to convey the fee. Nye never paid any rent, nor did any of his grantees. Garcia never demanded any rent, nor did his widow. The defendants and their landlords, Pierce and Nichols, have always claimed to own in fee.
The plaintiffs did not show, nor attempt to show, any recognition by the possessors of a tenancy at any time. They claim the tenancy existed only by construction of the instrument, Garcia to Nye, which Nye and we always claimed to be a conveyance of the fee.
No proof other than that instrument was given showing or tending to show a tenancy.
It appears from the record that the defendants and their grantors have, since the year 1848, continuously, openly, and notoriously possessed the premises in dispute, holding them adversely, in good faith, under claim and color of title. Such holding makes out the defense of the Statute of Limitations.
That defense could only be overcome by the plaintiffs " by showing that their title was derived from the Mexican Government, and that five years had not elapsed since the final confirmation of that title by the United States. The defendants under this view of the case alone were entitled to judgment." (Richardson v. Williamson , 24 Cal. 289.)
When the persons deraigning title from Nye purchased and took a conveyance, they acquired, or at least believed they did, the property for themselves, and their faith was not pledged to maintain the title of one. (Blight's Lessee v. Rochester, 7 Wheat. 548; Willison v. Watkins, 3 Pet. 48.) From the date of each of those deeds they claimed to hold adversely, and such claim, accompanied by their continuous possession from 1848 to November, 1861, bars the plaintiffs' action.
The document upon which appellant relies was made under the Mexican law. By the provisions of that lawits force and effect must be determined. We will strive to establish--1st. That it is no sale; and 2d. That whatever contract it might have been under the system in force here, it was not a contract translative of the title to property; 3d. That it was nothing more than what in our system is equivalent to a tenancy at will.
The operative word in this document is enagenacion. Garcia, who owned the premises, and Nye, who was about to receive possession of them, went before Guerrero, the Alcalde, in reference to an enagenacion. They went for nothing else. If we can find out what enagenacion means we will know the object of their visit so as to tell it in the English language; and knowing that the task of deciding this case is easy, what is the meaning in the Spanish language of the verb enagenar?
Escriche's Dictionary of Legislation and Jurisprudence is a work of approved authority. That author gives an excellent definition of the word in controversy.
Enagenacion, he tells us, signifies no less than nine different things. It means: 1. A sale; 2. A donation; 3. A mortgage; 4. An exchange or barter; 5. A lease for rentmoney; 6. A pledge; a servitude, which is divided into: 7. A use; 8. A usufruct; 9. Habitation.
Here are no less than nine different contracts, either one of which may be meant by the word! Therefore it is the duty of the appellant who relies upon it to explain which of these contracts it is that is embodied in the instrument in question. It must be one of them. Which is it?
1. The instrument is not a sale .
In the Mexican system, as in that in which it has its origin, there are three things essential in every contract of sale. Indeed, three, in the absence of any one of which, there can be no such thing as a sale. They are: 1. A price in money; 2. A thing sold; 3. Consent of the parties.
When, therefore, an instrument is presented as embodying a contract of sale, if it be discovered in looking over it, that there is wanting an expression of the consent of the parties, or a description of the thing sold, or the naming of a price agreed on, the paper, no matter whatever else it may be called, is at once pronounced no sale. This rule is fundamental. In its application, it has always been held inexorable. There never has been a deviation from or relaxation of it in any instance whatever.
A price is one of the legal requisites of the contract of sale. (Gorham v. Hayden, 6 Rob. 450; Conway v. Bordier, 6 La. 346.)
2. The instrument is not a donation .
A document, said to be a donation under the system we are considering, was obliged to contain certain features not found in this one.
" A donation is void when one makes it of all his property, although it be of his present property, according to the law 69th of Toro, because he has not retained for himself the means of subsistence during his life." (Escriche, Donacion Entre Vivos, 650.)
And in order to carry out this public policy the donor was reminded of his obligation to refrain from stripping himself of all his possessions, and so become a burden to the State. He was compelled to declare in the act of donation that he had no need of the property for himself, and that he had enough, otherwise, for his decent maintenance.
The document in question has none of the features of a donation. There is no renunciation to the heirs or successors of Nye. There is no mention of any value, so that it might be determined whether or not the approbation of the Judge should be obtained. There is no clausetouching the surrender in favor of Nye of the title-papers to Garcia, and no declaration.
3. The instrument is not a mortgage .
It is obvious that the purpose of such a contract is the security of a debt, present or to be created. As between Nye and Garcia there was no debt to be secured.
4. The instrument is not an exchange or barter .
The very idea of a contract of barter suggests the parting with property on both sides. Nye surrendered nothing--gave nothing.
The instrument is not a lease for rent-money, nor is it a pledge.
There remains but one of the agreements known to the Mexican system, and which is comprehended within the term enagenacion, and that is an agreement for the use of the property in question.
A contract, then, for the use of a lot of ground is a contract known to the law. And thus we have an explanation of the sort of enagenacion that took place when Nye and Garcia went to the Alcalde's office.
They went to place in the archives some written memorial of their understanding that one should confer upon the other the right to use this lot. The use, says the law, is to be enjoyed according to the party's necessities. Segun sus necessidades .
Nye was empowered to make use of the lot whenever it should be convenient for him to do so; i. e., whenever his necessities should require. If Garcia had thought he was conveying to Nye the lot in full ownership, it would not have occurred to him to add any words conferring upon Nye the right to use the property--for that, of necessity, would have followed.
It will be remarked that the only purpose mentioned in the paper is that of bestowing upon Nye the uso, the use of the lot. Enabling him to make use of it was all they seemed to have had in contemplation: they succeeded; the document was recorded, and their purpose, as we have abundantly shown, was just what they called it--an enagenacion; for it would have been impossible to make an agreement for the use of real property without making an enagenacion of it. This being the nature of the agreement, we have only to inquire how long the right acquired by it was to endure. At a glance, we see that no time was mentioned. Therefore its duration must have depended upon the will of Garcia, the owner of the premises. And this brings us to the definition of the agreement told inthe English language, to wit: a tenancy at will.
J. B. Crocket, for Appellants.
Patterson, Wallace & Stow, also for Appellants.
Shafter & Goold, for Respondents.
John B. Felton, for Appellants, in reply.
With all deference to the learned counsel, we submit that all through their argument they have confounded the real question in this case, which is: " To what extent did Garcia intend to alienate this lot to Nye, whether in fee, or by way of lease, or by way of use?" with another question of no importance to the case, which is: What was the consideration which induced the alienation?
It is evident that on the question of extent of alienation, the price or motive which induced the alienation has no bearing.
Thus, counsel say: 1st. This instrument has no price contained in it: therefore it is not a sale. 2d. It does not state that the land was alienated for something else than money: therefore it was not an exchange. 3d. It does not contain words indicating the intention to make a present: therefore it was not a donation.
That is, counsel say in substance: " Garcia did not intend to alienate this land in fee to Nye, because in the instrument Garcia did not name a price or a consideration, or say that it was without a consideration."
Now, we submit that all this matter of price, or want of price, has nothing to do with the real question in this case, which is, " To what extent did Garcia, whether gratuitously or not, intend to alienate the land?"
Now, we deny that an instrument under the Mexican law, in order to be a good conveyance, must contain the price or the consideration on which it was made. If the intention to make an absolute conveyance is apparent on its face, then that intention will be carried into effect.
The absence of a price in the instrument does not show that it was not a sale or a barter. The absence of words indicating a benevolent intention does not show that it was not a donation. But the presence of words showing an intention to convey in fee simple does not demonstrate that the contract is either a sale, or a barter, or a donation, it is immaterial which, since all of these contracts are valid.
Counsel seem to find something in the expression in this instrument, " Por lo que dicho Capitan hace uso quando se convenga," " Wherefore said Captain makes use whenever he may see fit," indicative of an intention to create a use only.
But this expression, " hace uso," is exactly equivalent to the English phrase, " tohis use and behoof." It is found in almost all Spanish conveyances.
" Enagenacion--The act by which the property in a thing by lucrative title is transferred as a donation, or by onerous title, as by sale or barter.
" This word, taken in a more extended sense, comprises, also, the lease, the pledge, the mortgage, and even the creation of a servitude on an estate. It follows herefrom that a person who cannot alienate a thing can neither pledge, hypothecate, nor incumber with servitudes. The person who is disabled from alienating a thing, says the law, can neither sell, nor barter, nor hypothecate the same, nor create any servitude thereon, nor have the same assessed to any persons who are disabled from alienating the same."
Now, this definition does not say nor imply that the word alienation, by itself, ever means a lease, or a mortgage, or a pledge. It only says that, taken in a sense wider than its ordinary sense, it embraces or comprehends all these smaller interests; so that a person who by law is disabled from alienating his property, is disabled also from alienating any interest therein.
In other words, the word alienation is a broad word of transfer, embracingall transfers, qualified or absolute, by which property can be affected.
The same is true of the English word alienation; though the word used without restriction means the complete and full transfer of the thing alienated, yet, in a broader sense, it embraces all the modes by which property is transferred for a time, or to an extent less than the entire ownership.
JUDGES: Sawyer, J.
OPINION
SAWYER, Judge
By the Court, Sawyer, J., on petition for rehearing.
After a careful reconsideration of our former opinion, with the aid of the elaborate argument in the petition for rehearing, we are fully satisfied with the conclusions before attained. We are satisfied that the instrument upon which the controversy arises did not create a use, or any other inferior estate in the land. If a valid instrument, it transferred the fee. That Garcia intended to alienate the land--to transfer the fee--we have no doubt. And this intention is manifest from the instrument in the record. But whether the transfer was for a money consideration, by way of barter or exchange, or as a donation, neither the instrument nor the record afford the means for determining. Nor do we deem it necessary to the decision that we should determine that question. Nye went into possession under the instrument, and he and his grantees have held under it, claiming title ever since. This makes their possession adverse. And such adverse possession was held for more than five years after the Statute of Limitations was in force, and before the commencement of this suit. The bar arises under the statute, and not under the Mexican law relating to prescription.
Only one point more in the petition for rehearing requires notice. It is said that this Court assumed the functions of the District Court, and found a fact in determining the intent with which the instrument between Garcia and Nye was executed. The Court below found as a fact that the instrument was executed, and that Nye entered into possession under it. The very purpose of construing an instrument is to ascertain the intent of the parties--the object to be accomplished by it. " When it is necessary to give an opinion upon the doubtful words of a deed, the first thing we ought to inquire into is, what was the intention of the parties?" (Brannan v. Mesick , 10 Cal. 105; Willes, 322.) The real question in this case was whether this instrument manifested an intent to convey the land, or only to create a use--an easement or servitude on the land. It was clearly within the province of this Court to construe the language of the instrument and from its language determine that question. And this was precisely what we did. Nor did the Court go outside of the instrument to ascertain the intent. It did, however, after an examination and determination of the meaning of the instrument from its language, for the purpose of verifying and confirming its own conclusions, consider the acts of the parties, and the circumstances surrounding them, at the time of its execution, and subsequent thereto, and from those acts and circumstances concluded that the parties put the same construction upon it as that adopted by the Court. But were the meaning doubtful, it is well settled that such acts of the parties may be looked at to aid the construction, as is shown by the authorities cited, and many others might be cited to the same effect.
Rehearing denied.
Mr. Justice Shafter, having been of counsel, did not participate in the decision of this case.
Mr. Justice Rhodes expressed no opinion.