Summary
In Scott v. Ward, 13 Cal. 459, it was held that a grant of the character of the one made in this case to Antonio Buelna vested in the grantee named the property described as his separate property, and that the same passed upon his death to his devisees.
Summary of this case from Wilson v. CastroOpinion
[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] 13 Cal. 459 at 477.
Original Opinion of April 1859, Reported at: 13 Cal. 459.
JUDGES: On rehearing, at a subsequent term, the following opinion was delivered by Field, C. J. Baldwin, J. and Cope, J. concurring.
OPINION
FIELD; BALDWIN; COPE, Judge
On rehearing, at a subsequent term, the following opinion was delivered by Field, C. J.--Baldwin, J. and Cope, J. concurring:
Since the rehearing ordered in this case was had, we have carefully reviewed the opinion delivered at the April Term, and are satisfied that its conclusion as to the character of the grant in question is correct. If it be admitted, as contended by the counsel of the plaintiff, that the usual conditions of cultivation and occupancy were annexed to the grant by force of the decree of 1824, and the regulations of 1828, the result would be the same. These conditions would not change the transaction from that of donation into one of contract or purchase. Their performance constituted no consideration to the government in the nature of a price for the land. They were annexed to colonization grants, in furtherance of the general policy of the republic in the settlement of the country, and their performance was exacted to prevent that policy from being defeated. They only operated as a requirement that the land should be appropriated to the purposes for which they were granted.
The recital in the grant that the grantee solicited the land " for his personal benefit and that of his family," cannot control the operative words of the grant. In point of fact, the recital is untrue. The petition is set forth in the record, and contains no mention of the petitioner's having any family. In it the petitioner solicits the land " to secure the cattle and horses which he has" --and states no other object for which the land was desired. The recital was probably taken from the usual forms in which grants were written; it certainly was not inserted or intended to have any influence upon the direction of the title. The grant is made to Alviso individually, and its terms determine the person in whom the property vested.
The term " family" is not limited to the husband and wife. Alviso had at the time several children by a previous marriage, and if the use of the term in the recital can have any effect upon the direction of the title, it is difficult to see why those children might not claim to have received an interest in the property equally with the wife, or the community existing between the husband and wife. Such an effect was never supposed to exist, it is believed, by any one.
Judgment affirmed.
See Noe v. Card , 14 Cal. 576.