D. Semple and H. G. Burnett, for Appellants. George Cadwalader, for Respondent, contra, cited Semple v. Hagar, 27 Cal. 163. JUDGES: Rhodes, J. Sawyer, J., concurring specially.
" And so in Semple v. Hagar, 27 Cal. 163, shortly after the decision of Minturn v. Brower, supra, the court used the following language: "The court will take judicial notice that, according to the provisions of the act of Congress of March 3, 1851, every person claiming lands in California, by virtue of any right or title derived from the Spanish or Mexican government, should present his petition for the confirmation of his title to the board of land commissioners, and that such proceedings must be had thereupon, before said board or the District or Supreme Court of the United States, that a final decree confirming the title of the claimant to the land must be entered before the patent for the land could be issued.
The patent is conclusive evidence against a collateral attack that the grant is accurately located by the official survey upon which such patent is based, and that the boundaries therein designated are correct. (Moore v. Wilkinson , 13 Cal. 478; Waterman v. Smith , 13 Cal. 419; Yount v. Howell , 14 Cal. 465; Mott v. Smith , 16 Cal. 533; Teschemacher v. Thompson , 18 Cal. 11; 79 Am. Dec. 151; Leese v. Clark , 18 Cal. 572; 20 Cal. 387; Pioche v. Paul , 22 Cal. 105; Kimball v. Semple , 25 Cal. 440; Semple v. Hagar , 27 Cal. 163; Ward v. Mulford , 32 Cal. 365; Yates v. Smith , 40 Cal. 662; Miller v. Dale , 44 Cal. 579; Chipley v. Farris , 45 Cal. 536; Hale v. Akers , 69 Cal. 160; Wright v. Seymour , 69 Cal. 122; United States v. Flint, 4 Saw. 61; affirmed, sub nom.United States v. Throckmorton , 98 U.S. 61; Manning v. San Jacinto Tin Co ., 7 Saw. 418; United States v. San Jacinto Tin Co ., 10 Saw. 639; affirmed, 125 U.S. 273; West v. Cochran, 17 How. 403; Stanford v. Taylor, 18 How. 412; Beard v. Federy, 3 Wall. 491; Maxwell Land Grant Case , 121 U.S. 325, 379, 381.) This conclusiveness attaches to such a patent as against all the world except the "third persons" mentioned in the act of March 3, 1851; but as already shown, and as was rightly decided in People v. San Francisco , 75 Cal. 388, the state and its grantees in this case are not such "third persons."
The complaint states only a cause of action in ejectment, and the court erred in denying defendant's motion to strike out the allegations looking to equitable relief. The part sought to be stricken out shows no ground for equitable relief, as the complaint merely alleges "that said certificate of title [from the county judge] was obtained by said Henry Wasson through fraud and misrepresentation, for the purpose of defrauding the plaintiff," and alleges no facts constituting the fraud. (Kent v. Snyder , 30 Cal. 667; Castle v. Bader , 23 Cal. 76; Oakland v. Carpentier , 21 Cal. 661; Simple v. Hager , 27 Cal. 163.) The former appeal did not estop the defendant from insisting on this motion.
This is held in many cases decided by this court. This course of decision commenced at an early date in this state, as in Gushee v. Leavitt , 5 Cal. 160, 63 Am. Dec. 116, decided in 1885; Kinder v. Macy , 7 Cal. 207, decided in 1857, and continued in Kohner v. Ashenauer , 17 Cal. 580; Meeker v. Harris , 19 Cal. 289; 79 Am. Dec. 215; Castle v. Bader , 23 Cal. 76; Semple v. Hager , 27 Cal. 163; Hager v. Shindler , 29 Cal. 60; Kent v. Snyder , 30 Cal. 674; Perkins v. Center , 35 Cal. 713; and many other cases which can be found by reference to the digest. Dow v. Beidelman , 125 U.S. 680, is a strong authority to support the contention herein put forth.
There are many averments in the complaint of fraud, conspiracy, and fraudulent acts on the part of the defendant's grantor, but they cannot be regarded, because there are no particulars of the fraud showing what it was, and how it was perpetrated. (United States v. Atherton , 102 U.S. 372; Semple v. Hagar , 27 Cal. 163; Kent v. Snyder , 30 Cal. 666.) Besides, whatever defects or irregularities there may have been in Jaughin's application to purchase the land from the state, they were cured by the issuance of the patent, and cannot be called in question in this action, where the plaintiff is not seeking to obtain the state's title.
The patent, if not a conveyance, being a record of the government, establishes the facts therein recited, and determines the prior existence of all facts which necessarily precede the issuance of the patent. (Semple v. Hagav , 27 Cal. 163; Heckman v. Boffman, Hardin's Rep. 362; Jackson v. Wilcox, 1 Scam. 344.) The legal presumption being that public officers have performed their duty, the existence of the patent raises the presumption that the governor and register made the proper certificate of reclamation.
The authorities on this subject we think conclusive. We refer to the following cases in the California Reports: City of Oakland v. Carpentier , 21 Cal. 642; Castle v. Bader , 23 Cal. 75; Semple v. Hager , 27 Cal. 163: Kent v. Snyder , 30 Cal. 666. The two latter cases seem to be especially in point.
(Castle v. Baden , 23 Cal. 75; Kent v. Snyder , 30 Cal. 666; Oakland v. Carpentier , 21 Cal. 641.) Where the general charge of fraud is based upon false suggestions, fraudulent concealment, and misrepresentations, the acts of fraud and misrepresentation on which the general charge is based must be specified in the complaint, or it will not state facts sufficient to constitute a cause of action. (Semple v. Hager , 27 Cal. 163.) We contend that such short payment would not of itself make redemption void.
Though all the evidence may be set out in the transcript, this Court will not, on an appeal from the judgment, consider its weight or effect, or undertake to determine what facts were deducible therefrom, but will presume that everything necessary to sustain the judgment was found by the Court, and that the findings were fully supported by the evidence. The case of Semple v. Hagar (27 Cal. 163), was a direct attack on Jimeno patent, and was commenced to " set aside the patent for the Jimeno grant, or to avoid so much of it as covered lands within the Colus grant," on the ground that the Mexican Government had granted to Jimeno, previous to the grant of the Jimeno Rancho, two ranches containing twelve leagues. This Court held that the question whether or not Jimeno was competent to take the Jimeno grant had been judically determined by the proper Court of the United States, in the proceedings for the confirmation and patent of the Jimeno grant, and that this Court has no authority or jurisdiction to review the decisions of the Federal Courts.