# Merryman v. Bourne/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
76 U.S. 592
Merryman v. Bourne
This case is brought before us by a writ of error to the Circuit Court of the United States for the District of California.
The plaintiff in error was the plaintiff in the court below. The suit was ejectment, brought to recover the premises described in the plaintiff's declaration. They are situated in the city of San Francisco. The parties stipulated in writing that the cause should be tried by the court without a jury, and it was tried accordingly. The court found the facts specially, pursuant to the statute which governs the practice in such cases, and they are set forth in the record. Judgment was given for the defendants, and the plaintiff thereupon sued out this writ of error. So far as the facts of the case are concerned the findings of the court are conclusive between the parties. The only questions open for our consideration are questions of law, arising upon the facts as thus presented in the record.
Three grounds are relied upon for the reversal of the judgment.
Two of them are substantially the same, and will be considered together.
It is insisted that the rights of the parties, touching the premises in controversy, were settled in favor of the plaintiff in error, in the case of Woodworth v. Fulton, reported in 1st California Reports, 295.
This is an error. Woodworth prosecuted the action. The premises were the same with those involved in the present suit. The Supreme Court of the State decided two points, and none other: (1.) That the alcalde grant to S. E. Woodworth was void for want of the requisite authority in the officer who made it-the court holding that an alcalde was incompetent to give any title; (2.) That if a recovery could be had in an action of ejectment, upon mere prior possession, no sufficient possession was shown on the part of the plaintiff. Nothing was decided or said by the court as to the title of the defendant.
In California a judgment in ejectment has the same conclusiveness as a judgment in any common law action, and in determining its effect the same principles are applied which control the result of the like inquiry in other cases. A defeated plaintiff may bring a new action upon an after-acquired title with the same effect as a stranger in whom such title might have been vested, and the former judgment will no more bar one than the other.
It appears by the finding of facts that F. A. Woodworth did bring a new action against a part of those in possession. He recovered and ousted the defendants by writs of restitution. The other parties in possession thereupon surrendered and attorned to him. He thus acquired possession of the entire premises, and he, or those claiming under him, held it when this suit was instituted.
The cases in which the judgments were recovered are not before us. Who the defendants were, and what title was developed by the plaintiff, we do not know. For all the purposes of this case the judgments must be held to have been properly rendered, and to be valid. They cannot be collaterally questioned in this proceeding.
It is insisted also that Woodworth obtained possession of a part of the premises by tampering with the tenants of Fulton, under whom the plaintiffs in error claim, and thus became such tenant himself, and hence is estopped from denying the validity of the alleged Fulton title.
The language of the finding upon this subject is as follows: 'And the remaining persons in possession of said premises under said Fulton, and who were not included in said ejectment suits, on being threatened with suits by said F. A. Woodworth to recover possession of the premises held by them and with a view to avoid expensive litigation, acknowledged said Woodworth's title, and took leases from him, at the expiration of which leases they surrendered the possession to the said Woodworth, and the possession of said Woodworth so obtained under said writs of restitution, and by surrender, was fairly and honestly acquired, without force, fraud, or surprise.'
How many such parties were in possession, what portion of the premises their possession embraced, and whether their possession under Fulton was as vendees, lessees, or otherwise, does not appear.
If they were grantees in fee the principle relied upon has no application. It is one of the incidents of subinfeudation, and was brought into the common law from the feudal system. It does not reach the relation of vendor and such a vendee. The latter holds adversely to all the world, and has the same right to deny the title of his vendor as the title of any other party.
Error is not to be presumed. It must be affirmatively shown. Doubts are to be resolved in favor of the judgment rather than against it. But if the parties were the tenants of Fulton, the fact would not avail the plaintiff in error. The principle sought to be applied is subject to several well-settled qualifications. It may be shown that the landlord's title has ceased by expiration or transfer. If the tenant be evicted, he may take a new lease from the party evicting him. It has been held, that if threatened with suit upon a paramount title, the threat, under such circumstances, is equivalent to eviction. He may, thereupon, submit in good faith, and attorn to the party holding a valid title, to avoid litigation. In such case it is incumbent upon him, and those who have profited by his submission, to show the existence and superiority of the title in question.
Upon the disavowal of the landlord's title the relation of landlord and tenant ceases, and, as between them, the tenant becomes a trespasser. The statute of limitations begins to run, and the landlord may sue at once to recover possession. He need not wait for the end of the leasehold term.
In the case under consideration, Woodworth had recovered upon the adverse title against a part of those in possession, and threatened suit against the others. They yielded, to avoid the inevitable adverse consequences of a contest. This they had a right to do. The court found that the possession was obtained by Woodworth 'fairly and honestly,' 'without force, fraud, or surprise.' This is conclusive as to the integrity and validity of the transaction, and brings the case within the authorities referred to. The relation of landlord and tenant between Fulton and those parties, if it subsisted before, was thus extinguished.
Woodworth claimed title under an alcalde grant of the 15th of April, 1847. Fulton, under a grant from a justice of the peace, of the 21st of December, 1849. It is not claimed that the latter grant is of any validity.
Emanating, at the time it bears date, from such a source, it is as if it came from any other person unauthorized to give it, and did not carry with it even color of title. It is utterly void. It may, therefore, be laid out of view, as an element in the case of no moment.
The conquest of California by the arms of the United States is regarded as having become complete on the 7th of July, 1846. On that day the government of the United States succeeded to the rights and authority of the government of Mexico. The dominion of the latter sovereignty was then finally displaced, and succeeded by that of the former. Before that time, the pueblo or village of San Francisco existed, and under the laws of the country was entitled to the territory within certain prescribed limits, known as pueblo lands. It had also an ayuntamiento or town council, and an alcalde. The alcalde was the chief executive officer of the pueblo, and, as such, had authority to make grants of the pueblo lands.
The exercise of this function was subject to the authority lodged in the ayuntamiento, and to the still higher authority of the departmental governor and assembly. In the case of Woodworth v. Fulton, it was held by the Supreme Court of the State that, from the time of the conquest, these pueblo lands, so far as they had not been granted to individuals, became a part of the public domain of the United States, and, as such, subject to the exclusive control and disposition of Congress. This doctrine was subsequently overruled in the case of Cohas v. Raisin. It was there held that the conquest had no such effect, but that the lands continued to be the public property of the municipality, as before the war; and that the laws of Mexico relating to the subject continued in force until changed by the legislative authority of the State. It was further held that an alcalde grant, made after the conquest, was to be presumed valid, and was competent to convey title. These doctrines are now firmly established as a part of the rules of property of the State.
But it is insisted, in behalf of the plaintiffs in error, that these adjudications cannot affect the prior unreversed judgment in the case of Woodworth v. Fulton, in which the rulings were otherwise. Conceding this to be so, the result of this case must still be against the plaintiff in error. The common council of San Francisco, by an ordinance of the 20th of June, 1855, known as the Van Ness ordinance, relinquished all her rights in the pueblo lands of the city to the parties respectively within the category of Woodworth, and to those claiming under them by competent mesne conveyances. This ordinance was confirmed by an act of the legislature of the State of the 11th of March, 1858.
This gave to Woodworth, and those claiming under him, a new and after-acquired title, upon which, according to the later adjudications referred to, he was entitled to recover, and to an action upon which the prior judgment in Woodworth v. Fulton was not and could not be a bar. The act of Congress of July 1st, 1864, was a further confirmation of the Woodworth title, and operated in the same manner as the ordinance of the city council and the act of the legislature before mentioned.
It is said that the act of Congress was passed after the institution of this suit, and cannot, therefore, be considered. To this there are two answers. It is by no means clear that the act was necessary to the completeness and validity of the title in question. The later adjudications referred to, made before the passage of the act, held by necessary implication that it was not. But if it were necessary, we have no difficulty in holding that it took effect by relation, as of the time when the act of the legislature confirming the ordinance of the council was passed.
We think the facts found by the court below fully sustain the judgment given, and it is
AFFIRMED.

## Notes

* ↑ Barrows v. Kindred, 4 Wallace, 399.
* ↑ Blight's Lessee v. Rochester, 7 Wheaton, 535; Watkins v. Holman, 16 Peters, 26; Croxall v. Shererd, 5 Wallace, 268; Osterhout v. Shoemaker, 3 Hill, 518; Barker v. Soloman, 2 Metcalf, 32.
* ↑ Mayor of Poole v. Whitt, 15 Meeson & Welsby, 577; Emery v. Barnett, 4 Common Bench, N. S. 423; Lunsford v. Turner, 5 J. J. Marshall, 106; Cutbertson v. Irving, 4 Hurlstone & Norman, 758; Jordan v. Twells, Cases tenipore Hardwicke, 172.
* ↑ Willison v. Watkins, 3 Peters, 43.
* ↑ 1 California, 295.
* ↑ 3 California, 434.
* ↑ Hart v. Burnett, 15 California, 530; Payne & Dewey v. Treadwell, 16 Id. 221; White v. Moses, 21 Id. 34.
* ↑ 15 California, 627, note 3.
* ↑ Poole et al. v. Fleeger et al., 11 Peters, 185; Jackson v. Dickenson et al., 15 Johnson, 309; Hammond v. Warfield et al., 2 Harris & Johnson, 155; McConnell v. Brown, Littell's Select Cases, 460; Pearson v. Darrington, 21 Alabama, 175.
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