*No.*2,312.

#### JAMES YATES, Appellant, *v.*E. J. SMITH, Respondent

Mexican Gbant. — Conflicting Survey. — Decision in Yates *v.*Smith *el. al.,*(38 Cal. 60). — Affirmed.

Idem. — Patent.—A patent for lands under a confirmed Mexican grant and final survey, which, shows upon its face that it includes lands embraced in a previously approved final survey, of another confirmed Mexican grant, is not void, as to that portion of the lands included in both surveys.

Idem. — A note, by the Commissioner of the General Land Office, contained in a patent for lands, under a confirmed Mexican grant, to the effect that the lands, granted in the patent, included lands embraced in the final survey of a previously confirmed Mexican grant, does not operate to except the lands so included, from the lands granted in the patent.

Idem. — Ejectment.—Evidence of pbiob Gbants exceeding Eleven Leagues. In an action of ejectment, where both parties claim under confirmed Mexican grants, evidence that the original grantor, of one of the parties, had obtained grants from the Mexican government, exceeding eleven leagues in extent, prior to the grant under which the party claims, is inadmissible.

Practice on Appeal. — Appeal from: Judgment. — A judgment rendered by the Court, in accordance with the decision or findings, cannot be reversed on an appeal from the judgment.

*663Idem. — New Tkial. — The question whether the evidence is sufficient to sus tain the verdict, or finding, or decision, can benresented only on amotion for a new trial.

Pkactice. — Evidence.—Deed.—A deed under which a party claims title, is admissible in evidence, unless.it is void on its face, or it appears therefrom, that it does not relate to the lands in controversy.

Idem. — Effect of Deed. — The relative value or effect of deeds introduced in evidence by the respective parties to the action, can only be determined by the Court or jury to whom they are submitted for consideration.

Pkactice on Appeal. — Eobmee Decision. — The law of a case as settled by1 the Court on a former appeal, will not be re-opened, or disregarded in a subsequent appeal of the same case.

Appeal from the District Court of the Tenth District, County of Colusa.

This is an action of ejectment for a lot of land in the town of Colusa. The plaintiff claimed title under the “Colus” grant, and the defendant under the “Jimeno” grant.

The case was first tried in the District Court of Colusa County, at the ’May Term, 1868, and judgment was rendered in favor of the plaintiff. Defendant took an apjieal to this Court, and at July Term, 1869, that judgment was reversed and a new trial ordered.

At the December Term of the District Court, for 1869, a new trial was had, and judgment rendered in favor of defendant. No motion was made for new trial, but plaintiff appealed from the judgment.

The facts are stated in the cases referred to on the former appeal in this case (38 Cal. 60), and in the dissenting opinion of Mr. Justice Cbookett therein, with the exception of the additional facts introduced on the new trial from which this appeal is taken. These last are sufficiently stated in the opinions filed in-this case.

*Jo Hamilton & L. J. Ashford,*for Appellant.

*First*— Neither the Jimeno survey, nor patents, purports to convey title to any land within the Colus survey — the plats or maps of said patent, being the ruling descriptive part thereof.

*664The Colus official survey, by tlie Act of June 14tb, 1860, is equivalent to a clear patent, without reservations or limitations. Appellant then holds the fee simple deed of the government, dated February 2d, 1861.

The respondent could only receive, and did receive two months afterwards, a limited decree of approval of the Jim-eno survey, and of consequence a limited conveyance from' the government, the executive necessarily conforming to the judicial patent. But we hold' that the decree, and approved plat, were improperly admitted in evidence, being merged in the executive patent. The party cannot have two sources of title; after accepting the patent he was bound by it.

. There was notice given, on the faces of the patent itself, that a part of the land contained in the exterior limits, had previously been finally confirmed to C. D. Semple.

Not only does the Act of 1851 reserve the rights of *all*third persons, which reservation is found near the end of the patent, but in this case there is an additional special reservation in favor of a particular person by name, and the boundaries of the land reserved are conspicuously set forth on the diagram of the whole grant.

It may be said that this second plat of £he Colus grant and a part of the Jimeno patent is without authority of law, and that “J. *W.*Edmonds, Commissioner of the General Land Office,” had no power to insert the “note” and explanatory diagram. To this we-answer that the president issued the patent and all that precedes his signature is *Ms*act, and moreover .the United States -District Court confirmed the plat of survey with the .Colus survey, plainly laid down upon it by name in large letters. So that in fact the president had no discretion and his officer (Edmonds), only elaborated and made more clear what the District Judge had done who located both grants, an essential part of his judgment in the Jimeno case being to see that his previous judgment in the Colus case was not disturbed or annulled. The patent to that portion covered by superior claims is to that extent inoperative, and, therefore, at least voidable in any proceeding *665either direct or collateral; in the case at bar it is void, because upon its face it makes the reservation of the paramount claim by name, and as remarked by Chief Justice Field, *in Doll y. Meador,*(16 Cal. 325); “itisitself record evi“dence of the matter which renders it a nulity.” *(General Lafayettés heir*v. *Kenton,*18 Howard, 197; 18 Howard, 18; 6 McLean, 562; 1 Black. 150; *Nelson*v. *Moor,*3 McLean, 819-323.)

It is not necessary that we invoke the authority of *Smith*v. *Athearn,*(34 Cal. 506); we hold that there were not two patents issued for the same land; that the Jimeno patent does not pretend to pass any title to the land *covered*by the Colus survey.

*Second*— The Jimeno patent is void, because it is founded upon a grant issued without authority of law, the officer granting having exhausted his power under the Colonization Laws of Mexico, by previously granting to Jimeno two other grants -aggregating twelve leagues of lands.

*W. 0. Belcher*and *W. F. Good,*for Bespondent.

The decision of this Court on the former appeal settled the law of the case. *(Yates*v. *Smith,*38 Cal. 60; and *Treadioay*v. *Semple-,*and *Semple*v. *Wright*therein cited.) The rule is settled by a long series of decisions in this Court, as in almost every other Court of final resort, that when a case has once been taken to an Appellate Court and its judgment has been declared on the points involved such judgment, right or wrong, is the law of the case for all subsequent proceedings had therein, and that when its *remitUtior*has been issued and filed in the Court, from whose judgment the appeal was. taken, the Appellate Court has no longer jurisdiction to re-hear, modify, or amend its judgment. As was said by Chief Justice Field, in *Phelan*v. *San Francisco,*(20 Cal. 39-45); in the case in which it is made, it is more than authority, it is a final adjudication from the consequence of which the Court cannot depart nor the parties relieve themselves. *(Pollack*v. *McGrath,*38 Cal. 666.)

*666At the first trial, the facts were agreed to and were in all essential respects the same as in the case of *Treadway*v. *Semple,*(28 Cal, 652); and in *Semple*v. *Wright,*(32 Cal. 659.)

At the last trial, the agreed statement of facts was withdrawn by the plaintiff and the case was submitted for judgment on the evidence offered by the respective parties, and such admissions as were made during the progress and for the purpose of the trial. No findings were requested by the parties or made by the Court. Upon the pleadings and the evidence before it, the Court rendered its judgment. 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 iudgment 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 ranchos 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 Slates, 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. (See also *Hogan*v. *Hugos,*29 Cal. 309.)

Rhodes, C. J.,

delivered the opinion of the Court, Wallaoe, J., and Sprague, J., concurring: Crockett, J., concurring specially:

This case comes before us, on appeal from the judgment; and the only questions in the case, are those which arise *667upon the statement on appeal. The first ground specified in the statement, is tbat “the Court erred in admitting in evidence the patent of the Jimeno grant as the foundation of title to any land included within the Colus official survey;” and the second ground is, that “the Court erred in admitting'the Jimeno patent, the same being void, and of no effect.” The two grounds may be considered together. The objections taken at the time the patent was offered in evidence, were that the patent shows on its face, that the Colus survey is excepted and reserved- therefrom; and that it is void because Jimeno, the grantee, had received from the Government of Mexico, grants amounting to twelve square leagues of land, prior to the making of the grant, on which the patent is based. The patent is not void on its face; nor is it void because of the alleged prior grants to Jimeno. The patent did not show such prior grants, nor had any evidence then been admitted or offered going to prove such prior grants. Had the evidence of such grants, subsequently offered by the plaintiffs, been admitted at the time the patent was offered in evidence, it would not have rendered the patent void. It was so held in *Kimball*v. *Semple*(25 Cal. 440), in which this point was considered, in respect to this patent.

The Colus survey does not appear to be excepted from the patent for the Jimeno grant. The lands delineated in the Jimeno survey — and they are the lands which purport to be granted by the patent — include the lands in suit; on the survey the lines of the Colus rancho are delineated, and they include the lands in suit; and on the page of the patent next after the survey there appears a diagram of the Colus rancho, with a note made by the Commissioner of the General Land Office, stating that “ the foregoing survey of the ‘Jimeno ’ rancho embraces a portion of the survey made for the ‘Colus’ rancho, confirmed to C. D. Semple, as shown by dotted lines on the plat of the foregoing;” but it is not recited that the Colus rancho is excepted from the lands granted by the patent. The patent was not void on either of the grounds urged against it, and as it comprised *668tbe land in controversy, and as tbe defendants claimed title under it, it was admissible in evidence,

Tbe third ground is, tbat “tbe Court erred in admitting in evidence tbe decree and accompanying plat of tbe Jimeno survey, tbe same being merged in tbe patent.” The objections presented by tbe plaintiff, when tbe decree and plat of survey were offered in evidence, were tbat they were irrelevant, and tbat they were merged in tbe patent of tbe Jimeno rancho, already in evidence. Both tbe decree and tbe plat formed parts of tbe patent, and therefore their admission in evidence as separate documents was not productive of any injury to tbe plaintiff. Tbe plaintiff introduced tbe survey of tbe Colus rancho, and tbe decree confirming tbe survey, and as tbe lands in controversy are embraced in each survey, tbe admission of tbe survey of tbe Jimeno rancho, together with tbe decree of confirmation of such survey, became proper for tbe purpose of ascertaining which party acquired tbe better right to tbe land under bis survey and decree of confirmation.

Tbe fourth ground is, tbat “tbe Court erred in rejecting tbe papers offered by plaintiff to show tbat Jimeno bad acquired twelve leagues of land in California prior to tbe ^grant of eleven leagues, called tbe ‘ Jimeno Grant.”’ Upon tbe authority of *Kimball*v. *Semple*(25 Cal. 454), and *Semple v. Hague*(27 Cal. 165), in which this precise question was considered, we bold tbat tbe point is not well taken.

Tbe fifth ground is, tbat “tbe Court erred in giving judgment in favor of defendants — tbe plaintiff bolding tbe older and superior title.” This ground is ’ useless and Worthless for any purpose whatsoever. If tbe Court found tbat tbe plaintiff’s title was tbe older and superior title, tbe point tbat tbe Court erred in rendering judgment for tbe defendants may be taken upon tbe judgment roll without a statement or bill of exceptions. But if tbe Court did not so find, but found tbat issue for tbe defendants, then tbe Court did not err in giving judgment for tbe defendants. If tbe plaintiff intended by tbat specification to say tbat tbe Court erred in finding or deciding for *669the defendants, because tbe evidence shows that plaintiff held tlie older and superior title — or, in other words, that the finding or decision was contrary to the evidence, because the evidence showed that the plaintiff held the older and superior title — it has no proper place in a statement on appeal. A statement on appeal and a bill of exceptions are substantially the same — they differing only in respect to the time and manner of settlement, and in some particulars in form — and their purpose is the same, and thkt is, to present for review questions of law. The question whether the evidence is sufficient to sustain the verdict, finding or decision, can be presented only on motion for a new trial. It cannot be presented by means of a statement on appeal.

It is proper here to advert again to the first three grounds of the statement on appeal. Counsel for plaintiff have discussed under one of these grounds — perhaps the fifth, but they do not designate which — the effect of the evidence admitted in the cause for the purpose of showing that the plaintiff held the title to the premises. This practice is inadmissible. It has already been stated that the question does not arise upon the fifth ground; and it is perfectly clear that it does not arise upon either of the first three grounds. The question of the admissibility of evidence is quite different from the question of its value, weight or effect. In a contest for the possession of lands, a party who offers a deed, asserting that he claims under it — if the deed be not void on its face, or if it do not appear therefrom that it does not relate to the land in controversy — is entitled to have it admitted in evidence. Perhaps other grounds for its exclusion, than those stated, may be found, but it is beyond all question, that it should not be excluded, because the adverse party has adduced in evidence a deed, which, as he claims, shows a better title in himself. This would appear obvious; for the'relative value and effect of the deeds could not be determined until they had been submitted to the Court or jury for consideration. The question whether the survey, confirmation of the survey, or the patent of the Jimeno rancho was admissible in evidence, does not involve the *670question as to tbe .value or effect of either of those documents, when compared with the survey and confirmation of the survey of the Colus rancho. The latter question did not arise in the Court below on the objection to the admission of those documents, and cannot be considered here, in reviewing the action in that respect of that Court. Were it permissible to disregard the recognized rules of practice, and, under the objections to the admission of evidence, to determine the effect of such evidence — to determine whether the evidence sustains the decision — then a motion for a new trial, in order to have the question of fact reviewed, would be useless, and the unbroken current of decisions in this State, on that point, is wrong.

The evident purpose of the plaintiff, on this appeal, is to defeat the Jimeno patent, by showing the prior grants to Jimeno, exceeding eleven leagues of land, and to overcome the effect of the decree confirming the survey of the Jimeno rancho, as declared on the former appeal. The first point has already been sufficiently noticed. Had the record been so prepared as to present the second point, the Court would not be at liberty to re-open the discussion, and again pass on the point. The decision of that question on the former appeal — reported in 38 Cal. 60 — became the law of the case, and this Court, no more than the District Court, would be justified in disregarding it.

Judgment affirmed.

Mr. Justice Temple, being disqualified, did not sit in this case.

Opinion of

Ceookett, J.,

concurring:

On the former appeal in this case (38 Cal. 60), I was of opinion that, on the facts as then presented, the plaintiff had the better title, and was entitled to recover. Subsequent reflection has strengthened my conviction in the correctness of the views expressed in my dissenting opinion. But a majority of the Court arrived at a different conclusion, and, as the case was then presented, held that the defendant had the better title; and, on well settled principles, *671this decision, whether right or wrong, became the law of the case in all its subsequent stages. The first subject of inquiry, therefore, is whether the case, as made on the second trial, was materially different from that decided on the former appeal, for it is evident the former decision must control, unless the case, as now presented, is materially different from that on the former appeal.

After a careful examination of the record, I discover only two particulars in which the case, as now made, differs from that on the former appeal. On the first trial the patent for the “Jimeno Rancho ” was not put in evidence, but in lieu thereof it was admitted that a patent had issued. On the last trial, however, the patent itself was produced in evidence, from an inspection of which it appears to contain as part thereof, a copy of the official survey on which the patent is founded, and on the plat of said survey there is delineated by dotted lines a tract representing the ‘ *‘*Colus Rancho,” confirmed to Semple, so far as the same conflicts with the survey of the “Jimeno Rancho.” On the next succeeding page of the patent is found a memorandum by the Commissioner of the General Land Office, to the effect that the survey of the “Jimeno Rancho” embraces a portion of the survey made for the “ Colus Rancho, confirmed to C. D. Semple, as shown by dotted lines in the foregoing, said Colus covering part of Jimeno, * * * as particularly indicated on the annexed diagram by a yellow shade.” Then follows the diagram referred to, showing the survey of the Colus Rancho and its interference with the Jimeno survey. There is nothing in the granting words of the patent, nor in any other portion of it except that already referred to, to indicate that so much of the Colus survey, as interferes with the Jimeno survey, was intended to be excepted from the operation of the patent.

Including the interference between the two surveys, the patent embraces precisely the quantity which was confirmed to the patentee; and, of course, if the interference be excluded, the quantity embraced in the patent would, to that extent, be less than the quantity confirmed. The plaintiff, however, insists that the dotted lines on the plat of the sur*672vey, with tbe explanatory memorandum of (tbe Commissioner of tbe General Land Office, accompanied by a diagram of tbe official survey of tbe Colus Bancho, make it apparent tbat it was intended to except from tbe operation of tbe patent tbe land included in-tbe Colus survey. He mantained tbat tbe memorandum of tbe Commissioner could not, reasonably, bave been inserted in tbe patent forany other purpose than to show tbat it was not intended to embrace the Colus survey. In support of this view be refers to several adjudicated cases, and particularly to tbe case of *Lafayette’s heirs*v. *Kenton*(18 Howard, 197). But an examination of tbe case shows tbat tbe patent, on its face, expressly excepted in tbat case certain lands designated on tbe diagram annexed to tbe patent, and all tbe cases cited were of a similar character. If tbe patent in tbe case at bar, bad, in terms or by necessary implication, contained a similar reservation of tbe Colus ranch, these authorities would bave been decisive of tbe question, if any authority bad been needed on so plain a proposition. But in this case there is no reservation either in terms or by necessary implication, and whatever may bave been tbe purpose of tbe Commissioner in inserting bis memorandum in tbe patent, it cannot be allowed to control tbe granting words of tbat instrument, which expressly convey to tbe patentee-all tbe lands within tbe exterior limits of tbe Jimeno survey. If it bad been intended to exclude tbe interference from tbe patent, tbe deficiency thus created would, doubtless, bave been cured by including a like quantity at some other place within tbe exterior limits of tbe grant, in order tbat tbe patent might conform to tbe decree of confirmation in respect to quantity. I am, therefore, of opinion tbat tbe patent was properly admitted in evidence, and tbat it .does not show on its face that any part of tbe Colus ranch was excepted from its operation.

Tbe only other new proof offered by tbe plaintiff, on tbe second trial, was evidence tending to show tbat prior grants bad been made by tbe Mexican Government to Jimeno; but I think this proof was clearly inadmissible for tbe reasons stated in tbe opinion of tbe Chief Justice.

I therefore concur in affirming tbe judgment.