The record-union., 1891-01-12

tilcae WHO were in actlI.I bona Hdc possession
on the Sth OF March. lS66, by themselves
or their tenants, except where roSsessor
had been oustcd from his possession, which
possession he might recover bs suit As there
was evidence oi custer here by Mstria Baker
of anyone. oftestiOT arises here TO custer
and rccoScfy OF possession ~ suit III l;;.E.
by the order 500. ratified as 2bove, ii was
provided that {, map or plan oI these oittside
lands should lie maze and adopted ny the
Beard OF Supervisors above mentioned; that
upon tiic completion OF The map i should b.
deposited for public inspection III the Office OF
the clcrl 0f tltc Board II SupeTyisors there IL
remain Tor Il p,riud of thirty days. ne; i,e
Whs,fss,f >h,,l:id IL sisop ny publication liz
tti,t f tii sl;tiy 'poIs - Ia. city curing ihs
iitn, i4..t the MAJ, >i'tlsi remain il the
cicek : oiti,,c.
The occupant al aI,S tract OF land w'rS re-
,lnf,sd BY or' soc rat ilitti; ~ above. tc pre-
sent Gi.l9gt... oi his lle, ;iild nave il deii4-
Gated the in;tp nitdo By The Supervisors.
This GelIication OF 4 tract, however, could not
be made on the map ;lnieS@ all the taxes ii
should has been raid for i've fiscal years pre-
ccding the year beginning July l, 1866. The
claimant was also, before the title could be
procured. required to sHrrondcr AL claim 10
any streets and highways. BY the Act OF
1870 (lStats. of 1SGS--o. Supr.t,j passed March
1ith Of that year. the claimant was cin-
powered 10 iilc petition FOR grant froii. the
city OF the tract Of lana of which he was
in possession, above mentioned. BY the
provisions of this Act She petitioner Nas 10 set
forth IL such petition, verified as required 2.
the -Act, 4 claim tilat hS or his tenants, or the
persons through whom llc cla.ins or derives
possession he'd been. froal and Including tia
Sth day OF March, SIS. and still N;tS in COS
session Of portion cf such outside land, and
that he. or the person through whom he
claims or derives possession. has paid TO the
Tax Collector of the city and county of san
francisco fii2 amount assessed BY tEe OuiSlde
Land Commission upon the land described in
the petition. 10 pay fpi tic ilIid reserved FOR
pui5iic uses. provided ior in section 10 OF or
der 500, and has also paid the i've wears
taxes mentioned in Section of ordcr 500.
:lad al taxes levied on said lands for State
and municipal purposes, then renlaiiing M
paid. Tile Board OF Supervisors Was. these
aforementioned acts having been done, re
quiTetl to proceed 10 act on his petition. The
claimant WAS required 10 T;;t,e proof OF the
facts stated il his petition before committee
ot tine Board oi SupcryisolS styled tiia Gut
side Land Committee. Alter the proofs were
closed the out>itte Land COMMITTEE vas re-
quircl tC consider tiit ss.lie. and To make such
II .,urf ,ind recommendation thereon ls shall
seem 10 them just and p?oncT IN t!ae premises.
The committee w;r Required 10 Nc with tlie
Clerk oi the Board the testimony taken by IT,.
and its report, which report WAS to be sub
Inittcd to the Beard OF Supervisors FOR their
approval. and If, III their judgment. The claim
OF the petitioner is well founded the Board
was, by an order entered iii their minutes To
aGjudse and award Il grant OF his lands 10 the
petitioner less the amount reserved lOr public
Use. The Board was thcreupon required 10
give public notice OF their award by notice
published ut least once week for three sue
ccssiVe weeks in Il daily newspaper published
in tie city and county of SAN trtlcseo, which
cant. the Gate aud fling of his petition and
the tract of land awarded, by good ana Sufli-
cient description thereof, proof Of publication
Of which notice was 70 be made III the lialucr
then or thereafter required by Law Tor the
proof Of publication III civil process. tSoction
= of Act of 1870, p. 35i.)
The third section OF The Act provides for the
execution of Il deed OF conveyance signed by
the Mayor Of tie said city and county, and ac-
| llnowledgcd and delivered by him 10 tie ap-
picant of the tract of land awarded to aim, 70
which shall bc attached the corrorajc seal OF
| the city and count y above named. provided the
petitioner, before receiving lhe deed aforesaid,
| is roquiiedto qiit-clailn and persojl.,iy deliver
| the Possession ofall lands claimed by him re-
| served for public purpose ard for the use and
| benefit of the city ana county, provided there
| is no suit pc1dinS between the petitioner and
| some third person. \ reference Will be further
made to this last mentioned proNiso hereafter
4 in this opinion.
| conveyance cNecut0G under the provisions OF
| this Act shall operate rs an Acknowledge
I on the part Of the city and county aforesaid,
! that the title to tie land described i'll Il has
passed under and by virutc oi order 500 and
| ordinance S22, and of the several Acts OF Con-
| cTess and OF the Legislature rl!ifying said or
/ der and ordinance, under the authority OF
| which the same have been passed. The said
conveyance shall likewise operate TO grant,
! convey, rcmise ana release To the party, his
i heirs and assigns, raIned therein, the lands in
| such conveyance described and all tho estate
! and interest present and future of the city and
county of San Francisco in and to such lands.
] Y, -,
Baker, after due and regular proceedings had
under Order 500, and the Acts of the Legisla-
tprc of 1S6S and 1870, was granted con-
| veyance in the usual form OF all the lands de-
| scrbed in the complaint as being part of the
| Baker ranch which conveyance was executed
/ to her by the authorities OF the city and
county, as required by the Act of $50, above
referred to, and in the mode therein set forth,
conveying to her the title of the city and
county of san Francisco. as declared in the
fifth section of the Act of 1870, the provisions
/ e l,if.l1 H.,l gfD III
| the conveyance was made to nor afterwards it
docs not appear that any suit in regard To the
! land was pending against her. Not appearing,
/ this court must regard il rs not existing.
| Maria Baker intGr,uarTi2d with one David +.
! Batcheldcr, and subsequently she and her
/ husband. Batchclder, eXcccted to the defend
| ant, BTickell, divers mortgages on the land
conveyed TO her by the deed OF the city and
county aforementioned, and on other lands, to
secure the payment OF divers sums of money,
amounting III the aggregate to the sum OF s4
500. These mortgages were subsequently rcgti-
! lariy forec.oscd and sold under Il decree of
/ foreclosure, regularly given, made and entered,
The deed of the Sheriff of the city and county OF
! san Francisco executed to defendant, Brick
ell, the title OF said Maria Batchelder became
vested in Bricleli.
| 1t further appears from the findings herein
! that on the 23d of September, 1862, Maria
| Baker and her then husband John III. Baker,
| executed Il declaration Of homestead III due
! form OF law, embracing the land involved in
! this litigation.
This homestead estate under the provisions
of the Act of $50. under which the declara.
tion was made and recorded, on the death oi
either spouse vested absolutely IN the sur
Vivor. such is the effect of the fourth section
7 Of the Act of 1862. tscc Hcrrold VS. Reen. 5s
Cal. ii5-1), whcre the point Is considered and
decided. tSee, also, cases cited III tlie opinion
i'll that case) II WAS not necessary that this
homestead estate should be set apart by The
Probate Court to Tie surviving spouse II
! vested in the survivor by descent. (Herrold
Us. Rcen, supra.) SO on the death of John IL
I Baker in March, 1868. the homestead estate
1 vested in his surviving wife, Maria Baker
/ Under such circumstances the contention can.
| not be upheld that the possession OF Maria
Baker was not Oh the Slli of March 1866
/ bona iidc. She was not only i'll actual posses
sion, but she WAS there having title to thc
! whole land as against amy heir of John II
/ Baker, by the legal deVoution TO licr OF the
! whole land as Il homestead. In such q STATE
and condition tie bona iides OF her possession
I could not be iinpCached. It's bona lidcs were
beyond Il doubt.
4 This conclusion disposes OF tiis case. for in
I no event would any trust 5risc here IN iaToI
1 OF any of the children, issue OF the marriage o
Maria Baker and her husband, .lohn II. Ba.,lr
The plaintiff could have no claim to any por
/ tion OF the land. There is nothing on which K
bald trust. = u,lst arises from contract on
| noln circumstances which affect the con
I science of party, and charge Kim with tho
/ rights OF another. Here there was no contr1,c,
! between Maria and John H. Baker ccnst ittit.
ing a trust and no circumstances affecting thf
/ conscience OF Maria Baker, charging her With
4 any duty to her children in regard To the lands
in suit. John II. Baker had no title 10 this
/ land. His settlement AMI possession on il 1yi;s
merely pcTlnissive. He acquired no l{gilt 10 II
I by such possession. The title was then IN tnt
] United states 20 give it to whom il thoaghi
best; and when il cid make Il donation in
j March. 1866, he could net be the recipient o
Il erant. He had then departed this life and
could take nothing BY the Act Of Congress
passed ON the day above mentioned. Tic pcs
session Oh that DAY tnit OF his WIFE thC
then head OF the family Maria Baker She
/ owed 70 duty to her children save support
! maintenance aud educaiion--noue III regard
to ihis land Independent OF the homestead
which had arisen under the Act OF 1862
which, Us we have seen. passed 10 her on tht
Moath or her hlIslE.l. Iilils .nn W.. t!ht