The San Francisco call., 1896-06-19

cause I allow an alternatives; there are
some in this courtroom who have been
brought here to protect property they have
held in quiet possession for forty years
who would not be so generous"
The speaker then referred to the ridicu-
lousness of the claims made by the plain
tiffs and referred to the argument OF their
counsel as ''mass of irreleyancy and ab-
surdity.
s'Briefy stated" he continued, 'our case
is this: First, that the grant to Noe vested
in him separate estate. Secondly, that
if the estate were in fact community, the
husband had, in the absence of a showing
of fraud, the absolute right OF dlstri ribution.
Third, the plaintiffs are precluded by the
patent from making any claim to the
property.
Mr.. Lane then briefly reviewed the main
facts which occurred i'll the accession to
the United States of the present State of
California. He explained the act OF 1857
creating a Board of Land Commissioners.
at was the duty of this board" he said,
ito ascertain ana settle the titles claimed
under Mexican or Spanish grant, and all
those claiming or to claim under such
grants were required by this act of Con-
gress to present their claims within the
time mentioned in this act.
ain the case at bar not only have the
plain tiffs failed to show a compliance with
this act in their own behalf, but they have
themselves shown that the original Senor
Noe did comply with said act and did OBJ
tain a confirmation OF his grant and
patent from the United States.
''The defendants here have obtained this
latter title, which is perfect. So that
plaintiffs have by their own showing
proved that they have no title whatever.
This of itself is sufficient to dispose of the
case.
But" said Mr.. Lane, ignoring for the
time being these facts, and assuming with
the plaintiffs that the property in ques--
tion was the property of the matrimonial
partnership, still it has been shown that
Senor Noe conveyed the property for a
valuable consideration, and our State Su-
Dreme Court has repeatedly held that
even under the Mexican law the husband
mad such right and power Of disposition,
and that the only limitation on such right
was In case OF attempted transfer in fraud
of the wife or her heirs. The very first
report of our Supreme Court records lays
this principle down plainly and squarely,
and subsequent cases followed the same
line
Mr.. Lane then read number of cases in
the early reports establishing this theory.
'This, he said again, twas sufficient in
itself to dispose of the plaintiffs claim"
The attorney then read from the case Of
similar to those in this case. 1t was there
held plainly, emphatically and conclusive
ly, he said that such property was the
separate property of the donee named in
the grant, and that neither the wife nor
her heirs took any interest in il whatso-
ever.
A number of other California cases were
cited as directly in point and conclusive
upon this question.
Continuing, he said: stIt having been
shown that the property involved in this
litigation was the separate property of the
original Noe, it follows that neither the
wife nor any of her heirs, who are even
these plaintiffs, obtained anv interest in
it; and the plaintiffs. being thus shown
to have acquired no title whatever, they
have no title to quiet, and their suit must
fail"
Mr. Lane concluded his argument with
an appeal for a speedy verdict, which,
he said, would bring Joy to thousand
homes where there was now fear and dis
couragement.
Mr.. Van Duzer begged the indulgence of
the court, which was granted reluctantly,
to present an authority upon the point
that Governor or chief man of a State
could not donate land other than as a
gift. If it assumed the character of pur-
chase it was void.
His Honor then stated,that the attorneys
for the defendants would have ten days to
file briefs if they wished to make any sup
Elemental argument, and the plaintiff
would have thirty days to file his replies.
This will take up to near the close of vaca-
ton, when the court will i'm m ediately take
up the case, with view to rendering n
early decision. Attorneys Mullaney. Shad-
burne and McKinne stated that they were
so well satisfied with the argument they
would submit no briefs.