MILES HILLS v. FREDERICK SHERWOOD and GEO; WINTERBURN, Executors of the Last Will and Testament of James Stokes, Deceased, 33 Cal. 474

By the Court, Sawyer, J. : The defendants are sued as executors of one James Stokes, to recover the purchase money paid for a tract of land conveyed by Stokes to plaintiff.

The conveyance of Stokes as alleged in the complaint, and not denied in the answer, contained a covenant “ that the original Mexican title of said land was valid, and in the event that the said original title to the said land should not be confirmed by the Courts of the United States, before which it was then pending, upon the final adjudication of the same, the said Stokes, his heirs, executors and administrators should and would be liable to the plaintiff for the sum named and mentioned in the said deed as the consideration thereof.” It is averred in the complaint “ that the said original Mexican title to the said land was thereafter—viz: on the 9th day of November, A.

D. 1859, by the District Court of the United States for the Northérn District of California, the Court having jurisdiction to hear and determine the same—declared and adjudged to be invalid, and that no appeal was taken from the said decision of the District Court of the United States, within the time required by law, and that the said decision thereafter—viz: on the 9th day of November, 1864—became final, and thereby the said covenant of the said Stokes became broken,” etc.

The answer in express terms admits the making of the covenant as set forth; that the title to the land was on or about the 9th day of November, 1859, as they are informed and believe, on the 12th of November, 1859, declared and adjudged by the said District Court to be invalid; that no appeal was ever taken, and that thereby the said covenant of the said Stokes became broken. They then “ deny that on the 9th of November, A.

D. 1864, or at any other time in the year 1864, the said decision of the District Court for the Northern District of California became final, or that any cause of action accrued to the plaintiff within the year 1864; hut aver the fact to be, that said decision of said District Court became final and operative on the 12th day of November, 1859, and that a cause of action then accrued to plaintiff against said James Stokes.” The cause was submitted on the pleadings, and defendant had judgment.

The only averment of the complaint denied—that the judgment of the District Court became final on the 9th day of November, 1859—is the statement of a conclusion of law drawn from the facts averred in the complaint, and admitted in the answer. If the judgment was a “ final adjudication ” upon the title from the time it was rendered by the District Court, within the meaning of the covenant, then this action, which was not commenced till December 12th, 1865, was barred by the Statute of Limitations; upon that hypothesis the right of action accrued either November 9th or 12th, 1859, as admitted by the answer.

But if the adjudication did not become final, within the meaning of the covenant, till the time for appeal expired, which was five years after the rendition of the judgment of the District Court rejecting the claim, (United States v. Pacheco, 20 How. 261,) the action was brought in time. A judgment may he a “ final adjudication ” in different, senses.

It may he final as to the Court which renders it, without being final as to the subject matter. “ The last decree of an inferior Court is final in relation to the power of that Court, hut not in relation to the property itself, unless it he acquiesced in.” (United States v. Schooner Peggy, 1 Cranch, 103.) Although a judgment may be final with reference to the Court which pronounced it, and, as such, be the subject of an appeal, yet it is not necessarily final with reference to the property, or rights affected, so long as it is subject to appeal and liable to be reversed.

The “ final adjudication ” intended by the parties to the covenant in question was, doubtless, an adjudication final as to the land and the rights of the parties. Had an appeal been taken before this action,was brought, unquestionably, the action could not have been maintained until after a final disposition of the appeal. (United States v. Schooner Peggy, 1 Cranch, 103; Thornton v. Mahoney, 24 Cal. 569.) The provisions of the sixth

section of the Statute of Limitations except from the operation of the

section lands claimed under grants from the Mexican Government, “ if such action he commenced within five years from the time of the final confirmation of such title by the Government of the United States, or its legally constituted authorities.” Hnder this provision and the Act of Congress of 1851 establishing the Board of Land Commissioners, etc., it has been held that the confirmation is not final, and the time does not begin to run till the patent issues; for, till then, the. location is subject to he changed. (Davis v. Davis, 26 Cal. 46; Johnson v.

Van Dyke, 20 Cal, 228.) In this case the judgment was subject to appeal, and to be reversed, at any time within the five years. The reasons for the rule adopted in the cases cited apply with equal force to this. Besides, had plaintiff commenced his action on the 13th of Hovember, 1859, or at any time within five years after the rendition of the judgment of the District Court, Stokes could immediately have taken his appeal, set up the facts in his answer, and defeated the action.

There is nothing to show any waiver of an appeal upon the record—any acquiescence in the finality of the judgment upon the subject matter. Ho absolute right of action against Stokes had vested in the plaintiff till the time for appeal expired; for while it was in the power of Stokes, at his own option, by an appeal and further litigation in the higher Court to defeat any action that might be brought against him on the covenant by plaintiff, a cause of action .could not be said to have accrued.

We think there was not a final adjudication, within the meaning of the term as used in the covenant, till the time for appeal expired, and that the plaintiff was entitled to judgment on the case as presented by the pleadings. Judgment reversed and the District Court directed to enter judgment in pursuance of the prayer of the complaint.