WILLIAM HOOD v. SAMUEL HAMILTON et al., 33 Cal. 698

By the Court, Sanderson, J.: The only question presented by the record in this case is whether, under the grant from the Mexican nation to Joaquin Bernal, the ¡Rancho Santa Teresa became the separate property, or the common property of himself and his wife, Josefa Sanchez de Bernal. On the part of the appellant a very able and learned argument has been presented in support of the latter view, and also in support of the point that we are not concluded upon the question by the previous decisions of this Court. The distinction attempted is, we think, a little too nice.

Upon a careful review of the several cases in which the question has been considered, we are unable to say, with counsel for appellant, that this case is not within the rule there stated, nor that the question was not in those cases. There is no distinction between this case and Scott v. Ward, on the ground that the grant to Alviso (which was before the Court in that case) was not a colonization grant, while the grant to Bernal is. While the record does not, as in the case of Scott v.

Ward, contain the petition and reports of the Council of the Pueblo de San José Guadalupe and the Reverend Father, Minister of the Mission of Santa Clara, showing that the land for which Bernal petitioned was a part of the commons of the Pueblo of San José, the grant itself shows that it. was, or that it was supposed that it might be, and that it was granted upon that theory.

In his brief, counsel for the respondents asserts the fact that the land belonged to the pueblo, and that these, missing documents show it to be so; and further states that they have not been brought up because counsel for the appellant never claimed that there was any distinction between the Alviso and Bernal grants until the case reached this Court.

This statement is not denied, and while the uncontradicted statements of counsel cannot be taken as a part of the record, they may be referred to as tending to show that an inference drawn from a record which does not profess to disclose all the facts is not unfounded. But, independent of this, we are of the opinion that Scott v. Ward does determine that land granted under the colonization laws of Mexico to married men became their separate property, and not the common property of themselves and their wives.

Whether the grant, then, before the Court was a colonization grant or not, it was so regarded by counsel and Court. It was the law of those grants which was debated by counsel and declared by the Court, and whether the correct result was reached or not, we do not feel at liberty to disturb it. Being of this opinion, a rediscussion of the question would be idle and out of place. The rule in Scott v. Ward has been repeated in Noe v. Card, 14 Cal. 576; Fuller v. Ferguson, 26 Cal. 546; and Wilson v. Castro, 31 Cal. 433, and must now be accepted as a finality. Judgment and order affirmed.