JOHN C. BLACK, Respondent, v. FRANCISCO GALINDO, Appellant, 40 Cal. 171

Ceookett, J., delivered tbe opinion of tbe Court, Temple, J., Bhodes, C. J., and Wallace, J., concurring: Tbe premises in controversy are situate in tbe town of Santa Clara, and are included within certain public lands wbicb were granted by tbe Act of Congress of March 1st, 1867, (14 U, S. Stats, at Large, p. 418), to tbe corporate authorities of said town, in trust, that they would convey tbe same to tbe person or persons in tbe bona fide occupancy thereof at tbe time of tbe passage of tbe Act.

In virtue of tbe authority conferred by tbis Act, tbe Trustees of tbe town in July, 1867, conveyed said premises to one Concepcion Alviso de Yalencia, then an unmarried woman residing upon said premises, who was formerly tbe wife of Julio Yalencia, but who bad been divorced from him in tbe year 1856. Tbe plaintiff deraigns title under tbis conveyance, and was in tbe actual possession of tbe premises at tbe commencement of tbe action.

The defendant claims under ono Augustin Alviso, to whose rights he has succeeded; and he assails the plaintiff’s title on the alleged ground that on the 1st of March, 1867, the said Augustin Alviso was in the bona fide occupancy of said premises through the said Julio and Concepcion .Y&lencia and his tenants, and that the said Augus-tin was, therefore, entitled to the benefits of said Act of Congress, and that the application of the said Concepcion, in her own right, to the Trustees for a deed was a fraud upon the rights of said .Augustin.

He therefore claims that the plaintiff, who has succeeded to the rights of said Concepcion, should be decreed to be a Trustee, holding the legal title for the benefit of the defendant. He also claims that the deed from the Trustees to said Concepcion is void, for the reason, first, that it was not made in accordance with the ordinance passed by the corporate authorities in that behalf; second, because the said Concepcion was not in the bona fide occupancy of said premises in her own right on the 1st of March, 1867, and therefore was not entitled to said conveyance.

It is clear, however, that unless Augustin Al-viso, by himself or his tenants, was in the bona fide occupancy of said premises on March 1st, 1867, and was for that reason entitled to a conveyance from the Trustees, it does not concern the defendant whether or not Concepcion was entitled to said conveyance, or whether the deed from the Trustees to her was void or not. If Alviso was not entitled to said conveyance, he had no title, either legal or equitable, to said premises, and the defendant has none.

The material point in the case, therefore, is whether or not, on the 1st of March, 1867, Alviso had such a possession of the premises as entitled him to a deed from the Trustees. We must assume in support of the judgment, that the Court below found that he had not such possession, and was, therefore, not entitled to a conveyance from the Trustees. If there was a substantial conflict in the testimony on this point, we should not disturb the finding.

It is not pretended that Alviso, in person, occupied said premises on the 1st of March, 1867; but it is claimed that in 1866 he made a written lease of them to Julio Valencia, the former husband of Concepcion, and that said Julio and Concepcion occupied under this lease, and held the possession by the license of Al-viso, and in subordination to his title. But considering the testimony in the light most favorable to the defendant, there is at least a substantial conflict in it as to whether Concepcion occupied the premises in her own right or in subordination to the title of Alviso.

She was not then the wife of Julio Valencia, and was not party to the lease. The proof shows that after the death of her stepmother, in 1865, she went into the actual occupation of the premises, and was in the actual possession at the date of the lease to her former husband, and the weight of the evidence is to the effect that the latter did not reside upon the premises at any time after the year 1865.

I think the defendant has failed to establish that Concepcion originally entered, or at any time held the possession by the license of Alviso, or in subordination to his title, and he has failed to show, by satisfactory proofs that Alviso, by his tenants or otherwise, occupied said premises on the 1st of March, 1867, Judgment affirmed. Speague, J., expressed no opinion.