THOMAS A. TALBERT v. WILLIAM HOPPER and CHARLES HEINRICH, 42 Cal. 397

By the Court, Sprague, J.: On the reopening of the original submission of this cause, appellant made and now urges the point that on the 18th day of March, 1869, and on the succeeding days, which by the record is shown to have been the time when the cause was tried, the Sixth Judicial District Court for the County of Sacramento could have had no legal existence, except upon special conditions, and that the record in the case failing to show affirmatively the existence of these prerequisite conditions the trial is a nullity.

This Court will take judicial notice of the regular terms of the District Courts, as fixed by statute, and also of the fact that by statute the several District Courts of the State are authorized to adjourn any general term of their Court in one county composing their district to a day certain within the time prescribed by law for the commencement of the next term for such county; provided such special term shall not interfere with a general term in such district. (Stats. 1863-4, p. 118.) The general terms of the District Court for Sacramento County are fixed by law to commence on the first Mondays of February, April, June, August, October, and December of each year; and for Yolo County, the only other county composing the Sixth Judicial District, on the third Mondays of March, July, and November of each year.

The general February Terms of the Sixth District Court for Sacramento County must, therefore, be held commencing on the first Monday of February, and concluded before the third Monday of March in each year; and for the year 1869 such general term must have commenced on the first day of February, and have concluded at some time prior to the fifteenth day of March; and the general March Term of said Court for Yolo County must have commenced on the fifteenth day of March, and have concluded at some time prior to the first Monday or fifth day of April, the day fixed by law for the commencement of the general April Term for Sacramento County.

By the Act of March 1st, 1864, above referred to, it is provided as follows: “It shall be lawful for the District Court sitting in any county of this State, by an order entered on its minutes, to adjourn the Court- to a day certain within the time fixed by law for the commencement of the next term in such county, notwithstanding a term or terms for some other county within the same district may intervene; provided that such special term shall not interfere with any general term in said district.” It appears by the terms of this Act it was possible and entirely competent for the Sixth Judicial District Court to have been in session as such Court for the County of Sacramento on the 18th day of March, 1869, and to have continued such session as a legally constituted District Court for Sacramento County up to and including the 3d day of April, 1869, by a compliance with the provisions of the statute of March 1st, 1864.

The general March Term of said Court for Tolo County, in the year 1869, must have commenced on the fifteenth day of March, and may have been finally adjourned before the eighteenth day of March.

There is nothing in the record before this Court tending to show that the terms and conditions of this Act .of March 1st, 1864, had not been fully answered; and in the absence of such showing by the record it must be presumed that what was done by the Court below was properly and legally done; that the prerequisite steps and conditions necessary to constitute a legal District Court in the County of Sacramento on the 18th day of March, 1869, had been taken and existed. Error is not to be presumed, but when alleged it must be affirmatively shown. The instrument executed by John A.

Sutter, Jr., to Bran-nan, Bruce, Graham, and Wetzlar, dated June 20th, 1850, was unquestionably a deed upon condition precedent, and upon full performance of the precedent condition, to wit: the payment of the purchase price agreed upon by the grantees to the grantor, his title to the lands described therein vested in the grantees.

The question of fact as to whether the purchase price was fully paid or settled by the grantees, to the satisfaction of and accepted by the grantor, prior to the 9th day of July, 1855, the date of the deed from the same grantor to William Mesick, through whom plaintiff claims title to the demanded premises, must have been found in the affirmative by the Court below. The record discloses no evidence upon this question, except the evidence of Julius Wetzlar, one of the grantees in the deed of June 20th, 1850; and I am not prepared to say that this evidence is insufficient to justify the finding.

This deed of June 20th, 1850, included the premises in controversy; and the conditions thereof having been fully performed by the grantees named therein, to the satisfaction of the grantor, prior to the 9th day of July, 1855, the title vested absolutely in the grantees prior to that date; hence, on that date John A. Sutter, Jr., had no title in the demanded premises to convey to Mesick, through whom plaintiff claims. The plaintiff, therefore, having relied upon title as a basis of his right to recover the possession, and failed to establish his title, judgment was properly rendered against him. Judgment affirmed.