FREDERICK HALL v. GEORGE M. YOELL, JUAN PABLO BERNAL, AMOS WHITE, JOHN TRIMBLE, ADOLPHUS H. PARKER, ANTONIO HIGUERRA de BERNAL, and JEAN DAVID GUERRAZ, 45 Cal. 584

By the Court, Niles, J.: This appeal is taken by the defendant Yoell only, from an interlocutory decree in an action for the partition of the northern portion of the Rancho Canada de Pala, situate in the County of Santa Clara. The common source of title was a grant of the land by the Mexican Government to the three brothers, José Jesus Bernal, José Antonio Bernal, and Juan Bernal. The plaintiff claimed title to an undivided one fourth of the premises through a parol sale made by José Jesus Bernal, one of the original grantors, to his brother José Antonio Bernal, sometime in the year 1848.

The validity of this sale is disputed by the appellant, and, as between the plaintiff and the appellant, this is the sole ground of error assigned upon the appeal. The question presented is not an open one in this Court. In Cook v. Frink, 44 Cal. 331, it was said that “ under the Mexican law in force here in 1848, parol sales of real estate, when fully executed, were valid and binding between the parties, and passed the title to the vendee.” The same construction of the Mexican law was given in Long v. Dollarhide, 24 Cal. 218, and the principle may be considered as settled in this State.

There was ample evidence in support of the implied finding of the Court below, that the parol sale from José Jesus Bernal to. his brother José Antonio, was followed by a possession of the vendee sufficient to consummate and perfect the sale. 2. There can be no doubt as to the title of the defendant Parker to the interest claimed by him and awarded to him by the decree. This title was derived from a mortgage executed to one Story by Bionicio Bernal, in October^ 1863, by which the latter mortgaged the entire interest which he held in the land as one of the heirs of José Jesus Bernal.

Ho question is made as to the validity of the foreclosure and sale under the mortgage, or of the subsequent conveyance, by which the title of Bionicio Bernal is claimed by defendant Parker to have become vested in himself. Against this' claim the appellant sets up a title derived through two deeds, the one made by a Constable, and the other by a Sheriff, after sales under executions issued subsequently to the execution of the Story mortgage. ■ The first judgment was rendered in a Court of a Justice . of the Peace on the 4th of October, 1862, at the suit of one Guerrillo against one Leonisio Bernal.

There was no evidence whatever to show that this Leonisio Bernal was the same person, under another name, as the Dionicio Bernal who was the acknowledged owner of the interest mortgaged to Story and who executed that mortgage; nor was there any evidence tending to connect him in any way with the title to the land. The judgment roll and Constable’s deed might very well have been excluded upon this ground, and was very properly disregarded. The Sheriff’s deed which followed the sale under execution in the case of Schlesinger v.

Dionicio Bernal, was executed within less than six months after the sale was made, and as has been frequently held by this Court, was for that reason utterly void. (Gross v. Fowler, 21 Cal. 392; Bernal v. Gleim, 33 Cal. 668.) The purchasers at these several sales were neither necessary or proper parties to the suit to foreclose the mortgage. Judgment and order affirmed. Mr. Chief Justice Wallace did not express an opinion.