U. S. v. White, 64 U. S. 23 How. 249 (16:

560).

If the sale to Jose Arnaz was void, the patent issued thereon is void.

Hunter v. U. S. 30 U. S. 5 Pet. 188 (8: 92). The appellants' title to the land described in the answer was complete and perfect in all respects, prior to the cession of California to the United States.

Minturn v. Brower, 24 Cal. 645; Schmitt v. Giovanari, 43 Cal. 617; Malarin v. U. S. 68 U. S. 1 Wall. 282 (17: 594); U. S. v. Castro, 5 Sawy. 628; Rancho Corte de Madera del Presidio, Copp's Pub. Land Laws, 532. Pablo de la Guerra had jurisdiction to make the survey.

Cohas v. Raisin, 3 Cal. 443; White v. Moses, 21 Cal. 34; Merryman v. Bourne, 76 U. S. 9 Wall. 602 (19: 686); Palmer v. Low, 2 Sawy. 250; Pico v. U. S. 1 Hoffm. L. C. 279.

cess alleged to have been excluded from the decree of confirmation, the final survey and the patent? It is impossible to answer this question more conclusively than by asking it. Its simple statement is the strongest argument that can be made in favor of the appellees. This question has been answered in the negative.

Cassidy v. Carr, 48 Cal. 339; Boyle v. Hinds, 2 Sawy. 527; Minturn v. Brower, 24 Cal. 664; Teschemacher v. Thompson, 18 Cal. 25, 26; Leese v. Clark, 20 Cal. 423, 424; S. C. 18 Cal. 571, 572; U. S. v. Halleck, 68 U. S. 1 Wall. 455, 456 (17: 668); U. S. v. Billings, 69 U. S. 2 Wall. 448 (17:849); Higuera v. U. S. 72 U. S. 5 Wall. 827 (18:469); Beard v. Federy, 70 U. S. 3 Wall. 489, 492, 493 (18: 91-93).

Beard v. Federy, is affirmed in St. Louis Smelting & Ref. Co.v. Kemp, 104 U. S. 641 (26: 876), a case which states, with great power, the conclusive effect to be attributed to patents of the United States.

See also Moore v. Wilkinson, 13 Cal. 478; Boggs

Mitchel v. U. S. 34 U. S. 9 Pet. 749 (9: 297). If we have shown a perfect title from Mexico in Jimeno prior to the treaty of cession, the United States must protect it. The treaty of cession stipulated for such protection.

Beard v. Federy, 70 U. S. 3 Wall. 490 (18:92). A United States patent on a Mexican grant is a quitclaim deed from the government, and does not enlarge or abridge pre-existing titles. U. S. v. Arredondo, 31 U. S. 6 Pet. 736 (8: 564); New Orleans v. De Armas, 34 U. S. 9 Pet. 224 (9: 109); Langdeau v. Hanes, 88 U. S. 21 Wall. 521 (22: 606); Nelson v. Moon, 3 Mc Lean, 319; Louisiana Survey Act, 1831, § 6, 4 U. S. Stat. at L. 492; Private Land Claims Act, § 13, 9 U. S. Stat. at L. 630.

The appellants are not estopped by a quitclaim deed under which they do not claim. Bigelow, Estop. 274; Kidder v. Blaisdell, 45 Me. 461.

But if the Pico sale, upon which the De Poli patent issued, is valid, and the juridical survey of November, 1847, is void, the respondents are estopped from now objecting to the lines then established and agreed upon by Anguisola, in charge of the Mission.

California Code Civil Procedure, § 1963, subd. 15; Stinson v. Hawkins, 13 Fed. Rep. 833; Stowe v. U. S. 86 U. S. 19 Wall. 13 (22: 144); Bronson v. Chappell, 79 U. S. 12 Wall. 681 (20:436); Bigelow, Estop. 3d ed. 525; Spring v. Hewston, 52 Cal. 442; Carpentier v. Thirston, 24 Cal. 281; Alviso v. U. S. 75 U. S. 8 Wall. 337 (19: 305); Higuera v. U. S. 72 U. S. 5 Wall. 827 (18: 469); Fossat v. U. S. 69 U. S. 2 Wall. 715 (17: 751).

Mr. E. S. Pillsbury, for appellees: Can a grantee of an imperfect Mexican grant present his claim to the board of land commissioners, procure a decree of confirmation, a patent of the United States to be issued upon that survey, accept the said patent, and then, years afterwards, turn around and claim that the decree of confirmation, the final survey and the patent did not embrace all the land which he should have had under the grant,

v. St. Louis Smelting & Ref. Co. 106 U. S. 454 (27: 229); U. S. v. Sepulveda, 68 U. S. 1 Wall. 104 (17: 569); Manning v. San Jacinto Tin Co. 9 Fed. Rep. 726; Maxwell Land-Grant Case, 121 U. S. 325 (30: 949); S. C. on rehearing, 122 U. S. 365 (30: 1211); U. S. v. Hancock, 30 Fed. Rep. 851.

The question as to whether the survey in fact conforms to the claim confirmed, or not, is one to be determined by the department, and not by the courts.

U. S.v. Flint, 4 Sawy. 61; Beard v. Federy, 70 U. S. 3 Wall. 492, 453 (18: 92, 93); U. S. v. Sepulveda, 68 U. S. 1 Wall. 108, 109 (17: 570).

The decision approving the survey was a judgment, and could only be reviewed in the same manner and under like proceedings as other judgments might be.

Manning v. San Jacinto Tin Co. 9 Fed. Rep.

734.

The authority and jurisdiction of Mexican officers in California are regarded as terminating on the 7th of July, 1846.

U. S. v. Yorba, 68 U. S. 1 Wall. 412, 423 (17: 635, 637); Stearns v. U. S. 73 U. S. 6 Wall. 589 (18: 843); Hornsby v. U. S. 77 U. S. 10 Wall. 239 (19: 904).

It is certain that no such authority existed after the overthrow of the Mexican Government.

Fremont v. U. S. 58 U. S. 17 How. 563 (15: 248).

Measurement and segregation from the public domain were official acts, and could only be made by the officers of the Mexican Govern. ment acting as such.

Boggs v. Merced Min. Co. 14 Cal. 279.

They were essential to complete investiture of title.

U. S. v. Castro, 5 Sawy. 628; Malarin v. U. S. 68 U. S. 1 Wall. 289 (17: 595).

The appellants voluntarily submitted to the jurisdiction of the tribunals appointed by the United States. This precludes them from now attacking that jurisdiction.

Cassidy v. Carr, 48 Cal. 339; Boyle v. Hinds, 2 Sawy. 527; Minturn v. Brower, 24 Cal. 664.

ment. U. S v. Yorba, 68 U. S. 1 Wall. 412, 423 [17:635, 637]; U. S. v. Pico, 64 U. S. 23 How. 321, 326 [16: 464, 466]; Hornsby v. U. S. 77 U. S. 10 Wall. 224, 239 [19:900, 904]. After that date no alcaldes elected by the citizens had any jurisdiction to deliver judicial possession. This was distinctly held in the case of Fremont v. United States, 58 U. S. 17 How. 542, 563 [15: 241, 248]. In answer to the objection there taken, that there was no survey or judicial possession of the land granted to Alvarado, under whom Fremont claimed, the court said: "The alcalde had no right to survey the land or deliver judicial possession, except by the permission of the American authorities. He could do nothing that would in any degree affect the rights of the United States to the public property; and the United States could not justly claim the forfeiture of the land for a breach of these conditions, without showing that there were officers in California, under the military government, who were authorized by a law of Congress to make this survey and deliver judicial possession to the grantee. It is certain that no such authority existed after the overthrow of the Mexican Government."

The doctrine invoked by the defendants, that the laws of a conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cassion until changed by him, does not aid their defense. That doctrine has no application to laws authorizing the alienation of any portions of the public domain, or to officers charged under the former government with that power. No proceedings affecting the rights of the new sovereign over public property can be taken except in pursuance of his authority on the subject. The cases in the Supreme Court of California and in this court, which recognize as valid grants of lots in the pueblo or city of San Francisco by alcaldes appointed or elected after the occupation of the country by the forces of the United States, do not militate against this view. Those officers were agents of the pueblo or city, and acted under its authority in the distribution of its municipal lands. They did not assume to alienate or affect the title to lands which was in the United States. Welch v Sullivan, 8 Cal. 165; White v. Moses, 21 Cal. 34; Merryman v Bourne, 76 U. S. 9 Wall. 592 [19:683].

It follows from what is thus said that it would be a sufficient answer to the contention of the defendants, that the grant under which they claim to have acquired a perfect title conferred none. The grantees were not invested with such title, and could not be without an official delivery of possession under the Mexican Government; and such delivery was not had, and could not be had after the cession of the country, except by American authorities acting under a law of Congress. But independently of this consideration, and assuming that the title under the grant was perfect, the obligation of the grantee was none the less to present his claim to the board of land commissioners for examination. The ascertainment of existing claims was a matter of vital importance to the government in the execution of its policy respecting the public lands; and Congress might well declare that a failure to present a claim should be deemed an abandonment of it, and that the

lands covered by it should be considered a part of the public domain. Certain it is that a claimant presenting his claim to the board for [82] examination and confirmation, in order that he might subsequently acquire a patent from the government, is bound by the adjudication of the board. After submitting his claim to its examination and judgment, he cannot afterwards be heard to say that in adjudicating upon his title the board erred, or that the Land Department in determining the boundaries of his claim erred, in order that he may claim, outside of the survey and patent, other lands which he considers covered by his grant. He cannot repudiate a jurisdiction to which he has appealed; and the estoppel extends to parties claiming under him. Boyle v. Hinds, 2 Sawy. 527; Cassidy v. Carr, 48 Cal. 339.

In determining claims under Mexican grants the board of land commissioners was required, by the Act under which it was created, to be governed by the Treaty of Guadalupe Hidalgo; the law of nations; the laws, usages and customs of the government from which the claim was derived; the principles of equity; and the decisions of the Supreme Court of the United States, so far as they were applicable. And in United States v. Fossatt, 62 U. S. 21 How. 445, 449 [16: 186, 187], this court, in considering what was involved in the inquiry into the validity of a claim to land under that Act, said: "It is obvious that the answer to this question must depend, in a great measure, upon the state and condition of the evidence. It may present questions of the genuineness and authenticity of the title, and whether the evidence is forged or fraudulent; or, it may involve an inquiry into the authority of the officer to make a grant, or whether he was in the exercise of the faculties of his office when it was made; or, it may disclose questions of the capacity of the grantee to take, or whether the claim has been abandoned or is a subsisting title, or has been forfeited for a breach of conditions. Questions of each kind here mentioned have been considered by the court in cases arising under this law. But, in addition to these questions upon the vitality of the title, there may arise questions of extent, quantity, location, boundary, and legal operation, that are equally essential in determining the validity of the claim. In affirming a claim to land under a Spanish or Mexican grant to be valid within the law of nations, the stipulations of the Treaty of Guadalupe Hidalgo, and the usages of those governments, we imply something more than that certain papers are genuine, legal and translative of property. We affirm that the ownership and possession of land of definite boundaries rightfully attach to the grantee."

Trust relations respecting the property be tween the patentee and others may be enforced equally with such relations between him and others respecting any other property; but until the patent is set aside or modified by proceedings taken at the instance of the government, all the questions necessarily involved in the determination of a claim to land under a Spanish or Mexican grant, and in establishing its boundaries, are concluded by it in all courts and proceedings, except as against parties claiming by superior title, such as would enable them to

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possession of so much of said lot_two as lies south of the south line of lot number one, as indicated by a fence constructed and maintained by the defendant as and on said south line, said fence running from the state line easterly to Lake Michigan,-and assess the damages at $1.00 and costs, taxed at $- which the plaintiffs shall recover of defendant.

"All of which is finally ordered, adjudged, and decreed.”

During the same term, February 5, 1883, the plaintiffs moved that the decision and finding be set aside and annulled, and a new trial granted, for the following reasons: 1. They were contrary to the law and the evidence. 2. The plaintiffs were surprised by a case falsely made by the defendant at the trial, which they had no reason to expect, and therefore did not come prepared to answer at the trial, namely, by his claim, supported only by the testimony of his son, that Jacob Forsyth and the surveyor, Wait, pointed out and agreed upon the line occupied by the fence of defendant mentioned in said decision as the true line of said Egger's land; by his claim, supported by his testimony alone, that George W. Clarke agreed with him that the line occupied by said fence was the line between his and said Clarke's land; by his claim, supported by his own testimony and that of his son only, that a fence had been maintained on the line occupied by the fence, in said decision mentioned, for more than twenty years last past; and by his claim, supported by the testimony of his son only, that for twenty years past he had occupied all the land as far south as said fence. 3. The court admitted evidence for the defendant against the objection of plaintiffs, and the decision of the court was based on such irrelevant evidence. On the 6th of March, 1883, the following order was made: "Came the parties by counsel, and the court, being fully advised, now overrules plaintiffs' motion for a new trial; to which plaintiffs except, and the court allows plaintiffs thirty days in which to file bill of exceptions." No bill of exceptions, showing what occurred at the trial, was filed.

On the 23d of April, 1884, the plaintiffs moved the court, upon written grounds filed, to amend and reform the judgment of January 20, 1883, so that it "shall conform to the complaint in said cause, and to the finding or verdict of the court rendered upon the trial in said cause."

At a subsequent term of the court, June 27, 1884, the motion to amend and reform the judgment of the court was overruled. To that ruling the plaintiffs excepted, and took a bill of exceptions embodying only the motion to amend and reform the judgment, the order overruling that motion, and the opinion of the court thereon. The court, among other things, said: "It was competent for the court, under the issue, to find to what extent the defendant was guilty, or had held unlawful possession of the premises described; and if, under the evidence, it appeared that a fence had become or was the boundary of such occupation, it was proper that the fact should be stated in the finding and judgment of the court. The finding and judgment in this instance are not separate and distinct, as perhaps it would have been better to have had them. The meaning, how

ever, is clear. It is as if the entry read in this way: And the court, having heard the evidence, etc., finds and orders and adjudges that the plaintiffs are entitled to, and shall have and recover of the defendants, etc."

The errors assigned upon the record are that the judgment does not pursue the issue and finding thereon rendered and entered of record as the law directs and requires, and that the court erred in refusing to amend and reform the judgment.

Mr. Edward Roby, for plaintiffs in error: The federal statutes on practice of the circuit courts are binding on the federal courts, and cannot be disregarded.

Louisiana Mut. Ins. Co. v. Tweed, 74 U. S. 7 Wall. 44, 51 (19: 65, 66).

Lawful authority to act in lieu of the jury must be presumed when it appears that the jury was waived.

Grignon v. Astor, 43 U. S. 2 How. 319 (11. 283); Tilton v. Cofield, 93 U. S. 165 (23:858). But if the error appears on the face of the record, the judgment entered will be reversed. Guild v. Frontin, 59 U. S. 18 How. 135 (15: 290).

Notwithstanding there is no submission in writing, this court may, according to the course of the common law, review the record on writ of error, and determine whether the judgment pursues the finding.

Bond v. Dustin, 112 U. S. 606-609 (28:836, 837); Campbell v. Boyreau, 62 U. S. 21 How. 223, 226 (16:96); Flanders v. Tweed, 76 U. S. 9 Wall. 425 (19:678); Paine v. Central Vermont R. R. Co. 118 U. S. 158 (30:195); Allen v. St. Louis Bank, 120 U. S. 30 (30:575); Alexandria Canal Co. v. Swann, 46 U. S. 5 How. 83 (12:60), York & C. R. R. Co. v. Myers, 59 U. S. 18 How 246, 252 (15:380, 382).

A finding by the court not made at the request of either or any of the parties is not a special finding.

Northcutt v. Buckles, 60 Ind. 577, 579; Caress v. Foster, 62 Ind. 145, 153, 154.

Where the Circuit Court of the United States adopts the process pointed out by a state law, there must be no essential variance.

McCracken v. Hayward, 43 U. S. 2 How. 608 (11:397).

The forms and effects of findings and verdicts are as prescribed by the local law. Pensacola Ice Co. v. Perry, 120 U. S. 318 (30: 663).

At common law the verdict was always plainly entered, as in Rastell's Entries, 253; Coke's Entries, 184-216; Runnington, Eject. 232, 233, 478, 479, 510; Co. Litt. 227, a, b, Aston's Entries, 308; Harris's Entries, 341, 356; Mallory's Entries, 43, 44; Lilly's Entries, 513; 4 Co. Inst. 87.

Judgment can be given only on what has gone before in the record.

Co. Litt. 39, a; Cunningham, Law Dict. title Judgment; Tomlin, Law Dict. title Judgment and Record.

Record is a memorial of the proceedings and acts of a court of justice.

Co. Inst. 260, a; 1 Bl. Com. 69; 3 Bl. Com. 24. What the law requires to be done and to ap pear of record can only be done and made to appear by the record itself, or an exemplification of the record.