pelled and destroyed by the production or proof of the contents of the instrument under which the possession was held. The children, it is true, of Manuel Nieto claimed after his death to be the owners of the premises; but the assertion of this claim only shows an erroneous impression on their part of the rights conferred by the permission to their father. The fact found is that they occupied under the permission. The claim asserted arose, therefore, from a mistaken construction of the effect of the permission in transferring the title.

Nor could any title accrue by prescription to the ancestors of the plaintiffs from their occupation under the permission in question. Under the Spanish law, where title by prescription is founded upon possession under a written instrument, it is essential that the instrument should purport on its face to pass the title. "There is a good deal of confusion," says the Supreme Court of Louisiana, "and some apparent contradiction in the books which treat of the title necessary to form the basis of the prescription longi temporis. The correct doctrine, we think, is this: that if the title, under which the acquisition is made, be null in itself, from defect of form, or discloses facts which show the person from whom it is acquired has no title, it cannot form the basis of this prescription, because the party acquiring must be presumed to know the law, and consequently wants the animo domini, which is

indispensable in cases of this kind. But where the [490] title is free from these defects, and the *property is

not transferred, by want of title in the party making the transfer, then it forms a good ground for the prescription; or, in other words, the inquiry is, whether the error be one of fact or of law." (Frique v. Hopkins, 4 Martin's N. S. 224.) The ordinary requirements of prescription, according to the Spanish law, are four: 1st, just title; 2d, good faith; 3d, continued possession; 4th, the time fixed by law. "By just title," says Sala, "which is also called colorable title, we understand anything which, if it issue from the lord of the thing, may transfer the dominion; that is to say, sale, exchange, donation, institution of heir, and others, are just, but deposit, lease, loan, are unjust; because, although they issue from the true lord, the latter did not by them proposa to transfer the dominion." (Sala Mexicano, 2, p. 76.)

A similar rule prevails at the common law, where an adverse possession under a written instrument is asserted. . Instruments which on their face do not purport to transfer the title, as leases, cannot be the foundation of an adverse possession. Contracts to convey, where the consideration has been paid, and which equity would specifically enforce, constitute perhaps an exception. (Frombois v. Jackson, 8 Cowen, 589.) The possession of an occupant is, in the first instance, presumed to be rightful and adverse to any other claimant. But "the presumption which the law thus raises in favor of the actual occupant," says one of the Senators in his concurring opinion in the case cited, "may be destroyed by proof of his having a lease or evidence of his having paid rent, or acknowledged the title set up; or it may be destroyed by showing that the occupant entered without pretending to any claim of right whatever; in which case the law adjudges the possession to be in subservience to the legal owner, (16 John. 301,) for he can derive no benefit from a legal presumption, who, by his own acts, shows that the presumption cannot apply; the fact that no claim of right was made showing that none existed." (8 Cowen, 617.)

To establish a prescriptive title under the Spanish law, or to constitute a foundation for adverse possession at the common law, the instrument under which the occupant entered and claims the premises must purport in its terms to transfer the title-must be such as would, in fact, pass the title had it been executed by the *true owner and in [491] proper form, (with the exception, perhaps, of a contract to convey after payment of the consideration,) and the occupant must have entered under it in good faith, in the belief that he had a good right to the premises, and with the intention to hold them against the whole world. The possession must have been adverse in its inception and during its continuance.

2. There is nothing in the averments of the petition of Grijalba which can estop Josefa Cota, or the defendant claiming under her, from denying that the title to the premises was originally in Manuel Nieto, and afterwards in his children. It does not appear that Grijalba was authorized to act for Josefa. He does not profess to thus act, nor is it shown that

she had ever seen the petition to the Governor, or knew of its contents. But even if the facts were otherwise, and she had seen the petition and knew its contents, we do not perceive that any estoppel would be created against her. The petition is no part of the grant. It is only the declaration of the party who made it, or of the party by whose authority it was made. Like any other declaration, it is open to explanation. The grant is the operative instrument, and the representations made to the Governor cannot control the course or nature of the title. If those representations were in truth erroneous, and the mistake in them affected the grant in any respect, the fact could only be made available by the Government. But the truth is, the averments of the petition are to be considered, like the claim of ownership made by the children of Manuel Nieto after his death, in connection with the established fact, that the children occupied under the permission granted to their father; and thus considered, the averments are only the erroneous conclusions of Grijalba as to the legal effect of the permission in transferring the title. Such erroneous conclusions may very well have been drawn by him, as the nature and character of the permission could only be stated from recollection, the original paper having been lost. The "testimonial" furnished of the evidence found in the archives in reference to the alleged ancient title, appears, from the petition, to have been only sufficient to prove the legality of the occupation of the premises. It could not have shown a transfer of the fee of the property, for, in that event, it is not to be supposed that any new or further grant would have been sought.

[492]

*The recital in the decree of July 27th, 1833, made upon this petition, when correctly translated, is entirely consistent with the fact that a mere provisional license to occupy and graze had been issued by Governor Fages. The term translated "grant" would, as we have already stated, be more correctly rendered "concession." And the provisional permission to Manuel Nieto was as strictly a concession as would have been an absolute grant. This concession and the long occupation of the parties may very well have induced Governor Figueroa to vest in them the title. His power under the colonization laws and regulations author

ized him to cede the land if the title still remained in the Government. He knew, or might have known, whether it did thus remain. He assumed that it did and acted accordingly, and declared the parties owners of different parcels of the premises, pursuant to a verbal partition made between them, and directed juridical possession to be delivered to them. It is, evidently, as counsel very justly observe, a fair presumption that the Governor understood the laws he was administering and the jurisdiction he had over the premises, and a very violent presumption that he would declare the ownership of particular lands to be in Josefa Cota when the title was already vested in others, and he had no power or disposition over it. We agree with counsel that the more reasonable presumption is that he knew and intended to recite the consistent truth.

The recital in the grant to Josefa Cota, that she had shown herself entitled to the estate of the deceased Manuel Nieto, does not show that any title had previously been issued to him. The estate to which reference is thus made was only the interest which Nieto had acquired by his license to occupy. Whatever rights that gave, Josefa, according to the recital, had shown herself entitled to. The recital operates in all its particulars, if at all, and not merely in some of them. If it estop the grantee from denying a previous title in Manuel Nieto, it equally shows that she had in some way become invested with such title, whatever it may have been.

3. There is nothing in the operative words of the grant to Josefa Cota which show that the grant was issued in confirmation of a previously existing title in the heirs of Nieto, and not as a concession of a title existing at [493] the time in the Government. The words used "declaring to her the ownership" of the premises, when taken in connection with other parts of the instrument, clearly show a transfer of the property. A similar position to that of the plaintiffs' counsel was taken before the Board of Land Commissioners when the grant was under consideration by that tribunal, and it was held untenable. "The grant," says the opinion of the Commissioners, "in its terms is totally inconsistent with such a supposition. If he (the Governor) regarded the title of these heirs already perfect in the land,

how could he annex the conditions which this grant contains? How could he declare a title already perfect forfeited, if a house was not built upon the place within a year? How make a compliance with the terms of a future colonization law a condition of the holding of that estate? If he regarded this title as already perfect, the heirs already invested with an indefeasible estate under the former grant, one which withdrew the land from his authority, under his power to grant the national domain, he could no more annex conditions to that title, and declare it null if they were not performed, than he could abolish the title altogether and unconditionally. The truth is, that the whole record shows that he did not regard the rights of the parties under any concession made by Fages as establishing private ownership and title in them, and making a new grant both unnecessary and without validity. Instead of showing an admission of Governor Figueroa of such prior title, under the grant from Fages, it presents conclusive evidence that he regarded such a grant, whatever it was, as having no such effect, but on the contrary he proceeded to make a concession of the premises, on the principles and under the conditions provided in the law of 1824, and the regulations of 1828, from which he derived his power over the subject.

"The concessions under the Spanish authority, made in the Californias before the Independence of Mexico, do not purport to be perfect titles; at least none of that character have fallen under the notice of this Commission. One only has received confirmation, and that on the ground that an equitable, though not a legal title, was established. The old grants were generally mere rights of possession or pro

visional grants, and in almost every case, when the [494] *Government was established after the Mexican revo

lution, the parties applied for new grants, which they received, not as a mere evidence of a former subsisting title, but in the form, and under the terms, and subject to the conditions imposed by the law of '1824 and the regulations of 1828. Under these, the power of the Governors over the public domain was defined. It was a power to grant under certain conditions, not a power to recognize and give new evidences of private titles already existing without conditions