Surgett v. Lappice, 8 How. U. S., 165; Loring v. Downer, 1 McAl. 365; Head v. Fordyce, 17 Cal. 151.)

II. There being no fraud shown on the part of the defendant, he could not be required to convey the land to plaintiffs unless his relation towards them in acquiring his title made him their quasi trustee. But the defendant is an utter stranger to the title set up by plaintiffs, and claims [509] nothing under it; nor has he borne any *fiduciary relation to plaintiffs or their grantor. His acquisition of title to the lands by patent will not inure to henefit of plaintiffs. Besides, defendant's grantor Dias, acquired defendant's title with the knowledge and consent, and under the direction of José Santiago Estrada, the grantor of plaintiffs, who are not purchasers in good faith

III. The Court did not err in refusing a new trial. The testimony was overwhelmingly in favor of the defendant, and entirely justified the findings and judgment of the Court, and would not support any other.

1. The plaintiffs were not in possession of the land nor any part of it.

2. The defendant is in possession of the land, and so has been exclusively for ten years; his immediate grantor, Manuel Dias, was in possession from 1845 to 1850; and the immediate grantor of said Dias, to wit, José Mariano Estrada was in possession from 1823 to 1845.

3. The land in dispute is named Rancho "Llano de Buena Vista," and is situated on the north or right-hand side, going down of the Salinas or Monterey River. The rancho named Buena Vista is opposite on the south or Monterey side of said river. The alleged title of plaintiffs is for "Buena Vista," and they have no title to the land in dispute. The defendant has title to the land in dispute, "Llano de Buena Vista."

IV. The apparently good but really defective title, not the genuine and true one, is a cloud upon the title; and if the holder of the true title is not in possession, he has a plain, speedy, and adequate remedy at law by ejectment; and he cannot proceed in equity. But if he is in possession, as this Court has before said, he might formerly, without the aid of statute, after his title had been tested and affirmed at law, have proceeded to remove the cloud; yet now under the

statute, he may, being in possession, proceed in equity without a previous trial at law. But in this latter case the plaintiff must show a clear legal title in himself. (33 Miss., 4 George, 292.)

There may possibly be a case where one, out of the possession and not having the legal title, may in equity procure the convey-*ance of that title in himself, where [510] the holder of the title has by trick and fraud acquired

it. But this is not plaintiffs' case. They allege title in fee in themselves, entirely independent of, distinct from, and adverse to the defendant's title; and they allege no relation of trust or fiduciary character in the defendant.

FIELD, C. J. delivered the opinion of the Court-COPE, J. and NORTON, J. concurring.

The Court below appears to have treated this action as brought under the statute to quiet the title of the plaintiffs to a tract of land situated in Monterey county, and to have ordered its dismissal on the ground that the plaintiffs were not in possession of the premises at its commencement. Such possession of the plaintiffs was essential to maintain an action of this character. (Prac. Act, sec. 254.) But the defendants contend that the action was brought not merely to quiet the title of the plaintiffs, but also to establish and enforce a trust. The complaint sets forth that a grant of the premises was issued in 1822 to José Santiago Estrada, through whom the plaintiffs trace their title; that the defendant David Spence presented a claim for the same premises to the Board of Land Commissioners, alleging that a grant of them was made in 1823 to José Mariano Estrada, through whom he deraigns his title; that the claim was confirmed; that subsequently a patent for the land was issued to him by the United States; that the confirmation was obtained by fraud and false representations; and that the mesne conveyances to him and the patent constitute a cloud upon the plaintiffs' title; and concludes with a prayer that the mesne conveyances be set aside, that he be enjoined from making any claim to the premises, and be decreed to convey the same to the plaintiffs, and for general relief.

The answer of the defendant Spence denies all the allega

tions of the complaint which affect his rights to the premises in controversy, and sets up several special defenses which it is not material to notice.

The evidence shows that the grant to José Santiago Estrada embraces different premises from those claimed by the plaintiffs; that the premises which it cedes were called "Buena Vista," and are situated on the south side of Salinas or

Monterey River; and that the premises granted to [511] José Mariano Estrada were called "Llano Buena Vista," and are situated on the north side of the same river. This fact that the parties claim under independent grants, covering different premises, of itself disposes of the

case.

But if the fact were otherwise, and the two grants covered the same premises, the case presented would only be one of conflicting grants. Neither can be made the basis for impeaching a patent for the same premises until its validity has been determined by the tribunals of the United States, under the Act of Congress of March 3d, 1851. And as the validity of the claim of the defendant Spence under the grant to José Mariano Estrada has been recognized and confirmed, and a patent issued to him, the claimants under the opposing unconfirmed grant, even if it embrace the same premises, relying solely upon such grant, cannot call in question his rights either in law or equity. It does not appear from the record whether those claimants have ever presented their claim for confirmation. If they have not done so their claim is to be treated as non-existent, and the land, so far as they are concerned, as part of the public domain. (Estrada v. Murphy,

19 Cal. 269.)

Independent of these views, there is another consideration. which concludes the case. The plaintiffs do not show the possession of any equities which can control the legal title. They present no evidence of the existence of any such relation of trust or confidence between them and the patentee as imposed upon the latter the duty of acting for their benefit, and of holding the title for their use. There was no fiduciary relation between them. Nor does it appear that there was any mistake committed by the authorities at Washington in issuing the patent to the defendant Spence. The instrument

was intended for the party who received it. Nor is it pretended that any fraud was committed by the patentee in the deraignment of his title from the original claimant of the premises. The genuineness and due execution of the intermediate conveyances from José Mariano Estrada to him are not questioned. Nor can it be said that he acquired his title with notice of any equitable rights of the plaintiffs which could affect him. The parties claimed under independent grants, and no equities could arise in favor of the plaintiffs against him from his knowledge of their separate claim. Judgment affirmed.

*TEVIS v. O'CONNELL.

[512]

'JUSTIFICATION WHEN VOID.-A justification by the sureties upon an undertaking on appeal to the Supreme Court made before a County Judge of a county other than that where the judgment was rendered, is not effectual for any purpose. Roush v. Van Hagen, 18 Cal. 668, affirmed on this point. REINSTATEMENT OF APPEAL.-Where a motion to reinstate an appeal was opposed on the ground that the undertaking on appeal was invalid, and after argument and submission, was denied on this ground: Held, that it was then too late for appellant to offer to file a new undertaking. The offer should have been made before the motion was submitted.

APPEAL from the Fourth Judicial District, County of San Francisco.

On motion of respondent, based on a certificate of the Clerk of the District Court, the appeal was, on the fourth of March, 1863, dismissed. Subsequently, during the same term, appellant moved on affidavit to reinstate the appeal, and in opposition to the motion, respondent showed by the certificate of the Clerk of the District Court that the sureties upon the appeal bond had been excepted to and had justified, not in San Francisco County, but before the County Judge of Contra Costa County, at Martinez.

Referred to in Calderwood v. Tevis, 23 Cal. 336.

A. Williams, for Appellant.

H. O. Beatty, for Respondent, cited Roush v. Van Hagen, 18 Cal. 668.

COPE, J. delivered the opinion of the Court-FIELD, C. J. concurring.

The defendant moves to reinstate the appeal in this case, which was dismissed for failure to prosecute. The plaintiff shows, in opposition to the motion, that in fact no appeal has been taken, as the sureties upon the undertaking were excepted to, and justified before a County Judge of a county different from that in which the judgment was rendered. This we regard as a valid answer to the motion; the case of Roush v. Van Hagen, 18 Cal. 668, settles the construction of the statute.

Subsequently, appellant petitioned for a rehearing, and offered to execute a new undertaking, and the following opinion was delivered by COPE, J.-FIELD, C. J. concurring: The petition for a rehearing must be denied. The offer to execute a new undertaking comes too late. It should have been made before the motion to reinstate was disposed of. The defendant chose, for the purposes of the motion, to rely upon the old undertaking, and he must abide the result. Petition denied.

BERREYESA v. SCHULTZ-SCHULTZ v. BEASLY.

MEXICAN GRANT, TITLE AND BENEFICIAL INTEREST IN.-José and Sisto Berreyesa, in 1843, petitioned the Governor of California for a grant of eight leagues of land, known as "Las Putas," and in their petition represented that they were married, and had children, and also a considerable number of cattle and horses, and needed land on which to place them. On this petition, after a favorable report from his Secretary, the Governor ordered that a title issue to the petitioners for so much of the land as they could settle. No title issued upon this order; but for some unexplained reason the petitioners considered the concession which it directed as embracing four leagues of the tract solicited, and on the following day they presented a second petition, in which they stated that their families were very large,