veyor general of the United States, and the survey and plat, duly approved, were filed by him in the United States land-office, etc.; that, nevertheless, there was no evidence of such facts in the record. Both plaintiff and defendant state in their pleading that a proper survey was made, and the copy of the order of the state surveyor general, which was introduced in evidence without objection, states that "on March 24, 1869, H. C. Rollins, register of the United States landoffice for the San Francisco district, certified that there was no valid claim adverse to that of the state of California for all the above-described land." Section 3409 of the Political Code provides that "the surveyor general must, after the survey of any township by the United States surveyor general, obtain from the United States land-office a statement showing whether or not the sixteenth and thirty-sixth sections therein belong to the state." This statement cannot be properly obtained until a survey of the township is made, and the sixteenth and thirty-sixth sections cannot be truthfully stated by the United States land-office to belong to the state until they are ascertained and fixed by the survey; nor can they be demanded from the United States, or listed to the state, until such survey. It is a proper presumption that officers have performed their duty. People v. Otto, 77 Cal. 47, 18 Pac. Rep. 869; Code Civil Proc. § 1963, subd. 15. It would seem, therefore, that it should be presumed that the certificate is truthful, and that the proper officers have performed the duties which were required of them before such statement could be made, which includes the making of the survey, and that the land belonged to the state; especially, since in this case the pleadings of both parties state that a survey was made, etc.; and there is no evidence in the record which even hints to the contrary. And this is a proceeding, too, in which, from its very nature, the order for a reference of the contest, and all proceedings prior and subsequent thereto, assume the title of the land to be in the state, certainly so far as the plaintiff and defendant are concerned. Lobree v. Mullan, 70 Cal. 152, 11 Pac. Rep. 685; Taylor v. Weston, 77 Cal. 534, 20 Pac. Rep. 62. This view of the matter disposes of the next point made by the appellant, viz., that the decision was against law, because there was no proof, as he claims, that any survey of the lands was ever made. It is further urged by counsel for the appellant that the court erred in striking out, upon motion of the plaintiff, the parol evidence of the defendant as to his being a citizen of the United States; and also the great register of the county, introduced to show his citizenship. The defendant had testified that he was a naturalized citizen of the United States, and therefore an alien by birth. He also stated that he had been naturalized in the state of Indiana. The great register showed that he was registered as John Madigan, and he stated that he had voted in Monterey as John Madigan. The name by which he appeared in the action was John McBride. The evidence was objected to when offered, but was allowed to go in, subject to a motion to strike out, which, as we have seen, was made and granted. There was no other evidence offered by the defendant which proved, or tended to prove, that he was a citizen of the United States, or had declared or filed his intention of becoming one. In order to purchase the land it must appear that an applicant is a citizen of the United States, or has filed his intention to become such. Section 3495 Pol. Code. Statutes of this kind confer rights upon a particular class of persons, or by reason of their possessing some special qualification or status, and one who desires to obtain the benefit or advantages thereby accruing "must show himself to belong to the class designated, or to possess the qualification prescribed, or the status mentioned, as the basis of the right." Lee Doon v. Tesh, 68 Cal. 45, 6 Pac. Rep. 97, and 8 Pac. Rep. 621. It being in evidence that the defendant was an alien by birth, "his original status is presumed to continue until the contrary be shown. Hauenstein v. Lynham, 100 U. S. 483. * * * It may be considered as settled that the naturalization of an alien as a citizen of the United States is a judicial act, and it follows that, to be effective, it must be done by a court of competent jurisdiction. * * *Of naturalization, then, there must be, as in other judicial matters, that judgment which is the end of the law.' ** *Now, how is this judgment shown? In the nature of things, it must be a matter of record. A court speaks by its dockets, minutes, or records. Where there is no record there is no judgment. Plant v. Gunn, 2 Woods, 378. * **Proceedings of naturalization have to be recorded, "which proceedings shall be recorded by the clerk of the court," is the language of the act of congress on the subject. 2 Story, Laws U. S. 851.' * * Nor is it competent to supply alleged deficiencies in the record by parol evidence. The record, if not correctly made up, or if lost or destroyed, should be perfected or replaced by appropriate proceedings in the court where the judgment was pronounced. Freem. Judgm. § 38; Bigelow, Estop. 34. Naturalization cannot be proved by parol. Slade v. Minor, 2 Cranch, C. C. 139; Dryden v. Swinburne, 20 W. Va. 89; 14 U. S. Dig. (N. S.) 18." Green v. Salas, 31 Fed. Rep. 107, 108, 109, 111. It is clear, therefore, that neither parol testimony nor the great register, as proffered, was admissible to prove citizenship, or the filing of an intention to become such. No prejudicial error appearing, we advise that the judgment and order be affirmed. MCFARLAND, J., (concurring.) I concur in the judgment. No proper evidence of defendant's naturalization was offered; but I am not clear that the rule stated in the opinion of Mr. Commissioner FOOTE, about proof of naturalization, is entirely correct. (82 Cal. 570) PRENTICE . MILLER. (No. 12,264.) (Supreme Court of California. Jan. 27, 1890.) SCHOOL LANDS-CONTESTS-NATURALIZATION-EV IDENCE. 1. On a contest to determine which of two persons had the better right to purchase certain school lands from the state, the order of reference by the surveyor general, introduced in evidence without objection, recited that the register of the United States land-office had "certified that there was no valid claim adverse to the state" against the land. Held that, as under Pol. Code Cal. § 3409, this certificate could not be properly obtained until "after the survey of the township by the United States surveyor general," the recital was sufficient to show that the survey had been made before the certificate issued, especially as the pleadings of both parties stated that a survey had been made. 2. Though the certified statement of the register of the land-office is the best evidence as to when the survey was made, and though the recital is not a matter required to be placed in the order of reference, yet as it was admitted without objection, it is sufficient proof of the fact to which it relates. 3. Though in land contests each party is an actor, and must both by pleadings and proofs show compliance with the law, yet, under Code Civil Proc. Cal. § 462, allegations in plaintiff's complaint, not denied by defendant's answer, must be taken as true. 4. Since the naturalization of an adult alien is a judicial proceeding which must be entered of record, (Rev. St. U. S. §§ 2165, 2167,) an applicant for the purchase of state school land cannot prove his naturalization by parol. Commissioner's decision. Department 1. Appeal from superior court, Monterey county; JOHN K. ALEXANDER, Judge. Webb & Sherwood, for appellant. Geil & Morehouse, for respondent. teenth and thirty-sixth sections of each township for school purposes. An application to purchase lands of the character in question cannot be made until after the township in which the same may be situated has been surveyed by the United States. Pol. Code, § 3495; Medley v. Robertson, 55 Cal. 396. This made it necessary for each contestant to allege and prove that the land applied for was surveyed by the United States at the time they severally sought to purchase it. Rogers v. Shannon, 52 Cal 99; Finney v. Berger, 50 Cal. 248. The respective allegations of the parties in their pleadings in this regard are sufficient to meet this requirement. In the certified copy of the order of reference of the surveyor general, made pursuant to sections 3414 and 3415 of the Political Code, which was introduced in evidence by plaintiff without objection, is a recital which is the only evidence tending to support the above findings. It reads as follows: "On March 24, 1869, H. G. Rollins, register of the United States land-office for the San Francisco district, certified that there was no valid claim adverse to that of the state of California for all the above-described land." While the recital, if objected to, would doubtless have been excluded, because it was not a matter required to be placed in the order of reference, and of which the certified statement of the register of the United States land-office would have been the best evidence, still it comes within the rule that inadmissi'ble evidence, if admitted without objection, is sufficient proof of the fact to which it relates. Morrell v. Morgan, 65 Cal. 575, 4 Pac. Rep. 580. It is at most but slight evidence; but, such as it is, it tends to show, and, we think, in the absence of evidence to the contrary does show, that the surveyor general had obtained the statement from the United States land-office, showing that the land in question belonged to the state, in compliance with section 3409 of the Political Code, by which it is provided: "The surveyor general must, after the survey of any township by the United States surveyor general, obtain from the United States land-office a statement showing whether or not the sixteenth and thirty-sixth sections therein belong to the state." The statement, it is apparent, could not have been obtained until after the township, containing the land applied for, had GIBSON, C. This was a contest referred to the superior court of Monterey county by the surveyor general and ex officio register of the United States land-office, to determine the respective rights of the parties to purchase certain school lands. Judgment passed for plaintiff, from which, and an order deny ing a new trial, defendant appeals. The pleadings are conceded to be in proper form, and sufficient. The appellant urges, in sup-been surveyed by the United States. We are port of his appeal, that there is no evidence to sustain the fifth, sixth, and seventh findings, wherein the court, in effect, found that before plaintiff filed his application to purchase the land in dispute, it had been surveyed by the United States surveyor general for California, who had filed an approved plat of such survey in the United States land-oflice at San Francisco, the office for the district within which the land lies, and that the register of the United States land-office had accepted the land for, and listed and certified it over to, the state, in part satisfaction of the grant by the United States to this state of the six unable, then, to say that there is an entire absence of evidence of the facts found, in order to sustain this contention of appellant. But the respondent is not obliged to rely wholly upon such evidence, as the allegations of his complaint, to which the findings assailed respond, are not denied by the defendant's answer; and, as we have seen, being material allegations, they must therefore be taken as true. Code Civil Proc. § 462; Gilson v. Robinson, 68 Cal. 543, 10 Pac. Rep. 193. In the case last cited the general rule regarding this class of cases was well stated as follows: "In cases of this kind each party is an actor, and must set forth in his pleadings, and show by his proofs, that he has strictly complied with the law, and by such compliance has become entitled to purchase the land. If he fails to do this, he can obtain no assistance from the courts." Citing Woods v. Sawtelle, 46 Cal. 392; Cadierque v. Duran, 49 Cal. 356; Christman v. Brainard, 51 Cal. 536; Lane v. Pferdner, 56 Cal. 122. But the rule thus stated does not change the rule applicable to pleadings declared in the Code of Civil Procedure, supra; for we find in that same case that one of the points presented by the appellant was that the trial court had no jurisdiction to try the case, because there was no proper and sufficient order of reference made by the surveyor general referring the contest between the parties to the court below for trial, as required by sections 3414 and 3415 of the Political Code. The plaintiff, however, alleged in his complaint that he demanded of the surveyor general a reference of the contest between himself and the defendant to the proper court for adjudication, and that thereupon that officer did refer it. A copy of the order of reference was attached to the complaint. The allegations were not denied by the answer, and it was accordingly held that a proper reference had been made so as to give the court jurisdiction of the case. The appellant here on the trial, realizing that under section 3495 of the Political Code it was necessary for him to prove that at the time he made his application to purchase he was either a citizen of the United States, or had declared his intention to become such, offered certain evidence to prove that at that time he was a naturalized citizen of the United States. The evidence was received conditionally by the court and afterwards, upon motion of respondent, stricken out. This ruling is the only other point presented. The evidence referred to consisted of an entry as a qualified naturalized voter in the great register of the county of Monterey; and of his own testimony, as follows: "I was born in France. Came to the United States in 1850. Came to New York. Remained in New York city three months, and then went to Illinois, where I stayed two years, and then went home to France. Got my citizen's papers in New York before I went to Illinois. I got naturalized in New York. Lost my papers on my way home from France by shipwreck. * I came to the United States under age." This evidence was properly excluded. It was ruled in the recent case of Miller v. Prentice, ante, 8, (No. 12,239, filed December 18, 1889,) as follows: "The evidence as to the citizenship of plaintiff is clearly insufficient to establish that fact. He swears that he was born in France, and was naturalized in the city of New York, but has lost his naturalization papers." The naturalization of an adult alien, or one who has resided in the United States from his eighteenth year of age, is a judicial proceeding, and can only be effected in a court of record * * having a seal and a clerk, and must be entered of record. Rev. St. U. S. §§ 2165, 2167. And like any other judicial record must be proved by the record itself, or a properly exemplified copy thereof, or by proof of its loss or destruction. Green v. Salas, 31 Fed. Rep. 107. There are, however, certain limitations to this rule, for after proper proof of the naturalization of the parents of alien children, who were under 21 years of age, and residents of the United States at the time their parents were naturalized, parol evidence may be received to prove the minority and residence of the children in order to show that they are citizens, (Rev. St. U. S. § 2172;) and proof of naturalization may also be by the parol evidence of the party, in the form of an atlidavit, in proceedings concerning mining claims, by virtue of section 2321 of the Revised Statutes of the United States; but the appellant does not come within either of these limitations. See, generally, as to the two questions herein considered, the late case of Bode v. Trimmer, ante, 187, (No. 12,262. Filed January 11, 1890.) We therefore advise that the judgment and order be affirmed. 1. Under Pen. Code Cal. § 1205, providing that "a judgment that defendant pay a fine may also direct that he be imprisoned until the fine be satisfied" at a certain rate per day, a sentence, on conviction of an offense punishable by fine and imprisonment, that defendant be imprisoned in the stateprison for a definite term, and pay a fine, and be imprisoned in the state-prison until the same should be satisfied, at a given rate per day, is void so far as it provides for imprisonment in the stateprison for the collection of the fine. Following Ex parte Arras, 78 Cal. 304, 20 Pac. Rep. 683. 2. Pen. Code Cal. § 1590, giving to prisoners certain deductions from their term of imprisonment for good conduct, is not unconstitutional, as an infringement of the right of the governor to pardon, and no order from the governor is necessary before discharging a prisoner whose term, after allowing his credits for good conduct, has expired. In bank. On habeas corpus. Carroll Cook, for petitioner. Charles B. Darwin, for respondent. WORKS, J. This is an application for a writ of habeas corpus. The petitioner is confined in the state-prison under a conviction of felony, and sentenced to the state-prison for five years, and that he pay a fine of $1,000, and be imprisoned in said prison until said fine is satisfied, at the rate of one day for each one dollar of said fine. It is alleged in the petition "that during his imprisonment the said Wadleigh has faithfully ful filled all the duties assigned to him, and has obeyed the rules and regulations of said prison, and has therefore earned the credits and deductions from his term of sentence allowed him by law; that, allowing said Wadleigh such deductions and credits so allowed him by law, the five years' imprisonment ordered by said judgment has fully expired; and that said Wadleigh is now held in said prison, as petitioner is informed and believes, solely for the collection of the fine imposed by said judgment." The return of the warden does not deny the allegation of the petition that the petitioner has earned the credits and deductions allowed him by law, and that, allowing him such credits, he has served his full term of imprisonment imposed as a punishment, but contends that the credits provided for by the statute cannot be allowed except upon some action of the governor authorizing it. So much of the judgment against the prisoner as provides for his imprisonment in the state's prison for the collection of the fine imposed is void. Ex parte Arras, 78 Cal. 304, 20 Pac. Rep. 683. Therefore we must treat the sentence as one of imprisonment for five years. So treating it, the statute provides, in express terms, that certain credits or deductions from the term of imprisonment imposed shall be allowed for good conduct. Deer. Codes, p. 490 Sup. § 20, (Pen. Code Cal. § 1590.) This statute does not require any action on the part of the governor, nor is any such action necessary. The statute, by its terms, entitled the petitioner to his discharge, the same as if his term of imprisonment had expired without such commutation as he is allowed by its provisions. The statute is not unconstitutional as an infringement of the power of the executive to pardon. It does not take away or interfere with such power in any way. The statute simply fixes the term of imprisonment in certain cases and upon certain conditions. This provision enters into and becomes a part of the judgment of the court below. When a defendant is sentenced to imprisonment for five years, this means five years, subject to the deductions allowed from such time by law. The respondent asks upon whose order a prisoner is to be discharged under this statute. The answer is given by the above construction of the statute. If the term for which he is imprisoned has expired, allowing him the credits provided for, he is entitied to be discharged by the warden, as in any other case where the term of imprisonment has expired, without an order from any other offi the decision in Ex parte Arras, supra. In Arras' case I dissented, and still think it wrongly decided, but I feel bound now to accept it as settled law in this state. MCFARLAND, J. I concur in the judgment and in the opinion of Mr. Justice WORKS. But, as it may be thought that some things were decided in Ex parte Arras which were not before the court in that case, I desire to express my doubt whether a defendant can be imprisoned, even in a county jail, beyond the maximum term of imprisonment prescribed by the statute as a punishment for the offense of which he has been convicted. A fine is, no doubt, quite a severe additional punishment to one who is able, and can be forced, to pay it; but, after a sentence to the full term of imprisonment provided by law for the offense, to then impose a fine of one thousand or five thousand dollars on an impecunious defendant, known to be utterly incapable of raising one thousand cents, for the inere purpose of prolonging his imprisonment bey and the term prescribed by law, seems to me to be a species of legal jugglery not contemplated by the Code. When the Code provides that the punishment of imprisonment for a certain offense shall be for a term, for instance, "not exceeding one year," does it mean that a court may indirectly imprison him him for two, or five, or twenty years? The asserted power to do this is based on section 1205 of the Penal Code by applying to it the most extreme rule of literal construction. The section is as follows: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied,' at a certain rate per day. Now, it must be remembered that the judgment, prescribed for many offenses is imprisonment, or fine, or both. There are therefore three different kinds of judgments,-one imposing imprisonment alone, another imposing a fine alone, and a third imposing both imprisonment and fine. And is it not a fair construction of the words used in section 1205, “a judgment that the defendant pay a fine," construing it as a penal statute, to hold that they constitute a distinguising description or definition of a certain kind of judgment, viz., a judgment to "pay a fine,"—that is, a judgment which imposes a fine alone, and not one which, in addition to a definite term of imprisonment, also imposes a fine? Such a construction would bring the section in harmony with all the other sections of the Code on the subject, and with the evident purpose of the legislature. When the legislature says that imprisonment in punishment of a certain offense shall not exceed a certain term, it ought not to be held that a court can imprison one beyond that time, unless such holding be imperative. Under the construction herein intimated, a court could imprison a defendant for the maximum term prescribed by law, and could in addition, if it thought proper, impose a fine, to be collected, if possible, by execution; but it could not, under the guise of the fine, extend the maximum term of the imprisonment almost indefinitely. Or, if a proper case for leniency should arise, when it seemed probable that the defendant could pay a fine, and that it would be better for both him and the public that he should expiate his offense in that way, a fine alone could be imposed, and enforced by imprisonment,-at least, to the extent of the maximum term. And it seems to me that the most savage court should be satisfied with this power; at least, until the legislature chooses to enlarge it. I am aware that this court formerly, on one or two occasions, expressed views different from those above stated, and I am as loth as any one to depart from a settled rule; but I think that the question here discussed can hardly be considered as definitely settled. It seems to me that in recent years the practice of imprisonment for fines has resulted, in some instances, in great oppression, and in imposing on defendants convicted of only trivial offenses extreme and cruel terms of imprisonment, against both the letter and spirit of the law. I think, therefore, that on a proper occasion the question here presented should, at least, be opened and reconsidered. I concur: PATERSON, J. (83 Cal. 39) NIDEVER v. AYERS. (No. 13,328.) (Supreme Court of California. Jan. 30, 1890.) BONA FIDE PURCHASERS-QUITCLAIM DEEeds. 1. A decree in probate for the final distribution of land, which is unrecorded at the date of a conveyance of the land by the holder of the legal title, is not constructive notice to the vendee of an outstanding equitable title. 2. Nor is the vendee chargeable with constructive notice of an outstanding equitable title by his deed, which recites that "the grantor has granted, bargained, and sold and confirmed, and by these presents does hereby grant, bargain, sell, convey, and confirm, all the right, title, and interest of the party of the first part in and to the premises described," though it be deemed to constitute a quit claim deed. Commissioners' decision. Department 2. Appeal from superior court, Ventura county; B. T. WILLIAMS, Judge. Joseph H. Skirm, for appellant. McKeeby & Smith and Blackstock & Shepherd, for respondent. FOOTE, C. The complaint in this case, in one aspect, might be called a complaint in an action to quiet title. Upon that theory, the evidence showing that the legal title was in the defendant, no right of recovery would accrue to the plaintiff. Von Drachenfels v. Doolittle, 77 Cal. 295, 19 Pac. Rep. 518. But possibly it might be construed as a complaint for a conveyance of the legal title, and, inasmuch as we have reached the conclusion that the judgment in favor of the defendant should be affirmed, we have examined the merits of the case. The complaint alleges that one George Nidever, the father of the plaintiff, was at the date of his death the owner of and seized of an equitable estate in certain lands; that the legal title thereof was vested in John Nidever at the time of the bringing of this action, also deceased; and that the lastmentioned person held such lands as the trustee of his son George, above mentioned, the father of the plaintiff, George D. Nidever. The record shows that upon the death of George Nidever, who died intestate, his father, John Nidever, became the administrator of his estate, being duly appointed as such by the probate court of the proper county. While acting in that capacity, and, as alleged, "holding the legal title to and being in possession of said equitable estate," the administrator filed an inventory, to which, among other things, he declared the land in dispute equitably to belong to his son's estate. He also filed in that court a verified petition, asking that the estate of his decedent be distributed, in which the same declaration is made as to the title of the land involved here. An order of distribution was made, and under it the plaintiff, as the only child surviving his father, George Nidever, had set apart to him an undivided one-half of the land distributed as above specified in the inventory and petition, the other half being set apart to his mother, the widow of George Nidever, which last is not included in this action. Several years before this order or decree of distribution was recorded, John Nidever made and delivered a deed of the land to which he thus held the legal title to George S. Gilbert and W. S. Chaffee, and through that deed and mesne conveyances the defendant deraigned his title from John Nidever. The deed which the latter executed was duly recorded long before the decree above mentioned. Both parties to the action claim from the same source of title, under a patentee from the United States government. According to the admissions of the plaintiff, by his counsel, on the trial, the defendant never had any actual knowledge of any payment made by the decedent, George Nidever, upon these lands, or any actual notice of any trust relation existing between the father, John Nidever, and his son, George. The whole contention is that the probate court proceedings, and the recitals of the deed which John Nidever executed, were constructive notice to the defendant of the outstanding equitable title in George Nidever and his successors, which equitable interest arose from the payment of the purchase price of the lar.d by George Nidever, and his causing the legal title to be vested in his father, John Nidever. Upon this state of facts the motion of the defendant for a nonsuit was granted, and from the judgment thereupon entered this appeal is prosecuted. Was the decree of distribution, unrecorded at the date of the conveyance by John Nidever, the holder of record of the legal title, constructive notice to the defendant of the equitable title vested in George Nidever by his paying the purchase money for the land, and having the legal title thereto vested of record in his father, John Nidever? The ap |