The opinion
Hastings, Ch. J.
(dissenting.) The respondent who was plaintiff, instituted proceedings before the late court of First Instance, to recover possession of a certain parcel of land situated in the city of San Francisco, being one hundred varas square, and known as lot No. 22 upon the map or plan of the city. The respondent avers in his complaint that the defendants unlawfully entered upon, and despoiled him, the plaintiff, of his possession of a portion of said lot, on the 26th day of Feb. A. D. 1850. The respondent represents that prior to, and since, the loth day of April A. I). 1847, he has been the owner in fee, by a full and absolute title of said lot, and prays to be restored to the possession of that portion of the same of which he has been so despoiled, Ac.
The defendants answered, 1st. That plaintiff was not the owner in fee of said premises. 2d. That defendants did not unlawfully enter upon said premises. 3d. That plaintiff is not entitled to possession, nor has plaintiff been despoiled of any part or portion of his possession as is in his complaint alleged. The respondent introduced a deed from the Alcalde of San Francisco, which was executed in answer to a petition representing among other things, that the petitioner was by the proclamation of Commodore Ib F. Stockton, a citizen of California, and a resident of the town of San Francisco.
The deed was executed on the 15th day of April A. D. 1847, and signed “ Edwin Bryant, chief magistrate.” In the deed he is described as the Alcalde of San Francisco, and uses in the grant the usual term of conveyance in a deed transferring the title in fee. The introduction of the deed was followed by proof of the official character of the grantor, and testimony that in June 1848, the plaintiff took possession of and “staked the lot out,” and cleared the foundation for the erection of a house. *313 That also the lot was fenced, in the summer of 1848 in part. The plaintiff also introduced an ordinance of the town council of San Francisco by which it is declared, “ that all conditions “ in Alcaldes’ deeds to lots in San Francisco, are removed and “ abrogated, and that no lot of land in said town or its suburbs “ shall hereafter be forfeited in consequence of the grantee or “ owner failing to fence or build upon the same according to “ the conditions heretofore attached to titles or deeds,” which ordinance “ passed Sept. 28th,1848.” The defendants introduced testimony tending to prove that at the time of defendants’ entry “ there were no marks of the premises ever having been im-“ proved or cultivated before defendants commenced their im- “ provements.” One of the witnesses testifying that “ the land “ was in a wild state,” and “ no marks on the premises except “ the old survey stakes.”
The defendants claimed title and a right to possess under a deed executed by one Joseph F. Atwill, in which deed is a recital that he derived title “ from the justice of the peace Gr. Q. “ Colton, Esq.,” by grant bearing date the 21st day of December A.D. 1849.
The court rendered a judgment for the plaintiff and awarded a writ of possession.
This case must be disposed of according to the laws in force at the time when the action was commenced, and in passing upon the rights of the parties, it is important to examine the forms of proceedings and the remedies afforded by the Mexican laws, which were imperfectly understood and inefficiently enforced, not only before, but subsequent to the conquest and acquisition of California by the United States. The action, it is argued, is pn the nature of ejectment at common law, and that the plaintiff is bound to a compliance with the rules of evidence required to sustain such an action, and must recover, not on the weakness of the defendants’ title, but on the strength of his own; and because he has averred in his complaint that he is the owner in fee of the premises, he is compelled to prove such title before he can recover—-that having introduced his deed the presumption in favor of title in the plaintiff* is waived. *314 Whether the plaintiff could or could not recover in this form of action at common law, need not here be questioned, as we are to look to the Mexican system of jurisprudence for a definition of the remedy adopted, and the law regulating such proceedings. Until the passage of the act adopting the common law by the legislature, the Spanish law was in force, unless so far as it was repugnant to the Republican institutions of Mexico or had been expressly altered by statute. To that extent it was the law of California, rip to the time of the acquisition of the country by the United States. (1 Alvarez, 16; 5 Col. Dec. 1; 1 Febrero Mexicano, 27.) And that acquisition effected no change in the law regulating the rights or relations of individuals. (Ha l. Dig. 200, 461; Vattel 3; 1 Pet. Rep. 57, 542; 6 Pet. 691 ; 7 Pet. 51 ; 9 Pet. 117 ; 10 Pet. 326 ; 12 Pet. 410 .) The plaintiff evidently intended to adopt a speedy and effectual remedy to recover possession of the premises, instituting in substance one of the possessory actions styled interdicts, maintained for the recovery of those things whose ownership had not been determined by a judgment. He did not set up title for the purpose of acquiring possession which he had never enjoyed, but the recovery of a possession of which he had been despoiled. The action is therefore not the petitory. (Juicio petitorio.) The Spanish law recognizes a broad distinction between suits claiming possession and those claiming property. And when the action is brought to recover the possession, the right to the possession must be determined before the right to the property. (Dic. de Esc., “ Juicio petitorio;” 1 Febrero Tapia, 229.)
The interdicts or possessory actions are divided into summary and plenary, calling those plenary which follow' the form of an ordinary suit, and summary, those which are decided briefly without observing the usual solemnities and without admitting an appeal, or if admitted, only in the devolutive effect. (7 Febrero Tapia, tit. 9, c. 1.)
The interdicts to acquire, retain, and recover possession (sec. 13, Febrero, above cited) are of the greatest use and importance. The interdict for the recovery of possession being the most *315 favored by the law, it being of special importance to society that no person shall be disturbed without just cause in the pos. session which he has. (sec. 8, same reference?) If the plaintiff had not the title in fee, bat was in possession, his action is in the nature of this favored interdict, and in the plenary, and not summary form of such an action; but if he had the absolute title as averred in the complaint, and not the possession, then he seeks to acquire the possession, and must prove his title before he can recover. In this case, the grievance complained of is not that plaintiff is the owner in fee, and that defendants refuse possession, but that defendants have despoiled the plaintiff of Iris -possession, peaceably and previously established in him, and quietly enjoyed until the entry of defendants. It is immaterial, therefore, whether the plaintiff proved and established a good title or not, as claimed in his complaint. If he proved the prior peaceable occupancy and the subsequent disturbance and interruption by the defendants (provided such occupancy lias been in good faith) he has a right to recover. There is no evidence of the absolute ownership in the plaintiff. The source of title seems to be the town or village of San Francisco through an officer who represents himself as the chief magistrate of the district, and who claims the right to alienate such property by virtue of his office. Whether he possessed such right is not material in the investigation of this case. Nor is it a matter of any moment in this action, whether the deed which he executed be valid or not. It is not contended for the respondent that he has the absolute title. There is nothing in this record which will sustain the averment in the complaint, that he is the absolute owner in fee. The plaintiff, therefore, if he recover at all, must succeed upon his proof of possession, and it may not be improper here to remark that few if any perfect titles are found in countries ceded to the United States by either France or Spain, when tested by the common law. They are considered inchoate titles, which, however, will be protected by the courts, the land being in possession of the claimant.
It therefore becomes important to examine the different kinds of possession protected by the law under the Mexican system, *316 in order to ascertain whether the respondent enjoyed that kind of possession which will be protected against intruders and trespassers.
In the Diccionario de Escriche, (Title “ Posesión-,”) “ It is “ said to be of two kinds, viz., possession in fact, and possession “ in fact and by the will; in fact, when one holds a thing with- “ ont any intention of acquiring it, as bailees, lessees, &c., etc., “ but possession in fact and by the will is the holding which a “ man has of things corporeal, with the aid of the body and “ the understanding. And this possession is divided into na- “ tural and civil. Civil possession is that which consists in “ holding a thing habitually or mentally, as when one goes out “ of his house or estate without any intention to abandon it. “ It may also be said that natural possession is holding a thing “ with intention to keep it, although we know that it belongs “ to another.”
“ In the same manner it may be said that civil possession is “ the holding of a thing with the intention to keep it, believing “that it is one’s property, although in reality it is not so, as in “ the case of the possessor in good faith. The true possession “ is the union of the natural and civil possession which follows “ from a just title; that is, a title fit (apt) to transfer the pro- “ perty.” This is the definition of the law when it defines it, “the lawful holding which a man has in things corporeal with “ the aid of the body and the understanding.” These species of possession are similarly defined in the civil code of Louisiana, (516, chap. 2d of “ Possession.”) Under the Spanish law, as in Louisiana, a mere civil possession is sufficient, but the possessor must hold in good faith, and by virtue of title, trans-lative of property. Without these qualities one who holds property holds it precariously. (1 Febrero Tapia, 229, 231, 230; 7th) same author, 32; Ordenanzas de Tierras y Aguas, 12, 13, 17, 18.) A possessor in good faith is one who by a just title, as by purchase, &c., has acquired anything of which he believes himself master, and that he has the right to convey it. (Esc. Dic. 541; 1 Febrero Tapia, 232.)
The plaintiff therefore to recover must prove, 1st, a just title; *317 not a legal title, but a title from one who believed himself to possess the right to convey.
2d. Possession taken under such title before defendants’ entry.
Not only the good faith of the plaintiff’s possession depends upon the question of just or colorable title, but the extent of his possession ; as without a title, or deed, fixing limits, he would be in possession only of so much land as he actually occupied. What is sufficient to constitute colorable claim to title at common law, seems to have been differently decided in the courts, hut such a title is clearly defined in the Spanish law : “ By title is understood any cause capable of transferring “ the dominion, such as donation, sale, &c., &c., of course. But “ title need not be complete or perfect, for in that event protec- “ tion, by the lapse of time, would be unnecessary. (Ord. de “ Tierras y Aguas, 10, 11; 3 Part. Tit. 29, c. 18; Esc. Dic. 542.)
“ To enable the party to prescribe good faith, a reasonable <£ belief that he has a title which will be the cause of vesting “ in him the absolute property, seems to be sufficient.
“ Title colorable is that which is founded in any appearance “ of reason and justice ; that which has the appearance of good “ faith, but which is not sufficient of itself alone, to transfer the “ property without the aid of possession and presumption.” (.Diccionario de Escriche, Title “ Posesión.”)
Has the respondent then such a sufficient title as to constitute his possession, taken in June, 1848, of the premises in controversy, a possession in good faith, and such as lapse of time will ripen into absolute title in fee? He has a deed executed in the usual form of a deed of conveyance, by a grantor who assumed the right to convey, a right which the respondent found to exist in officers of similar name and jurisdiction in the different Pueblos in this country. The grantor did not assume to be the owner himself, but to act for and in behalf of the owners, authorized by the municipal regulations of the town. A municipal government was organized under a town council, and an Alcalde. Lots had been surveyed and were then in the possession and under the control *318 of the town authorities, and were offered for sale. Whether the title to the lots was in the Mexican government or the people of San Francisco, and what regulations had been made by the .Departmental Government of California for the alienation of these lots, the plaintiff was not bound to know.
Instructions from the Departmental Government, or orders and decrees of the governor relative to the disposal of municipal or public lands, are not of the nature of general law. We cannot reasonably doubt that the plaintiff, under all the circumstances with which he was surrounded, believed he had purchased of one having authority to convey. The grantor claimed to be the Alcalde and chief magistrate of the town or district of San Francisco. Ills deed, upon its face, is an official paper. The officer’s authority to convey was generally recognized, and it is not usual, nor to be supposed, that a purchaser will so closely scrutinize the right of an officer to sell and convey property as an official act, as that of a vendor who claims title in himself, and who alone is to be benefited by the sale. In addition to the usual solemnities required to pass title to real estate, an official deed has added to it the apparent sanction of the law. In this the then chief judicial officer of the town, whose duty it was to understand the law, and declare the same, may have assumed an authority which he had no right to exercise. He and the officer from whom he derived his commission may have violated law when they took into their own hands, either municipal or national property, and alienated the same, directly or indirectly, or in any manner.
Yet, though there was no such authority vested in this officer, his conveyances being in the usual form, and fit to transfer a title, an adverse possession under such a deed for the time the law requires will grow into sufficient title to prevail against the true owner, provided the title be riot in the government, of which we have no evidence in this case. Such is not only the Spanish and Mexican law, but the French and Louisiana law is the same ; and so it may be said is the common law, for it is conceded that a deed from any person, though he have no title, executed in the usual form, is colorable evidence of title at com- *319 moil law, and good in adverse possession. Even a sheriff’s deed, without a seal—an instrument void upon its face—has been holden to be a colorable claim of title sufficient in adverse possession. (Jackson v. Newton, 18 Johnson's Rep. 255; also Northorp v. Wright, 7 Hill's Rep. 468-9.)
In the case of La Frambois v. Jackson, (8 Cowen, 589,) in the court of errors, in considering the sufficiency of defective title papers, in adverse possession, as against the true owner, Chancellor Jones says : “ These documents may be slender evi- “ denee of title ; but the cpiestion is whether this documentary “ evidence, slender as it is, is not sufficient to give a character “ of adverse possession to the occupancy of La Frambois under “ it, and to rescue him from the reputation of being a mere “ trespasser. It is not necessary to constitute an adverse pos- “ session, that it should have commenced under an effectual deed. “ If the possessor claims under written evidence of title, and “ on producing that evidence it proves to be defective, the “ character of his possession as adverse is not affected by the “ defects of his title. If the entry is under color of title, the “ possession will be adverse, however groundless the supposed “ title may be. The fact of possession and its character, and “ the quo animo of the possessor, are the test.”
Spencer, senator, in the same case, says, “ the authorities be- “ fore cited show that it is wholly immaterial whether the title “ claimed be rightful or not; it is sufficient if there be a claim “ of some title. The very idea of an adverse possession admits “ a hostile rightful title.”
Another senator, also with the majority, says, “ But it is said “ that he was bound to know that a title derived from the “ French government was invalid, and that it affords him, there- “ fore, no color of title. The effect of this reasoning is to place “ a person who enters under a claim of title, which he may in “ good faith believe to be a good one, in a worse situation than “ one who enters with no title at all. I apprehend a person en-“ tering on lands without any title or under defective title) is as “ much bound to know that, by the law of the land, he has no “ good title, as one who enters under a French grant.”
*320 Applying this reasoning to the ease at bar, the respondent is not bound to know that the Alcalde had no authority to convey the premises. The maxim that every citizen is presumed to know the law and can take no advantage of his ignorance thereof, does not hold in prescription in the Spanish or adverse possession in the common law. If so, this means of acquiring title would cease to exist in most cases, and the decision of the court in the case of Jackson v. Newton, before cited, would be erroneous.
The respondent, then, having a title sufficient in prescription, it is only necessary that he should have had the possession, either natural (actual) or civil, (See the cases of Bernard v. Shaw, 9 M. R. 79; Mayfield v. Morris, 10 L. R. 442; McDonough v. Childress, 15 L. R. 561.) And such is the Spanish and French law. It will hardly be contended that he had not, at least, the civil possession at the time of defendants’ entry. He had entered under claim of title, cleared the ground for the foundation of a house, had stakes at the corners of his premises which were prominent and visible at the time of defendants’ entry. The lot had been in part at least enclosed by a fence, and although the respondent was not actually occupying at the time, there is no evidence that he had abandoned his possession. It is said the fences had been destroyed, and the lot appeared in an unoccupied state. So the premises of any possessor may be made to appearance, by trespassing upon and destroying improvements.
A false opinion seems to prevail as to the necessity of an actual enclosure as a fence, in order to acquire possession of lands. I think the law to be, that any improvements or monuments visible and prominent, indicate a claim of title or possession, and he who enters on such land has notice thereof, and gains no greater right by his entry than he would acquire if the premises had been enclosed by a fence. Upon the question of the necessity of actual residence on land, or a pedis possessio, Judge Story in the case of Ellicott & Meredith v. Pearl, says, “ Nothing can be more clear than that a fence is not indispen- “ sable to constitute possession of a tract ofland. The erection *321 “ of a fence is nothing more than presumption of an intention u to assert an ownership and possession over the property. But “ there are many other acts which are equally evincive of such “ an intention of asserting such ownership and possession ; such “ as entering upon land and making improvements thereon, rais- “ ing a crop of corn, felling and selling the trees thereon, and un- “ der color of title. An entry into possession of a tract of land “ under a deed containing specific metes and bounds, gives a “ constructive possession of the whole tract, if not in any ad- “ verse possession; although there may he no fence or enclosure “ round the ambit of the tract, and an actual residence only on “ a part of it.”
The case of Jackson v. Schoonmaker, (2 J. R. 230,) is cited and relied upon as conclusive against the respondent. It is only necessary to read one extract from the opinion in that case to show that if it had not already been overruled it should have been :—“ There must be,” say the court, “ a substantial enelo- “ sure,” and “ that a possession fence made by felling trees and “ lapping them one upon another round the land, was insufficient “ to support an adverse possession.” But this is an overruled case. It has been substantially overruled by the New York courts, who for years since hold a very different doctrine. And it is sufficient, perhaps, to refer to the case of Ellicott and Meredith v. Pearl, above cited, in which the supreme court of the United States utter a very different and contrary decision. And bo in many other cases which may be cited from that court, as in the case of Ewing v. Burnet, ( 11 Pet. 52 ,) in -which Mr. Justice Baldwin, in delivering the opinion of the court, says, “ It is well settled that to constitute an adverse possession “ there need not be a fence, building or other improvement “ made.
“ It suffices for this purpose that visible and notorious acts of “ ownership are exercised over the premises in controversy for “ twenty-one years after an entry, under claim and color of “title.” “Neither actual occupation, cultivation or residence “ are necessary to constitute actual possession, when the proper- *322 “ ty is so situated as not to admit of any permanent useful im- “ provement.” (See, also, Watkins v. Holman et al. 16 Pet. 54 .)
The respondent having, in good faith, purchased and taken possession, although he may have acquired no valid title, the defendants having entered as a naked intruder and trespasser against the true owner or by virtue of a similar right, subsequently acquired, I believe at the time of defendants’ entry the respondent had the superior right to the possession of the premises.
I think, therefore, the judgment of the court below should be affirmed.