Opinion
Department One
Appeal from a judgment and from an order denying a new trial, in the Superior Court of Los Angeles County. Hines, J.
A petition for hearing in Bank was filed in this case, after judgment, and denied.
COUNSEL
The plaintiff's title having accrued to her upon the issuing of the patent, many years after the decease of the nominal patentee, by force and effect of the law of Congress, approved May 20th, 1836, entitled, " An act to give effect to patents issued in the name of deceased persons," she is in fact the first acquisitor of that title; and she therefore takes by purchase, and not by inheritance (2 Black. Com. chap. xv.), and plaintiff's estate under that title could not fall within the scope of the State Probate Law, as being assets of the decedent; and could not be in any manner involved in the action of Rita Giullen de la Ossa for an administrative purpose. (U. S. Stats. at Large, vol. 5, p. 31; Galloway v. Finley, 12 Pet. 296-298; Eastland v. Lester, 15 Tex. 98; Emeric v. Penniman , 26 Cal. 119; Hartley v. Brown , 51 Cal. 455; Code Civ. Proc., § 1908 .
H. Allen, for Appellant.
Glassell & Smith and Smith, Brown & Hutton, for Respondent.
The plaintiff claims as heir of Vicente de la Ossa, and so deraigns title in her complaint. The title to the land designated in the patent vested in her, not directly from the Government, but derivatively through her father, the deceased patentee, " as if the patent had issued to the deceased person during his life." (Act of Congress of May 20th, 1836; Leese v. Clark , 18 Cal. 571; Waterman v. Smith , 13 id. 419; Steinbach v. Stewart, 11 Wall. 575.) The plaintiff therefore, as heir of Vicente de la Ossa, is estopped by the judgment against his administratrix, entered October 7th, 1878. (Cunningham v. Ashley , 45 Cal. 485; Meeks v. Vassault, 3 Saw. 206.)
JUDGES: Thornton, J., sitting for Ross, J., the latter being disqualified.
OPINION The Court:
The rights of the parties herein were fully determined by the judgment in the action brought in the Seventeenth Judicial District Court by Rita Giullen de la Ossa, administratrix of the estate of Vicente de la Ossa, deceased, against the present defendant and others. A simple inspection of the judgment rolls in that action and in this makes the former adjudication of the title clearly apparent.
Judgment and order affirmed.