Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 35 Cal. 576 at 599.
Original Opinion of July, 1868, Reported at: 35 Cal. 576.
COUNSEL:
F. D. Colton, for Appellants, on rehearing, argued that the findings of fact contained in the record were sufficient predicate upon which this Court might render a final judgment in the cause, at least as to appellants.
A. T. Wilson, A. Thomas, and George Pierce, for Respondents, per contra.
JUDGES: Rhodes, J. Sawyer, C. J. dissenting.
OPINION
RHODES, Judge
Page 599
By the Court, Rhodes, J., on rehearing: We are unable to render judgment without disregarding or rejecting some of the findings. The referee found that the whole rancho was owned by certain of the parties, and specified the undivided interest in the entire tract held by
each--certain of the interests being subject to certain conveyances, which amounted in the aggregate to about two thousand acres. Those findings remaining, the holders of the special locations, who claim about one half of the rancho, would be cut off, except so far as they might be included within the conveyances last mentioned. But, according to the principles announced in the former opinion in this case, those findings cannot stand. Each of the " original grantors" executed several of the conveyances of the special locations. Upon the execution of any one of these conveyances, the grantors ceased to have any interest in the special location conveyed; nor did the subsequent grantee, to whom was conveyed what purported to be an undivided interest in the whole rancho, acquire any interest in such special location. In respect to the special locations, it was found that " it was the custom and practice with the Bojorques family for different individuals to sell parts and parcels of said rancho by metes and bounds, and it was the understanding among them that such part and parcel should come out of the grantor's share." This is directly opposed to the theory that the holders of the special locations are tenants in severalty. The referee has not found what interest in the special locations each of the claimants thereof hold; but has found that certain of the original grantors joined in the execution of the several conveyances mentioned, and that the grantees, in certain instances, executed conveyances of portions of all their respective special locations. These, of course, are not the ultimate facts of title in the special locations, but are mere probative facts. No judgment could rightfully be rendered until those ultimate facts were found; and it has often been repeated that it is not the province of this Court to find the facts in cases pending an appeal. If the special locations are taken up in detail, it becomes more apparent that this duty is more appropriate to a referee, who can examine each of the conveyances, and, after ascertaining the title passing thereby, can find the extent of the interest of each holder in the special locations.
It is not difficult to appreciate the anxiety that many of the parties manifest for a speedy final decision of this case. The questions are complicated almost beyond precedent. It may safely be said that the books furnish no instance of a case involving the title to a large tract of land--some twenty-five thousand acres in this case--in which no one holds title in severalty to any part, and no one is a tenant in common of the whole. When such confusion and complexity are mainly the result of the conveyances the parties have executed or accepted, they cannot complain that much time and labor are required for the solution of the numerous questions involved. Much labor and expense may be saved by using, as the parties are entitled to do, the documentary evidence on file in the case, including the referees' report of the testimony, and the deeds, exhibits, etc., subject to objection as when first offered, and the surveys, field notes, maps, etc., of the referees on partition.
Judgment reversed, and the cause remanded for a new trial. The costs of the appeal to be awarded upon the final disposition of the action.
DISSENT
Sawyer, C. J., dissenting:
I dissent.
The last foregoing opinions were delivered at the July Term, 1868.