Full opinion text
Thornton, J. In this cause, which is an action for the partition of the San Pablo Rauch, situated 'in the county of Contra Costa, and containing' seventeen thousand nine hundred and thirty-eight and fifty-nine one-hundredths acres of land, there are five appeals, each prosecuted by -some of the defendants. Of these five appeals, two are from the interlocutory judgment or decree, one from an order denying a motion for a new trial made by several defendants, and the other two are from an order appointing a receiver. We are asked to strike out the bill of exceptions, on the ground that the notice of motion for a new trial and the bill of exceptions were not filed or served within the time allowed by law or by the court. The interlocutory judgment was filed on the 15th of July, 1878, and notice of the filing of the findings and entry of judgment was served on the parties and attorneys on the next day. Seven days afterwards, viz., on the 23d of July, the parties intending to move for a new trial obtained from the Hon. Samuel H. Dwindle, the judge of the court beloAv, the following order: — “ Good cause appearing therefor, it is ordered that the time for the defendants, or any or each of them, to gÍA-e notice of their intention to move for a ucav trial, and to serve a bill of exceptions, is hereby extended thirty days.” Ho stipulation of attorneys extending time Avas asked or given, and no other order aatis asked or granted than the foregoing. The foregoing order Avas a valid one. (Code Civ. Proc. § 1054.) On the 24th of August, 1878, the notice of motion for a new trial was served, and on the same day the proposed bill of exceptions was served. It is argued that the time was only extended by the order of the judge thirty days from the 23d of July—the date of the order—Avhich would extend the time to the 22d of August, and therefore the notice of motion and bill of exceptions Avhich AArerc served on the 24th of August, Avas too late by tivo days. Wc do not so construe the order. We think it extended the time thirty days from the end of the period of ten days allowed by the Code of Civil Procedure, and that such Avas the intention of the learned judge Avho made the order. The parties intending to move had ten days from the 16th of July to give notice and serve their bill of exceptions. (Code Civ. Proc. § 650.) This Avould bring the ten days’ period to a close on the 26th of July. The extension of thirty days would bring the end of the extended period to the 25th of August, and notice and bill Avere filed the day preceding, viz., on the 24th of August. The extension of time by the order referred to the ten days’ period as the point from AAdiieh the extension was to run and be computed. The order must have been made Avithin the ten days, for the judge had no poAver to make it afterwards. Ho reference is made in the order to its date as the point from Avhich the' extension Avas to be computed, and AAre Avould be violating the rule made by the order of the learned judge of the court beloAV Avere Ave thus to hold. We think the notice and bill A\rere filed in time. (See Green v. Fawcett, No. 5,074, March 21, 1876; Clark v. Crane, 57 Cal. 629.) We will remark here that the cause had been a long time on trial, that the transcript consists of more than seventeen hundred pages, and certainly the judge Avould be disposed to alloAV all the time in his power to prepare and serve a bill of exceptions. Remarkable diligence was used in preparing and sewing it Avithin the time alloAAred. It is further urged that the appeal should be dismissed because the entire judgment roll is not brought up. Conceding that on an appeal from an interlocutory judgment in partition, the entire judgment roll, so far as it exists, is to be and can be brought up in the transcript on appeal, Ave remark that it is not the practice of this court to dismiss an appeal under such circumstances, when the defect can be readily cured on a suggestion of diminution. It is clear, however, that on such an appeal no judgment roll has been made up. Ho final judgment has been rendered, and until final judgment has been made and entered, the judgment roll is not and cannot be required to be made. (Code Civ. Proc. § 670.) Before the postea and entry of judgment, according to what is known as the common-law procedure, the roll was known as the issue roll, or nisi prius roll; after the entry of judgment it was called the judgment roll. (Bootes Suit at Law, 136, 142, 143; Stephen’s PI. 81; Abbott’s Law Diet. verb. Judgment Becord or Boll, citing Smith’s Act. at Law, 184.) This, however, applied only to cases at law. Ho judgment roll was known in courts of equity. The pleadings, process, depositions, orders of all kinds, upon being filed, and final decree when enrolled, in cases in chancery, went into and constituted the record. The case before us, although courts of law had at an early period jurisdiction in cases of partition (1 Story’s Eq. Jur. 646-648), partakes more of a case in equity. However, it is sufficient to say, that no judgment roll is provided for by the procedure in this State until final judgment has been entered, and we do not see why the requirement contended for here should obtain. The appeal should not be dismissed on the ground referred to, and the motion is denied. If any party had desired any paper to be brought up, which would constitute a part of the record in the case when the roll is made up, and would be material on the examination and decision of the cause, on a suggestion or motion to that effect, leave would have been granted. In holding that we will not dismiss the appeal because all the documents which constitute the judgment roll when made up after the final judgment is made and entered are not in the transcript, we do not intend to hold that the procedure by which questions are brought to the court for examination and review on appeal is otherwise changed. The same mode might be adopted to bring questions for review before this court on appeal from an interlocutory judgment in partition, as on an appeal from a final judgment. The same is true on appeal from a motion denying a new trial in the case of an interloeutory judgment. The questions to be considered and decided on the denial of such a motion, when an interlocutory judgment has been rendered and entered, must be brought before us by a statement or bill of exceptions or affidavit, as in other cases when a motion for a new trial is moved for and denied. Such, in our judgment, is the fair construction of the Code of Civil Procedure. We think the other appeals should not be dismissed, except the appeal from the order appointing a receiver, which will be discussed elsewhere in this opinion. It appears from the bill of exceptions that on the first day of January, 1827, the citizen, Francisco Castro, presented “to the commander-in-uhief of the Californias,” a petition, in which he speaks of himself as a former member of the deputation of the territory of Alta California, and stated that since the 15th of April, 1823, he presented to the territorial assembly (deputation)a memorial, a true and faithful copy of which he appended to this memorial, as follows:— “Hon’Me Deputation: Don Francisco Castro, member of the provincial assembly of Upper California, citizen of and resident in the town of San José, in the said province, with due respect presents himself to you and exposes: — “ That being the owner of large herds of horned cattle and horses, he finds himself under the necessity, in order to preserve the cattle which he now possesses, and in order to provide for the maintenance of his numerous family, to solicit of you that a piece or tract of land may be given to him for the purpose of fixing his establishment. “Wherefore, I address myself to your high sense of justice, and ask of you that in the exercise of the ample powers with which you are invested, you would be pleased to grant to me the possession of three square leagues (sitios) in the place called ‘Los Cuehigunes’ or ‘San Pablo/ formerly occupied by the mission of San Francisco, which lies opposite the said mission and the port of said name, and upon its shores; Avhich piece of land has been abandoned by the said mission, and which, with the previous knowledge of its holy fathers and father ministers, I had already solicited from the present government, who will testify to the fact if necessary. “Feeling thus confident, as I do, that you will have the kindness to consider myself entitled to this favor, I request and pray of you to give me the rights of property, possession, and ownership to the land in due form of law, so that it may be secured to me and my successors. Wherefore, I humbly solicit that you will look favorably at my demand, and do that which you will deem pertinent and necessary. “Monterey, April 15, 1823. “Honorable Deputation, “Francisco Castro.” That on the same day, 15th of April, 1823, the honorable assembly made the following decree or order: — “Monterey, April 15, 1823. “The Hon’ble Assembly [Deputation] grants to the claimant the piece of land which he solicits, measuring three square leagues, considering the said claimant entitled to said favor, for his services, his known probity, and the abundance of stock which he possesses, for which purpose the government appoints the commander of the presidio of San Francisco for the measurement, and giving him possession of the lands for which he petitions. “Arguello. “ José Joaquin de la Terre, Secretary.” The above is made part of the petition. The petition concludes as follows: “ Considering that to the present time the foregoing decree has not been complied with, the reason thereof being unknown to me, I present myself to you in order that, making use of the powers with which you are invested, you will be pleased to give the orders necessary for the purpose of having the foregoing decree enforced. The highly discriminating powers which distinguish you make me confident that you will grant me this favor, for then only will I consider myself safely and permanently settled, and having nothing to fear cither for my live stock or for the sundry branches of industry, and to the" maintenance of my family. This last point being the first which occupies my attention. “ Wherefore, I respectfully pray, that taking my petition into consideration, you will be pleased to 'order all that which you will deem pertinent and reasonable, which favor will, I hope, be granted to me, “In the presidio of San Francisco, 1st of January, 1827. “Francisco Castro.” On the margin of this petition to the commander-in-chief, the following order was made:— “Port of San Diego, January 29,1827. “The commander of San Francisco will be pleased to report why the right of possession within referred to was not given. “ Echeandia.” On the 27th of July, 1827, the above-named Castro presented a petition “ to the commander-in-chief and political chief of the Californias.” The petition begins as follows: — “Francisco Castro, owner of the rancho San Pablo, in the district of San Francisco, respectfully presents himself to you, and in due form of law, and according to his rights, exposes.” The petition proceeds to set forth that four years have elapsed since he became and continued in the possession of the said tract of land, as will appear by the document accompanying these presents, which document, granted by the honorable deputation, confirms the donation, and orders that due title to the possession of the land be given to him (Castro), and requires the commander of San Francisco to do so; that though the gentleman notified for the purpose of giving him said possession, as he (Castro) was at that time a member of the said deputation, and was then called to Monterey on public service, he could not obey said summons, and as from that day he had not been able to settle this matter, he now had recourse to the well-known justice of his excellency, requesting that he would be pleased to order that due possession of the tract of land be given to him. He asks his excellency to take also into consideration that he has already built upon the land a house, having stone foundations, measuring forty varas, two other wooden houses, planted a garden with many fruit trees therein, and a vineyard containing upwards of one thousand stalks of vines, built a mill, and sowed thirty fanegas of wheat, and one half a fanega of corn and beans each; and that he has six hundred head of cattle, and five hundred horses, more or less'; that the tract of land runs along the bank of the creek (estero) and that of the bay (mar) of San Francisco, from north to northwest, where it meets the boundary line of Sergeant Luis Peralta; its distance from the mission of San José is about thirteen leagues, and from that of San Eafael a little over two; that in order to go to the latter, one has to cross, an arm of the sea, in consequence of which a boat has been built “ so that one’s family be not in want of spiritual food.” He concludes by asking that his excellency would be pleased to take his demand into consideration, and’grant it if just. This petition is signed by Castro, and bears date at Monterey. He appends to it his petition to the territorial deputation and the decree of the same, above given. On this petition the following order was made: — “Let the possession prayed for by the claimant be given to him, it being understood that the three sitios prayed for and granted are to measure three square leagues, and said possession being given to him on the place where he has erected his house, or wherever it may be most convenient, on the said sitios, bearing in mind that the measurement and putting in possession must begin from the place where his house is built, or from any other place pointed out by him; and that there must be measured therefrom seven thousand five hundred varas in each direction • and to that effect I appoint, as an intelligent and honest man, the citizen, Erancisco de Haro, a resident of the presidio of San Francisco, so that he may, for and in behalf of the citizen Francisco, having previously called to his assistance two witnesses, and also the owners of the adjoining estates, and in their presence he may pass upon and operate in due form of law, and fulfill all the formalities prescribed and in furtherance of this decree. “This done, that these two documents be sent back to me through the commander of the presidio of San Francisco, by whose channel I now forward them, in order that they may be complied with, and in order also that they may be registered in the book of records and possessions, which are kept in this office. Estrada.” It further appears that Castro presented the following petition, dated the 30th of January, 1828, to the commander-in-chief:— “ To the Comrnander-i'iv- Chief: How comes the citizen, Francisco Castro, who says: That four years ago he petitioned his excellency, Don Luis Antonio Arguello, for the place called ‘San Pablo/ claiming three square leagues out of it, which were granted to me by a decree in which he orders that due possession be given to me, as the person appointed for that purpose. Don Ignacio Martinez has not as yet to this day done it, on account of you having kept in your hands the documents upon which, and in consideration thereof, the usual legal proceedings are to be had, which shall confirm the grant and possession of the said piece of land. I now come and pray you to deliver to me the said document in- your possession, so that the formalities prescribed may be complied with in furtherance of the request of the commissioners appointed. “San Francisco, 30th January, 1828. “ Francisco Castro.” It does not appear that any order or decree was made on this petition. On the 1st of May, 1830, he presented a further memorial, addressed to the political chief:— “ To the TTon’ble the Political Chief: Francisco Castro, of the town of San José, Guadalupe, residing on the rancho of San Pablo, respectfully comes to you and says, that he is the owner of the place called San Pablo; that it was granted to him five years ago by the hon’ble the territorial deputation. That taking in consideration the laws concerning the colonies and the supreme decree of your excellency, renews his claim to the possession of the said tract of land, which measures three sitios, and is such as described in the first claim presented by him, and now in the hands of your excellency, requesting you to remark, that although he has frequently requested that possession be given to him of said tract of land, that the same has not as yet been done. He therefore renews his claim that due possession be given to me of the said tract, and that the amount expended, and the improvements made by his family on the said land, should be taken into united action—the same consisting of a house, measuring ten varas, and having good foundations, one thousand stalks of vine, and sundry other plants. “ And in order that this claim be attended with a full knowledge of the facts, and justice rendered to him in the present instance, he will add that he is fifty-five years of age; that he is married and has ten children; was born in the town of Cinaloa, in the district of Sonora, which was founded by his father; that he was for thirteen years a soldier and corporal in the Mexican company of artillery, and that he has belonging to him on the tract which he occupies, one thousand four hundred head of cattle, six hundred sheep, and five hundred horses. He would, therefore, respectfully request that in consideration of the services rendered by him, the possession of the said tract of land be granted to him, in order that he may in peace and quietness, and with confidence, go on with the improvements necessary for the maintenance of his numerous family, which favor from your well-known sense of justice will, he trusts, be granted to him. “Rancho of San Pablo, 1st of May, 1830. “Fbancisco Casteo.” The following marginal decree was made on the foregoing: — “ Monterey, 26th May, 1830. “Let the plaintiff add to his petition a plan (diseño), showing the conformation, extent, and all other important particulars relating to the tract of land claimed by him. “ Echeandia.” No doubt the plan or diseño above spoken of related to the requirement of the rules and regulations of 1828, in relation to the granting of lands for colonization of the territories of the republic of Mexico, and that the law of 1824 and the regulations of 1828, had then been promulgated in California, and that the laws concerning the colonies referred to in the petition were the law and regulations above mentioned. Oh the 5th day of November, 1831, Francisco Castro died, having first made his will, which appears in the bill of exceptions. The will opened with the following recital: — “On the 21st day of October, 1831, I, Francisco Maria Castro, finding myself, by divine mercy, of sound mind, but severely sick, and desirous of disposing of my effects before 1 die, in the best possible form,' in the absence of a notary public, having called all the witnesses who would willingly come, and asked and supplicated Diego Forbes y Rodriguez to write, in the presence of said witnesses, the following testament, which I will dictate in the form following.” The will appears to' have been very formally drawn up. Among other dispositions the following are made: — “ I order, and it is my will, that my wife, Gabriela Berreyessa, shall have absolute title to one half of all my property, rights, and credits, with all the movables of my house, for her aliment and maintenance, in the same manner that she has had during my life, and I charge my children to comply with the direction or obligation, in the same manner as though it were with my person.” The following clause is inserted in a subsequent part of the will:— “ I order, and it is my will, to leave, as in fact I do leave and give, all my property, rights, and actions, together with all the land of my rancho San Pablo, to my wife one half, and the remaining half equally between my legitimate sons and daughters, each being owner of his equal part or share of the effects.” The language of this clause without the other is sufficient to devise one half of the ranch to the wife. The will contains these further clauses among others:— “I pray and declare that it is my will to nominate, and I nominate and appoint for my executors of this my voluntary last testament, the following named persons: In the first place I appoint my son, Joaquin Isidro Castro, my first executor and holder of the property of my wife, my daughters and sons— Ramon, Victor, Jesus Maria, and Alvino Antonio, enjoining them to strict compliance with my ultimate wish, at the same time giving him all right and power to superintend and take care of the rights and effects corresponding to each one of those persons, that is to say: my wife, my legitimate daughters, and my sons aforementioned, and also to cause the rest of my children to comply with this my last wish. “ I nominate and appoint my son, Juan José Castro, as my second executor, and my son, Gabriel Vicente Castro, as my third executor, to carry out my last wish, and conferring upon them all the rights which the laws direct in these cases. “ I declare and direct all my executors that if any of my children attempt to introduce discord or difficulty of any kind in order to disturb the peace and quiet of my family, he or she be ejected the ranch immediately, without exception of person. “I declare as my last wish, and direct that all my tame horses be for the use of my wife, my legitimate daughters, and my sons Bamon, Victor, Jesus Maria, and Alvino' Antonio. My horses number thirty, with two mules, which are for the use of my house. “I direct, .... and it is my desire, that my youngest son shall be master or owner of my branding iron and cattle mark.” This will was «signed by Castro on the 3d day of November, 1831, and was attested by three witnesses, who sign: “ Carlos Castr.o, first witness to this testament; José Berreyessa, second witness to this testament; Diego Forbes y Bodriguez, third witness to this testament.” It will be observed that the testator appoints his son, Joaquin Isidro Castro, first executor of his will. .On the 26th of . May, 1834, this son and first executor of the will presented to the political chief the following petition:— “ To His Excellency, the Political Chief: The citizen, Joaquin Isidro Castro, presents himself before your excellency, and in due form of law exposes:— “That in consequence of the death of my father, who has instituted me the heir of a portion of his property, and guardian of that of my brothers (as will appear by his testament, a copy of which is registered in this capital), and in fulfillment of the obligations resulting from the trust which I have accepted, and for the due execution of the same, I solicit of your excellency the lawful ownership of a certain piece or tract of land named San Pablo, a plan of which is hereto annexed, together with a copy of the first petition for the said tract, presented by my father, and dated the 15th of April, 1823, and also a copy of gubernatorial decree of the same date, and the same having remained without effect, I hereby renew a demand for the said piece of land, together with the documents necessary for the security of the rural property therein situated, consisting of three thousand head of cattle, nine hundred horses, and six hundred sheep. I hereby solicit your excellency to do that which you will deem just and necessary in the premises, protesting my entire good faith, and taking the oath prescribed, etc. “ Bancho de San Pablo, May 26, 1834. “Joaquin .Isidro Castro.” On this petition the following marginal decree was made by José Figueroa, the political chief to whom it was addressed:— “Monterey, June 1, 1834. “ Let the petitioner be notified to produce the original documents, in virtue of which the lands which he claims were granted, and a report be made of the same. I, Don José Figueroa, a general of brigade of the Mexican republic, commander-general, inspector, and political chief of the Territory of Upper California, so order and decree, and in faith thereof, thereunto affix my name. “José Figueroa. Agustín V. Zamorano, Secretary/’ To this decree Joaquin I. Castro made answer on the 11th of June, 1834. The answer is as follows: — “This day, the 11th of June, 1834, the petitioner, Don Isidro Castro, being present, and the foregoing notification from the political chief having been duly served on him, and having been made acquainted with it and heard it read to him, declared and answered: That the original documents referred to in said notification are on file in the office of the secretary of the government, together with a petition of his deceased father, praying for a grant of said rancho; and having so answered in good faith thereof, he affixed thereto his signature, and so did also the secretary of the government. “Joaquin Isidro Castro. “Agustín V. Zamorano.” On the same day, Governor Figueroa ordered that the secretary of the government report on this answer, annexing the documents referred to, and of" the whole let an account be rendered in order to determine thereupon. The secretary, Zamorano, in conformity with the foregoing order, produced the documents referred to for such further orders as his excellency might be pleased to make. The documents referred to are those above given, consisting of the various petitions made by Francisco Castro in his lifetime, and the orders and decrees made thereon. On the petition of Joaquin above given, Governor Figueroa made this decree:— “Monterey, June 12, 1834. “ Taking into consideration the petition at the head of this expediente, the commission granted by the hon’ble the territorial deputation, on the 15th of April, 1823, and all steps taken and other things done in conformity with the requirements of the law on such matters, — “We declare Don Francisco Maria Castro the lawful owner, and by his death his successors, of all that tract of land known under the name of Los Cuchigunes, or San Pablo, bounded by the ranchos of San Antonio and El Pinole, and by a portion of the port of San Francisco. Let, therefore, a title be delivered in conformity with the above, have it registered in the proper book, and handed over to the testamentary executor, Don Joaquin Isidro Castro, for the ends required, and have the expediente recorded. “I, José Figueroa, general of brigade, commander-in-chief, general inspector, and superior political chief of the territory of Upper California, do so order and decree, and in faith here unto sign my name. “José Figueroa. “Ag. V. Zamoraeo.” On the same day the following grant was made: — “Whereas, the late Francisco Maria Castro petitioned the deputation on the 15th of April, 1823, a reversion in the tract of land known under the name of Los Cuchigunes, or San Pablo, bounded by the ranchos of San Antonio and El Pinole, and by a portion of the bay of San Francisco; and whereas, his successors did subsequently apply for the lawful ownership of the said tract of land, having previously taken all the steps required with the formalities prescribed by the laws and regulations in such cases made and provided; now, therefore, using the powers with which I am intrusted, and in the name of the Mexican nation, by decree of this day, I do grant to the said successors the above-mentioned tract of land, declaring the same to be their property by the present letters, in entire conformity with the tenor of the laws and in confirmation of that concession, subject to the following conditions: — “First—That they will comply with the rules and regulations which may hereafter be made for the distribution of public lands, and that they will not, in the mean time, neither they, their grantees, nor their heirs, have the power of dividing nor alienating that which is granted to them; neither will they have the power of laying upon the same any liens, mortgages, nor encumbrances whatever, even for pious causes, nor to make a mortmain transfer of the same. “Second—They are hereby allowed to fence the same, without prejudice to the passages and ways across the same and other servitudes. They will have the free and exclusive use and enjoyment of the same, cultivating and using the said land as they will think best; but within one year at the latest they must build a house thereon, which shall be inhabited. “Third — They shall apply to the competent judge for the judicial possession of the said land, in accordance with the present title, for the purpose of having the boundaries of the same marked out, which, besides the ordinary land-marks, will be defined by some fruit trees or other trees of some utility planted for the purpose. “Fourth—The herein-mentioned tract is of three square leagues, more or less, according to the design which accompanies the expediente granted to them. “The judge who will put them in possession shall have the said tract measured according to law, so that the boundaries may be marked out, the surplus, if any, reverting to the nation, for such uses as may be proper. “Fifth—Should they fail to comply with the foregoing conditions, the grantees will lose their rights to the said tract of land, which will become liable to be claimed by others. “I therefore order that these presents be, to all intents and purposes, a good and valid title to the grantees, that the same be recorded in the proper book, and that it be delivered to the parties interested for their security and for all other ends and purposes. “Given at Monterey, this 12th day of June, 1834. “José Figueroa. “A. V. Z., Secretary.” On the 23d of June, 1835, Joaquin I. Castro presented a petition for an augmentation of the San Pablo Eanch to the political chief, as follows: — “Monterey, June 23, 1835. “ Joaquin Castro, a citizen residing within the jurisdiction of the port of San Francisco, presents himself to you, and with due respect says:— “ That I have already solicited from your excellency the legitimate possession of the rancho of San Pablo, which we, the heirs of my deceased father, actually occupied, as I have already stated in my first petition, but through inadvertence, have neglected to ask for the extent of land included in the plan annexed thereto, and have said that we only claim the three square leagues that we formerly occupied. “This piece of land being rather too small for the number of cattle grazing on the same, which number we are exerting ourselves to increase, I solicit of you, in the name of the other heirs, and as their attorney in fact, that said petition be understood to exclude for [from?] the three leagues which we occupy, the augmentation of the land described in the aforesaid plan. “ Wherefore, I pray your excellency to grant that which I demand, hereby protesting of my gratitude, and taking the necessary oath. “ Monterey, June 23, 1835. “Joaquin Isidro Castro.” The governor made the following marginal order on this paper: — “ Monterey, June 26,1835. “ Let this petition be added to the expediente upon the matter, so that the secretary may report upon the same whatever he may deem expedient for the proper conclusion thereof. “ Figueroa.” This order was obeyed’ by the secretary Negrete on the same day. The secretary made a further report on the 27th of June, which it is unnecessary to insert here. On the 14th of August, 1835, Figueroa made an order that a grant issue of the whole tract, in the following words: — “Monterey, August 14, 1835. “ Considering the petition at the beginning of this expediente, which was obtained on the 15th of- April, 1823, from the most excellent territorial deputation, the subsequent petition which was made on the 23d of June of the present year, praying for the amplification of a little more than a square league according to the plat marked number 2, and also such other additional documents as were furnished in conformity of the law and regulations in such cases made and provided: I hereby decree Don Francisco Maria Castro, and by his demise his heirs and successors, the lawful owner and owners of the tract of land known under the name of Los Cuchigunes, or San Pablo, bounded by the ranchos of San Antonio and El Pinole, and by a portion of the port of San Francisco. I order that a good and sufficient title be made out, that the same be registered in the proper record book, that it be delivered to the testamentary executor and heir, Joaquin Isidro Castro, for all necessary ends and purposes, and that the expediente thereof be archived. “I, Don José Figueroa, general of brigade of the Mexican republic, commander-general, inspector, and political chief of the territory of Upper California, so order and decree, and in faith thereof hereunto affix my name. “José Figueroa. “ F’co del Castillo Negrete, Secretary.” On the 20th of August, 1835, a grant issued in the usual form of the whole property including the augmentation, to the successors of Francisco Maria Castro. On the 22d of May, 1840, the expediente was presented to the departmental assembly, and the same was approved by the assembly on the 30th day of May, 1840. We have thus presented the matters appearing in the expediente very fully, in order that the history of the title in its inception and consummation might appear herein. Mexico achieved her independence, after a long struggle, in 1821, and became then a republic. The plan of Iguala, adopted by the revolutionary government of Mexico on the 24th of February, 1821, and the treaty of Cordova of the 24th of August, 1821, between the then government of Mexico and the Spanish viceroy, mark the close of the struggle by Mexico for her existence as an independent nation. By the treaty of Cordova the independence of the country was established. (United States v. Ritchie, 17 How. 538.) Some time in 1822, the authorities of California recognized and gave in their adhesion to the new order of things established in Mexico. The first step taken by Francisco Castro for the acquisition of title to the rancho San Pablo was by a petition to the territorial deputation, on the 15th of April, 1823. This petition was for a grant “ of the possession ” of three square leagues in the place called Los Cuchigunes, or Sau Pablo. The grant was made by the deputation and approved by the then governor, Arguello. (That Arguello was then governor of California, see the list of colonial governors in Dwinelle’s Colonial History, Addenda, 115.) It is contended that the territorial deputation never had power to grant land, and several authorities are cited to that effect. (United States v. Workman, 1 Wall. 762; Beard v. Federy, 3 Wall. 491; Christy v. Pridgeon, 4 Wall. 203; Hornsby v. United States, 10 Wall. 231—238; United States v. Vigil, 13 Wall. 450, 451; Ferris v. Coover, 10 Cal. 589.) But in the view we take of this case it is unnecessary to decide this question. The question we especially refer to is, whether the deputation, with the approval of the governor, had the power to grant lands prior to the enactment and promulgation of the decree of the Mexican Congress of the 18th of August, 1824, relating to colonization, and of the rules and regulations of the 21st of November, 1828, for the colonization of the territories of the republic of Mexico. (See Ferris v. Coover, 10 Cal. 634-537; Rockwell’s Spanish and Mexican Law, 451, 453; 1 White’s New Recopilación, 601, for this decree and the rules and regulations.) It may be further conceded that Francisco Castro never complied with the decree and regulations aforesaid, and never acquired any title to the San Pablo Ranch previous to his death. That the facts appearing in the expediente above set forth gave him a strong equity to such a grant, Ave have no doubt; but it is conceded, as contended by appellants, that prior to his death he acquired no title. It may be remarked here that Governor Figueroa, reputed by all to have been an able and learned man, well acquainted Avith the Iuavs of Mexico, in his order of the 12th of June, 1834, above inserted, declares in so many words that Don Francisco Maria Castro is the laAvful owner of the tract of San Pablo petitioned for. We consider this statement of Figueroa ds high authority, sustaining the position that Castro was in his lifetime the OAvner of the tract above mentioned; but as we have said above, in the view we take of the case, it is unnecessary to pass on it. Prior to his demise in November, 1831, he made and executed a will, the clauses of which, so far as pertinent, have been stated above. We have seen that he demised one half of this rancho to his wife, and made his son his first executor. In this condition of things, his son, Joaquin, the first executor, presents to the then governor (Figueroa), on the 26th of May, 1834, a petition for the rancho. In this petition he states “ that, in consequence of the death of his father, who has instituted him heir of a portion of his property and guardian of that of his brothers, as will appear by his testament, a copy of which is registered in this capital,” and in fulfillment of the obligations resulting from the trust which he has accepted, he solicits of his excellency the lawful ownership of a tract of land called San Pablo, a plan of which was annexed, with a copy of the first petition for the said tract, presented by his father, dated the 15th of April, 1823, and also a copy of the gubernatorial decree of the same date. He further states that the petition and decree having remained without effect, he thereby renews a demand for this piece of land, with the documents necessary for the security of the rural property thereon situated, consisting of three thousand head of cattle, nine hundred horses, and six hundred sheep. The documents referred to in this petition were produced before the governor and appear in the expediente (they are set forth above); and Governor Figueroa, having taken into consideration the petition and the papers presented, on the 12th of June, 1834, orders a grant to be issued for the land, and on the same day a grant was issued. The order or decree that a grant issue declares “ Don Francisco Maria Castro, the lawful owner, and by his death his successors,” of the tract of land known under the name of San Pablo, and directs that a title be delivered in conformity thereto (“with the above”), that it be registered in the proper book, and handed over to the testamentary executor and heredero (heir), Don Joaquin Isidro Castro, for the ends required. The word translated “ testamentary executor” in the above is albacea, and it is said to be incorrectly rendered. Escriche" defines albaeea thus: “He who is charged with fulfilling and executing that which is directed by the testator in his testament or other last disposition”: see word albacea in Escriche’s Diccionario, etc. In the dictionary of the Spanish academy it is defined testamenti exsequendi curator. In Seoane’s, ¡Newman & Barretti’s Dictionary the definition is “ testamentary executor.” We think the word is correctly translated. The title or grant was accordingly issued to the successors of Don Francisco Maria Castro. The word translated “successors” in the above document is herederos. The important question arises here and is to be determined, who are the herederos referred to by Governor Figueroa in the described grant above stated, and to what persons or class of persons did he intend to make the grant or title? The grant is made to these persons, whoever they are. It is contended on behalf of the appellants that the herederos referred to are the brothers and sisters. On the other hand, the contention is that the herederos referred to are the persons to whom the rancho was devised by the will of Francisco Maria Castro. Of this word heredero, Escriche says that “anciently the proprietor of any inheritance was so called'; and it still preserves this signification in some parts.” He proceeds further to state that this signification comes to us from the Roman law; that Justinian in his Institutes informs us that the expression acto de heredero is the same as the act of the proprietor, giving as a reason that the ancients called heirs, owners, or masters: Veteres enim hceredes pro dominis appellabant. Upon which text Cuyas observes that hoeres comes from herns—lord or owner. Further as to this word, he says he is the person who by a testamentary disposition or by law succeeds to the rights which a deceased person held at the time of his death; that the word heredero is, according to some, derived from the Latin herns, signifying lord or owner; according to others from the word hoeres, which signifies joined or fastened to another, because the heir (heredero) is next to the person from whom he inherits, as his relation or intimate friend. Thus it is in Latin, some write heres and others hoeres; that the heir represents the person of the deceased, and they are considered as the same person. That the quality of heir has no other origin than the will of man or the disposi-' tion of the law; and hence comes the general division of heirs into testamentary or intestated and heirs by law or from intestacy. The testamentary heirs are divided into forced or necessary and voluntary or strangers. The heirs by the law or from intestacy can be subdivided into heirs by relationship, heirs by matrimony, or anomalous. (See word heredero, Escriche’s Dice., edition above stated.) The heir can be instituted by will if designated in the will by apt words, so that it can be perceived who is meant. (See 2 Moreau and Carleton’s Partidas, Law 6, on pp. 983, 984; Schmidt’s Law of Spain and Mexico, arts. 1048-1051; and several persons may be instituted joint heirs, see work last cited, art. 1050.) The language of the will of Francisco Maria Castro was sufficient in a legal and valid will to institute an heir. The question then recurs, To whom did Governor Figueroa grant the rancho San Pablo ? In our judgment, the governor intended to make the grant to them to whom the property was given by the will of Francisco M. Castro, and in the proportions in which it was so given. The language of the documents signed by him indicates this clearly. To show that such was his intent, we will review the papers briefly. The petition of the testamentary executor, as Joaquin I. Castro is styled in the decree of the 12th of June, 1834, bearing date the 26th of May, 1834, refers to the last will of his father by which he was instituted heir, and states that a copy of it is registered in the capital. He states that he desires the grant that he may fulfill the obligations resulting from the trust which he has accepted and for the due execution of the same. He refers to the application of his father and the decree upon it, and in accordance with the order of the governor produces the documents relating to the application made by his father prior to his death. It is a fair construction of this petition that it referred to the obligations resulting from the provisions of the will, by which one half of the rancho was devised to his mother, and of which will he was the executor. He desires the grant for the due execution of the trusts—referring to the trusts under the will. But whether this be the proper construction of the petition of Joaquin or not, it is evident that the governor put this construction upon .it. He declares that the father was the lawful owner, and by his death his successors (herederos) are lawful owners of the land, and directs that a title in conformity with this view be delivered and handed over to the testamentary executor, Don Joaquin Isidro Castro, for the ends required. The grant is then issued in conformity with this decree to the successors (herederos). ISTo doubt the governor examined and considered the will, which was registered in Monterey, the capital, where he was when he made the grant to the herederos who were to succeed under the will. These persons were the successors referred to by the governor in his decree and grant or title. The title or grant was directed to be delivered to the testamentary executor, “for the ends required,” that he might execute and fulfill the trusts of the will, and carry out its directions. The governor seemed to have recognized the will as a valid instrument. At any rate, he made the grant to the parties entitled under the will and according to its provisions, which he had power to do under the decree of 1824, and the regulations of 1828. The same reasoning applies to and is true of the augmentation petitioned for by Joaquin I. Castro on the 23d of June, 1835, and granted on the 20th of August of the same year. It appears from the bill of exceptions that after the death of Gabriela Berreyessa, widow of Francisco Maria Castro, which occurred in December, 1851, the claim for the rancho San Pablo was presented to the board of land commissioners to ascertain and settle private land claims in the State of California, under the Act of Congress of March 3, 1851. When the claim was presented to the board, a petition was presented along with it signed by Eugene Musson and Saunders, Hepburn & Bagley for the petitioner. The petitioner was Joaquin I. Castro, who styles himself in it, “administrator with the will annexed of the estate of Francisco Maria Castro, deceased.” The petition was filed October 9, 1852, and is in the following words: — “ Rancho San Pablo, Contra Costa County. “To the United States land commissioners to ascertain and settle the private land claims in the State of California. “Joaquin Isidro Castro, administrator with the will annexed of the estate of Francisco Maria Castro, deceased, respectfully represents:— “ That on or about the 15th of April, 1823, said Francisco petitioned the governor of California—at that time Don Luis Arguello — for a tract of land situate in said territory of California, containing three square leagues, and within the boundaries following, viz.: Situate on the coast of the mission of San José, parallel with the port of San Francisco, adjoining the property of the Sergeant Luis Peralta, up to the line of the ridge of mountains to the place called Los Cuchigunes, at the margin of a deep creek that there springs, at something like five hundred varas. The house is built distant three leagues: from the place of residence of Peralta, known as the hill of Sam Antonio, and up to the ravine of El Pinole at the north. “That afterwards, on or about the day or year aforesaid, said Francisco received from the said governor and territorial deputation of said territory, a grant of said land, and shortly thereafter went into possession thereof, and occupied and improved the same continuously thereafter until his death, in the year A. D. 1831. “That afterwards, on or about the 12th day of June, 1834, upon the petitions of said Francisco before his death, and after-wards of this petitioner for himself and others, the claimants under said title—Don José Figueroa, governor at that time of said territory—by order of that date recognizing the grant and title aforesaid, ordered a formal title to said land to be made out for the benefit of said Francisco and his successors in interest, and to be delivered to petitioner as the testamentary executor of said Francisco, which said formal title was made out and delivered as aforesaid, on the day and year last aforesaid. “ That afterwards, to wit, on the 14th and 20th of August, 1835, said Figueroa, governor as aforesaid, upon petition made according to law, granted as aforesaid, all the surplus land of San Pablo, according to a plan thereof annexed to the petitions last aforesaid, copies and translations of all which said documents, petitions, titles, grants, and plats, hereinbefore referred to, are herewith filed. “That said grants were afterwards confirmed by the departmental assembly of California. “ That said Francisco and his successors in interest have duly-complied with the terms and conditions of said grants, and of the laws and regulations of Mexico relative thereto. “Petitioner further represents that said Francisco Avas married to Gabriela Berreyessa, and died in the year 1831, leaving surviving him his wife and eleven children. The issue of said marriage being Alvina, Maria de Jesus, Maria, Francisca, Martina, Antonio, Juan José, Gabriel, Victor, Jesus Maria, and this petitioner. That said Francisco left a will signed, attested, and published according to law, Avhereby he devised and bequeathed to his Avife one undivided half of his said land and other property, the other half to his said children, to be equally divided between them. That said Martina Castro has intermarried with Juan B. Alvarado; that said Francisca married Joaquin Moraga, both of whom died, leaving issue of said marriage five children, viz.: Francisco M., José, Maria de los Angeles, Luisa M. de Briones, and Guadalupe, who married Vicente Martinez and died, leaving surviving her two children, (issue of said marriage) now living, viz.: Francisca and Merced. That since the death of Francisco first aforesaid, his said children, Alvina, Maria de Jesus, and Maria have died without issue, and their share of said land descended to their said mother, Avho thereupon became the absolute owner of fourteen twenty-seconds (14-22) of all said land. “ That aftenvards, on the 4th day of August, 1851, said Gabriela Berreyessa de Castro, by deed executed the day and year aforesaid, in consideration of natural love and affection for her said daughter, Martina Castro de Alvarado, gave and conveyed to said Martina all the said interest (14r-22) of her, the said Gabriela, to and in said land. That said Martina thereupon became entitled to fifteen twenty-seconds (15-22) of all the land aforesaid. “Petitioner represents that he Avas named executor in the said last will of said Francisco, but that he declined to act as such, and afterwards, on the-day of- 1852, he qualified in the Probate Court of the county Avherein said land is situated, as administrator with the will annexed, and that the period of administration is not yet expired. Wherefore, petitioner prays that said land may be confirmed as granted to the parties entitled thereto as aforesaid. “Eugene Musson, Saundebs, Hepbubn & Bagley, for Petitioner. “ [Indorsed.] Filed October 9, 1852. “ Geo. Fisheb, Secretary/* A translation of the will and codicil of Francisco Maria Castro was presented along with it. It will be observed that in this petition it is stated that a grant to Francisco Maria was made of a tract of land of three leagues, on his petition, by the governor, Don Luis Arguello, and the territorial deputation, on or about the 15th of April, 1823, and that shortly thereafter the grantee went into possession of the land granted, and occupied and improved the same until his death, in 1831. The petitions for said grants by Figueroa are also stated, which grants were confirmed by the departmental assembly. It is further stated that Francisco Maria was married to Gabriela Berreyessa, and died in 1831, leaving surviving him his wife and eleven children, the issue of this marriage, viz.: Alvina, Maria de Jesus, Maria, Francisca, Martina, Antonio, Juan José, Gabriel, Victor, Jesus Maria, and the petitioner; that Francisco Maria left a will signed, attested, and published according to law, whereby he devised to his wife one undivided half of his said land and other property, and the other half of his said property to his children, to be equally divided between them. That said Martina Castro has intermarried with Juan B. Alvarado; that said Francisca married Joaquin Moraga, both of whom died, leaving issue of said marriage five children (naming them); that one of these children last named, Guadalupe, married Vicente Martinez, and died, leaving surviving her two children, issue of said marriage, living when the petition was filed, named Francisco and Merced. That since the death of Francisca Maria Castro, his said children, Alvina, Maria de Jesus, and Maria have died without issue, and their share of said land descended to their mother, Gabriela, who thereupon became the absolute owner of fourteen twenty-seconds of all said land; that on the 4th day of August, 1851, said Gabriela Berreyessa, by deed executed on that day, gave and conveyed to her said daughter, Martina Castro de Alvarado, all her interest in said land; that said Martina thereupon became entitled to fifteen twenty-seconds of all of the land aforesaid; that he was named executor in the said last will of Francisco Maria, but declined to act as such, and afterwards qualified as administrator, and that the period of administration has not yet expired. The petition prays for a confirmation of said land, “as granted to the parties entitled thereto as aforesaid.” On the 17th of April, 1855, the claim of petitioner was confirmed and adjudged to be valid. It also appears that such further proceedings were had that the claim was finally confirmed by the proper United States District Court, that the land was afterwards surveyed, and the final survey was approved on the 17th of August, 1864, by Honorable Ogden Hoffman, United States district judge. The final survey contained seventeen thousand nine hundred and thirty-eight and fifty-eight hundredths acres, a patent for which was afterwards, on the 31st of January, 1873, executed and issued by the United States to Joaquin I. Castro and his heirs and assigns, with the stipulation that neither the confirmation nor patent shall affect the interests of third parties. In relation to this patent it may be here said, that it was issued after the suit was commenced, and was offered in evidence by the plaintiff after the argument of the cause had commenced. To its admission in evidence Mr. Brooks, on behalf of the defendants for whom he appeared, objected, “because the said patent issued after the commencement of this suit, and it was not alleged in any supplemental complaint or otherwise.” The court overruled the objection, and an exception was reserved on behalf of the defendants who objected. We cannot see that any injury was done by this ruling to any party; and therefore, admitting that it was an error, we would not reverse for such error. It is well settled that error without injury furnishes no ground for reversal. It is argued that the will of Francisco Maria is invalid, as it was not executed according to the law as it stood when it was made. In the view we have taken above, that the grants by Figueroa Avere made to those who are described in the will as the devisees or heirs of the land, and in the proportion as devised by the will, it is unnecessary to pass on the validity of the will. We will say, however, that this will was before the Supreme Court of this State in 1856, in a case decided at the April term of that year, in which this point was passed on. (Castro v. Castro, 6 Cal. 158.) It was held in that case that the will was properly executed, that a sufficient number of witnesses attested it, and that it was in other respects executed according to the law in force when it was made and published. The ruling in this case was approved in Tevis v. Pitcher, 10 Cal. 477. There was proof in this case of the custom by which a will attested by three witnesses was well attested, as in Tevis v. Pitcher, and in Castro v. Castro. (See also Panaud v. Jones, 1 Cal. 488; Adams v. Norris, 23 How. 363.) Admitting, as argued, that the Probate Court had no jurisdiction of the probate of the will in Castro v. Castro, and that therefore the decision in the case in 6 Cal. is not binding for want of jurisdiction, still we are of opinion that the law was properly declared in the case, and that the rule therein laid down was approved in Tevis v. Pitcher. Therefore, we do not think it necessary to review the ruling in Castro v. Castro, considering this point as settled by the judgments of this court. If we were to decide this point, we would feel bound to hold the will of Castro to be a valid will, properly executed and attested. It is further contended that though the will was executed according to law, still that it cannot be held to have the effect to pass to Gabriela Berreyessa, the widow, one half of the San Pablo Ranch, for the reason that the testator had not, under the Mexican law, the power to make such devise. This point is elaborated with much learning and ability by the learned counsel (B. S. Brooks, Esq.) for the defendants, and there is placed before us an extended discussion of the power of the father over his real property, and the limitations and restrictions thereupon. We have read the brief of counsel with great interest and care. But as stated above, we are of opinion that the devisees under the will were the grantees of Figueroa in both of the grants or titles made and issued by his order, and therefore it is unnecessary to enter upon an examination of the power of Francisco Maria Castro to devise his realty to persons other than his children. Subsequent to the death of their father, Francisco Maria Castro, and before the death of their mother, Gabriela Berreyessa, three of the children of this marriage, viz., Alvino, Maria de Jesus, and Maria Grcgoria, died intestate and without leaving any descendants; the latter, Maria Gregoria, married José Ramon Estrada, who died before his wife. The question arises to whom these interests in the ranch passed. It is contended on behalf of some of the defendants that these interests passed by law to their surviving brothers and sisters, and on behalf of the plaintiff that these interests passed to their surviving mother, Gabriela. On an examination of the Mexican law on the subject, we are of opinion that these interests were vested in the mother. Escriche, in treating of the succession to the estate of intestates, states as the first class, his or her legitimate descendants. (See Eseriehe’s Dice, de Legislación y Jurisprudencia, Paris ed. of 1852, under the title “Heredero Legitimo ó ab intestato”; see also Madrid edition for 1873, under same title, and Don Juan Sala’s “ Ilustración del Deercho Real,” lib. 2, title 8, § 2; Schmidt’s Law of Spain and Mexico, §§ 1232-1234.) The second class or order of succession is stated by Escriche to be the ascendants, the nearest ascendant always excluding the more remote. The law is thus given by this learned author and jurist: “ There being no descendants to inherit as set forth in the explanation of the first order of succession, there enter upon the succession of the deceased intestate his legitimate ascendants, without distinction of sex, with the absolute exclusion of collaterals, though they are brothers. (Citing Law 2, title 2, lib. 4, del Fuero Juzgo; Law 1, title 6, lib. 3, del Fuero Real; Law 4, title 13, part 6; and Laws 6 and 7 de Toro; 1 and 2, title 20, lib. 10, Nov. Rec.) Further, that the nearest ascendant excludes always the more remote, because among ascendants there is no succession by representation, as among dccendants, but by proximity of relationship. So that if the deceased leaves father and mother, both inherit in equal proportions ; but if there is father only, or mother only, the survivor inherits the whole property, and the grandfather of the deceased takes nothing. In the same manner, if there is no father or mother, and there is a grandfather of one and a great-grandfather of the other, the whole inheritance will be .that of the grandfather, to the absolute exclusion of the great-grandfather.” (Citing Law 4, title 13, part 6; see Escriche’s Dice, de Leg. y Jurisp. above cited, under same title as above given; Sala’s Ilustración del Derecho Real, lib. 11, title 8, § 6; Schmidt’s Law of Spain and Mexico, §§ 1235-1237; Escriche’s Dice, title Representación.) It is contended further, that these interests passed to t