516
FEDERAL· 'REPORTER.
consent to receive it, and when the security for the debt is doubtful, it is wise to accept the payment in depreciated currency., Of course, every case is governed, more or leas, by its surroundings; but in this case none of the reasons assigned exist, as we,have shown. We are of opinion that not only is the plaintiff, as a matter of strict legal right, entitled to the reliefsought, but that it is only simple justice. The heirs of Castleman enjoy a landed estate of great value, which was purchased to be paid for in lawful money of the United States, and the heirs of Opie, who are suing in this case, have never received the consideration promised under the contract entered into in 1856. We take no notice of the fact that the money received by the executors as payment of the debts due had some value, for the reason that we hold the payment, so far as the parties to this action are concerned, was illegal and void, and any relief the heirs of Castleman may have, if, indeed, they have any, is against the executor. A decree will be prepared inconformity with the views of the court as expressed in this opinion, referring the cause to a comm'issioner to ascertain the interests of the plaintiff and the two heirs, John Opie and Mrs. Mead, in the debt secured by the deed of trust upon the land sold by their ancestor.
, LEROY
v.
DOE.
(Oireuit (Jourt, N. D. (Jalifornia.
October 17, 1887.)
LIMITATIONB OF ACTIONB-SAN FRANCISCO LAND TITLES.
The act of congress of July 1,18114, (13 St. 333,§ 5,) granting lands within tbe charter limits of 1851, to San Francisco, for certain purposes, vested a perfect title without a patent, and, as to titles derived under the act, the statute of limitations began to run from the time of its passage.
(8y llabu8 by the (Jourt.)
Action to Recover Lands. ' The lands are situated within the limits of the pueblo of San Francisco, and within the corporate limits of the city under the charter of April 15, 1851. In August, 1853, E. C. Marshall filed what is called a pre-emption claim,' einbracing the lands, took possession, and fenced it. He afterwards conveyed undivided portions to various parties. The numerous defendants and their grantors claiming under Marshall took possession at an eady date, and maintained it, claiming title, adversely to plaintiff, up to the time of the commencement of the suit. There were numerous conveyances, and several partitions made between the defendants. The plaintiff also claims an undivided interest, by conveyances made under Marshall, but neither the plaintiff, nor any of his grantees, appear to have been in actual possession since the conveyances from Marshall in 1854. On June 20, I85e, the common council of the city of San Francisco passed an ordinance,since known as the "Van
: LEROYV. DOE.
517
Ordinance," whereby the city relinquished and all its right and title to hinds within its corporate limits, "to the'parties in a<.{ual possession thereof, by themselves ortenants, on or before the first day of January, 1855," with certain specified exceptions, not including the lands in question; "provided, such possession has been continued up to the time of the introduction of this ordinance in the common council; or if interrupted by an intruder, or trespasser, has been, or may be, recovered by legal process." Section 3 provided that the patent issued, or any grant made, ·by the United States to ·the city, "shall inure to the several use, benefit, and behoof of the said possessors, their heirs and assigns, mentioned in the preceding section, as fully and effectually, to all intents and purposes, as if it were issued, or made directly to them, individually, and by name." St. 1858, p. 53. This ordinance was ratified and confirmed by an act of the legislature of the state of California approved March 11, 1858, (St. 1858, p. 52.) On July 1, 1864, congress passed an act, section 5 of which provides as follows, to-wit: "That all the right and title of the United States to lands within the corporate limits of the city of San Francisco, as defined in the act incorporating said city, passed by the legislature of the state of California on the fifteenth day of April, 1851, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinances of said city, ratified by an act of the legislature of the said state, approved on the eleventh of March, 1858, entitled'An act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city,'
etc."
The title of the city of San Francisco was confirmed to the pueblo lands, including the lands in controversy, by a decree or the United States circuit court, on May 18, 1865; and, by an act of congress approved March 8, 1866, pending an appeal from the decree of the circuit court, (14 St. 4,) the titIeof the city was finally granted and confirmed to the city, in trust for thosfJ in actual possession, at the time specified, to all the lands embraced in said decree of the circuit court of May 18, 1865; but no patent was issued to the city till after the commencement of this suit, which was on January ·28, 1876. The question arising under the statute of limitations was as to when the statute of limitations began to run, as against the parties out of possession,claiming title under the city, through the various proceedings herein stated. The plaintiff insisted that the title from the United States did not become firral and perfect until the issue of the patent to the city under the decrfJe of confirmation, and said confirmatory act of 1866. While the defendants maintained that the title became perfect to the lands covered by the act without a patent by the legislative grant in the said act of 1864, and that the statute began to run as to the title derived from the United States under said act, through the city of San Francisco, from the date of that act. Wm. Levi8ton, for plaintiff. Wilson & Wilson, for defendants.
, , . SAWXER,J,., (orally.) iJ,hav:e gone over this case very carefully. As to aU th/),t part of the lana described in the complaint lying outside of "fthe;line qf the Marsball claim, the plaintiff failed to shl)w a.ny title, and ,.that! point I decided against him at the trial. As to the other parts, " those ;<;1etMbed portions lying within the line of the Marshall claim, I that, the of limitations, began to run from. the date of July 1;1864, granting the lands to the city of San F,rllJ;lcisco for the purposes stated. 13 St. 333, §5. That was a positive It passed the title as perfectly, as a patent would. ' A patent adds nO,thingtothe title. It only affords a convenient before, and so has Justice FIELD, that muniment of title. 1 have . the statute of limitations, begins to run as to the lands embraced in this act from the date of its passage. I am satisfied that there was an adverse possession, from the ,date of the act, such as would set the statute running even,againstthe partYWllo claims to be a tenant in common. The other parties did not recognize plaintiff as a tenant in common. Their , so notorious and manifest against all the world, that Leroy must liaye ,k.no'Wn it. They paid the ta:xes and had various dealings with eae4' in regard to the lands, recognizing each other's interests, but not the claim of Leroy ; they fenced it up, and rented it in parts 'to·tenants,and constantly e:xercised dominion over it. There were several partitions and deeds of partition. Their numerous acts were open and notorious, and wholly iil disregard of any claim of Leroy, if he made any pretension to title. Their acts were of such a character, that he could not fail to have been put on notice. I am satisfied that under the laterdecisic;>ns,Elven against a tenant in common, anadverse possession is showa. :; There Can be no possible question as to all other claimants. The action is barred by the statute of limitations, and there must be a judgment and finding for the defendants, on that ground. I put the decision on the ground that the plaintiff is barred by the statute of limitations,withollt considering the other points as to title. The statute began tOljUn in 1864; the suit was commenced in 1876. They were 10 years in such adverse possession. The action was barred even under the further aet of of March 8,1866, (14 St. 4.) Let there be findings and judgment for defendants.
"
HUDSON HUDSON others'll. ,BISIIOP.
{Oircuit Oourt; No D. Iowa, E. D. May, 1887" 1. GUARDIAN AND WARD-SUIT ON BOND-LEAVE OF COURT.
Rev. St. Wis. c. 170, §3968, provides that "in case of any breach" of a guardian's bond. the bond "may be prosecuted in the name of the ward for the use and benefit of such ward, or any person interested in the estate, when61Jer the county court 8hall direct." Held, the bond running to the ward by name, and it being the duty of the guardian, by its terms. to settle with the ward personally, the ward, after coming of age, could maintain suit in his .own name on the .bond, against the sureties, without first ,obtaining authority to do SQ from the county court. . The death of the guardian before the ward comes of age operates to "dischar§e" him, within the meaning of Rev. St. Wis. c. 170,§ 3968, providing t4at .'no, action shall be maintained against the sureties on any bOnd given by a guardian. unless it be commenced within four years from the time when the guardian shall have been discharged;" and the special limitation in that section in favor of the sureties begins to run from the date of the death. '
2.
S,UlE-SUIT. ON BOND-LlllITATION OF ACTIONS.
'8.
SAME.,
. The guardian was appointed in and estate closed m 1883. An accountmg was had In 1874, whlCh dlscldsed a balance In favor of the iward. This balance was proved against the estatll. and allowed by the probate court in 1876, but it was never pl\id in full. Held, that a suit against surety on the bond, commenced in 1886, to recover the balance, was barred by the four-yearslinlitation of Rev. St. Wis. c. 170, § 8008; the guardian "having been discharged, " at the latest, by the proof and allowance of the claim against his estate in 1876.
4.
SAME.
Rev. St. Wis. c. 170, § 8968, provides that "no action 'shall be maintained against tbesureties on any bond given by a guardian unless it be commenced within four years from the time when the guardianshaU have been discharged.". Held, that the bond being statutory, and the limitation a special one for the benefit of the sureties as contradistinguished from the guardian, the limitation entered into and formed a part of the sureties' contract. Under Code Iowa. § 2534, providing that, "whenever any cause of action has been fully barred by the laws of any country where the defendant has previously resided. such bar shall be the same defense here as though it had arisen under the provisions of this chapter," the fact that the surety on a guardian's bond in Wisconsin removed from that state into Iowa does not prevent him from setting up the Wisconsin statute of limitations as a defense to a suit in Iowa on the bond, where.at the time he left Wisconsin the bar of 'that statute had already fallen. .
Ii. LIMITATION OF ACTIONS-CONFLICT OF LAWS-ACTION ON GUARDIAN'S BOND.
At Law. Action on guardian's bond. On demurrer to petition. Lewis &:-. Pfund and Henderson, Hurd & Daniels, for plaintiffs. Starr &:- Harrison, for defendants. SHIRAS, J. In January, 1866, one Robert Limon Was duly appointed by the county court of Dane county, Wisconsin, the guardian of plaintiff$, who were then minors, and executed a bond inthe sum of$8,000, withWiIliatil'Powell and E. D. Bishop as s1,lr.eties,conditioned for the faithful perforniance of his duties asgnardian; the: same being given pursuant lothe provisions of chapter 170, Rev. St.Wis., section 3968 ofwhich is as follows: