Ross, J., delivered the opinion of the Court:

Ejectment to recover possession of a certain portion of a sixteenth section.

It appears from the record that prior to the year 1872, one Jose Rubio settled on the land with his family, and proceeded, together with his son, Andres Rubio, who was of age, to cultivate and improve it. Improvements, consisting of a dwelling-house, orchards and vineyards, were put upon the land, mainly by Andres. On the twentieth of March, 1868, Jose made an application to the State of California to purchase the land. His application was accepted by the State Locating Agent May 1, 1868, and was filed in the State Land Office on the twentieth of June of the same year. The State officers issued to him a certificate of purchase for the land on the tenth of April, 1872, and a patent therefor, regular in form, on the third day of January, 1874. It is claimed on behalf of the appellant that by these proceedings, and others incidental to them, Jose Rubio acquired no title to the premises.

In the view we take of the case it is unnecessary to determine whether he did or not; for the record further shows, that in February, 1877, he borrowed of the plaintiff the sum of six thousand dollars, and as security therefor executed to the plaintiff a mortgage on the property in question, together with an adjoining tract of about twelve acres-which mortgage was duly recorded at the time in the records of the proper county.

In the month of February, 1878, Jose, in the language of the findings, "considering his title under the State to be void, abandoned his claim to the premises in controversy, and delivered possession thereof to said Andres Rubio, who from thenceforward, took possession and claimed the same as his own until the day of May, 1879, when he abandoned the same to the defendant herein, and allowed him to take possession of the same, together with the improvements."

In the meantime the plaintiff had commenced an action to foreclose his mortgage, in which both Jose and Andres Rubio were made parties defendant, and in May, 1879, a decree of foreclosure was duly entered in the action in favor of the plaintiff. Under this decree the Sheriff of the county, on the sixth day of June, 1879, sold the premises in controversy to the plaintiff for the sum of $8,542, and on the same day executed to the plaintiff a certificate of sale therefor. No redemption having been made, the Sheriff, on December 8, 1879, executed to the plaintiff a deed for the property.

Thus it will be seen that Jose Rubio, on the strength of his possession of the land and the improvements thereon, if not of title, got six thousand dollars of the plaintiff's money, gave him a mortgage on the land and improvements to secure its repayment, and then surrendered the possession thereof to his son, who thereupon took possession of the property and claimed the same as his own until shortly be fore its sale by the Sheriff under the plaintiff's decree of foreclosure, when he (the son) turned the possession of the land and improvements over to the defendant. On the possession so obtained, defendant proceeded to enter the land under the homestead laws of the United States, the entry, however, being afterwards suspended by order of the Commissioner of the General Land Office.

It is this sort of circumvention that we are asked to sanction. Courts would cease to be Courts of Justice if such proceedings were countenanced. It is not necessary to the disposition of this case for us to say whether, under the doctrine of the cases of Hosmer vs. Wallace, 7 Otto, 579; Trenouth vs. San Francisco, 10 Otto, 251, and Atherton vs. Fowler, 96 U. S. 513, a title to government land ever could be acquired by virtue of a possession acquired, as was the possession of the defendant. The question here is, whether, upon the facts stated, the defendant is entitled to withhold the possession of the premises from the plaintiff; and we are clearly of the opinion that he is not.

Judgment affirmed.

We concur: Sharpstein, J., Myrick, J., Thornton, J.

DEPARTMENT No. 2.

[Filed December 21, 1880.]
No. 10,564.

THE PEOPLE ETC., RESPONDENT,

VS.

HAN TIU, APPELLANT.

PEOPLE VS. CAR SOY APPROVED AND FOLLOWED on the point that a Chinese defendant in a criminal case has a right to ask a proposed juror whether he would believe Chinese testimony as soon as white.

By the Court:

Upon the authority of The People vs. Car Soy, No. 10,565, judgment and order reversed and cause remanded for a new trial.

DEPARTMENT No. 1.

[Filed December 23, 1880.]
No. 6990.

ALONZO W. BRYANT, RESPONDENT,

VS.

H. B. SWAIN AND S. B. SEGUR, APPELLANTS.

FORECLOSURE OF MORTGAGE FOR PURCHASE MONEY-DEFENSES-BARGAIN AND SALE DEED ACCEPTED IN EXECUTION OF AGREEMENT TO CONVEY TITLE. Where an agreement was made to sell certain lands by deed, good and sufficient to convey title, as soon as certain installments of price should be paid; but before they were paid a bargain and sale deed, containing a covenant for quiet enjoyment, was executed and accepted by the grantee, who was put in quiet possession, and executed a note and mortgage on the land to secure the unpaid installments; and afterwards, upon default in the payment of the note, the mortgagee sued to foreclose his mortgage, when the mortgagor set up in defense that the title to some of the land was still in the United States; and it appeared that the deed had been accepted in execution of the agreement, and that the grantee knew the exact condition of the title: Held, that the defense was invalid, and that the defendant could only look to the covenants of his deed, without reference to the prior agreement.

Appeal from the District Court of the Sixth Judicial District, Sacramento County.

Samuel Cross and J. H. McKune, for appellants.

L. S. Taylor and Edward Bruner, for respondent. MORRISON, C. J., delivered the opinion of the Court: On the tenth day of August, 1876, plaintiff entered into an agreement with defendants, by the terms of which he agreed to sell defendants certain parcels of land mentioned in the complaint, for the sum of fifteen thousand dollars, to be paid in installments. The deed was to be a good and sufficient one to convey the title, free from all incumbrances, and was to be executed and delivered when the full amount of the purchase money was paid. On the twenty-ninth day of August, 1876, a deed to the land mentioned in the agreement of August 10, was duly executed and delivered by plaintiff to defendants. This deed was in form a grant, bargain and sale deed, and contained an express covenant, viz., for quiet and peaceable enjoyment. At the time of the execution of this deed, defendants gave plaintiff their note, which was secured by a mortgage on the land conveyed, and the defendants, failing to pay an installment that fell due upon the note, this suit was brought to foreclose the mortgage. There was a provision in the mortgage to the effect

that if default was made in the payment of any installment, when the same was payable, the whole of the note should thereupon become due and payable. The defense is, that the title to one of the tracts of land embraced in the deed, was, and still is, in the government of the United States, and the only question before us is, did that fact constitute any defense to this suit.

The evidence shows that there was no fraudulent concealment or misrepresentation respecting the plaintiff's title; but, on the contrary, the defendants at the time were fully informed of the precise condition of such title.

There can be no doubt that the plaintiff was obliged, under the agreement, to execute a good and sufficient deed, conveying the title, and if the case depended upon such agreement, the matter pleaded would be a good defense to the action. But the finding of the Court is, that the deed was taken and accepted in execution of the contract of August 10. The evidence on this point was conflicting, but there was sufficient evidence to justify and sustain the finding of the Court. The rights of the defendants, therefore, depend upon the deed and not upon the agreement—the latter being merged in and extinguished by the former.

In the case of Jones vs. Wood (16 Pa. Št. 25), the Court says: "It is conceded the Court below was right in the instruction given, that the acceptance of the deed of April second, 1839, executed by Annan to Jones, was a consummation of the prior agreement, and operated to put an end to all questions concerning the quantity of the land to be conveyed, and the purchase money to be paid, which might otherwise arise under the covenants of August eleventh, 1838. As a general rule, by such an acceptance the parties to the transaction are absolutely precluded from looking behind the conveyance for subjects of strife suggested by their prior negotiations and contracts, for the last step is esteemed as indisputably expressive of their final conclusions. In the present instance this well-settled doctrine is as applicable to Wood, the vendor to Jones, as to the latter and his immediate grantor, Annan."

In the case of Carter vs. Beck (40 Alabama, 499), it is held that "the acceptance of the defendant's deed by the plaintiff was a complete execution of the antecedent agreement to convey, and annulled it, and no action at law can be sustained upon it."

In the case of Frederick vs. Youngblood (19 Alabama, 680), the Court says: "We think the testimony authorizes the conclusion, that at the sale of said land the parties supposed

there were five hundred acres in the tract, and that they rated the same at twenty-four dollars per acre, but that there was no stipulation on the part of the defendant as to the quantity of land. The deed of conveyance in this case must be taken as conclusive evidence of the terms of the sale. There is no allegation of fraud, or that any language not truly expressive of the contract had been inserted in the deed, or that any mistake whatever had been made in writing the same. In such a case parol proof, contradicting the deed, would not be admissible even in equity." And in the case of Williams vs. Hathaway (19 Pick. 387), the Court holds that "by a deed which is part of this case, it appears that the plaintiff paid a certain sum of money for the whole land described and identified, and by the rules of law, where a deed is executed in pursuance of a contract for the sale of land, all prior proposals and stipulations are merged, and the deed is deemed to express the final and entire contract between the parties.'

The Court below has found, as has already been remarked, that the deed in this case was accepted in execution of the agreement, and, therefore, the defendants must look to its covenants for a defense to this action. The deed executed by plaintiff to defendants contains the covenants implied from the use of the words grant, bargain and sell, contained therein.

66

From the use of the word 'grant' in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants and none other, on the part of the grantor for himself and his heirs, to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance:

"1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee.

"2. That such estate is at the time of the execution of such conveyance, free from all incumbrances done, made, or suffered by the grantor, or any person claiming under him." (Civil Code, Sec. 1113.)

The case fails to show a breach of any of these implied covenants, and it is not pretended that there was any breach of the express covenant for quiet enjoyment, because it indisputably appears from the evidence that defendants entered into possession of the land described in the deed, and remained in possession thereof down to the time when their answer was filed.