Cal., 139. Freeman on Execution, Section 363.) And that the plaintiff, by keeping the deed of the officer for "nearly eight years" is now estopped from denying the truth of the recitals cóntained therein. (French vs. Edwards, 13 Wall., 515. Donahue vs. McNulty, 24 Cal., 412.

The plaintiff claims that a purchaser at a Sher iff's sale is not bound by the return of the officer. His title rests on the judgment, execution, sale, and deed, (Cloud vs. El Dorado, 12 Gal., 130. Blood vs. Light, 38 Cal., 649. Mayo vs. Foley, 40 Cal., 281.

D. S. Terry, Attorney for plaintiff and respondent; Schell & Scrivner, attorneys for defendant and appellant

BY THE COURT.

The return of the Sheriff, as remaining on file, in the case of the People vs. South half of Sec. 19, shows that the land in question was in point of fact, sold to the respondent as being the highest bid der, ("to A. Hewell, who made the highest bid therefor,'') and not as the person who would take the smallest or least quantity of the land, and pay the tax adjudged due. In view of the facts stated in the return therefore, the appellant, (who was the Sheriff who made the sale,) ought not to deliver a deed to the respondent, as purchaser, and should he do so, such deed would be absolutely void.

But the present proceeding is one in mandamus against the Sheriff, to compel him to deliver theto respondent a deed of conveyance, reciting that the sale was made to him, not as the highest bidder, but as the bidder who offered to take the smallest quantity of the land and pay the taxes adjudged. In other words, to compel the Sheriff, by recital in the deed, to contradict his return on file, and the truth of which return he reiterates in this proceeding.

We are satisfied, however, that the Sheriff cannot be compelled, in this manner, to contradict his return. He cannot, it is well settled, be compelled by the court to correct his return on file against his will. After it has been placed on file It can be corrected only on his motion. It may be true, that should he voluntarily deliver a deed which, in its recitals, should contradict his return on fille, the rights of the grantee would not be affected by the return-and such is the general rule. But it would be contrary to reason and the adjudicated cases to hold that a writ of mandamus can

be resorted to for the purpose of compelling the delivery of a deed containing recitals of what occurred at the sale, contradictory of the Sheriff's return, which return he not only declines to amend, but insists in his answer to be correct in point of fact.

Judgment reversed and cause remanded.

An action to recover on three promissory notes -one each for $2,000, $1,000, and $800-all dated January 1, 1875, and given to plaintiff in consideration of his sale to defendant of his one-third interest in the firm of "Henry Winkle, & Co."

Defendant admits the notes, but filles a crosscomplaint, that in July, 1876, he sold plaintiff 2,940 galons of wine, at 25 cents per gallon, ($735) for which he gave him no credit, and in March, 1875, he sold plaintiff goods to the value of $516 80, which was not paid nor credited to defendant. That it was agreed between them that, in case defendant could not collect his portion of the outstanding debts to the firm, he (plaintiff) would reimburse defendant, and that $1,699 of accounts was worthless and uncollectable, so plaintiff is tustly indebted in that sum.

All this plaintif denies. Cause was tried June 26, 1877, without jury, and the court gave judg ment for plaintiff for a balance of $2,390-(plaintiff having moved the court on May 11th, to strike out certain parts of the cross-complaint on the ground of irrelevance and sham, which was sustaffed.)

Defendant appealed from the judgment on Sep. tember 24, 1877, assigning error in striking out said cross-complaint, and in judgment.

Rutledge & McConnell, attorneys for plaintif and respondent; Johnson & Henley, for defendants and appellants.

BY THE COURT.

The appeal is frivolous. Judgment affirmed with ten per cent. damages. Remittitur forthwith.

SUPREME COURT RECORD.

[JULY TERM, 1878.]

CASES CONTINUED Sept. 24th. No. 5970 Low vs. Mahe-For the term, upon suggestion of the death of Gustav Mahe, defendant and appellant. -and motion of S. M. Wilson, of his Counsel.

REHEARING.-Sept. 27th. No. 5545— Wills vs. Austin; 5547-Mahe vs. Austin; 5548

now Ventura County.

This grant was written out in duplicate, signed by the Governor and Secretary, recorded in the Record Book of Grants, and one, as the original, delivered to Carrillo, and the other deposited in the archives of the Government, as was usual in such cases.

On May 12th, 1839, Carrillo prepared a full copy of his original grant and the accompanying papers in his hands, certified to by the Justice of the Peace of Santa Barbara, with a petition to the President of Mexico, and sent them to the Governor of California for transmission to Mexico, for approval and confirmation of his grant of 2 square leagues.

But the grant was never confirmed by the Supreme Government at Mexico, and these papers all lie in the Mexican archives of this city to-day-as prepared by Carrillo.

Upon California's becoming a part of the United States, and the meeting of the Board of United States Land Commissioners appointed to settle land claims, and during their session, -on Sept. 2d, 1852,—Carirrllo laid before them his original grant of dos, or two square leagues fraudulently altered to seis, or six leagues, accompanied by papers pretending to be a survey and juridical possession of the same, in 1842, and they, deceived thereby, confirmed the grant for the SIX leagnes.

After this confirmation Carrillo died, intestate, and on November 8th, 1854, the administrator of the estate sold at public auction, the right and interest of "Josefa Castro de Carrillo" in and to an undivided 13-14ths of the "Sespe Rancho," which was bought by T. Wallace More; and on May 14th, 1855. the administrator, again sold, in like manner, the interest and estate of "Carlos Antonio Carrillo," in the remaining 1-14th of the same, -which More also bought--having now paid $18,500 for his whole purchase, and claiming to understand that he had bought six square leagues of land, though he afterward testified that he did not examine a single paper or record connected with the grant before he purchased.

By the express terms of the original grant, no legal survey could ever have been made of the lands, as was claimed to have been made in Dec., 1842, (the grant not having been confirmed by the Supreme Goverment of Mexico); hence there had never yet been any established boundaries of "Sespe, "-and it was consequently only a "floating grant," attaching to no definite land, when the question of title came before the U. S. District Court on June 25th, 1862.

Here it was fully proved by the record,

and duplicale copy of the grant on file in the archives, that the grant was really only 2 leagues, and More, with his attorney, A. F. Hinchman, then fearing a rejection of the whole claim for the fraud discovered, voluntarily filed an admission of the change, and reduced his claim to two leagues, which the Court finally confirmed to him-the U. S. Attorney appealing to the U. S. Supreme Court, as to whether the whole claim should be rejected for the fraud. This appeal was dismissed, and the decision affirmed, and More, with his own hands presented the mandate of the Supreme Court to the District Court, which thus confirmed the 2 leagues to More, as under final decree, which was filed Dec. 4th, 1867.

More now had a scope of country of about 40 English miles from east to west from which to select and locate his 2 leagues-with no restriction north and south, named in his papers; and in January, 1868, the Deputy Surveyor returned to the Surveyor General's Office, Two SURVEYS, one embracing 25,361 acres, in a body, (which included 5,780 acres of the river bed,) and the other 8,881 acres in two tracts, one each side of the Santa Clara River, with a wide tract of river bed between.

The larger was first sent to the Commissioner of the General Land Office, apparently with the intention of covering 5 leagues instead of two, as is evidenced by a letter from that officer to the Surveyor General here. This was rejected as a fraudulent survey, and then the other one, of two tracts, was brought forward, with affidavits that the bed of the river (between the tracts) was mostly sand, and worthless.

The map of this survey, as to the river bed, was marked 80 chains to the inch, while it was surveyed at only 40, thus making it appear twice its real width, and when this discrepancy was discovered, at the Department, proceedings were suspended, while the map was returned to California for correction.

The records show that More had, previously to filing the mandate and final decree, made a deed to the chief clerk in the U. S. Surveyor General's office of all the mines, minerals, asphaltum, etc., on the Sespe Rancbo-"embracing the lands to be segregated by the United. Slates" and that now, he made a contract with certain Washington attorneys, as per the following quotation-"More paid us a retainer of $500 coin, and agreed to pay us a further fee of $500 coin upon issue of his patent, and a still further fee of $500 coin upon our securing for him a title to any lands which

were included in his original purchase, but which might be left out of his patent."

This being brought to the notice of the Secretary of the Interior, by James F. Stuart of our city, in person, he had all lands outside of the survey of two leagues,--whether in the bed of the river or otherwise-excluded from the patent, "by the most positive words that could be used." This patent, issued March 14, 1872, saved to the United States and the settlers several thousand acres that More would have otherwise claimed and secured on the ground of riparian rights.

Following this, the lands outside the patented tracts were taken up as goverment lands, by actual settlers, until some 70 or more had made claims, when on March 18, 1875, More applied at the local land office at Los Angeles to purchase all the lands within the formerly claimed limits of the rancho, and not within his patent, under the act of July 23d, 1866.

The case was heard May 18, 1875, when the officers decided that the 2 leagues patented to More was the full extent of his purchase in the "Sespe Rancho," and that none had been excluded, to which he could be entitled under the act, as claimed; and that to do so would open the way to "the most gigantic frauds"-and the application was REJECTED. From this decision More appealed to the Commissioner of the General Land Office, and, on July 18th, 1877, U. J. Baxter, as acting commissioner, reversed the decision of the local office, and gave More the right to purchase all the lands, as applied for, except those in the river bed. From this decision the contesting settlers appealed to the Secretary of the Interior; and the heirs of More appealed from its exclusion of the river bed.

At this trial, the settlers again employed R. M. Widney, of Los Angeles, who had acted so successfully for them at the hearing at Los Angeles.

He prepared and filed with the Secretary an able brief, illustrated by a map showing all the lines and claims in the whole matter. Mr. Stuart also prepared a most exhaustive brief and argument, covering the whole ground, and also secured at Washington the services of Messrs. Luce & Johnson, a firm of well known experience and ability, who also prepared an excellent brief and argument, and represented the whole matter at the Deparment.

Pending the decision of this appeal, certain members of the More family issued a pamphlet purporting to be a "Statement of Facts, as to the Rancho Sespe," etc., which was printed

at Washington, and circulated both there and in Ventura county, and plainly appeared to be intended to influence such decision, and the murder trial then pending at San Buenaventura.

In reply to this, Mr. Stuart at once pub lished "A Statement of Facts" of the whole matter, fortified on every point by reference to original records and documents, and which in our opinion shows a series of attempted frauds, trickery and chicanery, that has rarely been equalled in the whole history of our State.

The main points presented and relied upon by the counsel for the settlers, and pressed by Mr. Stuart with unflagging earnestness, were that the orignal grant was for 2 square leagues of land, to be selected within larger exterior boundaries of six leagues or more, and that having never been so selected and segregated, the grant was-as designated by the U. S. Supreme Court-"a floating grant"attaching to no definite land, until the final survey and segregation by the Covernment; hence that More did not purchase any particular land, but simply a right to 2 square leagues to be located for him by the Executive Department of the Government.

The only difference between the grant and a School Land Warrant issued under the 500,000 acre grant to California was that the warrant had the whole State for selection, while the grant was confined to narrower limits.

That, upon More's obtaining his patent to the two square leagues, his title covered all the land he really ever bought, and hence the Act of Congress of July 23, 1866, did not and could not apply to his present claim.

The following authorities were cited to sustain these points :

In the case of Kissell v. St. Louis Public Schools, 18 Howard, [U. S.] 25 :"Our opinion is, that the school lands were in the condition of Spanish claims after confirmation by the United States, without having established any conclusive boundaries made by public authority, and which claims depended for their specific identity on surveys to be executed by the Government. The case of West v. Cochran, 17 How., 413, lays down the dividing line between the executive and judicial powers in such eases, to wit: That until a designation, accompanied by a survey or description, was made by the Surveyor General, the title attached to no land, nor had a court of justice jurisdiction to ascertain its boundaries."

specific tract of land confirmed according to ascertained boundaries, the confirmee takes a title on which he may sue in ejectment. The case of (Bissell v. Penrose, 8 Howard, 317), lays down the true rule. But where a claim has no certain limits, and the judgment of confirmation carries along with it the condition that the land shall be surveyed, and severed trom the public domain and the lands, of others, then it is not open to controversy, that the title attaches to no land; nor has a court of justice any authority in law to establish its boundaries, this being reserved to the Executive Department. The case of West v. Cochran, 17 How., 403, need only be referred to as settling this point." The other authorities were (Stanford v. Taylor, 18 How., [U. S.] 412; Fremont v. United States, 17 How., [U. S.] pp. 558 to 560; Schulenberg et al., v. Harriman, 21 Wallace, [U. S.] 44-45; Langdau v. Hanes, 21 Wallace, 526; Henshaw v. Bissell, 18 Wallace, [U. S.] 266–7; and case of John L. Van Reynegan et al. v. James C. Bolton, recently decided by the U. S. Supreme Court, Copp's Land Owner, for Dec. 1877, pp. 137-8.)

The decision, (against heirs of More) is appended in full-as given in Copp's Land Owner for August, 1878.

PRE-EMPTIONS.

HEIRS OF T. WALLACE MORE. Where a Mexican grant is of quantity within larger exterior boundaries, and the claimant has selected and had pantented to him the quantity granted and confirmed, he will not be allowed to purchase, under the 7th section of the Act of July 23, 1866, any of the lands not selected within the exterior boundaries of the grant. Where grants were made not of quantity but by specific boundaries, and the claimant has occupied lands (through some mistake or misapprehension) not included within such specific boundaries, he may purchase under the 7th section of said act the lands so occupied, which were excluded from the grant on final survey, if no cadverse laim thereto exists except of the Uuited States.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, July 25, 1878. SIR: I have considered the application of the Heirs of T. Wallace More, to purchase under Section 7 of an Act of Congress, approved July 23 1866 entitled: "An Act to quiet Land Titles in California," certain lands in township 3 N. 18W.; 4N. 18W.; 3 N.

19 W.; 4 N. 19 W.; 3 N. 20 W.; 4 N. 20 W.; 3 N. 21 W.; and 4 N. 21 W.; S. B, M. Los Angeles Land District, California, on appeal from your decision of July 18, 1877.

The facts of this case are substantially as follows, viz. On May 23d, 1829, Carlos Antonio Carrillo, petitioned the Mexican goverement for a grant of the "place called Sespe," describing the tract applied for as a valley extending from the Arroyo of "Piruc" to that of "Mupu," an estimated distance of about four and one-half leagues, the width of the valley being about three-quarters of a league in the clear. Petitioner also stated that a large portion of the valley was an arenal (the wide sandy bed of the Santa Clara River which flowed through the valley), and worthless; the only land of value being that lying between the edges of said arenal and the hills on each side.

After the usual proceedings had been taken on the petition by the proper authorities, a grant was issued to the petitioner on November 29, 1833, by Jose Figueroa, Superior Political Chief, etc,, "for the Territory of Alta, California, for the land known by the name of Sespe," "bounding with the missions of San Fernando and San Buenaventura,” and limited in extent as follows:

"The land of which donation is made is of the extent of two square leagues, (dos sitios de granada mayor) a little more or less, as shown by the map (diseno) in the expediente. The Judge who may give possession will cause the same to be measured in accordance with the ordinances for the marking boundaries, the surplus that may result to remain for the use of the nation."

This grant was approved by the Territorial Deputation, on May 17, 1834, and juridicial possession thereof given to Carrillo, by the proper officer on December 16, 1842. It appears that in making the survey, the officer measured but two lines, one for the length of the tract and one for the width. The line for the length was measured from the Arroyo "Mupu" to that of "Piruc”, something over five and one-half leagues; and the one for the width of the valley, something over one league; the surveyor estimat ing the area of the tract at between five and six square leagues.

This grant was presented by Carrillo to the Board of United States Land Commissioners, created by act of Congress, approved March 3, 1851 (9 Stats. p, 631), to ascertain and settle private land claims in California, and was confirmed by said Board on April 18, 1853.