sideration, it could not, under these circumstances, be held to be also made in that "good faith" which the law contemplated. It had been from the beginning a merely speculative title, and every deed from the original alleged Mexican grantee had carried upon its face notice of the defect and of the contingency, and charged the purchaser with an additional payment if the contingency eventuated favorably. The consideration paid, even in the earlier purchases, was not for the land, to any sensible degree, but for stock, with the privileges of a cattle range, which the claim of the grant afforded to the holder.

Besides these defects, the case does not meet the third condition of the law. That evidently contemplated the purchase of a definite tract of land, or at least of a tract capable of definition from the terms of the grant. This was the conveyance of the undivided interest only, and from the circumstances hereafter detailed, it is evident that there was nothing like definite understanding of a tract of land as conveyed, or which the parties could possess, according to the lines of their original purchase." Accordingly, it is manifest from the testimony and history of the case that there was no such thing as a well defined tract of land which the parties could claim to have been fairly conveyed as upon a perfect title; and it appears from the various claims which have been established upon this land that there was no such thing as an exclusive possession, according to the lines of an original grant. The possession appears to have been doubtful and contested to a greater or less degree, and especially the boundaries were indefinite and uncertain.

The evidence shows that the alleged Romero grant had no known or fixed boundaries, and that the quantity of land included therein was necessarily indefinite. What the sobrante or surplus claimed might prove to be could only be determined by a survey of the ranchos named in the Romero petition, and by having their boundary lines definitely fixed, and no such survey or fixing of lines appears to have been made under Mexican authority, nor until the grants for said ranchos were finally confirmed by the United States government. Innocencio Romero claimed that the grant was for from four and a half to five leagues of land, and that from a league and a half to two leagues of the granted lands were allotted to him in severalty by his brothers at the time of the alleged partition in 1847 or 1848. This would make from about six thousand to about eight thousand acres allotted to Innocencio Romero in and by said partition. Naphtaly says he bought about three thousand acres of this alleged allotment. The deed to Domingo Pujole and Sanjurjo as we have seen, was for an undivided third interest in the lands alleged to have been granted to the Romero brothers, and Innocencio says it conveyed the same land allotted to him " except some small parcels within the exterior lines which I had sold to others before." The subsequent intervening conveyances down to and including the conveyance to Naphtaly are for an undivided one-third interest in the Romero grant, and under the theory that the deed to Pujole and San

jurjo vested the entire title of Innocencio to lands held in severalty by him, each of the subsequent purchasers took the same quantity and by the same lines as the original purchasers. They would, therefore, to bring themselves within the statute, be required to show use, occupa tion, and the continued actual possession of the land so conveyed according to the lines of Pujole and Sanjurjo's purchase. This the evidence does not show. Naphtaly says he claims probably two or three thousand acres; that his purchase included three hundred and fiftyseven acres of the San Ramon, and that the houses, barns, and buildings are on the San Ramon grant. The San Ramon, it appears from the evidence, was a confirmed Mexican grant, lying on the east and northeast of the land in controversy, for which a patent issued April 7, 1866.

It appears in evidence also that the west line of the tract claimed to have been purchased by Pujole and Sanjurjo has been moved in and further east than it was at the date of said purchase. How far this line has been moved in since that time does not appear, but one of Naphtaly's witnesses says that the land claimed by him is a great deal less than the Tices (who purchased in February 1855) took possession of.

The evidence taken altogether clearly shows that possession of the land claimed to have been conveyed to Pujole and Sanjurjo, and from them through intermediate conveyances to Naphtaly, has not been continuously maintained by him and his immediate and more remote grantors, according to the lines of the Pujole and Sanjurjo purchase as such lines are claimed to have been pointed out and designated by said Innocencio at the time said conveyance was made.

No documentary evidence of any character is produced to show, or which tends to show, that this claimed grant of unknown boundaries, was ever partitioned by the Romero brothers. Nor is it pretended that at the time of the alleged partition any lines of survey were run, or any permanent monuments erected, or any artificial marks of any kind made to show the lines separating the lands of one brother from those of the other brothers. That co-tenants who did not know the boundary lines of their joint property, nor its area in leagues or acres, and who were liable to have their portions allotted in lands to which they had no title, should meet together and divide the joint property among themselves and by such division each divest himself absolutely of all title to such property, except as to the portion allotted to himself, is so contrary to our experience and observation as to how men usually act in matters of such importance to themselves as to render the alleged fact highly im probable. To gain credit, therefore the fact alleged should be clearly proven by the most satisfactory evidence, and the evidence in support of the alleged partition, after careful consideration, is found to be weak and unsatisfactory. The testimony of only two persons who profess to have been present at the time of the alleged partition is offered in evidenceto wit, Innocencio Romero and Ignacio Sybrian. Romero says that he

and his brothers made an absolute partition of the land granted to them some time in 1847 or 1848; that he took the westerly portion, Jose the easterly, and Mariano the north-easterly, and that the ridges and arroyos were selected as boundaries; that he occupied the land until he sold to Pujole and Sanjurjo in Dec. 1853, and that his brothers went to live on their own land, and sold their portions as he did his.

Sybrian testifies that he was present at the time the partition was made, that Innocencio was then in posession; that his brothers visited him occasionally and that there was no house on the land but Innocencio's and that no one else built a house on the land; that Mariano lived in Monterey, Jose in San Jose, and that neither lived on the ranch; that neither of them had a house, and that he does not believe either of them occupied any portion of the ranch after the division; heard they had sold, and that Ramon Pico lived on Mariano's part and Otoyo on Jose's, and that the division was made into three parts, without survey, by designating natural objects.

These two witnesses agree substantially on the natural objects which marked the lines of the tract alleged to have been allotted to Innocencio; and Sybrian says that the lines shown to Pujole at the time of the sale to him and Sanjurjo were the same, except that some land had been previously sold by Innocencio.

A number of witnesses testify that they heard of this partition and that it was recognized by the parties and by the neighbors. That Innocencio's right to the possession of all the land alleged to have been allotted to him w as not recognized by all the neighbors is clearly shown It will be observed too that Innocencio Romero and Sybrian contradict each other as to the important fact about Jose and Mariano taking formal possession of, and going to live on, their respective portions; and Romero is flatly contradicted by the weight of the testimony as to the location of Mariano's portion. The testimony satisfactorily shows that from 1846 to 1852 Jose lived at the mission of San Jose, and that he was what some of the witnesses called a major-domo of the mission. In an affidavit offered in evidence, Mariano swears that between 1844 and 1852 he had never seen his brother Innocencio. In addition to this, all the documentary evidence is utterly inconsistent with the theory that there was an absolute partition of the land claimed by the Romero brothers. All of the deeds to this land made by Innocencio were for an undivided interest. The deeds made by the other brothers were also for undivided interests. Innocencio and Jose Romero, Francisco Otoyo, Alvin Campbell, James Thompson, William Mitchell, John M. Jones, C. Yeager and Miguel Garcia were the parties who presented the peti tion for the confirmation of the alleged Romero grant to the Board of Land Commissioners and they all represented that they held undivided interests therein, Innocencio Romero claiming an undivided third interest

The evidence satisfactorily shows that the following instrument was

executed on the day it purports to have been, that the signature thereto is the genuine signature of the said Innocencio Romero-to wit: MARTENEZ, CONTRA COSTA Co., February 10, 1853.

I, Innocencio Romero agree that in the division and partition of the Sobrante grant or claim, claimed and owned by myself, Garcia, Otoyo, Thompson, Mitchell, Jones and Yeager, that the land heretofore granted by me to Robert N. Wood by deed duly of record, shall be partitioned off and allotted to me in said division first in order after my homestead of one hundred and sixty acres.

Given under my hand and seal the day and date above written.

his

INNOCENCIO X ROMERO. mark

Witness:

EDWARD WILLIAM GRAHAM.

The deed referred to was executed October 16, 1852, and conveys to said Wood by metes and bounds, a certain portion of the alleged Romero grant, and the parties named by Innocencio as owners of said grant with him, claimed under Jose in said petition for the confirmation of the grant.

If there was ever any kind of a partition of the land claimed by the Romero brothers between them, it appears clear to my mind that it was only a temporary arrangement entered into for convenience and not intended to divest any of them of their undivided interest in the alleged grant. It certainly could not bind the parties joining in the petition for the confirmation of said grant.

When the act of 1866 was passed it would appear that some new vitality was given to the claim by virtue of the expectation that a right of purchase might be secured under that act, and on the 13th of May, 1868, there appears a deed from Urhetta Tice, James W. Tice, Andrew J. Tice, and Solomon P. Millett and wife, to David P. Smith, which, for a consideration of seven thousand dollars, purported to convey the interest of the first parties in sections 2, 3, 4, 9, 10, 11, 14, 15 and 16, Township 1, South, Range 2, West, M. D. M., describing the land by metes and bounds, and stated to be supposed to contain 1,767.86 acres; to which is added

Also, all of the lands, of which the foregoing are supposed to be all or a part, included within the boundaries of a certain claim formerly known as the Romero, supposed to have been granted in the year 1844 by Micheltorena, Governor of California, to Innocencio, Jose, and Mariano Romero, which was presented for confirmation to the United States Land Commissioners and was afterwards rejected.

There is expressly excepted from the land conveyed by this instrument as follows: One hundred and sixty acres now or formerly owned, or claimed and occupied as a homestead, by the said Andrew Jackson Tice, and supposed to be the S. W. of Sec. 3, aforesaid. Together with all and singular the tenements, rights, privileges and appurtenances thereto belonging, including the interest and rights of each and every one of said parties of the first part as pre-emptors or settlers or otherwise, and all the benefits that have been or are to be derived under any and all acts of the Congress of the United States.

On the 25th of February, 1869, David P. Smith conveyed the same lands to John R. Spring, for a stated consideration of five hundred dol

lars. On the 24th of March in the same year, Spring conveyed to Martin Clark, for a stated consideration of four thousand five hundred dollars; and on the 15th of May, 1876, Martin Clark conveyed the same to Joseph Naphtaly, for a stated consideration of five dollars.

Meantime, the various claims of other parties to this suit had attached in different ways, all indicating that the nature of the claim of Naphtaly was uncertain, indefinite, and at least in regard to its limits, disputed.

Admitting that the right of purchase given by the act of 1866 could be transferred, it appears satisfactory from the evidence that no right of purchase of this tract was conferred on anybody by that act, and that Naphtaly acquired by the conveyances described no such right as the act contemplates.

It is not a matter furnishing any special evidence of good faith that a price was paid for the possession of the claim and such of the land as has been occupied under it. The possession of it as a mere claim appears to have been of sufficient value to warrant the payment of the consideration mentioned in any deed, or so far as disclosed in fact, of any transfer, to the extent that possession has been maintained. It is shown that Naphtaly has received in rent for so much of the premises as he held possession of, for a part of the time twenty-five hundred dollars a year, and for the remainder two thousand dollars a year. To those acquainted with the country, the value of the possession of such a claim is sufficiently well known to account for all the money that appears to have been in any case paid for it.

The same considerations which relate to Naphtaly deny the right of Mary A. Jones to her claim of purchase under the act. Your decision rejecting the application is affirmed.

WHITE v. MCGURK ET AL.

Motion for review of departmental decision rendered November 3, 1887 (6 L. D., 268), overruled by First Assistant Secretary Muldrow, February 4, 1889.

ARKANSAS LANDS-PRIVATE ENTRY.

A. H. BOLES.

After the repeal of the act of June 21, 1866, which restricted the disposition of public lands in this State to homesteaders, the lands affected thereby were not sub. ject to private entry until offered at public sale.

First Assistant Secretary Muldrow to Commissioner Stockslager, February 5, 1889.

I have considered the appeal of A. H. Boles from the decision of your office dated December 7, 1887, affirming the action of the local land of