Friedman v. Nelson

Title to the South Beach and Water Property of San Francisco.— The deed of May 24th, 1851, from the Commissioners of the Sinking Fund to the Commissioners of the Funded Debt of San Francisco, transferred to the latter the title to the tide-land on Mission Bay, vested in the City of San Francisco by the Act of March 26th, 1851.—[Reporter.] Same—Defective Conveyance Cured by Legislation.—A conveyance of the city’s interest in tide-lands by a majority of the Commissioners of the Funded Debt, and held to he ineffectual by the decision in Leonard v. Darlington, 6 Cal. 123, for the reason that two of the five Commissioners did not sign the deed, is cured by the Act of April 14th, 1857, ratifying and confirming such conveyance.—[Reporter.] Construction of Deed.—"Where a deed granted “all that beach and water property lying between Folsom Street on the north, Ship’s Channel on the east, the city limits on the south, and Price Street on the west, and known on the said map as. blocks numbers one (1) to thirty-two (32) inclusive ”: held, that a block of “ beach and water property ” lying within the exterior boundaries was included, notwithstanding it was numbered thirty-three (33) on the map referred to in the deed.—[Reporter.]

Appeal from the District Court of the Third Judicial District, San Francisco. The action was ejectment for two one hundred-vara lots, in block thirty-three of the South Beach and Water property in San Francisco. The land is in Mission Bay, and between high and low water mark. The title was originally in the State, by virtue of its sovereignty, but in 1850 the City of San Francisco claimed title to it as part of its public lands. ' In the latter part of the year 1850, the city, attempting to provide for the payment of its indebtedness, appointed certain persons, designated Commissioners of the Sinking Fund, to act as agents in selling the property and applying the proceeds to the payment of its indebtedness. In December, 1850, the city made a conveyance of all its interest in the property to those Commissioners. In 1851—March 26th—the Legislature passed an act (Stats. 1851, p. 307) giving to the city “ the use and occupation ” of the property for ninety years. This act included all the tidelands within the city limits. May 1st, 1851, the “ Act to authorize the Funding of the Floating Debt of the City of San Francisco, and to provide for the payment of the same,” became a law. (Stats. 1851, p. 387.) It appointed five persons as “ Commissioners of the Funded Debt of San Francisco,” and gave them power, among other things, to lease or sell the property of the city which might be conveyed to them for that purpose. May 24th, 1851, the Commissioners of the Sinking Fund conveyed the South Beach and Water property to them. The descriptive words of the deed are: “ All that beach and water property lying between Folsom Street on the north, Ship’s Channel on the east, the city limits on the south, and Price Street on the west, and known on the said map as blocks numbers one (1) to thirty-two (32) inclusive.” Subsequently, September 17th, 1852, three of the Commissioners of the Funded Debt,-as “the present acting members of the Board,” deeded the two lots in controversy to George Gordon, the plaintiff’s grantor. In April, 1856, the Supreme Court, in the case of Leonard v. Darlington, 6 Cal. 123, held that such conveyances were ineffectual to pass the legal title, for the reason that all five of the Commissioners did not unite in the conveyance. The Legislature, at the next session thereafter, passed the curative Act of April 14th, 1857, (Stats. 1857, p. 200) confirming “ all sales at auction, made bona fide by three or more of the Commissioners of the Funded Debt of the City of San Francisco before the 1st day of January, 1854.” The act further provided that all such sales “ are .hereby legalized and made as good, effectual, and binding as though the same had been legally executed by the full Board of Commissioners, and signed by each member thereof.” Kelsey Hazen sued the city in April, 1855, for seven thousand dollars, and obtained judgment, Dec. 15th, 1860, for eleven thousand eight hundred and seyenty dollars and thirty-three cents. Execution on the judgment issued against the city, and under it the interest of the city in the two lots in controversy was sold for twenty dollars to Isaac N. Thorne, who received a deed therefor January 12th, 1864. The defendants deraign title from Thorne under that deed. Upon the trial below, it was shown that block thirty-three is within the exterior limits of the description in the deed from the Commissioners of the Sinking Fund of May 24th, 1851. Judgment was rendered in favor of the plaintiff, and the defendants moved for a new trial. The motion was granted, and the plaintiff appealed.