from the record, the title to the land at the time of its assessment for taxes was in one of the defendants, Mrs. Mary A. Baker, and it had been assessed to George H. Baker. The appellant denies that such was the fact and alleges that the owner of the land was George H. Baker. It appears that the latter obtained title to the land, by deed from the Central San Francisco Homestead Association, in August 3, 1869; that on November 1, 1875, he made a conveyance of it to his wife, Mary A. Baker, who entered into possession thereof, and has so remained ever since, claiming it as her separate property under that deed. That on the second day of May, 1870, he executed a deed of trust conveying the same property to E. W. Burr and B. D. Dean, as trustees for the Savings & Loan Society, the object thereof being to secure the payment to said society of a loan of money made to him; that said money was paid on the seventeenth of August, 1876, and reconveyance under the terms of the trust deed made by said trustees to George H. Baker; that the land was sold for the taxes of the year ending June 30, 1881, and a deed thereof made to the plaintiff by the tax collector on the eleventh of August, 1882. The grounds of the plaintiff's claim to the land under his tax deed were-First, that the deed which George H. Baker made to his wife had no greater effect than an instrument of quitclaim, and that therefore no title afterwards acquired by him would inure to her benefit, second, that even conceding the deed to be in fact one "granting" the land, the husband's after-acquired title inured to the benefit of the community, and as such was properly assessed to the husband.

It is plain from an examination of the conveyance from the husband to his wife of November 1, 1875, that, containing as it did the word "grant" in the proper clause thereof, without other words in any other part of the deed indicating a less estate, that a fee-simple title must be presumed to have been intended to pass. Civil Code, § 1105; Mabury v. Ruiz, 58 Cal. 11-15. And the title which the husband afterwards acquired, coming by a reconveyance to him of a naked legal title from those to whom he had executed the deed of trust to secure the payment of a debt, did not inure to the community, but passed by operation of the law to his wife by virtue of his former conveyance to her by grant. Civil Code, §§ 1072, 1106; Montgomery v. Sturdivant, 41 Cal. 290. The land in controversy not having been assessed to its true owner, she being known, but to her husband, who had no title thereto, the tax deed to the plaintiff gave him none. Section 3628, Pol. Code; Hearst v. Egglestone,

BY THE COURT. For the reasons given in the foregoing opinion the order is affirmed.

(68 Cal. 593)

THOMPSON v. DOAKSUM, Sr., and others. (No. 9,546.)

Filed February 25, 1886.

1. PUBLIC LANDS-POWER OF CONGRESS OVER INDIAN LANDS.

The exclusive right of pre-emption to all Indian lands lying within the territories of the United States is vested in congress.

2. PROPERTY-TITLE TO LAND-LAW OF NATIONS AFFECTING.

Title to land is dependent on the law of the nation in the territory of which the land lies.

2. PUBLIC LANDS-LAND TITLES IN CALIFORNIA-TREATY OF GUADALUPE HI

DALGO.

All lands not held in private ownership by a legal or equitable title, in California, became vested in the United States under the treaty of Guadalupe Hidalgo. In the case of inchoate titles the legal title passed to the United States, which held it subject to the trust imposed by the treaty and equities of the grantee, and the execution of this trust was a political power, to be exercised in such manner as the government might deem expedient.

4. SAME-INDIAN LANDS IN CALIFORNIA-PRE-EMPTION.

Where lands in California were held by Indians under title by occupying at the time of the treaty of Guadalupe Hidalgo, unless a claim therefor was presented to the commissioners appointed under the act of the United States of March 3, 1851, within the time limited by such act, the land became a part of the public domain, and as such became open to pre-emption.

5. SAME

UNITED STATES PATENT TO LAND-CONCLUSIVENESS OF.

A United States patent to public lands is conclusive evidence of title in the grantee, in any collateral attack thereon, as against those not connecting themselves with the government title.

6. SAME-AGREEMENT BY PRE-EMPTOR TO SELL.

An agreement by a pre-emptor of public land to convey to another when he shall receive his patent is void, and not enforceable.

7. ESTOPPEL IN PAIS-CONTRACT-OPERATION OF.

An estoppel in pais can have no greater force or effect in binding parties than would a contract including the very subject-matter urged by way of estoppel.

MCKEE, J., dissenting.

Commissioners' decision.

In bank. Appeal from superior court, county of Plumas.
J. D. Goodwin and D. W. Jenks, for appellants.

R. H. F. Variel, for respondent.

SEARLS, C. Action to quiet title to a tract of land in Plumas county. Plaintiff had judgment, and defendants appeal. On the thirtieth day of July, 1878, one D. D. Blunt received from the government of the United States a patent for the land in question, under a homestead filing made in 1873, and the title thus acquired is vested in the plaintiff. The bill of exceptions shows that at the trial defendants offered evidence tending to prove the allegations of their answer numbered fourth, fifth, sixth, and seventh, to which plaintiff objected, which objection was sustained by the court upon the ground that said allegations were, and any evidence tending to prove them was, immaterial, and this ruling is assigned as error.

Defendants are Indians, belonging to a tribe generally known as the "Big Meadows" tribe, and called in their own language the "Nahkomas." The allegations of the answer sought to be sustained

by the testimony offered are, in substance and effect, that at a time unknown to defendants, but which they are informed and believe, and therefore allege, was prior to October 1, A. D. 1492, said lands being vacant, unoccupied, and unclaimed, the ancestors and predecessors of defendants discovered, entered upon, claimed, and occupied said tract of land, and built their dwellings thereon, and that ever since said date defendants and their said ancestors and predecessors have continuously owned, claimed, and occupied said land, and used the same for a village-site and burial-place, and for supplies of water, fuel, etc., according to the customs and necessities of their people; that the right thus acquired has never been ceded, sold, granted, transferred, or relinquished to any nation, government, state, or individual, but remains to them by right of discovery and occupation; that no treaty has ever been made by them with any state or government for their support, maintenance, or education, and no proceedings have ever been had by which their title to said land has been extinguished.

The right or title attempted to be set up by appellants has the merit of age, if no other. The relation of the Indians to the lands they occupied, their title thereto, their power of alienation and the mode of its accomplishment, were questions much discussed in the earlier days of our government. On the discovery of America the leading nations of Europe eagerly sought a foothold upon its soil, and each sought to appropriate all it could discover and occupy. Its great extent afforded an ample field to the ambition and enterprise of all. To avoid conflicting settlements and consequent war with each other, the principle was established that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession. The relations between the discoverer and the natives were to be regulated by themselves. These relations were to be settled upon the basis of ownership of the soil by the discoverer, with the right of occupancy in the original inhabitants. So long as they remained at peace with the superior race they were entitled to be protected in their occupancy, but to be deemed incapable of transferring the absolute title to any other than the sovereign of the country.

Congress has the exclusive right of pre-emption to all Indian lands lying within the territories of the United States. Johnson v. McIntosh, 8 Wheat. 543; Fletcher v. Peck, 6 Cranch, 142. The United States own the soil, as well as the jurisdiction, of the immense tracts of unpatented lands included within their territories, and of all the productive funds which those lands may hereafter create. The title. is in the United States by the treaty of peace with Great Britain, and by subsequent cessions from France and Spain, and by cessions from the individual states; and the Indians have only a right of occupancy, and the United States possess the legal title subject to that occupancy, and with an absolute and exclusive right to extinguish the Indian title

of occupancy either by conquest or purchase. Kent, Comm. 257. The status of the Indian, and his relation to the land by him occupied, have received careful consideration at the hands of Chancellor KENT, and his views, as expressed in the third volume of his Commentaries, pages 379 to 400, throw much light upon the question under discussion.

It seems, however, unnecessary to discuss the several propositions. involved in the foregoing authorities. The subject in the present case is confined to a narrower limit. The title to land is dependent entirely upon the law of the nation in which it lies. Under the English law the king was the original proprietor or lord paramount of all the land within the kingdom, and the sole source of title. We have adopted the same principle, and applied it to our republican government, and the doctrine with us is settled beyond a peradventure that valid individual title to land within the United States is derived from the grant of our own local governments, or from that of the United States, or from the predecessors of our government.

The lands within the territorial limits of the state of California were ceded to our general government by the republic of Mexico under the treaty of Guadalupe Hidalgo, of February 2, 1848. By that treaty the United States became vested with the title to all the lands in California not held in private ownership by a legal or equitable title. By the law of nations private rights were sacred and inviolable, and the obligation passed to the new government to protect and maintain them. The term "property," as applied to lands, embraces all titles, legal or equitable, perfect or imperfect. Teschemacher v: Thompson, 18 Cal. 12. The treaty operated as a confirmation in præsenti of all perfect titles to lands in California held under Spanish or Mexican grants. Minturn v. Brower, 24 Cal. 644. In the cases of inchoate title-cases where an equity only vested in the claimant-the legal title passed to the United States, which held it subject to the trust imposed by the treaty and equities of the grantee. The execution of this trust was a political power, to be exercised in such manner as the government might deem expedient. Leese v. Clark, 18 Cal. 535.

The United States, for the purpose of discharging the obligation resting upon it under the treaty with Mexico, through congress, the repository of its political power, at the second session of the Thirtyfirst congress, passed an act to ascertain and settle the private land claims in the state of California. Under that act a commission was created for the purpose of hearing and determining the validity of claims to land within the state. The thirteenth section of the act provided "that all land the claims to which have been finally rejected by the commissioners in manner herein provided, or which shall be finally decided to be invalid by the district or supreme court, and all lands the claims to which shall not have been presented to the commissioners within two years after the date of this act, (March 3, 1851,)

shall be deemed held, and considered as a part of the public domain of the United States." There is no pretense that the claim set up by defendants in their answer was ever presented to the commissioners under this act of congress, and when the time for such presentation expired the land in question must be deemed and taken as having become a part of the public domain.

Again, the patent to plaintiff's grantor is to be taken as conclusive evidence of title in the grantee, as against those not connecting themselves with the government title, in any collateral attack thereon. If defendants had any right to the land, it should have been asserted in the land department pending the application for patent, or by direct proceeding on the part of the government to set aside the patent. There was no error in the refusal of the court to admit the testimony offered.

The second point made by defendants is that plaintiff is estopped by the agreement of his grantor set out in the findings, and of which he had notice at the date of his purchase. It appears that Blunt, the grantor of plaintiff, had filed in the proper United States land-office, in the spring of 1870, his declaratory statement claiming the land in question under the pre-emption laws of the United States, and had received a certificate of pre-emption therefor. That in September, 1870, the agreement set out in the findings was entered into; that thereafter, and some time in 1873, said Blunt changed his preemption filing in the Marysville land-office to a homestead filing upon the same premises made in the Susanville land-office, in which district the lands were then situate; and that afterwards, in due time and in 1878, he made the requisite proof, and on the thirtieth day of July, 1878, received a United States patent under his homestead application. If we accord to the novel proceeding had before the justice all that can possibly be claimed for it, viz., that it amounted to a contract on the part of Blunt to convey to defendants when he should thereafter procure a patent, it can avail nothing, as such an agreement by a pre-emptor is void and cannot be enforced at law or in equity. Huston v. Walker, 47 Cal. 484; Damrell v. Meyer, 40 Cal. 166. An estoppel in pais can have no more force or effect in binding the parties than would a contract including the very subjectmatter urged by way of estoppel The findings support the conclusion reached by the court below, and the judgment should be affirmed.

We concur: FOOTE, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.

MCKEE, J., dissenting.