
    [No. 2,740.]
    CHARLES DUPOND v. GEORGE BARSTOW et al.
    Conditions Precedent to Vesting of Title.—Congress relinquished and granted to the City of San Francisco the right of the United States to certain pueblo lands within its limits, to hold in trust, to dispose of, and convey the same to parties in possession thereof, on such conditions as • should be prescribed by the Legislature. One of the conditions proscribed by the Legislature, by which a person in possession, or who had been unlawfully ousted, was to become entitled to the benefit of the Act of Congress, was that, prior to a certain time, all taxes which had been assessed during the five years preceding, shall have been paid: Held, that no title vested in one in possession, or who had heen ousted from possession, unless he, or some one acting in his behalf, had paid such taxes: Held, also, that the same rule prevailed as to the payment of an assessment imposed on the land as a condition precedent to vesting title.
    Ratification by the Legislature.—The ratification by the Legislature of an ordinance of a city is equivalent to its reenactment by the Legislature.
    If there is no Beneficiary the Trust is Discharged.—Where land is granted by Congress to a city, in trust, to dispose of and to convey the same to parties in possession thereof, on such conditions as the Legislature shall prescribe, and a condition prescribed is the payment of previous taxes before a Certain time, and the person in possession does not make such payment, there is no beneficiary of the trust, and the city acquires the legal title divested of th'e trust, and may convey the same to any party.
    Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.
    The Act of the Legislature of March 14th, 1870, provided for the issuance of deeds by the Mayor of San Francisco, to those who should present a petition with ex parte proofs that they “have been from and including the 8th day of March, 1866, and still are in the possession of” tthe lauds, and have paid the taxes and assessments.
    The plaintiff" appealed.
    The other facts are stated in the opinion.
    
      Pringle $ Pringle and Q. F. ¿- W. S. Sharp, for Appellant.
    The Act of Congress relinquished the land to the city upon a special trust designating the cestui que trust. The trust was merely ministerial, admitting no discretion in the trustee, but requiring simply a conveyance to the persons designated, operating in fact immediately to the benefit of those designated. (Lewin on Trusts, 701; Phillips v. Garth, 3 B. C. C. 64; Rayner v. Mowbray, id. 234.)
    Ordinance Eight Hundred, ratified by the Legislature in 1868, was the execution of this trust. It operated as a conveyance by words of present grant, not attempting to divert the course of the title, hut specifying only the “terms and conditions ” which the Legislature imposed. These “terms and- conditions ” are all that was left to the discretion of the Legislature. That body had no right to change or to determine the recipients of the Congressional grant. Congress, in making the grant, appointed no tribunal to ascertain the objects of its bounty. Hence, no commission appointed by the Legislature, or by the City of Ban Francisco, could determine, even prima facie, the persons entitled to take under the Act of Congress. The only possible ascertainment of that fact must be by the ordinary tribunals.
    The Legislature could, not, in 1870, disturb, modify, or readjust rights which had vested by the first execution of the trust. The Mayor’s deed carries no presumption of title, because the title had passed by a preceding Act. If the Legislature of 1870 were competent to act in the premises, this Act of March fourteenth did not legally do so, because it departs, in three essential respects, from the three terms of the trust. It permits the conveyance to those simply “in possession,” on March 8th, 1866. This is fatal. Congress had said “in the bona fide possession.” But the Act of 1870 says, unqualifiedly, those “in the possession on March 8th, 1866.” Precisely by this departure from the Act of Congress the Legislature of 1870 opens the door to these respondents, and closes it to this appellant. It assumes to direct the donation to those who may have forcibly or fraudulently obtained a temporary possession, and precludes any inquiry into the nature of such possession. It assumes to shut us out, in direct violation of the terms of the grant. Ordinance Eight Hundred carried the title to those who “having been ousted, may recover;” and it is-impossible to defeat their recovery by pretensions of title, based upon the trespass which ousted them.
    The attempt, on the part of the trustee, to convey to other cestuis quq trust than those designated by the Act,-is not only voidable, but absolutely void. The Act of Congress created a simple trust. (Lewin on Trusts, 21.)
    The defective execution of the power made it void, even at law. (Sugden on Powers, 384.)
    If there were any doubt on this point, it will disappear when we consider that this trustee could not possibly have capacity to pass the fee, except by a strict execution of the power. The trust was not confided to a natural person, with the ordinary capacity to convey. There is noDpossibility in this trustee to convey in violation of its trust.
    
      Williams Thornton, Eugene Lies, and Alexander Camp-hell, for Bespondents.
    The trusts are plainly declared, viz: that the said land, granted by the said Act, shall be disposed of and conveyed by said city to parties in the bona fide possession thereof, by themselves or their tenants, on the passage of the Act (March 8th, 1866), in such quantities, and upon such terms and conditions, as the Legislature of this State may prescribe.
    The city could not dispose of or convey the land so granted in'trust, or any part of it, without the authorization of the Legislature; and the Legislature was empowered, by said Act of Congress, to prescribe the quantity, as well as the terms and conditions, on which the said land should be conveyed by the city to the bona fide possessor. The Legislature might have limited each grantee to half a block, or a lot—a single building lot; and it might have required of each grantee to pay one half of the appraised value of the property granted, into the City Treasury.
    The eleventh section of Order Eight Hundred is not a grant to the plaintiff, because he was not in the actual possession on the 8th of March, 186,6; and if the defendants ousted him, though they were in actual possession on said eighth of March, they were not in bona fide possession, and, therefore, said eleventh section was not a grant to defendants. This being the case, the said eleventh section was not a grant to either party, and the title remained in the. city.
    Then, there being no grant to either party, the city, under the provisions of the Act of March 14th, 1870, by authority of the Legislature, has granted and conveyed the land in controversy to the defendants. The conveyance so made is a perfect title in the defendants, and the plaintiff could then no more recover against defendants than against the city; for certainly on his prior possession he could not recover against the city, therefore he could not against defendants.
    The Act of 1870 provides that a deed shall be made to the defendants, on their complying with certain terms. These terms, as shown by the statement in the cause, were complied with by them. The plaintiff paid nothing, and did nothing. It is not even pretended that he did. He claims to recover on the payments made by defendants.
   By the Court, Crockett, J.:

The action is in the usual form to recover the possession of a tract of land within the corporate limits of the City and County of San Francisco; and the plaintiff" claims to have acquired the title in virtue of the provisions of the Act of Congress of March 8th, 1866, entitled “An Act to quiet the title to certain lands within the corporate limits of the City of San Francisco” (14 Stats, at Large; 4), and of a certain ordinance, numbered eight hundred, afterwards passed by •the Board of Supervisors of said city and county* which was •ratified by the Act of the Legislature of March 27th', 1868. (Stats. 1867-8, p. 379.) The defendants also claim title derived from the same source, and through the Act of the Legislature of March 14th, 1870. (Stats. 1869-70, p. 353.) By the Act of March 8th, 1866, Congress relinquished and granted to the City of San Francisco all the right and title of the United States in and to certain lands therein described .(which include the premises in controversy), in trust that said land “ shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this Act, in such quantities and on such terms and conditions as the Legislature of the State of California may prescribe.” On the 14th of January, 1868, the Board of Supervisors adopted an order inaugurating a plan or system for carrying into execution the above recited Act of Congress. After providing a plan for the subdivision of the land into blocks and lots, the location of streets, and the reservation of certain portions for parks and other public uses, it provides for an appraisal of the lands so reserved and for an assessment on the remaining lands sufficient to pay the appraised value of the lands reserved. Section eleven then provides as follows:

“Upon the payment to the County Treasurer of the City and County of San Francisco of the amount assessed by the committee provided for in section thirteen of this order, upon the lands as provided for in section ten of this order, the City and County of San Francisco hereby relinquishes and grants all the right, title, and claim which the said city and county now has or may hereafter acquire as the suecessor of the Pueblo of San Francisco, or as the grantee or the patentee of the United States, in and to the lands hereinbefore in this order described, and not excepted or reserved, or intended to be excepted or reserved by any of the preceding sections or provisions of this order, and which may not be set apart for public use under any of the preceding sections and provisions, and upon which shall be paid, previous to the 1st day of April, 1868, all taxes which have been assessed thereon during the five fiscal years preceding the year -beginning July 1st, 1866, unto the person or to the heirs and assigns of persons, who were, on the 8th day of March, 1866, in the actual bona fide possession thereof, by themselves or their tenants, or having been ousted from such possession before or since said day, have recovered or may recover the same by legal process. And it is hereby declared to be the intent and object of this section to pass the right, title, and claim of the said city and county in and to every tract or portion of said land delineated on said map, except the portions that are or may be reserved as aforesaid, possessed by one person, unto the possessor thereof, in severalty; and every separate tract or portion thereof, except the portions that are or may be reserved as aforesaid, possessed by more than one person, jointly or in common, unto the possessors thereof, jointly or in common.”

One of the conditions prescribed by this section, on which 8 person in possession, or who has been unlawfully ousted, was to become entitled to the benefit of the Act of Congress, was that “previous to the 1st day of April, 1868, all taxes which have been assessed thereon (the land) during the five fiscal years preceding the year beginning July 1st, 1866,” shall have been paid. This provision does not, in terms, require that the taxes shall have been paid by or on behalf of the person in possession, or who had been ousted under such circumstances as to entitle him to recover the possession by legal process. But such was plainly the intention of the Board of Supervisors in framing the order. It was not their purpose to bestow the title on those who refused or neglected to pay the taxes within the time limited. On the contrary, it was obviously intended that the payment of the taxes by the claimant, or by his predecessors in interest, or by some one acting for or on his or their behalf, should be a condition precedent, without the performance of which the title would not pass. The same rule will apply to the payment of the assessment, which is also made a condition precedent to the vesting of the title.

This order was ratified and confirmed by the Act of March 27th, 1868, and the plaintiff claims that under its provisions the title vested in him immediately on the passage of the last named Act, inasmuch as he had been in the actual possession from 1853 to 1862, when he was unlawfully ousted by the defendants, from whom he was entitled to recover the ¡possession by legal process. But, as we have seen, the payment of the taxes and assessment, as required by the order, was a condition precedent, without the performance of which the title, by the very terms of the order, did not vest, and it does not appear that the plaintiff, or any one on his behalf, either paid or offered to pay the taxes. The Act of Congress, in express terms, conferred upon the Legislature the right to prescribe “the terms and conditions ” on which the title should pass to the beneficiaries, and the quantity of land to which each should be entitled. The Legislature partially performed this duty, by ratifying and confirming Order Ho. 800; and there can be no doubt that the order thereby became, to all intents and purposes, as definitively valid as though its provisions had been reenacted by the Legislature. Hot having paid the taxes or the assessment, as provided in section eleven, the plaintiff has not performed the condition on which his rights as a beneficiary were made to depend. Congress saw fit to confide to the Legislature the unqualified right to determine the “terms and conditions” on which persons in the actual bona fide possession on the 8th of March, 1866, should become entitled to the bounty of the Government; and in the legitimate exercise of this power, the Legislature has prescribed as one of the conditions to be performed, by or on behalf of the person claiming the benefit of the Act, the payment of certain assessments and taxes. Hot having performed this condition, the plaintiff is not within the category of those who are entitled to the benefit of the statute. If it be conceded, therefore, that Order Ho. 800, when ratified by the Act of March 27th, 1868, operated proprio vigore as a grant and conveyance, in presentí, of the legal title to those entitled to it, the plaintiff derived no benefit therefrom, having failed to comply with its requirements. It results that he has not acquired the legal title, and for that reason must fail in this action, unless he is entitled to recover on the ground of prior possession. It appears in the case that the defendants, being in the actual possession of the demanded premises on the 8th of March, 1866, paid the taxes and assessments, as required by Order Ho. 800, and subsequently obtained a conveyance in due form from the city, under and in pursuance of the provisions of the Act of March 14th, 1870. But the plaintiff" contends that this conveyance was inoperative and void, because the Act last mentioned authorizes the conveyance to be made to the persons who, “ by themselves, their tenants, or the persons through whom they claim or derive possession, have been, from and including the 8th day of March, Anno Domini 1866, and still are, in the possession,” etc. It is said that this omits the requirement that the possession must have been bona fide, and that the Legislature had no power to convey the title to mere trespassers, or to others than those who were in the bona fide possession on the 8th of March, 1866; and that inasmuch as the defendants were wrongfully and unlawfully in ■ possession, the Legislature had no authority to convey to them a title which the Act of Congress conferred upon the city in trust, that it should be conveyed to those only who were in the bona tide possession. Hence it is claimed that the deed is in violation of the trust on which the title was held, and is, therefore, absolutely void. But, as we have already seen, the plaintiff' was not, and is not now, so far as this record shows, entitled to a conveyance of the legal title, nor did he acquire it by virtue of Order Ho. 800, and the Act which ratified it. Whatever rights he might otherwise have asserted, he lost by his failure to pay the taxes and assessments. Heither the plaintiff" or any other person, so far as the case shows, were, or are, in the category of those entitled to the benefit of the Act of Congress in respect to the premises in controversy. There was, and is, therefore, no beneficiary under the Act who is entitled to claim its benefits in respect to this land, nevertheless, the Act of Congress had the effect to vest the legal title in the city; and there being no beneficiary entitled to claim the benefit of the trust, it was competent for the Legislature to direct to whom, and in what manner, and on ■what conditions, the title should be conveyed. This violated no trust, for the reason that as to this parcel there was no beneficiary; and the city held the title as it held the title to other lands which were free from any trust relation, subject to disposal, as the Legislature should direct. The defendants, therefore, acquired the legal title, which must prevail in an action of this character. I think the judgment was properly entered for the defendants.

Judgment affirmed as of the 14th day of February, A. D. 1871.

Mr. Chief Justice Wallace, being disqualified by reason of interest in the land in controversy, did not participate in *ÍTé ffécisiom  