
    [No. 4294.]
    HENRY MILLER v. GEORGE W. ELLIS and EZEKIEL TRIPP.
    Delivery of United States Patent for Land.—Delivery of a patent, issued under the provisions of the act of Congress of March 3, 1851, for the settlement of private land claims in California, is not essential to its taking effect as a conveyance.
    When Patent tases Effect—Power of State.—A State has no authority to provide by statute when patents for land issued by the United States for Mexican grants shall take effect.
    Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.
    Ejectment to recover a portion of the Rancho Los Animas, in the county of. Santa Clara. The court rendered judgment against the defendants. The defendant Tripp appealed. ,
    The other facts are stated in the opinion.
    
      Campbell, Fox & Campbell, for the Appellant.
    
      Houghton & Reynolds, for the Respondent.
   By the Court, Rhodes, J.:

The plaintiff, in proof of his alleged title, introduced in evidence a copy of a patent issued by the United States to the widow and heirs of Jose Maria Sanchez under the act of Congress of March 3, 1851, entitled “An Act to ascertain and settle private land claims in the State of California.” It was in the usual form of patents issued under that act. It was proven by the Surveyor-General for the State of California, that he had received the patent from the Commissioner of the General Land Office by mail; that he had not delivered it to the grantees; and that he had been directed by the Commissioner to withhold the delivery until further orders from the Commissioner. The defendant, Tripp, objected to the admission in evidence of a copy of the patent on several grounds, only one of which, however, requires any consideration; which is, that the patent not having been delivered, did not take effect as a conveyance of the title. No authority is cited by the defendant in support of the objection, but he refers to the Civil Code, Sec. 1054, as decisive of the question. That section is as follows: “A grant takes effect so as to vest the interest intended to be transferred only upon the delivery by the grantor.” Conceding that this section declares the rule in case of conveyances made under the laws of this State—excepting, of course, legislative grants and perhaps some others—it is manifest that it can have no application to grants made by or under the authority of the United States, for the State has not competent authority to provide the manner in which such grants shall take effect.

It was held in Donner v. Palmer (31 Cal. 500), in considering the effect of the non-delivery of an alcalde’s grant, that the doctrine of delivery, as applied to private conveyances, has no application to grants made by the government, either under the Mexican system or our own. In Chipley v. Farris (45 Cal. 539), a patent had been issued in pursuance of the act of Congress of March 3,1851, but the grantees under whom the plaintiff claimed title, refused to receive or accept it. It was held by the court that the patent was one of the steps in the proceeding under the act of» March 3, 1851; that the claimant in those proceedings was as powerless to prevent the issuing of a patent as the rendition of a decree of confirmation, where the proceedings have not been dismissed; and that the assent of the claimant to its issue was no more essential than to any other step in the proceeding. We have seen no reason to doubt the correctness of the principle there announced. It necessarily results, therefore, that delivery is not essential to the taking effect of a patent issued under the provisions of the act of Congress of March 3, 1851. (See also Le Roy v. Clayton, 2 Sawyer, 493, which is directly in point; Lott v. Proudhomme, 3 Rob. La. 293; Lavergne's Heirs v. Elkins's Heirs, 17 La. 226.)

Judgment and order affirmed.

Mr. Chief Justice Wallace, being disqualified, did not sit in this case.

Mr. Justice McKinstry did not express an opinion.  