The plaintiff in the court below deraigned his title by various mesne conveyances from Joseph S. Alemany, Catholic bishop of Monterey, to whom a patent, embracing the premises in controversy, was issued by the United States. The patent is in the usual form, and purports on its face to be issued under the act of March 3d, 1851, to ascertain and settle private land claims in the State of California. It recites that the bishop presented his claim to the board of commissioners created under that act, for confirmation; that the board, by its decree, rendered on the 18th of December, 1855, confirmed the claim; that an appeal was taken on behalf of the United States to the District Court; and that the attorney-general, having given notice that the appeal would not be prosecuted, the District Court, by its decree, gave leave to the claimant to proceed upon the decree of the board as upon a final decree. Upon this form of the decree of the District Court, thus recited, the defendants below objected to the introduction of the patent, and the objection is pressed in this court. Their position is, that under the tenth section of the act of 1851 it was the duty of the District Court to proceed and render judgment upon the pleadings and evidence in the case; that, upon the refusal of the attorney-general to prosecute the appeal, the court should have dismissed the appeal or affirmed the decree of the board; that, having done neither, the case is still pending undetermined, and consequently there has been no decree on which a patent could issue.
The objection is a very narrow one, and does not merit the attention which it has received from counsel. Its answer is found in the amendatory act of August 31st, 1852. That act provides that when a final decision is rendered by the commissioners they shall prepare two certified transcripts of their proceedings and decision, and of the papers and evidence upon which the same were founded, one of which shall be filed with the clerk of the proper District Court, and the other shall be transmitted to the attorney-general; that the filing of the transcript with the clerk shall operate ipso facto as an appeal on behalf of the party against whom the decision is rendered; and, if the decision be against the United States, that it shall be the duty of the attorney-general, within six months after receiving the transcript, to cause a notice to be filed with the clerk that the appeal will be prosecuted; and, on failure to give such notice, 'the appeal,' says the statute, 'shall be regarded as dismissed.' If it can be regarded as dismissed, it is for all legal purposes in fact dismissed. Here the attorney-general did not allow his intention to be drawn from his silence; he announced it at once. The decree of the court authenticates by its record the refusal of the attorney-general, not leaving this fact open to contestation by oral proof. The form of the decree is the usual one adopted in such cases, and probably a large number of patents issued to parties in California contain a similar clause. By the action of the attorney-general the decree of the board took effect precisely as though no appeal had ever been taken, and it certainly cannot constitute any valid objection to the decree of the court that it declares in terms the effect which the law gave to such action.
After the patent was admitted in evidence the defendants produced the petition of the claimant to the Board of Land Commissioners, and insisted that it showed a want of jurisdiction in the board in this, that it did not set forth any right or title derived from the Spanish or Mexican government. The position of the defendant appears to have been, that the claim of the bishop was invalid because it did not rest upon, or was not sustained by, any direct grant or concession in writing.