Points decided.

the defendants, who are not creditors, nor in the place of creditors, to assail his title.

The second instruction was properly refused, because, if the plaintiff owned the ground in dispute, the first entry upon it by the defendants was unquestionably a trespass, for which an action would lie. The objection that if the defendants had remained in possession for a month or more after their first entry, the action must wholly fail, cannot, therefore, be maintained.

The other points made do not require special notice.
Judgment affirmed.

Mr. Chief Justice WALLACE did not express an opinion.

[No. 2,826.]

ELIZA M. HARTLEY, ADMINISTRATRIX OF THE ESTATE OF HENRY HARE HARTLEY, DECEASED, THOMAS M. SWAN, SAMUEL C. GRAY, B. C. WHITMAN, JOHN D. STEVENS, AND WILLIAM S. WELLS v. WILLIAM B. BROWN, RICHARD C. HAILE, NATHAN M. LINCOLN, BERRY BLANKENSHIP, WESLEY LAMBERT, MARK A. LONG, JOHN SMITHERS, L. GREEN MOWILLIAMS, CHARLES WESLEY BROWN, AND RICHARD ROE.

CONFIRMEES OF MEXICAN GRANT. The legal title to a Mexican or Spanish grant of land vests in the confirmees and their assigns. LEGAL TITLE IN EJECTMENT. If the confirmation of a Mexican grant of land is made to the children of the grantee, they have the legal title, and they and their assigns will prevail in ejectment against one claiming title under a sale made by the administrator of the grantee, when no equitable defense is set up.

LEGAL TITLE TO MEXICAN GRANT. The title which passes to the conArmee and patentee of a Mexican grant, when such confrmee and patentee

Argument for Respondents.

is not the grantee, does not inure to the benefit of a purchaser at a sale made by an administrator of the grantee, so as to vest in him the legal title.

LEGAL TITLE IN EJECTMENT.- In ejectment the legal title must prevail where there is no valid equitable defense set up.

APPEAL from the District Court of the Seventh Judicial District, County of Solano.

The defendants recovered judgment in the Court below, and the plaintiffs appealed.

The other facts are stated in the opinion.

Williams & Thornton, William S. Wells, and James L. English, for Appellants.

The findings show that the legal title to the premises involved in this suit, acquired by the confirmees and patentees of the Tolenas Rancho, was, at the time of the institution of this suit, vested in the plaintiffs. (Estrada v. Murphy, 19 Cal. 272; Clark v. Lockwood, 21 Cal. 222; Emeric v. Penniman, 25 Cal. 119; O'Connell v. Daugherty, 32 Cal. 452–464.)

M. A. Wheaton, Leeman Haile, and John G. Presley, for Respondents.

The land was sold by the administrator, all the heirs at law being parties, before the Probate Court, in the course of administration. The patent confirms the land to plaintiffs' grantors as heirs of Antonio Maria Armijo, but subject to the rights of third persons. It is submitted that the legal title to so much of the grant as was sold by the administrator, according to the forms of law, passed to the grantees under the said administrator upon the issuing of the patent. (Hittell's Digest, 675.) The administrator's deed, the heirs being parties, conveys the absolute fee simple title.

If the conveyance of the administrator, made by order of the Probate Court having obtained jurisdiction of the subject matter and the parties, does not pass the fee, neither do

Opinion of the Court - Rhodes, J.

the deeds of the heirs themselves; heirs cannot make a perfect conveyance before the close of administration. If the deed of the administrator made before the date of the patent did not pass the title, the deeds of the heirs all bearing date before the date of the patent, could pass no better title to plaintiffs.

By the Court, RHODES, J.:

This is an action of ejectment to recover the possession of a portion of the Tolen as Rancho. The title was confirmed to the heirs of Antonio Maria Armijo, deceased; and a patent was duly issued to them by the United States, in pursuance of the decree of confirmation and survey of the rancho. The plaintiffs claim title by means of conveyances made by the heirs, intermediate the filing of their petition for the confirmation of their claim to the rancho and the issuing of the patent. The defendants claim title through a sale and deed made by the administrator of the estate of Antonio Maria Armijo, deceased, under the orders of the Probate Court of Solano County. They do not set up an equitable defense, nor do they allege any facts by means of which the confirmation or patent inured to their benefit.

The land described in the grant was confirmed to the petitioners Dolores Riesgo, and others who are named, and are described as the heirs of Antonio Maria Armijo, deceased and the patent was issued to them; and the effect of the confirmation and patent was to vest in them and their grantees the legal title. That title must prevail in an action of ejectment in the absence of a valid equitable defense. If it be conceded that the defendants have shown a valid deed, executed by the administrator of the estate of Antonio Maria Armijo, deceased, sufficient to convey the interest which the deceased had in the land, such deed will not entitle them at law to the benefits of the confirmation and patent. The legal

Points decided.

title vests in the confirmees and their assigns, and not in the assigns of their ancestor or grantor. (Estrada v. Murphy, 19 Cal. 272; Clark v. Lockwood, 21 Cal. 222; Emeric v. Penniman, 26 Cal. 119; O'Connell v. Dougherty, 32 Cal. 462; Schmitt v. Giovanari, 43 Cal. 617.) In Emeric v. Penniman, the grantee of the Mexican Government filed the petition for the confirmation of the claim, but after his death his devisees were substituted as parties in his stead, and the land was confirmed to them; and the administrator of the deceased grantee having brought ejectment, it was held that he could not recover, because the legal title was in the confirmees. In O'Connell v. Dougherty, one of the sons of the grantee, who was also the executor of the grantor, procured a confirmation in his own name, and it was held that the plaintiff, who deraigned title from another son and devisee of the grantee, could not maintain ejectment, because he did not hold the legal title. It is useless at this time to review those cases, or discuss the reasons upon which the rule was founded; but recognizing that rule as the settled law of this State, the conclusion necessarily results that the title which passed to the confirmees by virtue of the confirmation and patent did not inure to the purchaser at the administrator's sale, so as to vest in him the legal title.

Judgment and order reversed, and cause remanded for a new trial.

Mr. Chief Justice WALLAOE did not express an opinion.

[No. 8,647.]

ANTHONY CLARK v. B. D. DUNNAM

INTEREST ON JUDGMENTS.- Under the first section of the Act of Marca 30th, 1868, regulating the rate of interest, all final money judgments, whether for money lent or otherwise, bear interest at the rate of seven per cent per annum

Argument for Appellant.

INTEREST ON JUDGMENT BETWEEN COPARTNERS. If a judgment be ren. dered in an action brought by one partner against his copartners, dissolving the partnership, and directing a sale to be made of the partnership property and a division of the proceeds first, to the payment of costs; second, to the payment of an amount found due to the plaintiff from the partnership, and the balance to be distributed among the partners — the Sheriff, in making the distribution, must pay legal interest on the amount found due to the plaintiff.

FINAL JUDGMENT.— A judgment dissolving a partnership and directing a sale of the partnership property and a division of the proceeds, is a final judgment.

MODIFICATION OF JUDGMENT BY SUPREME COURT.- An order of the Supreme Court, modifying a judgment from which an appeal has been taken, by reducing its amount, does not set it aside so as to prevent it from drawing interest from the time it was rendered by the Court below.

APPEAL from the District Court, Fourteenth Judicial District, County of Placer.

The case out of which this arose is reported in 42 Cal. 181. The facts are stated in the opinion.

Myres & Fellows, for Appellant.

The statute of the State regulating the rates of interest does not contemplate that a decree or judgment like the one at bar should bear interest. The decree merely ascertains that up to the date of its entry, the partnership owed Jones so much money, and then proceeds to direct a sale of the partnership effects to pay the amount, and the distribution of the balance among the partners, according to their respective interests.

The intention of the statute was to allow interest upon judgments in actions where the direct object sought is to recover damages for the violation of contracts, for the payment of money demands, or in actions for the violation of contracts where the amount is unascertained, or in actions sounding in tort. If it is held that a judgment like this bears interest under the statute, when does the interest begin to run! If at all, it must be from the time of the