and will pay a yearly rent for the same, at the rate of $5 per acre, to the said Schell."

The action was then dismissed, and a fence was built by the parties, extending northerly across the land, and dividing it into two fields of nearly equal size. Akers surrendered to Schell all that portion lying east of the fence, and retained possession of all that portion lying west of it. The land in controversy here is a part of the land which Akers so retained in his possession. Upon the findings the court rendered judgment in favor of the defendants. The plaintiffs appealed, and the case is brought here on the judgment roll. There are two sufficient answers to the claims made by the appellants:

1. It was expressly provided by the act of congress, passed March 3, 1851, entitled "An act to ascertain and settle the private land claims in the state of California," that the final decrees of the board of commissioners, or of the district or supreme court, or any patent to be issued under the act, should be conclusive only between the United States and the claimants, and should not affect interests of third persons. Rodrigues v. U. S., 1 Wall. 588. It has been held by this court that the "third persons" against whose interests the action of the government and patent are not conclusive are those whose title accrued before the duty of the government and its rights under the treaty attached. Teschmacher v. Thompson, 18 Cal. 27. Where two patents cover the premises in controversy, "the main question in the case, as in all cases where patents founded upon previously existing concessions overlap, is which of the two original concessions carried the better right to the premises ?" This was said in Henshaw v. Bissell, 18 Wall. 255; and in that case, there being two patents covering the same land, it was held that in determining such a controversy a grant of land identified by specific boundaries, or having such descriptive features as to render its identification a matter of absolute certainty, gives a better right to the premises than a floating grant, although such floating grant be first surveyed and patented.

Here it appears that the pueblo of Sonoma was established by the direction and with the approval of the governor of California in 1835. Its boundaries were surveyed and fixed. The tract was laid out in lots and blocks, and families were established upon those lots and blocks along the Arroyo Seco, which was its eastern line down to the salt marsh. "By the laws of Mexico, in force at the date of the acquisition of the country, pueblos or towns were entitled, for their benefit and the benefit of their inhabitants, to the use of lands constituting the site of such pueblos and towns, and of adjoining lands, within certain prescribed limits. This right appears to have been common to the cities and towns of Spain from an early period of her history, and was recognized in the laws and ordinances for the settlement and government of her colonies on this continent. Those laws

and ordinances provided for the assignment to the pueblos or towns when once established and officially recognized, for their use and the use of their inhabitants, of four square leagues of land." Townsend v. Greeley, 5 Wall. 336. And when pueblos were established they became invested, even without any formal assignment, with a certain. title to the pueblo lands. This title was recognized by the act of March 3, 1851, as in the nature of a grant, and it has ever since been upheld and protected by the decisions of this court and of the supreme court of the United States. Hart v. Burnett, 15 Cal. 530; Grisar v. McDowell, 6 Wall. 363.

In the first grant to Leese the Arroyo Seco is expressly named as its western boundary. In the second grant, and in the decree of confirmation, the western boundary is the Estero de Sonoma as far as the Trancas, thence taking the direction of the Arroyo Seco. It has been held, when a land claim had been confirmed by a decree of the district court, under the act of March 3, 1851, and the decree fixed the boundaries of the claim, and remained unreversed, that the survey must conform to the decree in all respects. The Fossat Case, 2 Wall. 649.

What was meant by the words, "taking the direction of the Arroyo Seco?" It seems to us, as it did to the commissioner of the general land-office, when the matter of the conflict was before him, that the line was to run from the Trancas to the nearest point on the Arroyo Seco, and thence up that creek or gulch. If this be so, then it is clear that the line, as run by the surveyor, did not conform to the decree, but took in lands not covered by it. It must follow that, to the lands so taken in, the original concession to the pueblo, and the patent issued upon confirmation thereof, carried the better right. 2. When Schell and Akers executed their written agreement in October, 1860, the Huichica patent had been issued to Leese, and Schell had his deed. The Sonoma claim had been confirmed by the commissioners, and took in the land lying between the Trancas line and the Arroyo Seco. The city was asserting a right to that land, and the case was pending before the courts. Akers had a deed to 111 acres of the land, and was in possession of it. Under these cir cumstances, the parties compromised the action, which had been commenced by dividing the 111 acres about equally between them. Akers released and surrendered to Schell the eastern half and retained the western half. In consideration of this, Schell agreed, "in the event the city of Sonoma establishes her claim to any part or portion" of the land released, to deliver back to Akers such part or portion, and to pay a yearly rent of five dollars per acre for the same while he might hold it. And Akers agreed, in the event the city should not be able to establish her claim beyond the line of the Huichica patent, to deliver to Schell so much of the land as he retained within that line, and to pay to him a like rent of five dollars per acre. It is clear from this, we think, that the only establishment of the Sonoma claim

which the parties contemplated was such as would result from the action of the courts upon it, and the issuing of a patent by the gov ernment in pursuance of their decrees. The parties evidently thought that if the city should finally succeed in establishing its claim, and receive a patent for any of the land within the lines of the Huichica. patent, it would have the better title to the land. They could, therefore, avoid litigation and expense, and safely await the issue of the city's contest. As we have seen, they rightly interpreted the law, and so long as Schell lived he acquiesced in the arrangement. After his death his executors thought it their duty to raise the question again, and this action was commenced. In our opinion the agreement was intended to be and was binding upon the parties, and decisive of their rights when it was executed, and it remains so still. The judgment should be affirmed.

We concur:

BY THE COURT.

SEARLS, C.; FOOTE, C.

For the reasons given in the foregoing opinion the judgment is affirmed.

69 Cal. 153

HOWELL v. STETEFELDT FURNACE Co., Original Defendant, and another, Substituted Defendant.

(No. 9,206.)

Filed March 26, 1886.

1. ACTIONS-CHANGE OF VENUE-CONVENIENCE OF WITNESSES

PLICATION.

TIME FOR AP

A defendant is not entitled to have the place of trial changed, on the ground of the convenience of witnesses, until he has filed an answer in the cause. 2. SAME-RIGHT OF SUBSTITUTED DEFENDANT.

A person who is substituted involuntarily as the sole defendant in place of the original defendant, under section 386 of the California Code of Civil Procedure, is entitled to demand and have a change of the place of venue to the county in which he resides.

Commissioners' decision.

Department 2. Appeal from superior court, county of Santa

Clara.

D. L. Smoot, for appellant.

Charles F. Wilcox, for respondent.

FOOTE, C. The Stetefeldt Furnace Company had in its possession $2,000, which John Howell and James M. Thompson respectively claimed. John Howell resided in Santa Clara county; the furnace company claimed to have its situs in San Francisco, and Thompson resided there. Howell brought suit in Santa Clara county against the furnace company to recover that sum of money. The company made no defense, but filed the necessary affidavit, under section 386, Code Civil Proc., gave the required notice to Howell and Thompson, paid the money into court, and obtained an order to be there made.

and entered substituting Thompson in its place as defendant, and thereafter said company ceased to have any connection with the action. Upon Thompson being made the sole party defendant to the action, he filed a demurrer to the complaint, and at the same time, under section 396, Code Civil Proc., filed an affidavit of merits, and demanded in writing that the trial of the cause should take place in the county of San Francisco, where he resided. Notice of this motion was duly given by Thompson, and the motion denied by the court, from the order refusing which this appeal is taken.

It is contended on the part of the plaintiff, first, that so far as the defendant Thompson's right to a change of venue rested upon the claim that the convenience of witnesses required it, it should not be granted, because he had not filed an answer in the cause, and therefore the trial court was not placed in possession of the necessary facts to determine the propriety of granting the motion on that ground. And in this respect his contention is correct.

He claims further, however, that the defendant is not entitled to a change of venue to the county of his residence, because he did not move for or demand such change until after the court had obtained jurisdiction over the original defendant, and that it then became too late for the substituted defendant to rightfully claim such change.

The object had in view by the legislature in enacting section 396, Code Civil Proc., was to prevent trials of actions in counties other than those in which defendants resided, unless they waived such right. And the failure of the original defendant (even if it—a corporation-had possessed a residence, which it had not, as the term is used in sections 395, 396, Code Civil Proc.) to demand a change of venue to the county of its residence could not prejudice the right of a defendant, when upon his first appearance in the action, to which he had been made the sole substituted defendant in invitum, he moved for and demanded a transfer of the cause to the county where he resided. Thompson's first appearance in this cause as sole defendant was when he filed his demurrer to the complaint, and moved for and demanded a change of venue to the county of his residence. The appearance of the corporation was not his appearance. He was brought into the action, under section 386, Code Civil Proc., in invitum. He did not come in as a voluntary intervenor. From the moment he became such party to the action, and not until then, did he become entitled to the exercise of the right which accrued to him under section 396, Code Civil Proc. Therefore we are of opinion that the order of the court below should be reversed, and that tribunal directed to make and enter an order granting the change of venue as demanded. We concur:

BELCHER, C. C.; SEARLS, C.

BY THE COURT. For the reasons given in the foregoing opinion the order is reversed, with directions to the court below to grant a change of venue.

Cal. Rep. 9-11 P.-30

69 Cal. 184

PEOPLE v. MOODY and others. (No. 20,161.)

Filed March 29, 1886.

CRIMINAL LAW-INFORMATION, AMENDMENT of—Plea—ArRAIGNMENT.
Where an information as filed, to which the defendants pleaded not guilty,
stated no defense, for the reason that the day of the alleged commission of
the offense was a day after the accusation was made, and after a jury was im-
paneled the information was amended by alleging the commission of the of-
fense on a day prior to the filing of the information, the defendants should
have been arraigned and called on to plead to the amended information, and
it was error to proceed with the trial without an arraignment or plea to the
information as amended.

In bank. Appeal from superior court, county of San Luis Obispo.
E. & William Graves and J. N. Turner, for appellants.
E. C. Marshall, Atty. Gen., for respondent.

MYRICK, J. The defendants were jointly prosecuted by information. The information was filed June 18, 1885, and accused the defendants of the commission of a crime on the twentieth of July, 1885, a day subsequent to the filing. The defendants were arraigned and pleaded not guilty. After a jury was impaneled the district attorney moved for leave to amend the information by charging the offense to have been committed July 20, 1884, a day before the filing of the information. Leave to amend was granted, and after amendment the trial proceeded without an arraignment and plea to the information as amended. Without passing on the power of the court to permit an amendment to an information, it is sufficient to say: The information as filed stated no offense for the commission of which the defendants could be tried, in that the day of the alleged commission of the offense was a day after the accusation was made; therefore no offense was charged. The information, when amended, charged an offense, and this information, so amended, could have been treated as an original information then for the first time presented. On this information the defendants should have been arraigned and called on to plead. This omission was error. No issue was joined as to any possible crime.

Judgment and order reversed, and cause remanded for proceedings not inconsistent with this opinion.

We concur: SHARPSTEIN, J.; Ross, J.; MORRISON, C. J.; THORNTON, J.; MCKEE, J.