Holliday

Mr. Justice Terry concurred.

The appellants cite and rely upon the case of Touchard v. Touchard, 5 Cal. R., as being conclusive of this. In that case a subsequent grant of a lot by a municipal corporation was held valid against an older grant, on the ground of the non-performance of the conditions by the elder grantee. The only question made there in favor of the first grant was that the Mexican law, which then prevailed, required the proceeding of denouncement before there could be a legal forfeiture of the grant. But we held that that proceeding only applied to grants made by Government, and was totally inapplicable to the contracts of private individuals. A denouncement was never made by the grantor, but always by some person who desired to obtain the land for himself.

In that case it was also shown in evidence, that it was the custom, upon the part of the authorities of the pueblo, to re-grant lots when the first grantee had failed to occupy, or otherwise comply with the conditions of the grant, without resorting to any other step whatsoever, to indicate a forfeiture, or a determination on the part of the grantor to resume the ownership. And there was also given in evidence…