Cope, J. concurring.

This case was before the Court at the April Term of 1857, and the facts upon which the decision then rendered was based are given either in the statement of the Reporter or the opinion of the Chief Justice, found in 7 Cal. 527 . Some other material facts are disclosed by the record, to which no reference is made, either by counsel in their briefs, or by the Chief Justice in his opinion. The translation, too, of the documents set forth in the report is inaccurate in several particulars; and the misstatements arising from this circumstance, it is evident, had no slight effect in producing the decision. The judgment of the lower Court was for the defendant ; this Court reversed the judgment, and remanded the case for a new trial. On the retrial judgment passed for the plaintiff; and the case, on appeal of the defendant, was again before the Court *484 at the July Term of 1858. By the decision then rendered the judgment of the Court below was reversed, and that Court directed to enter judgment for the defendant. A rehearing having been afterwards granted, the case was reargued at the October Term, 1859, when the previous decision on the second appeal was affirmed. Ho opinion was given on that affirmance, but we stated at the time that so soon as the pressure of other business would permit we should prepare and file one in the case. We propose now to state the grounds upon which we rested our decision.

The action is ejectment for the possession of a tract of land known by the name of “ Santa Gertrudis,” situated in the county of Los Angeles. By stipulation of the parties the records on the two appeals are considered and referred to as constituting only one record, and as filed on the present appeal. All the facts disclosed by the two records are therefore before us, and we are not restricted to those specially found by the Court. A motion for a new trial having been made, we are at liberty to look into the evidence to see whether the findings cover all the material matters presented for consideration. (Riley v. Heisch, 18 Cal. 201 .)

The material facts of the case are as follows: In 1784 Manuel Nieto obtained from Pedro Pages, the Military Governor or Comandante of California under the crown of Spain, a written permission to graze cattle on a tract of land, now embraced within the county of Los Angeles, bounded on the south by the ocean, on the east by the river Santa Anna, on the north by the old road leading from San Diego to Monterey, and on the west by the river San Gabriel, containing thirty-three leagues. Under this permission Manuel Nieto entered upon the tract with his cattle and other property, and laborers, constructed a house and corral thereon, and continued in the occupation of the premises until his death in 1804. His four children, Jose Antonio, Juan Jose, Manuela, and Antonio Maria, continued in the occupation, after his death, under the same permission. But while thus in occupation the children claimed to be the owners of the premises.

In 1815 Antonio Maria married Josefa Cota, and the plaintiffs, with the exception of Dryden, are the children of this marriage.

In 1832 Jose Antonio and Antonio Maria died, the first leaving Catarina Ruis, and the second Josefa Cota, widows.

*485 In 1833 the two sons living, and the widows, agreed verbally to a partition of the premises, and to apply to the Governor for grants to them, respectively, corresponding with the divisions made. The premises were accordingly divided between them.

Afterwards, on the twenty-sixth of July of the same year, Luciano Grijalba, as attorney for Juan Jose Nieto, presented a petition to the Governor, asking that separate titles be given to each of the parties for the portions received by them, respectively, in the partition made—“ the place called Santa Gertrudis to Josefa Cota and her children, as widow of Antonio Maria, deceased ”— representing that in the year 1784 Governor Pages had granted the premises to Manuel Nieto, their ancestor, and given him the possession thereof, and that his heirs had continued in the possession after his death, but that the title papers had been misplaced.

On the following day—July 27th, 1833—the Governor made a decree declaring the parties for whose benefit the petition was presented owners of the premises in fee, and designating the portion falling to each. The portion known as “ Santa Gertrudis ” was declared to belong to Josefa Cota, the widow of Antonio Maria. By the same decree the Governor directed that juridical possession be given to the respective parties, and that a copy of the decree be furnished to them to protect their rights until the title papers could be prepared. This decree is preceded by a recital of the considerations operating upon the mind of the Governor to make it. The translation of this portion, as given in the report in 7 Cal. 580 , is as follows: “Having seen the present petition, and having known from public notoriety the peaceable and undisturbed possession which has been enjoyed by Manuel Nieto and his heirs of the land described on the map; having seen the proceedings wherein was contained the grant of said land by his Excellency Governor Pedro Pages to the said Nieto, complying with every requisite deemed necessary, in strict conformity with the laws and regulations upon such subjects, under the considerations expressed therein, they are declared owners in fee simple.” This translation is inaccurate. As translated, the recital conveys the impression that the Governor had actually seen a grant from Pages, and was regarded by Mr. Chief Justice Murray, in his opinion, as containing a statement to that effect. *486 ( 7 Cal. 533 .) But the words translated by the terms “having seen,” in both instances where they occur, do not refer to any inspection of the petition and proceedings, but only mean that in consideration of them he acted, and might be properly translated by the terms “ in view of,” or “ considering ” them. And the word translated by the term “ grant ” does not necessarily import an absolute transfer of the land, as appears to have been considered in the opinion referred to. It should be translated by the term “ concession,” and is as applicable to the license under which the Court finds that Manuel Nieto entered as to a transfer of the title.

On the twenty-first of December following the Governor made a further decree, directing the execution of the titles, and the delivery of juridical possession; and on the twenty-second of May, 1834, issued grants to the different parties. The one issued to Josefa Cota recites that she had shown herself entitled to the estate of the deceased Manuel Nieto, and declares the ownership of the place called “ Santa Gertrudis ” to be in her, and directs that she be put in legal possession thereof. The grant is subject to the usual conditions of grants in colonization. It requires her to submit to the regulations made for the distribution of the vacant lands; it prohibits any alienation or division of the premises granted; it confers a right of possession; it requires the construction of a house within a year; it reserves any surplus over the designated quantity to the uses of the nation; and it subjects the right of the grantee to forfeiture upon non-compliance with the conditions annexed.

In March, 1835, juridical possession of the tract thus granted was delivered to the grantee, and from the time the grant was issued until December, 1843, she resided with her children upon the premises. In 1843, being in indigent circumstances, and unable to support her family, or maintain the possession of the property, she applied to the Alcalde of Los Angeles, who was then invested with the powers of a Judge of the Court of First Instance, to authorize a sale of the premises to the defendant. The Alcalde hesitated in regard to his authority, as the grant contained a condition in restraint of alienation, and consulted the Governor upon the subject. The grantee also applied to the Governor for an order for the sale. Thereupon the Governor directed the Alcalde to *487 authorize the grantee to make the sale; and also directed him, when there was a condition of non-alienation in a grant, to disregard the same in his official acts. Under this direction the Alcalde authorized the sale, acting in that respect and in making the sale, as Notary Public. The premises were accordingly conveyed to the defendant, in December, 1843, for a full and valuable consideration, and formal possession was delivered to him. The sale was made with the knowledge of the plaintiffs, and without any objection from them. At the time, the defendant had no notice of any title other than that derived from the grant of Figueroa, and from the date of his purchase he continued to possess and enjoy the premises without disturbance by any one, and until the institution of the present action, in January, 1853, without the assertion of any adverse title. During this period he made valuable improvements upon the property. In 1847 Josefa Cota died.

Upon these facts the plaintiffs seek to recover, and they rely:

In considering these positions we do not feel any embarrassment from the views expressed by the Court when the case was here at the April Term of 1857. The whole stress of the opinion of the Chief Justice rests upon an inaccurate translation of the decree of July 27th, 1833. “ The findings of the Court below,” says the Chief Justice, "that Manuel Nieto, the ancestor of the plaintiffs, entered into possession by virtue of a permission or license from the Spanish Government to graze his cattle thereon, and not under a deed or grant, is undoubtedly correct, if drawn alone from the parol evidence adduced to rebut the presumption of a grant, which *488 would arise from his ancient possession and occupation, for the presumption of a grant arising from these circumstances, like any other presumption, may be rebutted by proof. The finding of the Court, however, in the present case, as we think, was against the legal effect of the decree of July 27th, 1833, which expressly recites that the land in question had been granted to Nieto, and that he (the Governor) had seen the proceedings wherein was contained the grant of said land by his Excellency Governor Pedro Pages. Admitting, for the sake of the argument, Nieto never had any title to the land in dispute, except a mere permission to occupy—in other words, that he was a mere tenant at will of the Spanish crown—still it cannot he denied that even if the fee was in the Government of Mexico, at the date of this decree, she would be estopped from denying the title of Manuel Nieto and his heirs. In other words, whether the land belonged to Mexico or not, Figueroa, as the political chief of the territory, had the authority to bind the Government by his acts or admissions in relation to the public lands, and having by a solemn decree declared the title of said lands was originally in Manuel Nieto, the Government was estopped from denying such admission or regranting the premises to another.”

This extract shows that the Court, relying upon the correctness of the translation, held that a declaration of the Governor that the property had been absolutely granted to another, and that he had seen the grant of the property,, operated as an estoppel against a subsequent denial of the alleged fact by the Government. But as it appears from an inspection of the original document no such fact was in truth averred, the ruling based thereon can have no application in the determination of the case as now presented. We admit that a previous ruling of the Appellate Court upon a point directly made is, as to all subsequent proceedings, a final adjudication, from the consequences of which the Court cannot depart, nor the parties relieve themselves. (Phelan v. San Francisco, 20 Cal. 39 .) But such ruling, if relating to a matter of fact, can only be invoked when the fact reappears under the same circumstances in which it was orignally presented. The document now before us neither reads nor means the same thing as when examined by the Court on the first appeal. We proceed, then, to the consideration of the propositions presented by the plaintiffs.

*489 1. They insist that the long uninterrupted possession of them ancestors—that of their grandfather, Manuel Nieto, from 1784 to 1804, a period of twenty years; and that of their father, Antonio Maria Nieto, from 1804 until his death in 1832, a period of twenty-eight years—raises a presumption of title sufficient to maintain the present action. To this position there is a perfect answer. Presumptions are only indulged to supply the absence of facts. There can be no presumptions against ascertained and established facts. Here the original entry and subsequent occupation of Manuel Nieto were under a mere permission to graze cattle, and not under any grant of title, and his children continued the occupation under the same permission. This is clear from the evidence, and is found as a fact by the Court. The presumption, therefore, of a grant from the long possession, is repelled and destroyed by the production or proof of the contents of the instrument under which the possession was held. The children, it is true, of Manuel Nieto, claimed after his death to be the owners of the premises ; but the assertion of this claim only shows an erroneous impression on them part of the rights conferred by the permission to their father. The fact found is that they occupied under the permission. The claim asserted arose, therefore, from a mistaken construction of the effect of the permission in transferring the title.

Nor could any title accrue by prescription to the ancestors of the plaintiffs from their occupation under the permission in question. Under the Spanish law, where title by prescription is founded upon possession under a written instrument, it is essential that the instrument should purport on its face to pass the title. “ There is a good deal of confusion,” says the Supreme Court of Louisiana, “ and some apparent contradiction in the books which treat of the title necessary to form the basis of the prescription longi temporis. The correct doctrine, we think, is this: that if the title, under which the acquisition is made, be null in itself, from defect of form, or discloses facts which show the person from whom it is acquired has no title, it cannot form the basis of this prescription, because the party acquiring must be presumed to know the law, and consequently wants the animo domini, which is indispensable in cases of this land. But where the title is free from these defects, and the *490 property is not transferred, by want of title in the party making the transfer, then it forms a good ground for the prescription; or, in other words, the inquiry is, whether the error be one of fact or of law.” (Frique v. Hopkins, 4 Martin’s N S. 224.). The ordinary requirements of prescription, according to the Spanish law, are four: 1st, just title; 2d, good faith; 3d, continued possession; 4th, the time fixed by law. “ By just title,” says Sala, “ which is also called colorable title, we understand anything which, if it issue from the lord of the thing, may transfer the dominion; that is to say, sale, exchange, donation, institution of heir, and others, are just; but deposit, lease, loan, are unjust; because, although they issue from the true lord, the latter did not by them propose to transfer the dominion.” (Sala Mexicano, 2, p. 76.)

A similar rule prevails at the common law, where an adverse possession under a written instrument is asserted. Instruments which on their face do not purport to transfer the title, as leases, cannot be the foundation of an adverse possession. Contracts to convey, where the consideration has been paid, and which equity would specifically enforce, constitute perhaps an exception. (Fromb ois v. Jackson, 8 Cowen, 589.) The possession of an occupant is, in the first instance, presumed to be rightful and adverse to any other claimant. But “ the presumption which the law thus raises in favor of the actual occupant,” says one of the Senators in his concurring opinion in the case cited, “ may be destroyed by proof of his having a lease or evidence of his having paid rent, or acknowledged the title set up; or it may be destroyed by showing that the occupant entered without pretending to any claim of right whatever ; in which case the law adjudges the possession to be in subservience to the legal owner, ( 16 John. 301 ) for he can derive no benefit from a legal presumption, who, by his own acts, shows that the presumption cannot apply; the fact that no claim of right was made showing that none existed.” (8 Cowen, 617.)

To establish a prescriptive title under the Spanish law, or to constitute a foundation for adverse possession at the common law, the instrument under which the occupant entered and claims the premises must purport in its terms to transfer the title—must be such as would, in fact, pass the title had it been executed by the *491 true owner and in proper form, (with the exception, perhaps, of a contract to convey after payment of the consideration) and the occupant must have entered under it in good faith, in the belief that he had a good right to the premises, and with the intention to hold them against the whole world. The possession must have been adverse in its inception and during its continuance.

2. There is nothing in the averments of the petition of Grijalba which can estop upon Josefa Cota, or the defendant claiming under her, from denying that the title to the premises was originally in Manuel Nieto, and afterwards in his children. It does not appear that Grijalba was authorized to act for Josefa. He does not profess to thus act, nor is it shown that she had ever seen the petition to the Governor, or knew of its contents. But even if the facts were otherwise, and she had seen the petition and knew its contents, we do not perceive that any estoppel would be created against her. The petition is no part of the grant. It is only the declaration of the party who made it, or of the party by whose authority it _was made. Like any other declaration, it is open to explanation. The grant is the operative instrument, and the representations made to the Governor cannot control the course or nature of the title. If those representations were in truth erroneous, and the mistake in them affected the grant in any respect, the fact could only be made available by the Government. But the truth is, the averments of the petition are to be considered, like the claim of ownership made by the children of Manuel Nieto after his death, in connection with the established fact, that the children occupied raider the permission granted to their father; and thus considered, the averments are only the erroneous conclusions of Grijalba as to the legal effect of the permission in transferring the title. Such erroneous conclusions may very well have been drawn by him, as the nature and character of the permission could only be stated from recollection, the original paper having been lost. The “ testimonial ” furnished of the evidence found in the archives in reference to the alleged ancient title, appears, from the petition, to have been only sufficient to prove the legality of the occupation of the premises. It could not have shown a transfer of the fee of the property, for, in that event, it is not to be supposed that any new or further grant would have been sought.

*492 The recital in the decree of July 27th, 1833, made upon this petition, when correctly translated, is entirely consistent with the fact that a mere provisional license to occupy and graze had been issued by Governor Pages. The term translated “ grant ” would, as we have already stated, be more correctly rendered “ concession.” And the provisional permission to Manuel Nieto was as strictly a concession as would have been an absolute grant. This concession and the long occupation of the parties may very well have induced Governor Figueroa to vest in them the title. His power under the colonization laws and regulations authorized him to cede the land if the title still remained in the Government. He knew, or might have known, whether it did thus remain. He assumed that it did and acted accordingly, and declared the parties owners of different parcels of the premises, pursuant to a verbal partition made between them, and directed juridical possession to be delivered to them. It is, certainly, as counsel very justly observe, a fair presumption that the Governor understood the laws he was administering and the jurisdiction he had over the premises, and a very violent presumption that he would declare the ownership of particular lands to be in Josefa Cota when the title was already vested in others, and he had no power or disposition over it. We agree with counsel that the more reasonable presumption is that he knew and intended to recite the consistent truth.

The recital in the grant to Josefa Cota, that she had shown herself entitled to the estate of the deceased Manuel Nieto, does not show that any title had previously been issued to him. The estate to which reference is thus made was only the interest which Nieto had acquired by his Ecense to occupy. Whatever rights that gave, Josefa, according to the recital, had shown herself entitled to. The recital operates in aH its particulars, if at aU, and not merely in some of them. If it estop the grantee from denying a previous title in Manuel Nieto, it equaHy shows that she had in some way become invested with such title, whatever it may have been.

3. There is nothing in the operative words of the grant to Josefa Cota which show that the grant was issued in confirmation of a previously existing title in the hens of Nieto, and not as a concession *493 of a title existing at the time in the Government. The words used “ declaring to her the ownership ” of the premises, when taken in connection with other parts of the instrument, clearly show a transfer of the property. A similar position to that of the plaintiffs’ counsel was taken before the Board of Land Commissioners when the grant was under consideration by that tribunal, and it was held untenable. “ The grant,” says the opinion of the Commissioners, “ in its terms is totally inconsistent with such a supposition. If he (the Governor) regarded the title of these heirs already perfect in the land, how could he annex the conditions which this grant contains ? How could he declare a title already perfect forfeited, if a house was not built upon the place within a year ? How make a compliance with the terms of a future colonization law a condition of the holding of that estate ? If he regarded this title as already perfect, the heirs already invested with an indefeasible estate under the former grant, one which withdrew the land from his authority, under his power to grant the national domain, he could no more annex conditions to that title, and declare it null if they were not performed, than he could abolish the title altogether and unconditionally. The truth is, that the whole record shows that he did not regard the rights of the parties under any concession made by Pages as establishing private ownership and title in them, and making a new grant both unnecessary and without validity. Instead of showing an admission of Governor Pigueroa of such prior title, under the grant from Pages, it presents conclusive evidence that he regarded such a grant, whatever it was, as having no such effect, but on the contrary he proceeded to make a concession of the premises, on the principles and under the conditions provided in the law of 1824, and the regulations of 1828, from which he derived his power over the subject.

“ The concessions under the Spanish authority, made in the Californias before the independence of Mexico, do not purport to be perfect titles; at least none of that character have fallen under the notice of this Commission. One only has received confirmation, and that on the ground that an equitable, though not a legal title, was established. The old grants were generally mere rights of possession or provisional grants, and in almost every case, when the *494 Government was established after the Mexican revolution, the parties applied for new grants, which they received, not as a mere evidence of a former subsisting title, but in the form, and under the terms, and subject to the conditions imposed by the law of 1824 and the regulations of 1828. Under these, the power of the Governors over the public domain was defined. It was a power to grant under certain conditions, not a power to recognize and give new evidences of private titles already existing, without conditions or limitations. He had entire discretion as to choice of grantees, and this power enabled him to do most ample justice to persons who. held under provisional grants previously issued, or who occupied without a shadow of title, or the right to the possession. All these presented themselves to the new authorities for concessions under the new order of things, and usually received grants for the ancient possession. The archives of this Commission are full of such documents, and the custom was all but universal.”

The views we have thus expressed dispose of the case on the part of the plaintiffs, and render it unnecessary to consider the numerous objections urged to a recovery by the defendant. The title vested in Josefa Cota by the grant to her. The motives which induced the action of the Governor do not affect the title. As counsel observe, the title lies in the grant and not in the motives.

The Governor had authority to remove the restraint upon the alienation of the premises contained in the first condition of the grant, and the subsequent sale of the grantee to the defendant passed the title to him absolutely.