Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.

The plaintiff alleged in his complaint, that in 1845 the Mexican nation granted to Juan Uepomoceno Padilla a tract of land in -the Department of-Upper California, in what is now the County of Sonoma, called in the grant the Pancho Poblar de la Miseria, and that the grant belonged to the class called inchoate- or imperfect grants, in this, that judicial possession was not -given, nor was the grant segregated from the national domain until January 18th, 1858, when the same was "segregated from the public domain of the United States, and the extent thereof for the first time ascertained, by" a survey thereof by the United States, after a confirmation of the grant made in 1856. That, on the 1st day of April, 1850, the defendants, claiming to own the said rancho, sold the same to Daniel Wright and others, whose names' are given, and executed a deed, in which they covenanted that the rancho contained four square leagues of land. That Wright and the other grantees had sold and conveyed the land to the plaintiffs, who, by virtue of the conveyances, had succeeded to the covenant, and were entitled to enforce the same. That, when the rancho was segregated from the public domain by the United States, it was for the first time ascertained, and the fact was and is, that it did not contain four square leagues, but only sixteen thousand eight hundred and eighty-seven and forty-five one hundredths acres, thereby falling short of the amount covenanted eight hundred and sixty-four and fifty-five one hundredths acres, and that the value of the land was fifteen dollars per acre. Judgment was asked for the breach.. The suit was commenced September 16th, 1871. The Court below sustained the demurrer to the complaint, and the plaintiffs’ declining to amend, final judgment was rendered for the defendants. The plaintiffs appealed.

The other facts are stated in the opinion.