<p>Appeal from the District Court, Twentieth Judicial District, County of Santa Clara.</p> <p>Ejectment to recover about five acres of land situate in the county of Santa Clara, near Alviso, and being a portion of the Mexican grant known as the “Embarcadero of Alviso,” made to Barselisa Bernal, by the Mexican nation, and confirmed to her by the United States, in 1857. In 1849, said Barselisa was the wife of John Martin, and on the 4th day of August she and her husband entered into an article of agreement, of which the following is a copy:</p> <p>. Know all Men by these Presents, that we, John Martin, Barselisa Bernal Martin, his wife, of" the District of San Jose, in Upper California, of the one part, and Jacob D. Hoppe and Charles B. Marvin, of the Pueblo San Jose, in the District of California aforesaid, of the other part, have and by these presents do enter into the following articles of agreement:</p> <p>Article First. The said Johh Martin and Barselisa B. Martin, his wife, have, for and in consideration of the sum of one dollar, to them in hand paid by the said Jacob D. Hoppe and Charles B. Marvin, the receipt whereof is hereby acknowledged, and for divers other considerations hereinafter mentioned, granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Jacob D. Hoppe and Charles B. Marvin, a certain piece or parcel of land situate in said district; beginning at an alder-tree, standing on the west bank of the river Guadalupe, at the western extremity of the first large bend of said river above the house of said Martin; thence in direction of two lone trees and the house of Inigo to the second large slough; thence to the north with said slough to the said river Guadalupe; thence with the meanderings of said river to the place of beginning; being part of the rancho of said Martin, granted to him by the Mexican government.</p> <p>Article Second. The said Hoppe and Marvin bind themselves, their heirs, executors, administrators and assigns, to lay out the said lands herein conveyed into town lots in such manner as they may deem expedient, as soon as shall be practicable, and to sell them at such time and price as they may deem best. They, the said Hoppe and Marvin, to be at all the expense of laying out said town, making sales, executing deeds, etc., and bind themselves to pay unto the said John Martin one-half of the amount for which said lots were actually sold.</p> <p>Article Third. The said John Martin binds himself, his heirs, executors, administrators and assigns, that he will not sell any land from his farm, or in any way dispose of any part thereof in such manner as to injure the progress of the intended town site herein conveyed.</p> <p>Article Fourth. It is agreed that each of the said parties to these presents, the said John Martin and wife for themselves, and the said Hoppe and Marvin for themselves, shall have the choice of one of the said lots when so laid out in said town, to be held to them and to their heirs and assigns respectively.</p> <p>Article Fifth. It is agreed that the said Hoppe and Marvin have the exclusive right to control, to bargain and convey said town lots in such manner as they may deem best for the progress of the town.</p> <p>To all the foregoing articles we severally bind ourselves, our heirs and assigns, this fourth day of August, 1849.</p> <p>John Martin. [l. s.]</p> <p>her</p> <p>Barselisa Bernal X Martin. [l. s.]</p> <p>mark.</p> <p>J. D. Hoppe. [l. s.]</p> <p>Charles B. Marvin, [l. s.]</p> <p>Sealed and delivered in presence of</p> <p>Antonio M. Pico,</p> <p>Alcalde.</p> <p>A. F. De Sataod.</p> <p>The agreementwas acknowledged before a notary, but the wife’s acknowledgment was not taken separate and apart from that of her husband.</p> <p>Alviso is situated at the head of the Bay of San Francisco, about forty miles south of San Francisco, and it was supposed at that time that it might become a large city. No consideration passed from Hoppe and Marvin to Martin and his wife. In December, 1849, the parties entered into the following agreement with Peter H. Burnett:</p> <p>This Indenture, made and entered into this 1st day of December, in the year of our Lord, eighteen hundred and forty-nine, by and between John Martin and Barselisa Bernal Martin, his wife, of the first part, and Jacob D. Hoppe and Charles B. Marvin of the second part, and Peter H. Burnett of the third part, witnesseth: That whereas, on the fourth day of August, A. D. 1849, certain articles of agreement were made and entered into between the said Martin and wife of the one part, and the said Hoppe and Marvin of the other part, in which said articles of agreement certain things were stipulated by the parties respectively, which will more fully appear, reference being had to said articles of agreement, which are hereby expressly made a part of this instrument; and whereas the said Marvin, for the cause of bad health as well as for certain valuable consideration paid to him by said Burnett, has agreed, by consent of all parties, to substitute the said Burnett in his place and stead. Now, therefore, it is agreed by all the parties to this instrument, that the said Burnett shall be substituted in the place and stead of the said Charles B. Marvin, to do and perform all the stipulations of said agreement not yet performed in reference to the lots not yet sold or deeded, and the said Burnett binds himself to do and perform all the acts that the said articles of agreement require said Marvin yet to do and perform. And it is also agreed by all the parties to this instrument, that, in pursuance of the fourth article %f said articles of agreement, that the said Hoppe and Marvin shall have lot number seven (7) in block number twenty-five for their private use as laid down and prescribed in the plat of the town of Alviso, drawn by C. S. Lyman.</p> <p>In witness whereof, we have hereunto- set our hands-and seals the day and year first aforesaid.</p> <p>John Martin. [l. s.]</p> <p>A ruego de Baselisa Bernal Martin por no saber firmar.</p> <p>Baselisa Bernal Martin, [l. s.]</p> <p>Per J. 0. Conbox.</p> <p>J. D. Hoppe. [l. s.]</p> <p>Chas. B. Marvin. [l. s.]</p> <p>Peter H. Burnett. [l. s.]</p> <p>The above was acknowledged by the husband alone.</p> <p>The first Legislature of California commenced its session on the 15th day of December, 1849, so that the Mexican law was in force when the contracts were made.</p> <p>The defendant, in her answer, set up an equitable defense, based on the foregoing agreements and the facts, and also denied the allegations of the complaint.</p> <p>Both the foregoing contracts were acknowledged and recorded. Burnett and Hoppe surveyed the land into lots, and laid out streets and squares and made maps of the same, and Burnett expended large sums of money in his efforts to have a city built on the land, but these efforts were futile. Hoppe died in April, 1853, and, after Burnett’s substitution, he continued to claim the land under the agreement, making contracts for the same and paying taxes thereon. John Martin died in 1851, and Barselisa, his widow, married George Frazer in 1855. On the 13th day of April, 1867, Frazer and his wife executed a deed of the demanded premises to the defendant Pine, for the consideration of twenty-five dollars per acre. The plaintiff, Gallagher, claimed under a conveyance from Burnett, made for a valuable consideration. This suit was commenced April 19, 1872. The plaintiff recovered judgment, and the defendant appealed.</p>
