¶1The defendant relies upon a deed executed by the Board of. Land Commissioners, by virtue of an act passed May 18th, 1853. At the time when Leavenworth made the grant to Parker, the pueblo of San Francisco had no title whatever to the water property: it belonged to the United States, who held it in trust for any new State that might be erected out of said territory, and passed to the State of California on her admission, by virtue of her sovereignty. The grant was therefore a nullity. On the twenty-sixth of March, 1851, the Legislature passed an act grant*296ing to the city of San Francisco, for the term of ninety-nine years, certain property known as the beach and water-lot property, of which this is a part. The acvt contained a reservation, in favor of-those claimJog tinder alcalde grants and city sales. Such titles were confirmed to the then holders, provided such conveyances were registered or recorded in some book of record on or before the third of April, 1850, which book was in the possession and under the control of the recorder of- San Francisco, at the date of the passage of the act.
¶2There is no evidence that the grant to Parker was ever so recorded. A copy of the petition and grant was admitted in evidence, certified by John E. Addison, county clerk, on the seventh of June, 1850, to be a correct copy of the original record at that time in his office. •
¶3The law requires, that the grant should be recorded in a book in the recorder’s office, or a book kept by and under the control of the recorder, and not of the county clerk. But even if there were some mistake about this, the certificate does not state that such grant was of record on the third of April, 1850.'
¶4It may very well be, that the original grant Was on the record in the county clerk’s office, at the date of the certificate, and still not recorded at the time and in the mode pointed out by the statute. The plaintiff having failed to make out a title under the Water-Lot Act, is driven to his prior possession, which is sufficiently established to enable him to recover, unless the deed executed to defendant, by the San Francisco Land Commissioners should be held valid. ■ ■
¶5The Water-Lot Act, gives to the city all the lands within certain boundaries, except such as have been granted or sold in a certain Manner. The grant of the lot in question, not having been recorded as required, it necessarily follows that it passed to the city, and that the Commissioners had no power to sell any other than the reversionary interest of the State.
¶6It is urged, that the testimony shows that the defendant's tenant is in possession of a part of the property, and that he should have been joined. The record discloses the fact, that the defendant was in possession of the entire property at the commencement of the suit; even if he was not, the objection comes too late, after having come in and defended, he cannot-complain of the judgment. Whether his tenant can be dispossessed without having been made a party, is a question with which he has no concern. •
¶7The Court below had a perfect right to require the plaintiff to remit a portion of the damages. It has been repeatedly held, that.this power was within the discretion of the Court; and its exercise has been encouraged.
¶8Judgment affirmed.