United States v. Neleigh
66 U.S. 298

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U.S. Supreme Court

United States v. Neleigh, 66 U.S. 1 Black 298 298 (1861)

United States v. Neleigh

66 U.S. (1 Black) 298

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Syllabus

1. A paper purporting to be a grant of land in California first produced from the custody of a claimant after the war, and unsustained by any record evidence, will not be held valid by this Court.

2. Evidence of the destruction of archives during the war does not avail the holder of such a naked grant unless he can show where and how the specific papers necessary to complete his title were lost or destroyed.

3. The Court again affirms the doctrine that the testimony of Mexican officials cannot be received to supply or contradict the public records.

4. The theory of claimants has been that the want of archive evidence should be excused on the ground that many of the records were lost or destroyed, but the records of the Mexican government in California being found in tolerable preservation, and the most enormous frauds having been attempted on the assumption that this theory would account for their nonproduction, the Court has been compelled to reject it as altogether fabulous.

5. A grant not recorded, and for which no espediente is found, and which is not among the forty-five sent in to the departmental assembly and confirmed on the 8th of June, 1846, cannot be believed genuine on the testimony of a Mexican secretary who swears that he signed and delivered it.

The appellee in this case claimed under the title of Jose Castro, which was rejected by the Supreme Court at December

Page 66 U. S. 299

Term, 1860, 65 U. S. 24 How. 347. Neleigh and one McKenzie purchased from Castro in 1849 six of the eleven leagues covered by his title, "to be selected whenever the same shall be located by the proper authority." McKenzie died soon after the purchase, and Neleigh, by a conveyance from his widow, under a power in his will, became possessed of his interest in the land. He presented his petition to the land commission in September, 1852, asking a confirmation of title to his six leagues, and in March, 1853, Castro petitioned in his own name for a confirmation of the remaining five. The reasons for the rejection of Castro's title, which reached the Supreme Court first, are set forth very fully in the opinion of the Court delivered in that case by MR. CHIEF JUSTICE TANEY. Neleigh's claim, after an adverse judgment in the land commission, was confirmed by the district court in October, 1859. From this decree the United States appealed.

No new title papers were offered. The claim rested in this case, as in that of Castro, upon the naked grant produced from the custody of the claimant. But much additional parol testimony was taken, by which it was sought to distinguish the new case from the old. Four new witnesses, including Pico and Moreno, whose signatures were appended to the grant, were called to prove its genuineness. Some additional evidence of occupation was offered, and the testimony of Col. Fremont introduced to show that he had lost a portion of the archives in the mountains of San Juan -- among them papers relating to a title to Gen. Castro. A witness was called to show that there was but one Gen. Castro in California in 1846, thereby connecting the lost papers with the title of the present claimant. On the part of the United States, no evidence was added to that offered in the case of Jose Castro.

Page 66 U. S. 305

MR. JUSTICE GRIER.

Neleigh filed his claim before the board of land commissioners on the 3d of September, 1852. It was for six leagues of land in Mariposa County, being part of eleven leagues said to have been granted to Lieut. Col. Jose Castro by Pio Pico, late Governor, on the 4th of April, 1846. The deed from Castro, dated 8th of June, 1849, purported to convey to Bernard McKenzie and Robert Neleigh six of the eleven leagues, "to be taken where the grantees might select." McKenzie's interest was afterwards vested in his co-tenant by a conveyance from his administratrix. The commissioners confirmed the claim. But as the grant to Castro had never been surveyed or located, and, like that to Fremont was vague and uncertain as to its boundary, it might be located on either or both sides of the San Joaquin River. Their decree therefore did not ascertain what land was confirmed, but ordered that it be "selected by the said petitioner from the said eleven leagues when the same shall be located by the proper authority." This decision of the board was affirmed by the district court in October, 1859.

In the meantime, Jose Castro, in March, 1853, filed his claim for the eleven leagues "for the benefit of himself and those claiming under him." That case came before this Court at last term, and may be found reported in 65 U. S. 24 How. 347. It was rejected by this Court for the reason there given, and which need not be repeated. Nor need we inquire of what use the affirmation of the decree of the district court would be to Neleigh of a right to select six leagues out of eleven, which, by judgment of this Court, never can be surveyed or located. For the purposes of the present case also we will assume that as Neleigh was not a party on record in the former case, he is not concluded by the judgment given in it, and inquire whether he has furnished any new evidence which, if it had been found in the record of the Castro case, would have led us to a different conclusion. Now it must be kept in remembrance that the grant to Castro was not rejected because

Page 66 U. S. 306

it was not signed by the persons whose names are affixed to it. It is a historical fact, and proved by satisfactory evidence more than once, that after that country passed into the possession of the United States, the late governor was very liberal in executing grants to any person who desired them and for any quantity of land. It was easy to prove his signatures, and Pio Pico himself, when called as a witness, could never recollect anything about the date, which was the only material question in the inquiry as to its validity. Of the last two secretaries who attested these grants, one has been found capable not only of writing false grants but of supporting them by his oath. Of the other we have been compelled to say that he was following in the footsteps of his predecessor.

It is well known that espedientes and records of the grants made in Pico's time were carefully put away by him in boxes, which came into the possession of Col. Fremont, and were delivered to the public officers. These espedientes are all found safe among the records, but the "toma de razon," or short record of them, has disappeared. Hence, when a grant is produced for the first time from the pocket of the claimant, and is attempted to be established by proof of the signatures of the Governor and Secretary, the want of an espediente or archive evidence is expected to be excused by the proof that some papers were lost and torn when they were carried away on mules by Col. Fremont, or used "as cartridge paper," according to Pio Pico's theory. The enormous frauds which have been attempted to be perpetrated, depending on this theory of the destruction of records, have compelled us to reject it altogether as fabulous. These archives have been collected, and are found in a very tolerable state of preservation. Hence the propositions laid down in the Castro case and others preceding it were an absolute necessity to save the government from utter spoliation of its territory.

It would be superfluous to repeat the principles laid down in the Castro case. It is sufficient to say that the additional testimony in this case does not relieve it from its deficiencies there stated. The testimony of Colonel Fremont of having seen some paper concerning a grant to Castro does not prove

Page 66 U. S. 307

the existence of this grant, which was not the only property claimed by Castro in California. The testimony of the late governor adds nothing to the evidence. He, as usual, acknowledges the genuineness of his signature, which was not disputed, but as to the important question whether it was made before or after his expulsion by the Americans he is entirely silent. He could not remember historical facts connected with his administration; that at the date of this grant, he was at bitter feud with Castro, who had seized upon the custom house at Monterey and set the governor at defiance, and that the governor was preparing troops, at this time, to compel his submission. The declaration of the witness that he should nevertheless as soon make a grant to Castro as to any other is no doubt true if it refers to the true date of the transaction, after they had both been superseded and deposed by the Americans. Nor does it add anything to the value of this testimony that the witness explains that by want of recollection he means his unwillingness to state the truth.

Moreno, who is always a more willing witness and who labors under no want of memory or imagination, is brought to supply this want of record proof, and accounts for his signature to the grant being dated when he was not Secretary. He swears that he signed it after its date, in the beginning of May, but whether it was May, 1846, 1847, or 1848, he does not state directly, but leaves it to inference that he meant 1846.

But if we were in any doubt as to the credibility of the testimony of this witness, there are other facts established which demonstrate that if he had stated explicitly that he signed this grant and recorded it in May, 1846, the assertion would have been untrue.

On the 4th of April, 1846, the date of this grant, it is a fact not only that Moreno was not Secretary, but that Pio Pico was not governor. He first presented his appointment as governor to the assembly, on the 15th of April, 1846, and was inaugurated on the 18th. The first grant made by him in which he is styled governor is that to Pedro Sansevaine, dated the 21st of April. In all his previous grants, he is styled "First Vocal and Governor ad interim." This deed was evidently written

Page 66 U. S. 308

so long after that this fact had escaped the recollection of the parties signing it. In the beginning of May, 1846, it was becoming apparent to all concerned that the power of the governor and the assembly would soon pass away. Pio Pico therefore prudently gathered up the grants of land which had not been previously laid before the departmental assembly for their approval. He accordingly, on the 3d of June, 1846, sent in to them no less than forty-five espedientes. One of these was made in 1839. The others were all dated in 1845 and 1846, the last three on the 2d and 3d of May, 1846. Fortunately, we have the minutes of the assembly, by which it appears that these forty-five espedientes were reported and confirmed on the 8th of June, 1846. This grant to Castro does not appear among them, and is left to the uncertain testimony of Moreno to establish its existence, and we are asked to presume that it alone was kept back from the assembly and that while all the other genuine grants confirmed by them are found among the archives in good order, this alone was converted into "cartridge paper." All these presumptions must be made on the faith of these witnesses, whose testimony we have heretofore declared could not be received to contradict or supply record evidence.

In the former case, this grant to Castro was rejected for the negative reason that there was not the evidence required to prove it genuine. The testimony in the present case has proved it positively spurious.

Let the decree of the district court be reversed.

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