1. In a California land case, the production of a fraudulent and
false certificate of approval signed by the governor and secretary
who signed the grant and proved by the same witnesses in the same
way that the grant was proved, affords (in the absence of
explanatory evidence,) strong ground for believing all the title
papers to be fabricated.
2. Where the date of a grant has been altered while it was in
the hands of the claimants and is produced to the court without
evidence to show how the alteration came to be made, this Court
cannot confirm the title.
3. The case of
United States v. West's Heirs reviewed,
the facts stated from the original record, and all its features
shown to be strikingly different from this case.
4. The fact that an espediente is found among those indexed by
Hartnell in 1847-1848 is no evidence that it was made at the time
of its date.
This was a land claim originating before the commission
appointed under the Act of March 3, 1851, and coming into this
Court by appeal from the decree of the District Court for the
Northern District of California.
The petition of John D. Galbraith, John Sime, Richard H. Sinton,
and David T. Bagley asserted their right to a tract of land
containing four square leagues in Sonoma, called the
Bolsa de
Tomales, bounded by lands of Juan Viojet, Bartolo Bojorques,
the Bay of Bodega and the creek (entre) of Tomales, under a
Page 67 U. S. 395
grant from the governor dated 12 June, 1846, to Juan N. Padilla,
whose title by sundry mesne conveyances became vested in the
petitioners.
The title papers consisted of 1. a petition for
four
square leagues, signed by Padilla, addressed to the governor and
dated at Monterey, May 14, 1846; 2. a marginal order of the
governor, dated Los Angelos, May 20, 1846, directing the Prefect of
the Second District "to report about the state of this land with
all the particulars concerning the same," and declaring that "when
the return is made the governor will resolve;" 3. a certificate of
the prefect (Manuel Castro) dated May 10, 1846, that Padilla had
made application for the land, that the espediente was in that
prefecture, and that the reports show the land to be vacant and
grantable; 4. a decree of concession dated June 12, 1846; 5. a
borrador of a grant for
five leagues, dated same
day; 6. the grant or
titulo alleged to be the original and
bearing the date of February 12, 1846, signed by Pio Pico as
governor, and attested by Moreno as Secretary; 7. a certificate
dated 14 June, 1846, and signed in the same way by Pico and Moreno,
that the grant had been confirmed by the departmental assembly.
The last two of these papers were produced by the claimants from
their private custody; the other five were brought from the
surveyor general's office, where they were found filed, arranged
and deposited in the form of an espediente with a class of
documents known as being comprised in Hartnell's Index. An account
of that Index will be found in
United States v. Knight's
Adm'rs, 1 Black 227.
Parol evidence was given by the claimants to prove the
handwriting of Padilla to the petition, of Castro to the informe,
of Pico to the order of reference, and of Pico and Moreno to the
grant and certificate of approval. Moreno, the Secretary, was
himself called, and he testified that the signatures to the grant
and to the certificate of approval were genuine and made at the
time those documents bear date. On cross-examination, he said that
the grant appearing to be dated on the 12th of February, he could
not have signed it then, for he was not in office until
Page 67 U. S. 396
afterwards, but he must undoubtedly have signed it before the
4th of May, and he was convinced that he did so.
The word
Febrero was plainly written as the date of the
original grant; all copies of it in the record have it so, and
every official translation gives February as the date. The
claimants themselves at first, recited it as of that date in their
petition. But it appeared from the remarks of the land commission
and otherwise that the date had been altered by writing
Febrero over some other word, probably
Junio. Of
this alteration no explanation was given to show when, how, or by
whom it was made. The paper did not appear ever to have been in any
custody but that of the claimants themselves or the persons from
and through whom the title was deduced.
The certificate of approval was shown not to be true by the
journals of the departmental assembly. It was made certain by these
records that no such grant as this to Padilla was ever laid before
that body. But there was no evidence in the case besides that of
Moreno to show whether the false certificate was actually made by
the governor and secretary or by some other person who
counterfeited their signatures.
Mr. Hopkins, clerk in the surveyor general's office and keeper
of the archives, was a witness in the cause and gave it as his
opinion that the espediente was genuine. His testimony proved that
this espediente was numbered 571 on Hartnell's Index, and that the
grants in numbers 569, 570, 572, and 573, as well as some others
indexed by Hartnell, were originally dated on days subsequent to
the conquest, and afterwards altered to other days before the
conquest. He regarded these latter grants as fraudulent.
Evidence was given of the occupancy and use of the land by the
claimants. It did not establish any clear, notorious or well
settled possession previous to the conquest or at any time soon
afterwards.
The Land Commission decreed the confirmation of the title with
strong expressions of reluctance and much doubt concerning its
honesty. That decree was affirmed by the district court from whence
it came up to this Court by appeal where
Page 67 U. S. 397
the decree of the district court was reversed and the cause
remitted with directions to take further evidence,
63
U. S. 22 How. 89. Much of the evidence referred to above
was taken after the cause went back.
The district court upon the whole evidence considered and
adjudged the claim to be well founded in law. The decree in
accordance with that opinion was brought to the Supreme Court on
this appeal by the United States.
Page 67 U. S. 401
MR. JUSTICE NELSON.
This is an appeal from a decree of the District Court of the
United States for the Northern District of California.
The case presents a California land claim filed before the board
of commissioners April 29, 1852, by the assignees of Juan N.
Padilla, to whom the original grant as alleged was made of a tract
of land containing five square leagues, 12th of June, 1846, situate
in the Department of Sonoma, and known by the name of "Balsa de
Tomales."
The claim was confirmed by the Commissioners, and on appeal by
the United States to the district court the decree was affirmed.
Afterwards an appeal was taken to this Court, where the decree of
the district court was reversed and the cause remitted to that
Court for further testimony. The case will be found reported in
63 U. S. 22 How.
89.
This Court, after referring to the grounds of objection to the
claim, namely the unsatisfactory proof of any possession or
occupation of the tract, the alteration of the date of the original
grant of the title in form, which was in the hands of the grantee
and his assigns, and the questionable character of the certificate
of approval by the departmental assembly produced by the
Page 67 U. S. 402
claimants, expressed the opinion that in consideration of the
doubtful character of the claim and entire want of any merits upon
the testimony, the decree below should be reversed and the case
remitted for further examination. Since then, much additional
evidence has been taken by both parties before the district court,
which court again affirmed the decree of the commissioners, and the
case is now here on an appeal from that decree.
The espediente produced before the commissioners and court below
contained the petition of Padilla, dated Monterey, 14th of May,
1846, the informe dated at Los Angelos, 20th of May, the
certificate of Manuel Castro that the land is vacant and grantable,
dated at Monterey, 10th of May, and the title in form dated at Los
Angelos, 12th of June following, the latter signed by Pio Pico, the
governor, and Jose Matias Moreno, secretary. A certificate of the
approval of the departmental assembly, signed by the same governor
and secretary, dated at Los Angelos, 14th of June, same year, was
also filed with the papers, together with the original grant which
had been delivered to the petitioner, Padilla. This instrument is
dated at Los Angelos, 12th of June, 1846, altered to 12th of
February of the same year.
The genuineness of the signatures of the governor and secretary
to these evidences of title is proved by several witnesses, and,
among them, by Moreno himself, the secretary. The fact upon the
proofs cannot well be denied, and if there was nothing else in the
case affecting the integrity of this title, we could concur with
the court below in confirming it. But two objections are taken to
these papers which in our judgment have not been satisfactorily met
or explained. The first is that the certificate of approval by the
departmental assembly is a fabrication. The records of that
Assembly, which are in good condition, prove the fact, and which is
admitted in the brief of the counsel for the claimants. It was also
so held by the court below. Now the signatures of the governor and
secretary to this certificate are proved to be genuine with the
same strength of evidence as they are to the document of the formal
title. Moreno
Page 67 U. S. 403
testifies with the same fullness to the signatures in the one
case as in the other. The fabrication of this certificate,
therefore, is not the work of a stranger or of a party interested,
but of these functionaries themselves. As their signatures to it
are genuine, these persons are necessarily implicated in the fraud,
as the certificate could not have been fabricated without their
participation. There is no escape from this conclusion. It might
have been met by proof that their signatures were forged. This
would have relieved them and the title from much of the suspicion
and doubtful character resting upon the title, though not entirely,
as the use of fraudulent papers by the claimant in support of a
claim cannot but excite apprehension and caution. But no attempt
was made to prove that these signatures were forged. On the
contrary, every witness called and examined in respect to them
testifies to their genuineness, and as we have seen, Morena himself
one of them.
This paper was regarded by the public authorities in California
as well as by the petitioners for a grant of a portion of the
public lands as very important in the perfection of the title. The
grant in form by the governor, in express terms, is made "subject
to the approval of the most excellent departmental assembly." Such
is the condition annexed, according to the law of 1824 and the
regulations of 1828. This Court has dispensed with the condition in
favor of these grants, which were in all other respects
unobjectionable.
This paper, therefore, thus fabricated by Pico and Moreno while
engaged in making the grant of the land in question to Padilla,
cannot but connect itself closely with all the other documentary
evidence of the title, especially that portion of it to which their
names were essential, namely, the grant of the title in form.
Of the documentary evidence of title, under the Mexican laws,
the approval of the departmental assembly was next in importance to
the grant itself. If it must be admitted that these functionaries
have been guilty of fabricating one of the documents to which their
names are attached in making out the grant, what assurance have we
from the mere fact of the
Page 67 U. S. 404
genuineness of their signatures that they have not fabricated
the other. Dates of time and place afford no protection, as these
can be fixed to the document at the will of the parties. This
certificate of approval bears date City of Los Angelos, 14th June,
1846. But these could be fixed to the paper, if fabricated, at any
time after it purports to bear date, as well as at the date itself.
So as it respects the time and place fixed to the document of the
formal title, which purports to have been made at the same place
and on the 12th June, 1846. If fabricated, like the certificate of
approval, the date or place affords no security of its genuineness.
We have no record to detect the fraud, if committed, in respect to
the title in form in this case as we have in many of these grants.
The usual memorandum is made at the foot of the grant by Moreno,
the secretary, as follows: "A note has been taken of this dispatch
of the supreme government in the appropriate book."
Now if a note of this grant had been found in the book of
records, the Tomada razon, as it is called, of this date, as is
certified by the secretary, it would have been entitled to great
weight in relieving the title of much of the suspicion resting upon
it. The counsel for the claimants insist that the proof furnished
on this point, under the circumstances and condition of the country
at the time, should be regarded as equivalent. The Mexican records
of these grants which were at the City of Los Angelos in August,
1846, were placed by the governor in the keeping of one Vignes in
boxes a short time before he fled from that place, which was on the
10th of that month. These archives came into the custody of Colonel
Fremont, and were carried to Sutter's fort, and kept there till
1847, when they were removed to Monterey, and were placed in the
charge of Mr. Hartnell, who made an index of the espedientes found
among the archives but not noted in any book. This grant to Padilla
was found among them and indexed by Hartnell. Now the argument is
that it must have been among the Mexican archives in the possession
of Pico at the time he placed them in the hands of Vignes when he
left the City of Los Angelos. This may be so. But, Pico, Moreno, M.
Castro, and Padilla, whose names are connected with
Page 67 U. S. 405
the grant, were at the City of Los Angelos from the 22d of July
till the 10th of August, when they fled, within which time this
grant could have been made and placed among the archives, and
during which time the governor had no authority to make any grant.
This government was in possession of the country as early as the
7th of July, 1846. It will be seen, therefore, that the fact of
finding the espediente among the Mexican grants in the hands of
Hartnell affords no evidence that it must have been made at its
date. We agree, if it was not connected with the other document of
title, an admitted fabrication, committed, if we believe the date,
two days after the date of the grant, the above facts would be
entitled to consideration. But as we have seen, the fabrication of
the grant was as practicable by these parties as that of the
certificate of approval consistently with the fact of the deposit
of the espediente among the archives at Los Angelos before their
removal to Sutter's fort.
It is worthy of remark in this connection that the certificate
of approval and the title in form both came from the hands of the
claimants, and of course both had been delivered by the governor
and secretary to Padilla, the grantee. They were filed before the
board of commissioners on the 28th March, 1853, and no explanation
in respect to the certificate was given or attempted, either before
the board or the court below.
The next objection to the documentary evidence of title is the
alteration of the date of the title in form from 12 June, 1846, to
the 12th February preceding -- the word "February" over the word
"June." The only attempt to explain this alteration is found in the
testimony of Danglada, a witness for the claimants. He testified
before the district court that the papers were delivered to him by
Padilla in the month of December, 1850, for the purpose of making a
sale of the lands. That at this time they had been mortgaged by
Luco, the owner, to Padilla, and both were interested in the sale.
The witness acted as the agent of both. On his examination in
chief, he testified that the date of the paper was not altered when
it came into his hands nor while in them, and that the alteration
must have been made afterwards. But on cross-examination, his
attention was called to a deed
Page 67 U. S. 406
executed on the 1st March, 1852, by him, as attorney for others,
of this tract, in which is recited the grant by Pico to Padilla as
of the date of 12 February, 1846, and he was asked to explain this
date, when he was obliged to admit that he might be mistaken. This
is all the explanation that has been offered.
The case of the
United States v. West's
Heirs, 22 How. 315, has been referred to as an
instance of the confirmation of a Mexican grant which was subject
to the imputation of a forgery in the alteration of the title in
form. The alteration consisted in enlarging the grant of one and a
half leagues to two and a half, "un sitio to dos sitios." The grant
was made to West in 1840. He had been in the possession and
occupation of the ranch from 1838 till 1849, when he died. Had made
extensive improvements in buildings and cultivation, among other
improvements a grist mill and cultivation of two hundred acres of
grain and vegetables, besides a stock of two hundred horses and two
thousand cattle. The case is not fully reported in 22 How., and the
above facts are obtained from the original record. The attorney
general admitted the grant when made was genuine and honest, and
that the only objection to it was the alteration. The papers, after
the death of West, came into the possession of the widow and were
necessarily entrusted to other hands for the purpose of procuring a
confirmation. There was no evidence tending to prove that the
alteration took place while in the hands of West, and taking the
admission of the government that the original grant was genuine and
honest, in connection with the possession and improvements, this
Court concurred with the court below in the confirmation of the
league and a half. The features of that case upon the evidence were
strikingly different from the present one.
There has been no possession or occupation in this case
deserving of notice in aid of the title, or as evidence of any
merit on the part of the grantee. Indeed, the weight of it is
decidedly against a possession beyond that in common with the
owners of other ranches in the neighborhood. The grant was made,
according to its date, only twenty-five days before the United
States took possession of the country. Padilla had a
Page 67 U. S. 407
previous grant of the ranch Roblar de la Miseria, in the same
neighborhood, made on the 25th November, 1845, only a few months
before the application for the one in question. Some of the
witnesses confounded the occupation of this tract for that of the
Balsa de Tomales. Another difficulty in the way of yielding our
assent to the integrity of this grant is that as early as the last
of May or the first of June, 1846, Padilla was at Sonoma or in that
neighborhood, some five hundred miles from Los Angelos, where this
grant purports to have been made. He was at the head of a party of
Californians in the disturbances which about that time broke out
between them and the American settlers, and was charged with having
participated in the murder of two of them. He fled about the middle
of the month to the south side of the bay of San Francisco and
joined the forces of Castro, the commander-in-chief of the
Californians, and, according to the evidence of Morena, the
secretary, he came down with Castro and met governor Pico and party
at Santa Marguentta, which was someone hundred and fifty miles
below Monterey. Castro and Pico united their forces and passed on
to Los Angelos, where they arrived on the 21st or 22d July, and
remained till 10th August, when they fled South. It is clear
Padilla could not have been at Los Angelos at the time the grant
purports to be dated, and ground for strong doubt as to his being
at Monterey May 14, at the date of the petition. All the parties to
these documents of title, Pico, Moreno, M. Castro, and Padilla,
were with the forces of Pico and General Castro at Los Angelos
during the nineteen or twenty days they remained at that place. It
was within their power to have made this grant while thus remaining
together, and, as it is admitted that the certificate of approval
of the departmental assembly was fabricated by two of them, we
cannot but distrust upon all the evidence that the espediente,
including all the papers relating to the title, was fabricated in
the same way and at the same time.
