The testimonio granted to Cerilo de Morant, September 22, 1817,
was full and particular, and both that and the testimonio to Quina,
dated May 1, 1818, made complete titles under the Spanish laws.
In Florida a sheriff's deed given in evidence without production
of the judgment or execution, and read without objection, is
sufficient evidence of sale by sheriff.
The objection to the claimant's title that no evidence was given
of cultivation, as required by the Spanish grant, is not well
founded, as the proof is conclusive that the grantees built houses
and resided on the granted land shortly after the date of the
grants.
Whatever may be the proper construction of the 8th article of
the Treaty of 1819 with Spain as to the necessity of a survey prior
to the date when the obligation to recognize Spanish grants ceased
in order to validate a Spanish grant, the Act of June 22, 1860, 12
Stat. 85, under authority of which this suit was commenced, makes
the date of the transfer of possession to the United States,
viz., July, 1822, the point from which to test the
validity of the grants.
The Act of Jane 22, 1860, 12 Stat. 85, was passed to give relief
to a large class of grantees of former Spanish governments whose
claims had been rejected by the different boards of commissioners,
and by the courts, under the strict construction of the treaties
required by prior laws.
This case does not come within the proviso in § 3 of the Act of
June 22, 1860, excluding claims from the jurisdiction of the
commission.
There is no reason why a part owner of lands in Florida under a
Spanish grant should not have the benefit of the proceedings
authorized by the Act of June 22, 1860, 12 Stat. 85.
The failure to annex a sworn copy of the government surveys to a
petition for confirmation of title filed under the Act of June 22,
1860, 12 Stat. 85, is not a question of jurisdiction, but a matter
relating merely to the form of procedure, which should be objected
to when the pleadings are
in fieri and when the
petitioners can apply for leave to amend.
The evidence in this case shows that the grants were genuine and
that the land was surveyed, mapped, and segregated from the public
domain in the spring of 1818.
In affirming the decree below, this Court merely confirms the
validity of the grant, but does not give a decision which entitles
the party to possession if the government has sold the lands in
whole or in part, or if the surveyor general shall ascertain that
they cannot be surveyed and located.
Page 123 U. S. 338
The case is stated in the opinion.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The petition in this case was filed in the District Court of the
United States for the Northern District of Florida for the
confirmation of a Spanish grant under the 11th section of the Act
of June 22, 1860, entitled "An act for the final adjustment of
private land claims in the States of Florida, Louisiana, and
Mississippi, and for other purposes," 12 Stat. 85, and the appeal
was taken directly from the decree of the district court to this
Court, pursuant to the provisions of said section. The petition was
filed November 22, 1869, within the time prescribed by the Act of
March 2, 1867, 14 Stat. 544. It is conceded by a stipulation filed
of record in the cause that the petitioners are the legal
representatives of Cerilo de Morant, Doqumeniel de Morant, and
Laurent Millandon, who are deceased. The title of the petitioners
is deduced from these deceased parties.
The petition states that on the eighth day of October, 1817, the
King of Spain, by Don Jose Masot, Governor of West Florida, granted
to Cerilo de Morant, then a subject of Spain, a certain tract of
land containing 1,600 arpents, situated northwest of Pensacola in
West Florida, about twelve miles and a half, bounded northwardly by
lands previously granted to Don Emanuel Gonzales and by public
lands, eastwardly and westwardly by public lands, and southwardly
by lands granted to Desiderio Quina; that on the first of March,
1818, the said land was surveyed for the grantee by the deputy
surveyor for West
Page 123 U. S. 339
Florida, and that on the 6th of March, 1818, the said deputy
surveyor delivered to the proper authorities his certificate and
plan of said survey, a copy of which is annexed to the petition;
that thereupon the grantee proceeded to clear, occupy, settle, and
cultivate the land. A copy of the expediente is annexed to the
petition.
It then proceeds to state that another grant was made in the
same manner on the twentieth day of January, 1818, to Desiderio
Quina, of 800 arpents of land, situated about eleven miles
northwest of Pensacola, and surveyed for the grantee by the same
deputy surveyor. The plats annexed show that the two tracts adjoin
each other. The petition further states that Quina, on the 29th of
October, 1818, sold and conveyed his grant to Cerilo de Morant, and
that the latter subsequently sold and conveyed three undivided
fourth parts of both tracts to Laurent Millandon, Louis Doqumenil
de Morant, and John Chabaux, one undivided fourth to each, and that
Laurent Millandon afterwards purchased the interest of Chabaux, and
thus became owner of one undivided half of the land. The petition
further states that the heirs of Cerilo de Morant petition as well
in behalf of the interests of the heirs of Louis Doqumeniel de
Morant, and those of Laurent Millandon, as for themselves.
On the trial, the petitioners produced in evidence their
documentary title in Spanish, with English translations
accompanying the same. The title of each tract consists of a
testimonio in the usual form in such cases. The testimonio of the
tract granted to Cerilo de Morant consists of first, Morant's
petition to the governor for 1,600 arpents of land, indicating the
locality, and dated September 22, 1817; secondly, the governor's
reference to the surveyor general to ascertain if the lands were
vacant, and to the fiscal or attorney general of the royal treasury
for his advice as of the legality and merits of the application;
thirdly, the favorable answers of these functionaries; fourthly, an
order of the governor that the applicant take the oath required by
the fiscal, and that the surveyor general proceed to the
measurement and survey of the land, and to annex a figurative plan
to his return; fifthly, a certificate
Page 123 U. S. 340
of the oath taken by the applicant; sixthly, the return of the
surveyor, dated March 6, 1818, stating the survey of the tract in
detail, with a plat annexed; seventhly, the governor's certificate
to the testimonio, declaring that it conforms with the original,
and that it is issued at the request of the party at Pensacola, on
the 5th of April, 1818. This testimonio is very full and
particular. The other, issued to Quina, omits a report from the
fiscal, as the petitioner merely stated the quantity of land
desired, and left it to the governor to designate its location, who
referred it to the surveyor general. The latter located the land
adjoining to the tract granted to Morant. A survey was made
accordingly, and a testimonio issued to the grantee, dated the
first day of May, 1818. Both of these testimonios (including the
surveys) made complete titles under the Spanish laws.
The petitioners also produced in evidence certain acts of sale
and transfer, to-wit:
1. A sale by Quina to Cerilo de Morant for the tract of 800
arpents granted to the former. This act is dated 29th October,
1818.
3. A sale by Cerilo de Morant to John Chabaux, Laurent
Millandon, and Louis Doquminel de Morant, Jr., of three undivided
fourth parts of the tract of 800 arpents granted to Quina. This act
of sale is dated November 9, 1918.
3. A sale by Cerilo de Morant to John Chabaux, Laurent Millandon
and Company of three undivided fourth parts of the tract of 1,600
arpents, reserving to himself one undivided fourth part of the
same. This act is dated June 14, 1821.
4. A marshal's deed, dated August 3, 1835, from James W. Evans,
Marshal of the Western District of Florida, to Laurent Millandon
for the one undivided fourth part of both said tracts which
belonged to John Chabaux. This deed recites a judgment against the
executor of John Chabaux, recorded in the Superior Court of the
Western District of Florida in May term, 1825, and an execution
sued out in May, 1835, and a sale thereunder by said marshal to
said Millandon, in pursuance of which the deed purports to have
been made. The judgment and execution were not produced, but
Page 123 U. S. 341
no objection to the admission of the deed was made on this
account, and the practice in Florida as to proof of judicial sales
by sheriffs seems to be very liberal.
See Hartley v.
Terrell, 9 Fla. 374, where a sheriff's deed was given in
evidence without, so far as appears, the production of the judgment
or execution. The fact that the judgment was against the executor
was no objection, since real estate was made assets in the hands of
executors by the territorial act of 1833, and equally liable with
personal property to an execution upon a judgment against the
executor. Act Feb. 17, 1833, §§ 2, 4; Thompson's Digest 202,
203.
In 1824, these Spanish titles were presented by Cerilo de Morant
to the commissioners for ascertaining claims and titles to land
within the District of West Florida, and were rejected by them on
the ground, as appears from their report, that no evidence was
given of cultivation as required by the grants. Another reason
assigned by the commissioners for rejecting grants in the list
containing those in question was that the claims had not emanated
from His Catholic Majesty or his lawful authorities in West Florida
prior to January 24, 1818, or that the order of survey had not been
actually executed anterior to that period.
See
Commissioners' Report in American State Papers, Public Lands, Vol.
IV, pp. 198, 199.
These objections are repeated before us, and are, among other
things, assigned as grounds of error in the judgment of the court
below. They may as well be disposed of here.
As to not cultivating the land, it was proved very conclusively
on the trial that the grantees actually built houses and resided
upon it shortly after the dates of the grants.
As to the dates of the surveys, it is true that they were both
made after the 24th day of January, 1818, namely in the beginning
of March in that year, although the grants were made before that
period. The objection is based upon the terms of the treaty entered
into with Spain, in 1819, by which Florida was ceded to the United
States. By the eighth article of this treaty it was stipulated that
all grants of land made before the 24th of January, 1818, by His
Catholic Majesty or by his lawful authorities in the ceded
territories
Page 123 U. S. 342
should be ratified and confirmed to the persons in possession of
the lands, to the same extent that same grants would be valid if
the territories had remained under the dominion of His Catholic
Majesty; but all grants made since the 24th of January, 1818, when
the first proposal on the part of His Catholic Majesty for the
cession of the Floridas was made, were declared and agreed to be
null and void.
The commissioners construed these provisions of the treaty as
invalidating grants made prior to the date named if the surveys
were not completed until after that date. This construction was
opposed by the claimants who were affected by it, and a different
view, perhaps, might well have been taken. But, be that as it may,
the act of 1860, under which the present proceedings were
instituted, made the date of cession to the United States, or the
time of transferring possession, the point from which to test the
validity of grants. That act was passed for the relief of parties
who claimed lands in Florida, Louisiana, or Missouri,
"by virtue of grant, concession, order of survey, permission to
settle, or other written evidence of title, emanating from any
foreign government, bearing date prior to the cession of the United
States of the territory out of which said states were formed, or
during the period when any such government claimed sovereignty or
had the actual possession of the district or territory in which the
lands so claimed were situated."
See the act, 12 Stat. 85, §§ 1, 11. The act of 1860 was
intended to give relief to a large class of grantees of former
governments, whose claims had been rejected by the different boards
of commissioners, and by the courts, under the strict construction
of the treaties, which prior laws had required. The history of the
question is given at some length in the opinion of this Court in
the case of
United States v.
Lynde, 11 Wall. 632, and need not be repeated
here.
The treaty by which the Floridas were ceded to the United States
was not concluded and signed until the 22d day of February, 1819,
and the ratifications were not exchanged until two years
afterwards. The cession certainly did not take place therefore
before the date named, and possession
Page 123 U. S. 343
of the territory was not taken until July, 1822, while all the
acts constituting the titles in question were passed prior to May,
1818. We cannot hesitate to conclude, therefore, that these titles
were completed within the time required by the act of 1860.
We will proceed, then, to examine the other errors assigned on
behalf of the government.
1. It is contended that the court below had no jurisdiction of
the case (a) because the record does not show that the claim did
not come within the purview of § 3 of the act of 1860; (b) because
the alleged claimants do not represent the whole title to the land
claimed; (c) because no sworn copy of the government surveys was
annexed to the petition. The first of these grounds is based on
that clause of the 11th section of the act of 1860 which excludes
from the jurisdiction of the district court claims which come
within the purview of the third section of the act. It requires
only a momentary examination of that section to determine that the
purview of it here referred to is the proviso, which declares in
substance that in no case shall the commissioners embrace in
classes one and two (namely, those which in their opinion ought to
be confirmed) any claim previously presented to a board of
commissioners or other public officers acting under authority of
Congress and rejected as being fraudulent or that had been rejected
twice by previous boards. The present case does not come within
either of these categories. The other matters assigned as grounds
for want of jurisdiction are insufficient. We perceive no reason
why a part owner or the heirs or representatives of a part owner
should not have the benefit of the proceeding, even if the present
petitioners did not show title to the entire interest in the lands,
and the failure to annex a sworn copy of the government surveys to
the petition is not a question of jurisdiction, but a matter
relating merely to the form of procedure, which should have been
objected to when the pleadings were
in fieri and the
petitioners could have obtained leave to amend. A plat of the two
grants, laid down in connection with the sections and subsections
of the government surveys, certified as correct by a civil
engineer
Page 123 U. S. 344
and surveyor, was put in evidence at the trial without
objection, and forms part of the record here. There seems to have
been no controversy as to the location of the grants, either before
the commissioners in 1824 or on the trial of the present cause.
2. The next assignment of error is that there was no sufficient
evidence that the alleged grants were genuine. This assignment
cannot be sustained. The original testimonios seem to have been
given in evidence at the trial, since the signatures to the same
were identified by the witness Francisco Moreno, who had been
attached to the public office in Pensacola under the Spanish
government as treasurer of the customs and auditor of accounts and
was familiar with this kind of documents. The English translations
are certified by the keeper of public archives of West Florida, in
whose office both the Spanish originals and the translations of all
claims laid before the commissioners of 1824 were recorded in
pursuance of the Act of March 3, 1825, 4 Stat. 125. It may be added
that the genuineness of these titles was not disputed before the
said commissioners, and does not seem to have been disputed in this
case in the court below, where these titles are familiar to the
courts and members of the bar.
The last assignment of error is that the grants, if genuine,
were void. It is contended that they were void because they were
indescriptive grants which had not been surveyed on the 22d day of
January, 1818. We have already shown that although this was the
epoch fixed in the treaty for determining the validity of grants,
yet that the act of 1860 made the date of cession of the territory,
or of yielding possession thereof, the epoch to be observed under
that act, and as this latter epoch was certainly as late as the 22d
of February, 1819, when the treaty was concluded and signed, the
objection falls to the ground. The land was actually surveyed and
mapped and segregated from the public domain in the spring of 1818.
The old cases, therefore, which were formerly decided by this Court
and which are referred to by the counsel of the government have no
application to the case before us. Prior statutes inconsistent with
the provisions of the act of 1860 no longer control our
decision.
Page 123 U. S. 345
We do not think that any of the alleged errors are well founded.
The decree of the district court is affirmed.
This decision merely confirms the validity of the grants, but
does not entitle the parties to possession. If the government has
sold the lands in whole or in part, or if the surveyor general
shall ascertain that they cannot be surveyed and located, the
petitioners under § 6 of the act of 1860 will be entitled to scrip
for other public lands of equal extent to those so sold, etc.