In the hearing of an application for confirmation of an alleged
Mexican grant the law casts primarily upon the applicant the duty
of tendering such proof as to the existence, regularity and archive
record of the grant, as well as his connection with it, such as
possession, ownership and other related incidents, of sufficient
probative force to create a just inference as to the reality and
validity of the grant, before the burden of proof, if at all, can
be shifted from the claimant to the United States.
The surveyor general had authority to make a supplementary
investigation, and the supplementary proceedings were properly
admitted in evidence.
The special qualifications of the witness Tipton, resulting from
his great familiarity with the signatures of Armijo and Vigil,
qualified him to testify as an expert as to the genuineness of the
signatures upon the alleged grant which were claimed to be
theirs.
Genuine signatures of Armijo and of Vigil, shown to have come
from the archives, were properly received in evidence as standards
of comparison with the signatures offered to prove the alleged
grant.
Enlarged photographs of such original signatures were also
properly received.
After an extended examination of the testimony, the Court holds
that it is unnecessary to examine or decide upon the questions made
as to the form of the alleged grant and other questions, and
refrains from expressing an opinion upon all, and holds that the
court below erred in confirming the grant.
The statement of the case will be found in the opinion of
the
court.
Page 176 U. S. 423
MR. JUSTICE WHITE delivered the opinion of the Court.
Did the court below err in confirming an alleged Mexican land
grant? is the inquiry which arises on this record.
The asserted grant is designated as the "Sierra Mosca," and
embraces many thousand acres of land situated in the County of
Santa Fe, New Mexico. The official proceedings had in relation to
the grant prior to the commencement of this suit were as follows:
in 1872, a petition was filed before the surveyor general of New
Mexico, asking the confirmation of the grant in the name of "the
heirs and those holding under them of Juan Luis Ortiz, deceased."
No other or fuller description of the persons asserting the right
appeared in the proceedings. The surveyor general, after hearing,
forwarded his recommendation that the grant be confirmed, to the
Commissioner of the General Land Office in October, 1873, and the
papers were in the same year submitted by the Secretary of the
Interior to Congress. The proceedings before the surveyor general
and the resulting official action, as above stated, were by virtue
of the Act of Congress of July 22, 1854. 10 Stat. 308, c. 103. No
action having been taken by Congress, in December, 1876, certain
persons alleging themselves to be part owners of a claimed Spanish
grant of land, which it was averred conflicted with the one in
question, petitioned the then surveyor general of New Mexico to
hear additional testimony as to the reality of the grant which had
been recommended for confirmation, on the ground that the testimony
when heard, would establish that the grant had been erroneously
recommended for confirmation because, among other reasons stated,
it was a forgery. Whilst intimating a doubt as to his power to
review the action of his predecessor in office, the surveyor
general yet ordered the inquiry to be made, and, after some lapse
of time on due notice, testimony was taken. In consequence of the
notice given, the attorney for the petitioners, on the original
application to confirm, appeared and cross-examined the witnesses.
Subsequently acting upon such evidence, the then incumbent of the
surveyor general's office transmitted the proceedings to the
Commissioner of the General Land Office with
Page 176 U. S. 424
the recommendation that the grant be rejected on the ground that
it was affirmatively shown by the proof to be a forgery. This
supplementary report and papers were also, in December, 1887,
submitted by the Secretary of the Interior to Congress for its
consideration.
No action having been taken by Congress upon either the original
or supplementary report, the present suit was commenced in the
Court of Private Land Claims to obtain the confirmation of the
grant. The petition by which the cause was initiated was filed in
the name of Luis Maria Ortiz and Tomaz Ortiz, and averred that the
alleged Sierra Mosca grant had been made on June 4, 1846, by Manuel
Armijo, the then Governor of the Territory of New Mexico, to Juan
Luis Ortiz, and that the grantee had on June 8, 1846, been placed
in legal possession of the granted land by Jose Dolores Trujillo, a
justice of the peace, according to the laws and customs then in
force in the Republic of Mexico. It was averred that
"the original papers relating to this said grant of land are now
on file in the office of the surveyor general of the Territory of
New Mexico, known in that office as private land claim No. 75, for
the Sierra Mosca tract, and are not in the control of the
plaintiffs, so that they can file them therewith."
A copy, however, with a translation of the papers thus referred
to, was annexed to the petition. The petitioners asserted their
right under the grant as follows:
"The plaintiffs are the owners in fee in and to the said land
grant by inheritance from their father, Gaspar Ortiz, who acquired
his title thereto, as they are informed and believe, by inheritance
from his father and their grandfather, Juan Luis Ortiz, the
original grantee, and by purchase from the other heirs of the
same."
No enumeration of the other heirs and no more precise
specification of the date and character of the alleged purchase was
contained in the petition.
The petition was generally traversed, and subsequently an answer
was filed specifically averring that the alleged granting papers
were forgeries, and denying that delivery of possession had ever
been made by a justice of the peace, as stated in the petition.
After trial upon these issues, the grant was confirmed, Murray, J.,
dissenting.
Page 176 U. S. 425
Inverting the order in which they have been discussed at bar and
stating them in a condensed form, the questions presented for
decision are: First. Does the proof establish that the grant in
question was made, and that delivery of juridical possession
thereunder was operated by a Mexican official charged with such
duty? Second. If it be found that the grant was made, was there
legal power in the then governor of New Mexico to make it, and, if
so, was the power so executed as to authorize the court to enter a
decree of confirmation? The first of these questions opens for
consideration not only the issue of forgery, but also involves
deciding whether the proof is of such a character as to engender
the affirmative conviction of the genuineness of the granting
papers. The second raises several questions of law -- that is, as
to the power of the governor at the date when the alleged grant is
averred to have been made, the necessity of approval of his action
by the departmental assembly, and other legal issues. Necessarily,
all the questions coming under the second head arise only in the
event the objections to the confirmation of the grant embodied in
the first proposition are found to be untenable.
Before analyzing the evidence in order to develop and weigh the
proof tending to show the existence of the grant, it will subserve
clearness of statement at the outset to determine upon whom is cast
the burden of showing the existence of the grant, and in a general
way to consider briefly the quantum of proof required for that
purpose. By the first subdivision of section 13 of the Act of March
3, 1891, constituting the Court of Private Land Claims, that court
and this Court are commanded not to allow a claim "that shall not
appear to be upon a title lawfully and regularly derived from the
government of Spain or Mexico," etc. The statute authorizes no
presumption in favor of the genuineness of a title from the mere
fact that the claimant for confirmation presents a paper which is
asserted to be a grant from a Mexican official. The command of the
statute is not that the United States, when an alleged Mexican
title is presented for confirmation, shall be put to the burden of
showing that the title in question is not genuine, but that the
evidence presented in favor of the asserted
Page 176 U. S. 426
title shall be of such persuasive and preponderating force as to
convince the court that the title is real, and besides possesses
the legal attributes which the statute requires as essential to
confirmation. It is clear, then, that the law casts primarily upon
the applicant for confirmation the duty of tendering such proof as
to the existence, regularity, and archive record of the grant, as
well as his connection with it, such as possession, ownership, and
other related incidents, of sufficient probative force to create a
just inference as to the reality and validity of the grant before
the burden of proof, if at all, can be shifted from the claimant to
the United States. This construction, which arises from the text of
the act of 1891, is sustained by considering that, previous to that
enactment, there had been many decisions of this Court rendered
under the California act of 1851 construing that act as imposing
upon the claimants for confirmation the primary burden of proof,
although the provisions of the California act were not as
explicitly mandatory as are those of the act of 1891. Thus, from
the date of the decision in
United States v.
Cambuston, 20 How. 64, announced in 1857, to the
ruling in
Berreyesa v. United States, 154 U.
S. 623, rendered in 1876, it was often decided that the
burden of proof to sustain a Spanish grant rested upon the
claimants, and that the failure to show that the official archives
contained evidence that the grant had been made, and the fact of
the production of the original title papers solely from the custody
and possession of the grantee, were circumstances so suspicious as
to create a presumption against the genuineness of the grant,
calling for the production by the grantee of more than slight
evidence to overthrow the presumption.
Luco v.
United States, 23 How. 515, 528 [argument of
counsel -- omitted];
Peralta v. United
States, 3 Wall. 434,
70 U. S. 440.
Indeed, this burden of proof resting upon the grantee had been
frequently declared by this Court, prior to the enactment of the
law of 1891, to be essentially necessitated by the situation and as
the sole means of avoiding the danger of imposing upon the United
States by means of forged or fabricated grants.
United
States v. Teschmaker, 22 How. 392,
63 U. S. 405;
United States v.
Pico, 22 How. 406;
Fuentes v.
United States, 22 How. 443;
Luco v.
United States, 23 How. 515, 528 [argument of
counsel -- omitted];
United States v.
Bolton, 23 How.
Page 176 U. S. 427
341,
64 U. S. 347;
Palmer v. United
States, 24 How. 125;
United
States v. Knight, 1 Black 227;
United
States v. Neleigh, 1 Black 298;
United
States v. Vallejo, 1 Black 541;
White v.
United States, 1 Wall. 660;
Romero v.
United States, 1 Wall. 721,
68 U. S. 743;
Pico v. United
States, 2 Wall. 279,
69 U. S. 281;
Peralto v. United
States, 3 Wall. 434,
70 U. S.
440.
It is preliminarily necessary to dispose of certain exceptions
taken to the admissibility of evidence, and which are pressed on
our attention.
1. The petitioners, in opening their case, offered in evidence
the original proceedings before the surveyor general, including the
testimony of the witnesses then examined, after having made the
prerequisite proof of death of such witnesses in accordance with
the requirements of section 5 in the act of 1891. 26 Stat. 854.
Subsequently, the defendant, in proving its case, offered the
supplementary proceedings which had been had before the surveyor
general (including the testimony of the witnesses taken in that
proceeding, proper foundation also having been laid for the
introduction of such testimony), the finding of the surveyor
general made in the proceedings, and the forwarding of the whole to
the Commissioner of the General Land Office, and the submissions
made of all the matters in question by the Secretary of the
Interior to Congress. All this was objected to on the ground that
the power of the surveyor general was exhausted by the original
investigation and report, and that therefore a succeeding incumbent
of the office was without legal authority to have further
considered the grant or to have taken any additional testimony as
to its genuineness or validity.
But the function of the surveyor general, under the act of 1854,
10 Stat. 308, was merely advisory, and, until action by Congress
had supervened, it was not only the right, but the duty, of that
official, on proper suggestion being made to him, to hear
additional evidence and transmit it for the consideration of
Congress in a claim pending for confirmation. The act of the
surveyor general in making the supplementary investigation was
certainly either directly or impliedly authorized or ratified by
his official superiors, since the knowledge of
Page 176 U. S. 428
the investigation was conveyed to the Commissioner of the
General Land Office, and not only the action taken by the surveyor
general, but all the papers relating thereto, were by the Secretary
of the Interior laid before Congress. Obviously the purpose of the
fifth section of the act of 1891 in permitting the use, subject to
the restrictions and qualifications found in the act, of the
proceedings had before the surveyor general was to allow all the
proof then existing to be received and to be given such weight as
it was entitled to have. The court below therefore properly
admitted the supplementary proceedings.
2. William Tipton was called as a witness for the government.
The witness, after stating that he was appointed by the Department
of Justice to assist in preparing the defense of cases coming
before the Court of Private Land Claims, proceeded to say that, for
a long period of time covering about sixteen years, he had been
previously employed in the office of the surveyor general of New
Mexico; that in such employ as clerk, copyist, translator and
custodian of the archives, he had constant official occasion to
examine, translate, and consider the Spanish and Mexican archives
extant in the office; that, in consequence of these facts, he was
entirely familiar with the signatures of Governor Armijo and
Secretary Vigil, the signatures of whom purported to be affixed to
the grant relied upon; that his knowledge on the subject had been
derived from examining not less than seventy-five or eighty
signatures of Governor Armijo and not less than one hundred and
twenty signatures of Secretary Vigil, found in the archives, which
were either attached to grants, to the journals of the territorial
deputation and departmental assembly, and to other official
documents. Besides the familiarity of the witness with the
signatures in controversy, he was examined as to his capacity as a
general handwriting expert, the whole as a basis for eliciting from
him his opinion as to the genuineness of the signatures referred
to. Objection was made to allowing the witness to testify on this
subject because it was contended the proof did not lay an adequate
foundation therefor, and the overruling of this objection was
excepted to.
Page 176 U. S. 429
It is unnecessary to decide whether the witness was competent to
express an opinion as a general scientific expert on handwriting,
or to consider the limitations as to the admissibility of testimony
of that character, since the special qualifications of the witness
resulting from his great familiarity, acquired during a long course
of official action, with the official records and the signatures of
Governor Armijo and Secretary Vigil, qualified him beyond question
to testify as an expert as to the genuineness of the signatures
found upon the alleged grant. The case is directly within the
principle decided in
Rogers v.
Ritter, 12 Wall. 317, where it was held that
witnesses who in the course of administration of the duties of an
official position had acquired a familiarity with a certain
signature, although they had never seen the party write and had
never corresponded with him, were competent to express an opinion
on the subject of the genuineness of a signature purporting to have
been made by that person. The Court said (p.
79 U. S.
322):
"It is settled everywhere that if a person has seen another
write his name but once, he can testify, and that he is equally
competent if he has personally communicated with him by letter,
although he has never seen him write at all. But is the witness
incompetent unless he has obtained his knowledge in one or the
other of these modes? Clearly not, for in the varied affairs of
life, there are many modes in which one person can become
acquainted with the handwriting of another besides having seen him
write or corresponded with him. There is no good reason for
excluding any of these modes of getting information, and if the
court, on the preliminary examination of the witness, can see that
he has that degree of knowledge of the party's handwriting which
will enable him to judge of its genuineness, he should be permitted
to give to the jury his opinion on the subject."
Referring to the testimony of the witnesses showing knowledge
derived from the connection with the official archives which were
undoubtedly genuine, the Court added:
"The three witnesses told enough to satisfy any reasonable mind
that they were better able to judge of the signature of
Page 176 U. S. 430
Sanchez than if they had only received one or two letters from
him, or saw him write his name once."
The court below did not err in admitting the testimony.
3. The witness Tipton produced fifteen signatures of Governor
Armijo, and several of Secretary Vigil, written approximately about
the time when the alleged grant in question purported to have been
made, taken from among the signatures of these officers contained
in the archives, and they were offered as standards of comparison
with the signatures found on the grant in controversy. It is
objected that the genuineness of these signatures had not been
adequately proved, and therefore they should not have been admitted
to be used as standards of comparison.
They were correctly received. The whole testimony of the witness
demonstrated that the signatures in question were upon documents
which the witness produced from the archives, the appropriate place
for them, and the genuineness of the papers to which they were
annexed had never been challenged and were officially treated as
authentic. This justified their admission at all events in the
absence of any suggestion of proof as to their nongenuineness.
4. The defense caused the signature of Governor Armijo to the
alleged grant and one existing on one of the documents offered as a
standard of comparison to be photographically enlarged. After
proving by the photographer by whom the photographs were made the
accuracy of the method pursued and the results obtained by him, the
enlarged photographs were tendered, and were admitted in evidence
over objection. The ruling was correct.
Marcy v. Barnes,
16 Gray 161, 163.
The petitioners offered in evidence the alleged granting papers,
which are reproduced in the margin.
*
Postponing for after consideration the determination of the legal
value
Page 176 U. S. 431
of the documents so offered, we come to review the evidence
relied upon to show that the asserted grant had been actually
executed. Having proven the death of all the witnesses who
Page 176 U. S. 432
testified before the surveyor general in 1872, offer was then
made of all the proceedings, including such testimony. Upon this
evidence and the testimony of one witness tending to show the
possession at one time in the original grantee of the granting
papers, the claimants in opening rested.
The witnesses who testified before the surveyor general in 1872
were as follows: Antonio Sena, who was for some time prior to
December, 1845, prefect of the department in which the land in
question was situated, and who ceased to hold that office about the
month stated, and after an interregnum again held the office after
the end of March, 1846; Ramon Sena y Rivera, who in 1846 was an
employee in the office of the military commandancy of New Mexico,
under the official direction of Donaciano Vigil, military secretary
of Governor Armijo in June, 1846, and prior thereto; Pablo
Dominguez, who was also employed as clerk in the same office with
Ramon Sena y Rivera, and Joab Houghton, Esq., an attorney residing
at Santa Fe, who had been United States vice consul, chief justice
and associate justice of the supreme court of the territory, and
register of the United States land office. Of these witnesses, the
two first (the Senas) testified
Page 176 U. S. 433
that the grant was genuine from the fact that they had seen it
executed, one besides swearing that he was present at the delivery
of juridical possession by Jose Dolores Trujillo, the alleged
justice of the peace. The other two witnesses (Houghton and
Dominguez) testified to their familiarity with the signatures of
Governor Armijo and the civil Secretary Vigil from having seen them
write and sign, and that the signatures to the alleged grant were
in their opinion genuine.
The defense offered the proceedings before the surveyor general
on the supplementary hearing, in 1878, including the testimony then
taken of witnesses since deceased, and then offered other proof,
oral and documentary tending to make out the defense. The only
evidence directly relating to the genuineness of the signatures was
that of Donaciano Vigil and William Tipton, the signatures of
Armijo and Vigil introduced for the purposes of comparison, and the
enlarged photographs heretofore referred to. The question then is
did the evidence offered by the petitioners make out a case, and if
so, did the defense rebut the proof, if any, which arose from the
evidence upon which the claimants rested?
Without reference to the testimony of the witnesses on either
side, a comparison of the signatures of Governor Armijo and
Secretary Vigil, as found on the alleged grant, with the signatures
on the documents offered for the purposes of comparison engenders
in our minds a very strong conviction against the genuineness of
the grant relied upon. And this conclusion is not at all shaken by
a comparison of the signatures to the grant with those which were
introduced by the petitioners in rebuttal, also for the purposes of
comparison. Without elaborating the reasons by which the conviction
of want of genuineness is suggested by the comparison, it suffices
to say that the entire characteristics of the signatures to the
grant present such saliently suspicious features, when the
comparison is made, as to leave it impossible for the mind to
resist, if not the absolute conviction, in any event, the grave
doubt which irresistibly arises. It is worthy of being noted that
the surveyor general before whom the first proceedings were had
considered that the mere inspection of the signatures to the
Page 176 U. S. 434
grant created such a doubt of its genuineness that he would not
have been able to have recommended confirmation on the face of the
papers but for testimony taken before him. He said:
"I doubted at first the genuineness of the papers as showing the
grant and possession to have been given as set forth; but the
testimony brought before me, especially of the two last witnesses,
who beyond all question are highly respectable men, has set my mind
at rest on that point."
By the application of the rule which we have at the outset
referred to, casting upon the claimant the burden of sustaining the
validity of an asserted grant, we are compelled to refuse to affirm
the judgment of confirmation unless the testimony offered for the
claimants removes the doubt in question.
Now the testimony as to the grant, as we have seen, was two-fold
in its nature. First, Joab Houghton and Pablo Dominguez, who, from
a knowledge of the handwriting of the officials, testified that in
their opinion the signatures on the grant were genuine, and that of
the two Senas who swore that they had personally witnessed the
execution of the grant, and therefore gave direct testimony to the
genuineness of the signatures. Let us consider whether these two
classes of evidence dispel, if not the conviction, at least the
grave doubt which has arisen, as above stated.
The testimony of Mr. Houghton, whose sincerity we do not doubt,
embodied but his opinion of the genuineness of the signature. That
the appearance, however, of the signatures was to his mind -- as it
was to that of the surveyor general -- suggestive of suspicion is,
we think, manifest from his testimony. Thus, on being shown the
alleged decree or grant, and on being asked by counsel for claimant
whether the signatures of Armijo and Vigil were genuine or not, the
witness said: "I recognize Armijo's signature as being genuine on
this document, as I do that of Juan B. Vigil, though signed
somewhat differently from his usual way." Being interrogated by the
surveyor general, and after stating that he did not know that
Mexican officials used steel pens at Santa Fe in 1846, the witness
testified as follows:
Page 176 U. S. 435
"Q. Was Governor Armijo in the habit of becoming
intoxicated?"
"A. I think not. I have seen him often, but never saw him
intoxicated."
"Q. Have you ever seen him in a condition of excitement or
nervousness, such as would be likely to affect his handwriting if
using a kind of pen he was unfamiliar with?"
"A. Yes; I have seen him frequently in such a condition,
particularly at the time of the battles in Mexico in 1846, and of
the approach here of the American troops during the summer of
1846."
The testimony of Dominguez also but expressed his opinion. The
probative force of the opinion of this witness as to the signatures
in question is greatly weakened, however, by his statements on
other subjects, such as the possession under the grant and the
official capacity of Trujillo as justice of the peace, which, as
will be hereafter seen, are entirely irreconcilable with the facts,
which, if not conclusively established, are in any event sustained
by a preponderance of proof.
In conflict with the opinion of Houghton and Dominguez is that
expressed by Donaciano Vigil in his testimony on behalf of the
government. He, as has been stated, was military secretary of
Governor Armijo at the time the grant was alleged to have been
made, and Dominguez was a clerk in Vigil's office. With respect to
the signatures upon the decree purporting to have been made by
Armijo, the witness said that he had been intimate with Governor
Armijo, and had seen him write, and was well acquainted with his
handwriting, and, while unwilling to swear positively that the
signature "Armijo" on the decree was not genuine, because the
witness had not actually seen the name written, the witness swore
that Governor Armijo always wrote his name like the signature upon
a document exhibited by the witness, which he had seen Armijo
write, and further stated that he (the witness) had never seen a
genuine signature of Governor Armijo like that on the decree of
grant, and that in his judgment, "the signatures is not the same
Armijo was accustomed to write."
The testimony of this witness conveys an impression of
conscientious
Page 176 U. S. 436
circumspection, the absence of which is particularly to be
remarked in the testimony of Dominguez with which Vigil conflicts.
The document produced by Vigil as a type of the signature of Armijo
has been certified up, and placing it in juxtaposition with the
signature of Armijo on the alleged grant fortifies and strengthens
the doubt arising from the comparison previously referred to.
The testimony of Vigil is fortified by that of Tipton, who, in
lucid and cogent reasons, supports the opinion which he
unequivocally expressed that the signatures of both Armijo and
Vigil y Alarid were not genuine. The proof on this branch of the
case, in the best view which may be taken of it for the
petitioners, comes, then, to this: the genuineness of the
signatures to the grant as a matter of opinion is supported by two
witnesses, the testimony of one of whom at once suggests the doubt
which arises on the face of the paper, and the statements of the
other one of whom is weakened by his declarations on other subjects
which, as will be hereafter seen, have been substantially
overthrown. On the other hand, the proof of want of genuineness as
a matter of opinion is sustained by two witnesses, one of whom
(Vigil) based his opinion from an intimate official and personal
relation with Governor Armijo which existed at the time the alleged
grant was made and prior thereto, and the other of whom, Tipton, by
a long official relation with documents containing the signatures
of Governor Armijo and Secretary Vigil, had apt and valuable means
of forming a correct and reliable opinion, and whose testimony is
so clear and so intelligent as to carry great weight with it. This
state of the proof certainly, instead of removing the doubt
suggested by the inspection and comparison, greatly confirms
it.
What, then, is the effect of the testimony of the two witnesses
(the Senasc) who in the first proceeding before the surveyor
general testified to their personal knowledge of the signing of the
grant?
Antonio Sena, after stating that he was prefect in June, 1846,
of the First District of New Mexico, on being asked whether a grant
had been made, and, if he replied yes, to say by whom and to whom,
testified as follows:
Page 176 U. S. 437
"There was a grant made for this property in June, 1846, by
Governor Armijo to Juan Luis Ortiz, and the decree now here is the
original one, signed by Governor Armijo in my presence on the 4th
day of June, 1846. I now mean the paper in this case marked 'Sierra
Mosca grant -- original.' In the month of June, 1846, there was no
stamped government paper here, and we had to use common paper."
Ramon Sena testified to an intimate acquaintance with the
governor and secretary, and on being asked to state whether the
signatures to the decree were genuine, and whether Juan Luis Ortiz
was placed in possession, answered:
"I have examined the signatures of Armijo and Vigil y Alarid,
upon the document mentioned, and am satisfied that they are both
genuine. In the year 1846 -- I think in the month of June -- I was
requested by Juan Luis Ortiz to go with him to present to Governor
Armijo a petition for land, and the petition of said Ortiz shown me
on said document A is the petition, and bears the genuine signature
of said Ortiz. Governor Armijo directed a clerk (I don't remember
who) to write the decree, the same on the margin of the document
shown me as document A, which decree he then and there signed, as
did also Senor Vigil y Alarid; the governor then handed the
document to Ortiz, who requested me to proceed with him to the
alcalde at Pojoaque, to be by him placed in possession of the land,
and who did place Ortiz in possession, executing the act in my
presence, and the record of that act borne by said document A is
the act of possession I refer to, and the signature of Jose Dolores
Trujillo which it bears is his genuine signature. . . . The
petition of Ortiz to the governor was presented to him in
duplicate, and when he had acted upon them, he handed one of the
documents to Ortiz and the other he handed to Senor Vigil y Alarid,
to be placed among the archives."
It is worthy of remark that it was not shown when, if dead, the
attesting witnesses to the act of possession had died, and they
were not called upon to testify before the surveyor general or at
the trial below -- a circumstance which necessarily greatly
detracts from the weight of the testimony of Ramon Sena.
Page 176 U. S. 438
Both the Senas were sons-in-law of the alleged grantee, Juan
Luis Ortiz. One was certainly a clerk with Dominguez in the office
of Donaciano Vigil at the very time the grant is asserted to have
been executed, and yet Vigil, who was military secretary of Armijo,
says that he never heard at the time anything concerning the
alleged execution of the grant. It is suggestive of doubt,
therefore, that a grant for many thousand acres of land should have
been made by Armijo to Juan Luis Ortiz, an acquaintance of Vigil,
and yet that the fact should have been witnessed and known by a
clerk in Vigil's office without any information having been
conveyed to the head of that office. It is worthy also of remark
that Ramon Sena says that when the grant was executed, he took such
an interest in it that he left the office where he was employed and
went to the place where the land was situated to witness the
delivery of juridical possession made by the justice of the peace,
although, as already stated, Ramon Sena's name does not appear upon
the act of possession as an attesting witness thereto.
In addition to the peculiarities in the testimony of the
witnesses to which attention has been called, there is a conflict
between their statements which the record leaves wholly
unexplained. Thus, Antonio Sena explicitly says that but one paper
was signed by Governor Armijo, and that the decree shown him was
the original grant, and he makes no reference to any duplicate
original petition being presented to the governor, whilst Ramon
Sena affirms that duplicate originals of the certificate were made
and presented to the governor, and that he acted upon both.
Despite the inconsistencies in, and the improbabilities
suggested by, the testimony of the Senas above stated, let it be
conceded,
arguendo, that their statements of personal
knowledge of the execution of the grant, standing alone, would be
sufficient to overthrow the doubt engendered by the appearance of
the signatures to the grant and by the other testimony on the
subject, still such admission cannot be here controlling. because
of the fact that the testimony of the Senas is shown to have been
incorrect in other particulars
Page 176 U. S. 439
so important as to deprive it of the weight which otherwise
might be attributed to it.
A direct issue was made in the pleadings in this case as to the
official existence of the person by whom the act of juridical
possession purported to have been executed. The petition presented
for confirmation to the surveyor general in 1872 alleged on this
subject as follows:
"The said Juan Luis Ortiz was placed in the legal possession of
said grant by Jose Dolores Trujillo, a justice of the peace,
according to the laws and customs then in force in said republic,
governing the making, granting, and placing persons or grantees in
possession of lands granted to them."
In the asserted granting papers, Trujillo specifically describes
himself as "justice of the peace at said place" (Pojoaque), and
grants the juridical possession in his capacity as such officer. On
the subject of this official, Antonio Sena, on being shown the act
of juridical possession, testified as follows:
"Q. Who was, if you can state, the justice of the peace at
Pojoaque at that time?"
"A. It was Jose Dolores Trujillo."
"Q. Do you know the signature of Jose Dolores Trujillo? If so,
please examine the signature on the document marked 'Sierra Mosca
grant -- original,' purporting to be his, and state whether it is
genuine."
"A. I know the signature, and have examined the one referred to,
and it is his genuine signature. I, as prefect, had authority to
appoint the justices of the peace in my district, and I appointed
him for the precinct or demarcation of Pojoaque."
By necessary implication, in the passage already quoted from the
testimony of Ramon Sena, he also affirms the official character of
Trujillo as an alcalde or justice of the peace.
By the Mexican law in force at the time of the making of the
alleged grant, a justice of the peace exercised his authority over
a designated area known as a demarcation. Contemplating the
contingency of the absence or inability from other cause of such an
appointed official to act, there was an official known
Page 176 U. S. 440
as a
juez de paz suplente, or substitute justice of the
peace. The area embraced within the demarcation over which the
jurisdiction of the justice of the peace extended was subdivided
into precincts, for which an inferior official was appointed, known
as a
juez de barrio.
It is unnecessary to consider the difference, if any, between
the authority of these officials, as the question is not what was
the power of Trujillo as an officer, but whether the proof shows
that he was an official, or at all events whether it does not give
rise to such serious doubt on the subject as to cause us to be
unable to sustain the alleged delivery of juridical possession.
It is clearly proved that, in 1846, at the time the alleged
granting papers purport to have been executed and long prior
thereto, there was no justice of the peace for the demarcation of
Pojoaque, as there was no such demarcation. At that time, Pojoaque
was a small town within the demarcation of San Ildefonso, that
demarcation being subdivided into four barrios, as follows: El
Rancho, Cuyamungue, Jacona, and Pojoaque.
Now the proof is that, in 1845 and also in the year when the
grant was alleged to have been made (1846), the justice of the
peace of the demarcation of San Ildefonso was Jesus Maria Serrano.
This fact is established by official documents in the record, and
is conceded by the defendants in error. It is also shown by
official documents, and is not denied, that in 1845 the substitute
of Serrano for the demarcation of San Ildefonso was Teodoro
Gonzales. Whilst there is no official record of the reappointment
of Gonzales as
juez de paz suplente for the demarcation
for the year 1846, Gonzales -- who was examined before the surveyor
general in 1878 -- testified positively to that fact, and said
that, in 1846, he and he alone was such officer. Another witness
also, Jesus Maria Ortiz y Baca, who was examined before the
surveyor general at the same time but who again testified at the
trial, confirmed this statement of Gonzales. The uncontradicted
statements of these witnesses were corroborated by those of other
witnesses living in the vicinage of Pojoaque, who said that they
knew Serrano to have been justice of the peace, and Gonzales to
have been his substitute in June, 1846, and that,
Page 176 U. S. 441
although they were personally acquainted with Jose Dolores
Trujillo, they never heard of his laying any claim to any one of
these offices or exercising or pretending to exercise any of the
functions thereof.
It is impossible to deduce any reasonable conclusion favorable
to the contention that Trujillo was a
juez de paz suplente
in 1846 upon the assumption that lapse of time had led these
witnesses to confound one year with another, since the testimony
shows that, both in 1845 and subsequently in 1846, no person of the
name of Trujillo held that office.
What is the state of the proof as to the juez de barrio of
Pojoaque in 1846, when the alleged grant was made?
Those officials, it would seem, were recommended for appointment
by the justice of the peace of the demarcation, through the prefect
of the district, to the governor of the department for
confirmation, their commissions going to them through the justice
of the demarcation. It is shown by official evidence -- which is
undenied -- that in 1845, the
jueces de barrios for the
four precincts within the demarcation of San Ildefonso were as
follows:
At El Rancho, Don Joaquin Lujan
" Jacona, Don Jesus Lujan
" Cuyamungue, Don Jesus Maria Ortiz
" Pojoaque, Don Miguel Trujillo
In December, 1845, it is shown that the then prefect of the
department, Santiago Flores, addressed a letter to Serrano, as
justice of the peace of the demarcation of San Ildefonso, advising
him that it had been seen fit to "reelect" him "justice of the
peace for the coming year," and directing him:
"As soon as you receive this, to appoint the precinct justices
which there ought to be within the limits of the demarcation under
your charge, reporting to this prefecture with the greatest
possible promptness as to whom you have appointed to those
positions, in order that they be approved by his excellency the
governor."
No documentary proof was adduced showing that Serrano complied
with this order, although, of course, the assumption would be
either that the incumbents held over or that a
Page 176 U. S. 442
vacancy was not allowed to exist, and the appointments were
promptly made as directed. Now as Trujillo was no even a
juez
de barrio in the previous year, he could not have held over,
and the testimony excludes the implication that he could at that
time have been appointed to fill a vacancy and acted as such
officer without the knowledge of the residents at the place where
his functions would have been exercised.
Santiago Flores was not the incumbent of the office of prefect
on January 12, 1846, as on that date, one Jose Francisco Baca y
Terrus was acting as prefect, and he appears from the record to
have continued to be prefect as late as March 27 following, his
successor in the office being Antonio Sena. Assuming, then, that
Sena's testimony can be construed as relating to the office of
juez de barrio, it would have to be further assumed that
the appointments for the year 1846 had not been made as commanded
by the prefect and as required by law, and that therefore either
the offices had been vacant from the close of 1845 until Sena's
assumption of the prefecture in April, 1846, or that a vacancy had
occurred in the office of
juez de barrio at Pojoaque, as
to which, however, no proof has been offered. True it is that
counsel for the petitioners who conducted the cross-examination of
the witnesses before the surveyor general in the proceedings
initiated in 1872, testified that when the files of the former
demarcation of San Ildefonso were produced before the surveyor
general in 1878, in looking over them, he saw a paper, not among
the records as produced at this trial, signed by Antonio Sena from
the prefect's office, "in which he designated or appointed Jose
Dolorez Trujillo as
alcalde suplente, located at Pojoaque,
in the jurisdiction of San Ildefonso," the witness afterwards
correcting his testimony by stating that the document which he
recollected to have seen
"was dated either the very last days of the month of December,
1845, or in the first three or four months of the year 1846, and it
was a document appointing Jose Dolorez Trujillo as
alcalde
or
juez de barrio suplente of the jurisdiction of San
Ildefonso at Pojoaque."
In the brief, however, our attention is called to the fact that
there is a mistake in the record, and that the word
"
suplente" in the quotation
Page 176 U. S. 443
just referred to is erroneously placed after the words "
juez
de barrio," instead of following the word "
alcalde,"
and that the statement should read "
alcalde suplente or
juez de barrio." Although one of the questions pending
before the surveyor general in 1876 was whether Trujillo had ever
been appointed by Sena as a justice of the peace, it is conceded
this paper was not when seen offered in evidence, nor was the
attention of the surveyor general called to it, nor was any copy
taken of it. The course pursued, it is said, having been taken
because it was deemed that the investigation before the surveyor
general could have no legal force, and because it was feared that,
if attention was directed to the document, it might be abstracted.
On this subject also there is testimony from the counsel who
appeared for the petitioners in the supplementary proceedings
referred to, showing that, when the records were then produced, he
also made a critical examination of them, and no such paper as the
one described was seen by him. But no conflict need necessarily
arise from the statements of the two witnesses, for it might well
be that a paper was seen by one of the witnesses at one time, and
was not seen by the other at another time, because it may have been
surreptitiously placed on the files and thereafter abstracted
unknown to either counsel. This is fortified by the fact that the
custodian of the archives who produced them at the supplementary
hearing, and who had the custody of them long prior to that
occasion and was familiar with them, had never heard of or seen any
such paper. If surmises were compelled, in view of the high
position of counsel, the direction which conjecture would take may
be indicated by the suggestion that Sena was alive at the time of
the supplementary hearing, and that Gaspar Ortiz not only was
alive, but on one occasion was present in an adjoining room when
the testimony of witnesses was being taken before the surveyor
general, although not called as a witness. Considering the paper as
testified to, its presence would accentuate, rather than assuage,
the grave suspicion which the other facts to which we have alluded
give rise.
Certainly it could not have been a contemporaneous paper, if
Sena purported to have acted as prefect in December, 1845,
Page 176 U. S. 444
and as such to have appointed Trujillo as
alcalde
suplente for the year 1846, because the official documents in
the record show that, on December 6, 1845, Santiago Flores, and not
Sena, was prefect, and that Flores was such officer prior to that
date appears in his official communication to justice of the peace
Serrano, of date December 6, 1845, showing that, before that date,
as prefect Flores had nominated Serrano to the governor to serve as
justice of the peace for the year 1846. Nor could it have been
genuine if the appointment was of Trujillo as
alcalde
suplente or
juez de barrio during any time from the
beginning of December, 1845, up to the close of the month of March,
1846, because during all that time, the record shows that Sena was
not prefect. Besides, if the paper as testified to was now here
just as it is described in the testimony, it would not help the
situation, for it would vary from the declarations in the act of
possession and from the testimony of Sena. In the paper as to the
delivery of possession, Trujillo represents himself not as
juez
de barrio, but as a justice of the peace, and Sena testified
as follows: "I, as prefect, had authority to appoint the justices
of the peace in my district, and I appointed him for the precinct
or demarcation of Pojoaque." Now as a former prefect, he was
familiar with the designation of minor officials, and would not
therefore have confounded a justice of the peace with a
juez de
barrio. The official correspondence of Sena contained in the
record shows that the designation "justice of the peace" was
applied by Sena to the justice of a demarcation, and the term
juez de barrio he applied to a justice of a precinct
within the demarcation. And a like practice is shown by the record
to have been pursued by the successor of Sena.
And on this subject the record contains a very suggestive
fact.
It is shown that, at a time subsequent to the date of the
alleged grant, the demarcation of San Ildefonso was divided, and
from the territory of which it was composed there were established
two demarcations, one that of San Ildefonso and the other that of
Pojoaque, and that the records of the former demarcation were kept
at Pojoaque. This, of course, necessarily gave rise to two justices
of the peace, one of the demarcation
Page 176 U. S. 445
of San Ildefonso and the other of Pojoaque. The new demarcations
thus created, if they did not continue up to the trial below,
certainly so continued for many years. The description of the
capacity of Trujillo found in the alleged act of possession and of
his official character given by Sena is more aptly appropriate to
the demarcation of Pojoaque as it existed after the division and
subsequent to the making of the alleged grant. From this
circumstance may well arise the reflection that if the papers were
not executed until at or about the time their existence was
publicly asserted in 1872, the mind of the draughtsman might
inadvertently have taken into consideration the demarcation of
Pojoaque created after June, 1846, and which had many years
obtained, and have thus overlooked the state of things existing in
1846.
2. The impossibility of deducing from the testimony of the two
Senas proof sufficient to overcome the grave doubt as the
genuineness of the grant already engendered by the proof referred
to is further confirmed by considering the state of the evidence on
the subject of possession.
In the petition for grant, Ortiz is represented as living at
Pojoaque, and as asserting that he found himself at that time "with
land so considerably restricted as not to furnish a fair
subsistence for the support of the large family" he provided for,
and it was further represented that the tract which was solicited
possessed "the advantage of containing fertile lands for
cultivation, pasture and water sufficient, and else which is needed
for raising stock." In the proceedings instituted before the
surveyor general in 1872, the land embraced within the boundaries
mentioned in the grant was marked on a sketch filed with the
petition as aggregating about 115,200 acres, while a survey made by
the United States in 1876 -- asserted by petitioners in their
petition filed below to be incorrect -- gave the area as 33,250.39
acres. The brief for defendants in error, however, now declares
that the claim is limited to not exceeding eleven leagues, the
claim as confirmed by the court below. In the petition of 1872, it
was averred that from the date Ortiz was placed in possession he
"and his heirs had cultivated a portion of said grant and the rest
they have used in
Page 176 U. S. 446
herding their animals and in obtaining wood." The only proof,
however, introduced by the petitioners before the surveyor general
in 1872 bearing upon the occupancy or cultivation of the tract in
question by Ortiz and those claiming under him were statements
contained in the depositions of Antonio Sena, Ramon Sena, and Pablo
Dominguez. These witnesses, however, spoke only in general terms.
Antonio Sena and Dominguez simply testified that Juan Luis Ortiz
and his heirs had always occupied the land, and it had always been
reputed to be theirs, while Ramon Sena thus expressed himself:
"Ortiz lived upon the land during his lifetime, and his heirs
have continued to occupy it since his death, and it has been
continuously occupied by him and them, and they have always been
the reputed owners of the land, and respected as such."
The evidence introduced at the trial below, however, tended to
show that the upper portion of the tract in question had been
claimed by the heirs of the father of Juan Luis Ortiz under an
alleged prior grant to their ancestor, and that portions of such
tract had been occupied and cultivated by some of said heirs under
such claim, and a number of witnesses, relatives and neighbors of
Juan Luis Ortiz during his lifetime, testified not merely that they
had never known Juan Luis Ortiz to have occupied or cultivated the
land, but that the existence even of the alleged grant of 1846 was
not known or heard of in the neighborhood until its presentation in
1872 to the surveyor general for confirmation. Further, it is
established, though Juan Luis Ortiz may have lived at Pojoaque in
June, 1846, he took up his residence at Santa Fe in the house of
his son Gaspar not very long after the date named. In fact, the
widow of Gaspar in her testimony said that Juan Luis Ortiz died
about 1861 or 1862, and that he resided at her house in Santa Fe
for about twenty to thirty years before his death. If, however, we
accept the statement of another witness, a relative named Jose
Ortiz, aged fifty-eight years at the time he testified, Juan Luis
Ortiz died in 1859 or 1860, and lived with his son Gaspar, and
clerked in the store of that son in Santa Fe for ten or twelve
years before he (Juan Luis Ortiz) died. It would thus appear that
Juan Luis Ortiz left Pojoaque and the vicinity of this grant
for
Page 176 U. S. 447
Santa Fe, if not before at least very soon after the date of the
asserted grant. The widow of the son Gaspar, however, did not give
any evidence tending to show any knowledge on her part of any
cultivation or use of the tract by or on behalf of Juan Luis Ortiz,
during her acquaintance with him, which must have extended back at
least to the time of her marriage to the son, which she stated to
have been in 1848. Particularly, she did not explain how he could
have so occupied and cultivated when living at her house in Santa
Fe and acting as clerk for her husband.
Despite the great weight of the adverse testimony above referred
to, the claimants in the court below introduced no evidence
whatever as to possession, cultivation, or improvement of the
alleged granted land except that, in the opening of their case,
there was introduced the
ex parte testimony of the
witnesses before the surveyor general on the first
investigation.
3. The foregoing considerations, weighing against the validity
of the asserted grant, are fortified by the fact that although Juan
Luis Ortiz and his son Gaspar lived, prior to 1854 and subsequent
thereto, in Santa Fe, where was located the office of the surveyor
general of New Mexico, and the act authorizing the presentation of
claims of that official was passed in 1854, it was not until 1872
that the alleged grant made its public appearance. There are also
many other facts and circumstances in the record casting the
gravest doubt on the genuineness of the alleged grant and tending
to contradict the testimony of the Senas. To avoid too much
prolixity, however, we shall not refer to them.
All the foregoing considerations render it unnecessary to
examine the questions which are pressed in argument as to the form
of the alleged grant here relied on, the claimed inattention to the
requirements of the regulations of 1828, and the nonproduction of
an
expediente or of a
testimonio of title, upon
which questions we refrain from expressing any opinion whatever.
Luco v. United
States, 23 How. 515, 528 [argument of counsel --
omitted];
United States v.
Castro, 24 How. 346;
United
States v. Knight, 1 Black 227;
Peralta v.
United States, 3 Wall. 434;
Van
Reynegan v.
Page 176 U. S. 448
Bolton, 95 U. S. 33,
95 U. S. 35. The
view we have taken of the proof also conclusively negates the
premise of fact upon which is argued that there was archive
evidence of the grant (as this premise must rest upon the testimony
of Ramon Sena alone), and therefore bring the case directly under
the rule laid down in
United States v.
Cambuston, 20 How. 59;
United
States v. Castro, 24 How. 346;
United
States v. Knight, 1 Black 227, and
Peralta v.
United States, 3 Wall. 434.
It results that it becomes unnecessary to examine the legal
questions to which at the outset attention was called, and that
The court below erred in confirming the grant, and its
decree so doing is reversed, and the cause remanded to that court
with directions to enter a decree rejecting the claim and
dismissing the petition, and it is so ordered.
*
"
[Translation]"
"
Alleged Documents of Title"
"Most excellent governor and commanding general of the
Department of Mexico:"
"I, Juan Luis Ortiz, a resident of Pojoaque, before the
superiority of your excellency, with the highest respect and in the
most ample form allowed by law and proper for me, appear and state
that, desiring through the most legitimate and proper means to
encourage agriculture, so much recommended of the laws, and finding
myself at this time with land so considerably restricted as not to
furnish a fair subsistence for the support of the large family I
provide for, and having seen and examined with great care a tract
of public land which is situated near the place of my residence,
which I describe to your excellency under the following boundaries:
on the east by a mountain called the Mosca, or Panchuelo slope; on
the west one-fourth of a league below the waterfall on the Little
Springs Meadow; on the north a little flat mountain and some
arroyos running between north and west, and on the south a rocky
hill situated above the Chupadero valley, or boundary of the
citizens of Tesuque River, and finding in the said tract, which I
solicit of your excellency, the advantage of containing fertile
lands for cultivation, pastures, and water sufficient, and else
which is needed necessary for raising stock; and, satisfied, as I
am, that it is public and unappropriated land, as I have already
stated, I have not hesitated to apply to the justice of your
excellency, asking very respectfully that, for the sake of, and in
justice, you be pleased to grant me the said possession, which I
ask in the name of the Mexican nation, to which we have the honor
to belong, protesting that I do not act in dissimulation, and
whatever be necessary, etc., stating to your excellency at the same
time that my petition is not upon paper of the proper stamp, there
being none in this city; but I promise to attach one cancelled as
soon as there shall be any."
"Most excellent sir, Juan Luis Ortiz"
"Santa Fe, June 3, 1846"
"Santa Fe, N.M., June 4th, 1846"
"What is stated by the petitioner in the foregoing petition,
asking that there be granted to him the public land which he
describes in the same, being true, and this government being
convinced of the good reasons he sets forth, the petitioner will
apply to the proper justice that he may place him in possession of
the land solicited in entire conformity to the laws in the
premises."
"Juan B. Vigil y Alarid, Sec. Armijo"
"At this place, our Lady of Guadulupe of Pojoaque, on the eighth
day of the month of June, one thousand eight hundred and forty-six,
before me, Citizen Jose Dolores Trujillo, justice of the peace at
said place, appeared Citizen Juan Luis Ortiz, resident of the same,
who presented me the foregoing superior decree of Manuel Armijo,
most excellent governor and commanding general of the Department of
New Mexico, placed upon the margin of the present petition, dated
on the 4th instant, in which I am notified to place the said Juan
Luis Ortiz in possession of the land he requests be granted him, in
conformity with the laws of possession; wherefore, I, said justice
of the peace, accompanied by my attending witnesses, proceeded to
put in execution the said superior decree, which I fulfilled,
designating the boundaries set forth: on the east a high mountain
called the Mosca, or Pachuelo slope; on the west a fourth of a
league below the waterfall on Little Springs Meadow; on the north a
small flat mountain, some arroyos running between west and north,
and on the south a rocky hill, which stands above the Chupadero
valley, or boundary of the residents of Tesuque River, and having
complied with what I am directed to do by the most excellent
governor and commanding general aforesaid, I gave him to understand
that said favor and donation has been conferred upon him in the
name of the Mexican nation, to which we have the honor of
belonging. And in due testimony, as well in the present as in the
future, I executed to him the present document of possession,
signed by myself and my attending witnesses, with whom I act
specially for lack of a notary public, there being none in this
department. To all of which I certify."
"Jose Dolores Trujillo"
"Attending: Ygnacio Alavid"
"Attending: Miguel Gonzales"