Section 6 of the Act of March 3, 1891, 26 Stat. 826, recognizes
that there are exceptions other than those enumerated therein in
which appeals to this Court at that time provided for by law were
saved, and this applies to the appeal by the United States under §
11 of the Act of June 22, 1860, 12 Stat. 87, from adverse decisions
of the district court of the United States in cases to establish
land titles in Florida.
The provision in § 3 of the Act of June 22, 1860, that no claims
for lands in Florida could be presented to the district court of
the United States that had been theretofore presented before any
board of commissioners or other public officers acting under
authority of Congress and rejected as being fraudulent
held to bar a claim which had been presented to a judge of
the Superior Court of Florida under the Act of May 23, 1828, 4
Stat. 284, and by him refused and rejected on the ground of an
unwarranted alteration of the register of the grant in a particular
material to its validity.
The facts are stated in the opinion.
Page 203 U. S. 420
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a petition to establish title by a grant of about
1,850,000 acres of land in Florida, brought in the district court
under the Act of June 22, 1860, c. 188, § 11, 12 Stat. 85, 87,
extended by Act of June 10, 1872, c. 421, 17 Stat. 378, for three
years from the last date. The petitioners had a decree in the
district court, and the United States appealed to this Court under
the above mentioned § 11.
As the jurisdiction of this Court is denied, we will dispose of
that question before going further into the facts. The ground of
the denial is that, by § 6 of the Act of March 3, 1891, c. 517, 26
Stat. 828, the circuit court of appeals shall exercise appellate
jurisdiction to review final decisions in the district courts,
etc., in all cases other than those provided for in the preceding
section "unless otherwise provided by law." There is no doubt that
this enactment was intended to supersede previous general
provisions, and to establish in what cases and to what courts
appeals might be taken from the district courts.
The Paquete
Habana, 175 U. S. 677,
175 U. S. 686.
But the statute recognizes, in addition to the exceptions which it
enumerates, others
Page 203 U. S. 421
where it is "otherwise provided by law." These words must be
taken to refer to existing provisions, and not to be merely a
futile permission to future legislatures to make a change. They do
not save every existing provision, of course, or the act would fail
of its purpose. But they save some. There is no case to which they
can apply more clearly than one in which, by reason of its
interest, the United States has manifested its will to submit to no
judgment not sanctioned by its highest court. The language of § 11
is not the usual permission to appeal, such as existed in the Act
of March 3, 1851, c. 41, §§ 9, 10, 9 Stat. 632, 633, referred to in
Gwin v. United States, 184 U. S. 669.
See also Act of August 31, 1852, c. 108, § 12, 10 Stat.
99. It bears the unusual form of a positive requirement. "If the
decree be against the United States, an appeal shall be entered to
the Supreme Court of the United States." This is a provision based
on a specific policy with regard to a certain class of claims. It
is not a matter of general principle, but a special trust.
See
also Act of May 23, 1828, c. 70, § 9, 4 Stat. 284, 286; May
26, 1824, c. 173, § 9, 4 Stat. 55. It stands on the same ground of
peculiar importance that is the foundation of the express grant of
certain direct appeals in § 5 of the act of 1891. Therefore,
without considering whether the case at bar falls within the other
exceptions, we are of opinion that the jurisdiction of this Court
given by § 11 of the act of 1860 remains unchanged.
The petition was filed on March 3, 1875, by the heirs of John
Forbes. It alleged a grant to John Forbes by the Captain General of
Cuba, on January 10, 1818; that is, a grant made in time to escape
the eighth article of the Treaty with Spain of February 22, 1819,
declaring all such grants made after January 24, 1818, void. On the
other hand, it invoked the earlier part of the same article, by
which all grants made by the King of Spain or by his lawful
authorities, in the territories ceded to the United States, before
January 24, were to be confirmed to the same extent as if the
territories had not been sold. On December 14, 1878, an amendment
was allowed
Page 203 U. S. 422
by which the grant was alleged to have been made to John Forbes
& Company, a partnership consisting of Forbes, James
Innerarity, and John Innerarity, and the Innerarity heirs were
joined as parties. The rights of the United States, especially
under the statute of limitations, were saved, and one question
argued is whether this amendment could be allowed when the time for
bringing suit under the act of 1860 had expired. We shall not find
it necessary to discuss this question, and shall assume, for the
purposes of decision, that the amendment properly was allowed.
United States v. Morant, 123 U. S. 335,
123 U. S. 343.
We shall assume that the proceeding is to establish the claim and
appropriate the land to it, rather than to determine in detail the
present holders of the claim.
See Butler v. Goreley,
146 U. S. 308,
146 U. S. 310;
147 Mass. 8, 12;
Pam-To-Pee v. United States, 187 U.
S. 371,
187 U. S.
379-380.
It is unnecessary to trace all the vicissitudes of the case or
to explain the delays. It is enough for our purposes to say that
the parties reached an issue on May 29, 1903. A master was
appointed, and testimony was taken. At the hearing before him, the
United States put in the
registro, or instrument of grant,
which was in fact the original instrument, although the document of
title under Spanish law is a copy delivered to the grantee, while
the
registro is retained by the government. It appeared
upon inspection that this instrument had been altered in the date
to January 10, from February 20, 1818, the true date making the
grant void under the treaty. Thereupon the petitioners asked leave
to amend by adding an allegation that the grant was made on
February 20, 1818, but had been altered so that it purported to
have been made on January 10. The result of this amendment was
that, whereas the ground of recovery previously had been the
treaty, now it was that the act of 1860 had given a right to
recover in a case which the treaty put an end to in so many words.
It abandoned the old ground, and that no longer could be relied
upon if the amendment was allowed. The amendment,
Page 203 U. S. 423
although filed, was not formally allowed before the hearing, and
after the hearing, the United States filed a suggestion that it had
been treated as followed, and that an order should be made
nunc
pro tunc that the amendment had been allowed. Thereupon, the
order suggested was made, and an additional answer was filed,
setting up the treaty and the limitation in the statutes. We do not
perceive that the United States, by its course, lost its right to
maintain that the amendment set up a new cause of action, which was
barred by the limitation fixed by the statutes on the matter, and
it urges that defense.
Union Pacific Ry. Co. v. Wyler,
158 U. S. 285,
158 U. S.
298.
It has been decided that a decree upon a bill to have a patent
declared void as forfeited under an act of Congress was a bar to a
subsequent bill for the same purpose upon the different ground that
the land was excepted from the grant as an Indian reservation.
United States v. California & Oregon Land Co.,
192 U. S. 355. In
that case, it was intimated that, in general, a judgment is a bar
to a second attempt to reach the same result by a different
medium concludendi. But, while such a decision might be
persuasive on the question whether the cause of action is the same
or different for the purposes of amendment, it has been decided
that an amendment could not be allowed in a Missouri district,
changing the ground of recovery from the common law to the common
law as modified by a Kansas statute, which did away with the
defense that the negligence complained of was that of a fellow
servant, in actions against railroads.
Union Pacific Ry. Co. v.
Wyler, 158 U. S. 285. In
the present case, the change is a change in the allegations of
fact, and was most material, because it necessarily was followed by
a direct facing about with regard to the law. We shall not dispose
of the case on this ground, but we think it proper to say that the
difficulties in the way of upholding this amendment under the
last-mentioned decision have not been removed from our minds.
The fundamental questions in the case are whether the
petitioners are within the act of 1860, and, if they are,
whether
Page 203 U. S. 424
they are not met by an exception to which we shortly shall
refer. The former we shall not decide. The statute, by § 1, gave a
petition to any persons
"who claim any lands lying within the States of Florida,
Louisiana, or Missouri by virtue of grant. . . . emanating from any
foreign government, bearing date prior to the cession to 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 are situated."
And somewhat similar language is used in § 11, allowing a
proceeding in the district court. There, however, the words apply
only in case of a complete grant or concession and separation from
the mass of the public domain prior to the cession to the United
States,
"or where such title was created and perfected during the period
while the foreign governments from which it emanated claimed
sovereignty over, or had the actual possession of, such
territory."
The petitioners rely upon the words of the act and upon
United States v. Morant, 123 U. S. 335.
That case involved lands in Florida, lying, like the present, east
of the River Perdido, of which the grant was made before January
24, 1818, but the survey was not completed until afterwards. The
Court, while intimating that such a grant well might have been held
to be saved by the treaty, pointed out that the treaty was not
signed until February 22, 1819, or possession taken until July
1822, and held that the case was within the act.
On the other hand, there must be, and it has been intimated that
there are, some limits to the generality of the words of the
statute. Certain large grants were expressly excepted from
recognition by the King of Spain on his ratification of the treaty.
The act was not intended to bring them to life. There is a strong
argument that it no more was intended to validate all other grants
expressly annulled, but rather that what was aimed at was the
so-called disputed territory lying west of the River Perdido, of
which a short and clear account
Page 203 U. S. 425
is to be found in
United States v.
Lynde, 11 Wall. 632. In the light of that history
and in view of the alternative ground of decision kept open in
United States v. Morant, if there are no other possible
distinctions between that case and this, we also shall leave it
open whether the intimation in that case is right, or whether the
same justice was more accurate when he said, even with regard to
grants of land in the disputed territory, that the intention of the
act was to validate them, "subject, of course, to the express
exceptions of the treaty of 1819 and the supplementary declaration
of the King of Spain finally annexed thereto."
United
States v. Lynde, 11 Wall. 632,
78 U. S.
646-647.
See McMicken v. United States,
97 U. S. 204,
97 U. S.
208-209;
United States v. Clamorgan,
101 U. S. 822,
101 U. S.
825-826 ("which passed by the Louisiana purchase," in 25
L.Ed. 836).
However it may be as to the question upon which we have touched,
we are of opinion that this case "comes within the purview of the
third section of this act" (of 1860) in the words of § 11, in which
event the petition is not allowed to be maintained. The third
section provides for a division of the claims into three classes,
numbers one and two containing claims which ought to be confirmed,
number three containing those which ought to be rejected,
"
Provided, that in no case shall such commissioners
embrace in said classes number one and number two any claim which
has been heretofore presented for confirmation before any board of
commissioners, or other public officers acting under authority of
Congress, and rejected as being fraudulent, or procured or
maintained by fraudulent or improper means."
We are of opinion that this proviso excludes the petitioners,
for the reasons which we proceed to state.
Before the act of 1860 was passed, an Act of May 23, 1828, c.
70, § 6, 4 Stat. 284, 285, authorized the presentation of certain
land claims in Florida to a judge of the Superior Court of West
Florida, subject to the restrictions of the Act of May 26, 1824, c.
173, 4 Stat. 52. This claim was presented by the Inneraritys for
themselves and the Forbes heirs, and, after a
Page 203 U. S. 426
trial, the prayer for confirmation of the title was "refused and
rejected" for the reasons set forth in an opinion which is in the
record before us. The general ground was the unwarranted alteration
of the
registro, which we have mentioned above. The judge
was careful not to implicate the public officer, remarking that it
would be unjust, when he was not a party and had no opportunity of
defense. He also stated that it was not intended to implicate the
parties in interest. But he pointed out that the inducement for an
alteration of the
registro a year or two after it was
made, when the time became essential in consequence of the treaty,
was obvious, and as plainly intimated that he considered the
alteration fraudulent, as he could without saying so in words. He
simply avoided finding by whom the alteration was made. He quoted
the Curia Filipica for the invalidity of a public instrument which
does not authenticate alterations by a
salvado, and he
concluded that the claimants had no legal grant prior to January
24, 1818. He relied upon the absence of a
salvado, no
doubt, but only as one of the grounds for deciding that the
alterations were made without authority of law, and as leading to
the further consequence that the instrument was void.
The United States set up this adjudication as a bar under the
above-mentioned § 3. The petitioners make several replies. In the
first place, they contend that, if a decision by a judge had been
embraced within the proviso of § 3, he would not have been referred
to in a slight, subordinate, and alternative way, under the general
head of "other public officers acting under authority of Congress,"
after the specific mention of "any board of commissioners." The
reason seems plain enough, however. The whole scheme of the earlier
acts was that the claims should be presented to a board of
commissioners. Act of May 8, 1822, c. 129, 3 Stat. 709; March 3,
1823, c. 29, 3 Stat. 754; February 8, 1827, c. 9, 4 Stat. 202. The
right to present a claim to a judge came in only by way of a late
supplement in a limited number of cases. Act of May 23, 1828, c.
70, § 6, 4 Stat. 284, 285. The judges referred
Page 203 U. S. 427
to were judges of a territorial court established by the acts of
March 30, 1822, c. 13, § 6, 3 Stat. 654, and March 3, 1823, c. 28,
§ 7, 3 Stat. 750. They were not district judges, and there was a
certain ambiguity in their standing which was under discussion when
the act of 1828 was passed, and has been discussed since.
American Ins. Co. v. 356 Bales
of Cotton, 1 Pet. 511;
McAllister v. United
States, 141 U. S. 174. It
was most natural to use cautious words, but there was no other
public officer which the act of 1860 is likely to have had in mind.
No further argument seems necessary to justify the conclusion that
these judges were embraced within the actual, as well as the
literal, meaning of the words used.
In the next place, it is said the claim was not found to be
fraudulent or maintained by fraudulent or improper means. With
regard to this, we think that we have said enough already. The
claim was found to be based upon an alteration, the motive for
which was pointed out, and to be maintained by a reliance upon the
unlawful alteration. The main contention is that the judge had no
jurisdiction to reject the claim on that ground, because, the
moment that he decided the true date of the grant to be after
January 24, he fell within a proviso of the Act of May 23, 1828, c.
70 § 6, 4 Stat. 285, which excluded him from taking cognizance of
any claims annulled by the treaty.
United States v. Baca,
184 U. S. 653. It
appears to us that this argument rests on too narrow a view of the
statutes and of what was done. The claim as presented was within
the judge's jurisdiction. He had authority to inquire whether it
was so in fact. The document produced by the petitioner showed a
claim which he could decide upon the merits, for the copy did not
disclose the alteration. When the registro was put in, it appeared
that the date had been altered. He still had authority to decide
whether the alteration was valid. He decided that it was unlawfully
and fraudulently made. It would be an extraordinary refinement to
say that he had authority to decide that it was made unlawfully,
but not to decide why it was unlawful. The illegality did not
Page 203 U. S. 428
follow from the mere fact of alteration. Had there been a
salvado, it might have been valid. He could not come to
his conclusion without some definite ground.
Moreover, while it is true that the limitation in § 6 of the act
of 1828 in form provides that the act shall not be taken to
authorize the judge to take cognizance of any claim annulled by the
treaty, etc., in substance it is addressed to maintaining the
invalidity of the excluded claims. The jurisdiction of the judge
was no different from what it would have been if the proviso had
declared that nothing in the act should be taken to validate or to
authorize the recognition of any claim which the treaty declared
void. We are of opinion that the judge had authority to find the
claim to be fraudulent and maintained by improper means.
The decree "rejected" the claim upon the grounds which we have
stated, and an opinion was expressed that the grant was not merely
annulled by the treaty, but void under Spanish law. But the
objection remains to be answered that, even if "reject" was a
proper term for the decree in such a case, and even if the
jurisdiction to reject included authority to find that the claim
had been saved from the treaty by fraud, still there was no
jurisdiction to pass upon its validity apart from the treaty, and
that therefore the claim now may be set up since the act of 1860
has brought it to life. The proviso in § 3 of the act of 1860, it
may be said, refers to claims rejected on their merits, when all
the merits as admitted by that act were open. We are of opinion
that there is no reason for thus artificially narrowing words that,
on their face, include all cases. They include as well any claim
which previously had been rejected as fraudulent or maintained by
improper means, when the fraud addressed itself to avoiding the
treaty, as when it related to some other fact material to the
validity of the claim at the time when it was created. The fraud
went to the merits of the case. For, by the meaning of the act of
1828, as just explained, the date of the grant was as material to
the validity of the claim as the authority of the Captain
General
Page 203 U. S. 429
of Cuba to convey on behalf of the King. Therefore, it is our
opinion that the claim is barred by the decree, even if it could
escape from the other objections upon which we have found it
unnecessary to pass.
Decree reversed.