Although the jurisdiction of the federal court may have been
invoked solely on account of diverse citizenship, if the object of
the suit is to quiet title to a grant of the former sovereign,
depending for its completeness on a treaty and on laws of the
United States and acts of federal officers thereunder, this Court
has jurisdiction to review the judgment of the circuit court of
appeals.
Although the amount of land patented to the grantee of a former
sovereign may have exceeded the amount confirmed by the act of
Page 236 U. S. 636
Congress and have been predicated upon a survey and limitation
to the amount confirmed, the patentee has a taxable interest in the
land that can be reached for proper taxation by the state.
Where the lower courts erroneously sustained complainant's
contention that the lands involved were not taxable because never
segregated from the public domain, and therefore did not pass upon
the other contentions also urged by complainant as sufficient to
sustain the title and which involved questions of local law and the
weighing of conflicting evidence, this Court will not, on finding
that the lower courts erred on the question of taxability, finally
pass on the other questions, but will reverse the decree and remand
the case to the lower court for further proceedings in accordance
with the opinion.
202 F. 742 reversed.
Suit to quiet title, brought in the Circuit Court for the
Southern District of Florida by appellees, whom we shall call
throughout complainants and the appellant defendant.
The bill alleges that the complainants are the heirs at law of
Miguel Marcos, a lieutenant in the Spanish Army; that he was
granted by the lawful authorities of the King of Spain on the 18th
of October, 1815, 5,500 acres of land in the then province of East
Florida, on two banks of a creek which empties into the St. John's
River about two miles north of Long Lake; that the grant was
confirmed to his widow, Teresa Rodriguez, in her own right and for
and on behalf of her children by the United States to the extent of
a league square; that the grant was an inchoate right to said
tract, under the laws of Spain called a first title or permit to
occupy the land, and, after occupancy and proof thereof, to secure
a complete or Royal title; but, before such title issued, Spain
ceded East Florida to the United States, who, by the eighth article
of the treaty between the United States and Spain, occupied the
position of Spain with regard to this and like grants of land, and
were pledged to confirm title thereto; that the lands were neither
surveyed nor segregated from the public domain during the
sovereignty of Spain; that the same were wild and uncultivated,
were never in the actual occupancy
Page 236 U. S. 637
of the grantee or of his widow and children, and the title
thereto at the time of the cession of the Floridas passed to the
United States, subject to the equitable claim of the
complainants.
The succession of complainants to the original grant is traced
by the bill, and it is alleged that soon after the cession of the
Floridas to the United States, Teresa Rodriguez applied to the
Board of Land Commissioners appointed to examine and report on
claims to lands in East Florida for the confirmation of the grant,
and it was reported by the board to Congress as a valid grant, and
its confirmation recommended. That thereafter Congress, by an act
approved May 23d 1828, 4 Stat. 284, c. 70, confirmed it to the
extent of a league square, to be located within the limits of the
original claim and bounded by sectional lines, and to be in
quantities of not less than one section. That, under the sixth
section of the act of Congress, confirmation of the grant was
required to be accepted as a final settlement of the claim, or the
claim to be brought before the judge of the Superior Court for the
District of East Florida within one year from the passage of the
act; that the latter proceeding was not had, and that, by the act
of Congress, the title to the land was confirmed to the extent of
one league, to be located within the bounds of the original
grant.
That it was held by the judicial and executive branches of the
government that a league square was 4,438.68 acres. That, by the
laws then in force in the Territory of Florida, it was the duty of
the Surveyor General of the territory to make the survey of the
lands confirmed to complainants' ancestor, and make certificate
thereof, and file the same in the Land Office of the United States
in said territory. That among the acts of Congress extending to
said territory was the Act of March 3, 1807, by the terms of which
it was made unlawful to take possession of, survey, or cause to be
surveyed or settle upon, any lands ceded or secured to the United
States by any treaty with a foreign
Page 236 U. S. 638
nation or any land claim to which had not been recognized and
confirmed by the United States, under a penalty of forfeiture of
the right, title, and claim to such lands. That the ancestors of
complainants were residing in Cuba on the twenty-third of May,
1828, and they and their descendants have since that date resided
there, and none of them has resided or been in the United States
since the passage of the Act of May 23, 1828, confirming the grant
to the extent of a league square. That the United States never
surveyed and segregated the lands as confirmed, as held by the Land
Department of the United States, and the confirmees had no power to
cause such survey to be made. That the lands embraced in the grant
were surveyed as public lands by the United States in 1847, and
such survey was approved May 15, 1848. A certified copy of the
official plat of survey is attached to the bill, and it is alleged
that the lands were held by the Land Department of the United
States to be public lands, and were so treated from 1831 to
February 12, 1894, upon which date the grant described in the bill
was, by the Land Department of the United States, declared to be a
valid, confirmed private grant to Teresa Rodriguez, and ordered to
be patented, and thereafter it was so patented to her, her heirs,
assigns, and legal representatives, and the lands described as
Section 37, Township 19, South of Range 28, and Section 41,
Township 19, South of Range 29, according to the plat of the public
surveys made by the United States, and for the aggregate of
5,486.46 acres. That until such recognition of the title of
complainants and those under whom they claim from and after May 23,
1828, complainants were excluded from the possession of the lands,
and the United States had both the legal title and possession and
right of possession of them, and any occupancy of them by any other
than the United States was a mere trespass; that, before February
12, 1894, complainants and those under whom they take title were
not able to take possession of
Page 236 U. S. 639
the lands because the United States claimed the entire grant as
public lands.
The bill then sets out the asserted title of the defendant to
have been derived from a sale to one John Starke on July 5, 1852,
by the sheriff and
ex-officio tax collector of Orange
County, Florida, based upon a pretended execution for certain
unpaid taxes alleged to have been assessed "upon the lands supposed
to belong to Teresa Rodriguez," and the said sheriff attempted to
deed to said Starke "all the right, title, and interest of Teresa
Rodriguez and others" in and to said tracts of land. That the said
sale and deed are absolutely null and void because (1) it was
alleged to be an assessment upon the single tract containing 5,480
acres, and to be payable for the years 1845 to 1851, both
inclusive, during which time the legal title and possession were in
the United States; that the lands were expressly exempt from
taxation by the statute of the State of Florida during those years,
which declared that the act for the assessment and collection of
taxes should not be construed to embrace lands belonging to the
United States; (2) that the amount of taxes assessed was in excess
of what could have been lawfully levied; (3) that proper notice of
the sale was not given, (4) nor was the land sold in the parcels
required; (5) that the deed was not properly executed, it having no
subscribing witness and its record being wholly unauthorized.
Like invalidity is asserted against the tax and sale of the land
for the years 1867, 1868, and 1869, assessed to John Starke, and
conveyed by the sheriff to one William Mills. In addition, it is
alleged that no statute in Florida authorized a tax collector to
make a tax deed upon a sale for the nonpayment of taxes, such being
the duty of the county clerk of the county wherein lay the lands.
That the assessment and tax sale and deed to William Mills were
made in execution of a conspiracy by him and Robert
Page 236 U. S. 640
C. Patten and one George C. Powell to deprive complainants of
their title; that Mills never took possession of the lands, but
attempted to convey them to Powell, that Powell entered only upon
Section 9 (a part of Section 37, above named) of said Township 19,
Range 28, and made some improvements to complainants unknown, and
cut some timber thereon. That he exercised no other acts of
ownership, and those were continued but for a short time, and "were
not uninterrupted by continued occupancy for seven years," and were
subsequently abandoned by him; that the possession was not
sufficient, either in character or duration, to enable him to claim
the benefit of the statute of limitations against any action
brought by complainants; that complainants were precluded from
bringing any action because the lands were held and claimed
adversely by the United States, and held to be public lands of the
United States. Other tax assessments and sales are alleged, and
conveyance and title traced through them to the defendant, the
Wilson Cypress Company, but the latter has never had such
possession as would bar a right of entry by complainants. It is
alleged that complainants tried to get a recognition of their
title, but only succeeded on June 18, 1894.
There are many other allegations which assert the validity of
complainants' title and the invalidity of that of defendant, and
that, on June 26, 1895, the United States quitclaimed and patented
to the legal representatives of Teresa Rodriguez the lands granted
to Marcos, and which had been surveyed as Section 37, Township 19,
Range 28, and Section 41 of the same township, Range 29, containing
5,486.46 acres. That the patent was duly recorded in the records of
the United States and in the public records of Lake County,
Florida, and the grantor of defendant and defendant had knowledge
of it when the conveyance was made. That, after the issue of the
patent, complainants were for the first time entitled to the
possession of the
Page 236 U. S. 641
lands, and from such date they became subject to taxation, and
thereafter complainants sent their agent to Florida and took
possession of the lands and have continued ever since to claim and
have exercised acts or ownership over them.
It is alleged that the tax deeds referred to in the bill are
fair upon their faces and are clouds upon the title of
complainants, and hinder them in the full enjoyment of their
property, and should be cancelled and discharged from the public
records.
It is further alleged that defendant will aver that no patent
was necessary to evidence complainants' title, and that, by the
confirmation of the grant, title vested in the grantee and his
legal representatives, but complainants allege that, under the
facts set out, the United States did not relinquish title until the
twenty-sixth of June, 1895, and before the approval of the survey
of the lands granted the legal title was in the United States, and
the claim of complainants attached to no particular land.
There are other allegations of what the defendant will aver as
to possession and right, and it is then alleged that there never
has been such possession by defendant as would establish an adverse
holding.
An injunction was prayed against the defendant, enjoining it and
its officers from exercising acts of ownership over the land, or
from disturbing the possession of complainants; that the tax deeds
and other deeds set out in the bill be held to have been executed
without authority of law, and that they be annulled and
cancelled.
The answer is as voluminous as the bill. It negatives many of
the allegations of the bill, either by denials or opposing
allegations, and asserts that the grant from Spain and its
confirmation by the United States passed a complete title to the
land. It also asserts the validity of the title acquired through
the tax deed, alleges the insufficiency of the bill in equity, sets
up the statute of limitations,
Page 236 U. S. 642
and charges laches and estoppel, the complainants in the bill
having permitted large expenditures for care and improvement of the
property by defendant. And it also puts in issue the relationship
of complainants to Marcos and Teresa Rodriguez, and denies that
they are entitled to maintain the bill.
Upon proof being submitted, and after hearing, it was decreed
that complainants were descendants and heirs at law of Teresa
Rodriguez, the grantee in the patent of the United States
hereinbefore referred to, were entitled to "an undivided interest
in and to the lands" in controversy (which were specifically
described),
"and, for themselves and as representatives of all persons
claiming title to said lands through the said Teresa Rodriguez, her
heirs and legal representatives,"
were "entitled to maintain this bill to remove cloud from" the
lands.
The decree recited the tax deeds and the lands which they
purported to convey, and adjudged that the deeds, having been based
upon assessments made prior to the issue of the patent, and while
the validity of the grant to Marcos was denied by the United
States, were absolutely null and void and a cloud upon the title of
Teresa Rodriguez and her legal representatives and heirs at law,
and set aside.
And it was further decreed that defendant had no title or
interest in the patented lands, and that it and all persons
claiming under it were enjoined from setting up any title under the
tax deeds or from entering upon or holding possession of the lands
or any part thereof.
The decree was affirmed by the circuit court of appeals. The
opinion of the court was as follows:
"The lands in controversy were not segregated from the public
domain, and the title thereto remained in the United States until
the issuance of the patents; therefore they were not taxable by the
State of
Page 236 U. S. 643
Florida at the several times they were listed for taxes and sold
for nonpayment thereof."
MR. JUSTICE McKENNA, after stating the case as above, delivered
the opinion of the Court.
The tedious volume and prolixity of the bill are directed to
establish that Miguel Marcos, the ancestor of complainants,
received a grant from the Spanish authorities, not becoming
complete in his descendants, the complainants, until June 18, 1894,
and until such time, the lands which the grant embraced were not
subject to state taxation, and that therefore the deeds issued to
defendant in consequence of such taxation are void. And of this
view were the two lower courts, the one in consequence entering a
decree to quiet the title of complainants against the deeds, and
the other affirming such decree. This appeal was then taken.
A motion is made to dismiss the appeal on the ground that the
jurisdiction of the court was invoked solely because the
complainants were aliens and the defendant was a citizen of the
United States. This is a narrow view of the bill. It seeks to quiet
the title of complainants to a tract of land commencing in a grant
from Spain, depending for its completeness upon the treaty with
Spain and laws of the United States, and the action under those
laws by the officers of the Land Department of the United States,
and it especially relies on those laws to defeat defendant's claim
of title, and to have it removed as a cloud upon that asserted by
complainants. Indeed, there
Page 236 U. S. 644
is scarcely a contention of complainants which does not
primarily or ultimately depend upon the laws of the United States.
The motion to dismiss is therefore denied.
The first proposition on the merits is the character of the
grant from Spain to Marcos. Complainants contend, as we have seen,
that it was an inchoate or incomplete grant. The defendant,
per
contra, insists that it was confirmed as a complete and
perfect title by the force and effect of the treaty between the
United States and Spain.
It is well here to repeat some of the allegations of the bill,
that their scope and effect may be understood. It alleges the
action of the Board of Land Commissioners reporting the grant to
Congress for confirmation, and the several acts of Congress
relating thereto, especially the Act of May 23, 1828, 4 Stat. page
284, c. 70. That the grant was, under the laws of Spain, "called a
first title or permit to occupy the land, and, after occupancy and
proof thereof, to secure a complete or royal title." It is,
however, further averred that, before a perfect title could be
obtained, Florida was ceded to the United States, who, by the
eighth article of the treaty, pledged itself to confirm the title,
and that, to secure such confirmation, Teresa Rodriguez, widow of
Marcos, applied to the Board of Land Commissioners, and the Board
reported the grant to Congress as valid, and recommended its
confirmation, and that thereafter Congress, by the Act of May 23,
1828, confirmed it to the extent of a league square, to be located
within the limits of the original claim and bounded by sectional
lines, and to be "in quantities of not less than one section."
This apparently left nothing to be done but to segregate the
land by a survey, but the bill alleges that the grantees were
required to accept the confirmation as a final settlement, or bring
their claim before the judge of the Superior Court for the District
of East Florida.
Page 236 U. S. 645
This was not done, it is alleged, but it is again alleged that
the title was confirmed to the extent of one league square, to be
located within the bounds of the original grant.
Notwithstanding they had a grant confirmed to them of a possible
league square, possession was not taken, it is alleged, because,
under the Act of March 3, 1807, to have taken possession would have
forfeited their right, and that it was not until February 12, 1894,
when their title was recognized by the Land Department of the
United States, that they were able to assert ownership of the land.
In other words, that, until such date, the United States did not
relinquish its title and possession of the lands; that the
obligation to confirm grants of lands, assumed by the United States
by the treaty with Spain, was political in character, and to be
discharged as the United States deemed expedient, and as to the
grant to Marcos, the United States retained possession and title
thereto from May 23, 1828, to the issuance of the patent; that,
before the approval of the survey of the lands granted to Marcos,
the legal title was in the United States, and the claim of
complainants attached to no particular lands.
It will be observed, therefore, that the basis of the contention
of complainants is that their ancestor, Marcos, received an
inchoate title to an unspecified tract of land "two miles north of
Long Lake on both banks of a creek emptying into the St. John's
River, if this tract of land could be identified," and because it
was not identified, even by the survey approved by the Land
Department, counsel say that
"the title to the lands in controversy, therefore, whether
Marcos held a first cession or a Royal title, is held under the
United States, and not under Spain."
This, however, we assume, is but another way of stating that
complainants had no interest in the land that they could assert, or
that the State of Florida could tax, until the United States issued
its patent, and yet the United
Page 236 U. S. 646
States has done no more than recognize the title derived from
Spain and as derived from Spain. It is true there were at first
some doubts and hesitation, but ultimately the recognition was
complete, following and in pursuance of the confirmation of the
Marcos grant by the Act of May 23, 1828, and upon a survey made as
early as 1851. At whose instance the survey was made does not
appear. Section 1 of the Act of May 23, 1828, requires the land
confirmed by it
"to be located by the claimants, or their agents, within the
limits of such claims or surveys . . . which location shall be made
within the bounds of the original grant, in quantities of not less
than one section and to be bounded by sectional lines."
Some uncertainty arises from § 2. It provides that no more than
the number of acres contained in a league square shall be confirmed
within the bounds of any one grant, and no confirmation shall be
effectual until a full and final release of all claim to the
residue contained in the grant. And something is made of the
provision by complainants to refute the contention of defendant
that the act was an absolute confirmation of the grant, but it
certainly cannot be contended that it took all power from the act
and left the grant without any foundation whatever, and we are
brought back to the consideration that a valuable property was
confirmed to complainants, which only needed a survey to identify
it, and, when surveyed, was segregated from the public domain, and
subject to the taxing jurisdiction of the state. The survey was
made, we have seen, in 1851, under contract with Benjamin A.
Putnam, Surveyor General. The Act of June 28, 1848, 9 Stat. 242, c.
83, directed that surveys be made as soon as practicable of the
private claims or grants which had been duly confirmed, situated in
the State of Florida. It is probable that the survey was made in
obedience to this direction. The field notes of the survey and the
official plat thereof were approved by the Surveyor General June
20, 1851,
Page 236 U. S. 647
and the patent recites that the description of the land therein
given is taken
"from the approved field notes of the survey thereof as executed
by M. A. Williams, a deputy surveyor, in the month of January,
1851, under his contract with Benjamin A. Putnam, Surveyor General
of Florida, of the 19th of October, 1850."
Indeed, the patent rests alone on the survey as a description
and segregation of the land, the grant of which was confirmed by
the Act of Congress of May 23, 1828, as Claim No. 22, recommended
for confirmation December 16, 1825, by the Board of Commissioners
in pursuance of the Act of Congress of March 3, 1823.
All the conditions of a taxable property existed unless there be
merit in the contention of the complainants that the survey of
1851, upon which the patent was predicated, was of no effect unless
and until approved by the Commissioner of the General Land Office.
This contention has been earnestly pressed upon our attention, but
is untenable. It has no support in any statute or regulation that
was in force at the time. The Confirmatory Act of May 23, 1828, and
the Act of June 28, 1848, were both silent upon the subject, and in
the absence of some applicable special provision, the general
statute relating to public surveys was controlling. The general
statute was then embraced in the Act of May 18, 1796, 1 Stat. 464,
c. 29, and its amendments, and was afterwards incorporated in
chapters 1 and 9 of Title 32 of the Revised Statutes, more
especially §§ 2223 and 2395. It expressly dealt with the survey of
private land claims as well as of public lands, but contained no
requirement that the survey of either be approved by the
Commissioner. This is apparent upon an inspection of the statute,
and is shown by two decisions of this Court, one relating to the
survey of a private land claim resting upon a confirmed Mexican
grant and the other to the survey of public lands.
Frasher v.
O'Conner, 115 U. S. 102,
115 U. S. 115;
Tubbs v.
Wilhoit, 138 U.S.
Page 236 U. S. 648
134,
138 U. S.
142-144. In both cases, the Court approvingly referred
to a decision of the Secretary of the Interior, in the latter case
quoting the Secretary of the Interior as follows:
"There is nothing in the Act of 1796 or in the subsequent acts
which requires the approval of the Commissioner of the General Land
Office before said survey becomes final and the plats
authoritative. Such a theory is not only contrary to the letter and
spirit of the various acts providing for the survey of the public
lands, but is contrary to the uniform practice of this Department.
There can be no doubt but that, under the Act of July 4, 1836,
reorganizing the General Land Office, the Commissioner has general
supervision over all surveys, and that authority is exercised
whenever error or fraud is alleged on the part of the Surveyor
General. But when the survey is correct, it becomes final and
effective when the plat is filed in the local office by that
officer."
And it was added:
"This practice was changed by the Land Department in April,
1879, and communicated in its instructions to surveyors general on
the 17th of that month. It was not until after such instructions
that the duplicate plats filed in the local land offices were
required to be previously approved by the Commissioner of the
General Land Office."
It follows that the land granted and confirmed was fully
identified by the survey of 1851, the field notes and plat of which
are shown in the record. Of the office of the patent it is enough
to repeat what was said in
Beard v.
Federy, 3 Wall. 478,
70 U. S.
491:
"In the first place, the patent is a deed of the United States.
As a deed, its operation is that of a quitclaim, or rather of a
conveyance of such interest as the United States possessed in the
land, and it takes effect by relation at the time when proceedings
were instituted by the filing of the petition before the Board of
Land Commissioners. In the second place, the patent is a record of
the action of the government upon the title of the claimant as it
existed upon the acquisition of the
Page 236 U. S. 649
country."
In
Boquillas Cattle Co. v. Curtis, 213 U.
S. 339,
213 U. S. 344,
such a patent was described "as a confirmation in a strict sense."
See also § 3 of the Act of May 23, 1828.
It will be observed from the allegations of the bill, which we
have taken the trouble to repeat, that the foundation of the title
of complainants is a grant from Spain, which was reported as valid
by the Board of Commissioners of the United States, recommended by
such board for confirmation, and confirmed by the Act of Congress
of May 23, 1828, to the extent of one league, "to be located by the
claimants;" that subsequently (1851), a survey was made under a
contract of the Surveyor General of Florida, which has been
accepted as the segregation of the land and set forth in the
patent, and that the sole basis of the patent is the title so
derived and confirmed.
It is true, as we have stated, that the Commissioner of the Land
Office in 1890 refused to issue a patent, deciding that the claim
had been "surveyed in Twp. 19, S., Rs. 28 and 29 E., for 5,426.82
acres." The grounds of his decision were these: the claim was
before Congress when the Act of February 8, 1827, 4 Stat. p. 202,
c. 9, was passed, but that that act only confirmed those claims
which were under the quantity of 3,500 acres, and provided "for the
survey of this [Teresa Rodriguez] and other claims, exceeding in
area 3,500 acres." Referring to the Act of May 23, 1828, it was
said that, by its sixth section, those holding claims like that
under consideration might secure a confirmation thereof by
prosecuting the same in the courts. It was further said that
"patents in this class of cases are based on some confirmatory
act of Congress, or upon a confirmation of some tribunal created by
Congress for that purpose."
Considering that there was no confirmation by Congress and no
decision of any tribunal created by Congress, the Commissioner
declined "to patent the same for the want of proper evidence upon
which to base such action." A review of the decision and
Page 236 U. S. 650
action was invoked, and the attention of the Commissioner was
directed to § 1 of the Act of May 23, 1828, and a confirmation
claimed thereunder on the ground "that its survey contains a less
quantity than a league square." To this the Commissioner answered
that the
"grant was made by Spanish authority, and must be understood to
mean a grant of 5,500 acres according to the measurement used by
Spain in measuring grants of this character. . . . A 'league
square' by this measurement contains 25,000,000 varas, or 4438.68
English acres."
"The Rodriguez claim, as before stated, has been surveyed so as
to embrace 5,426.82 acres, or 988.14 acres in excess of a Spanish
'league square.'"
"Said Act of 1828 provided a method by which claims not
confirmed by its first section might be confirmed by its second
section. This second section required the claimants who accepted
its provisions to release the land in excess of a league
square."
"No release of the 988.14 acres herein referred to is found on
file here. . . ."
"The Rodriguez claim not having been confirmed, I must decline
to take up the same with a view to the issuance of a patent
therefor."
An appeal was taken to the Secretary of the Interior and a
decision rendered by him February 12, 1894. The Secretary stated
that the lands within the limits of the grant have been surveyed in
Twp. 19 S., Rs. 28 and 29 E., in Florida, that it was presented to
the Board of Land Commissioners in Florida for 5,500 acres, and
contained, according to said survey, 5,486.46 acres. The opinion
then recites the history of the grant and the steps which had been
taken for its confirmation, defined a league square to contain
6,002.50 acres of land, and that, in accordance therewith, the
grant was petitioned and allowed for 5,500 acres.
In answer to the view expressed by the Commissioner
Page 236 U. S. 651
that a Spanish league was meant, it was said that the conclusion
was
"at variance with and repugnant to every fact and circumstance
in the history of Spanish grants in the provinces mentioned
[Louisiana and the Floridas] and in the legislation of Congress in
relation thereto."
It was hence held that a "league square" of land, as understood
by Congress in the Act of May 23, 1828, meant a tract of land
containing 6,002.50 acres, and that it followed therefore that the
Rodriguez claim
"contained, as shown by the survey, less than a league square,
and is confirmed by the first section of the Act of May 23, 1828,
supra."
The decision of the Commissioner was reversed, and that officer
was "directed to patent said claim in accordance with the survey
thereof."
Both the Commissioner and the Secretary proceeded upon the
theory that the survey as approved by the Surveyor General in 1851
was effective, if the grant was confirmed by the first section of
the Act of 1828.
We have been at pains to cite at length from these decisions to
show how little stood in the way of the complete assurance of
complainants' title, and that its foundation was the direct
confirmation of it by the Act of May 23, 1828, and that the grant
needed definition only by a survey, which was made, as we have
seen, in 1851. This survey was referred to by counsel for
complainants, by the Commissioners of the Land Office and the
Secretary of the Interior and in the patent, it being made the
foundation of the latter. The case therefore becomes in principle
like
Wisconsin Railroad Company v. Price County,
133 U. S. 496;
Witherspoon v.
Duncan, 4 Wall. 210;
Northern Pacific R. Co. v.
Patterson, 154 U. S. 130;
Maish v. Arizona, 164 U. S. 599.
This disposes of the primary proposition in the case, to-wit,
that complainants had a taxable interest in the granted lands; but,
assuming the contrary, defendant yet insists that complainants are
not entitled to the relief
Page 236 U. S. 652
which they pray. There are other contentions as well, urged
respectively by defendant and complainants, upon which the courts
below did not pass, and we are brought to consider what disposition
should be made of the case in view of such contentions.
The first of the contentions relates to the title of defendant,
which has its foundation in a sale for taxes by the State of
Florida, alleged to have been assessed for the years 1845 to 1851,
both included, and a deed from the sheriff to one John Starke
(1852), and subsequently an assessment to the latter for taxes and
a sale for his delinquency, title ultimately reaching defendant
through mesne conveyances.
The validity of the tax deeds is attacked by complainants, they
asserting that the deeds were not preceded by a valid assessment,
nor indeed any assessment, nor executed in accordance with the laws
of the state, nor (as to some of them) by the proper officer. On
these contentions, as we have said, the courts below expressed no
opinion. Their solution depends upon testimony somewhat voluminous
and not very satisfactory, of which there is no analysis either by
the master or by the trial court or by the court of appeals.
The statute of the state, it is agreed, in 1845 to 1851,
required the assessors of the counties "to take down and assess the
taxable property in his county," and on or before the first day of
March in each year
"to make out three books in alphabetical order of all the
taxable property in his county, one of which books he shall forward
to the comptroller of the treasury, one other of said books he
shall deliver to the sheriff of his said county, and the other book
he shall deliver to the board of county commissioners of his said
county."
The act provided that, in default of an assessment by the
assessors, the sheriffs of the counties should assess and list the
taxes for their respective counties, and to proceed
Page 236 U. S. 653
to have the property therein assessed in such manner as the
assessors were required to perform such duty.
The chief clerk of the comptroller's office, upon being called
as a witness by complainants, testified that he found duplicate tax
rolls of 1845 to 1851, inclusive, except for the year 1847, which
he could not find. To his certain knowledge, the rolls had been in
the office for thirty years. The rolls were certified by the
assessor as correct so far as his knowledge extended. Some of the
rolls were not indorsed as filed. The witness testified that he
could add nothing to the identity of the rolls other than the
certificates, and that he could not determine whether the roll of
1845 was made in accordance with law or not. And further, that the
"book" (roll) was alphabetically arranged to the extent of the
first letter in the surnames, and that the land was designated
according to its quality as first, second, or third rate, and
assessed respectively at three fourths, one half and one quarter of
a cent an acre, but the number of acres was not given, nor a
description of the land.
To the question whether there was property assessed to Teresa
Rodriguez, he answered,
"So far as the question of whether any lands are entered there
opposite the name of Teresa Rodriguez is concerned, I will say that
I am unable to find that particular name. But I will state further
that it is impossible for me to declare that the property of Teresa
Rodriguez is not assessed, for the reason that property is entered
on this book, following after the word 'same' in a number of
instances, and for that reason I don't know who 'same' was intended
to be. In a number of instances, 'same' appears there, and 'ditto.'
In making the ditto, they used two ditto marks. Wherever the word
'same' appears, a name immediately precedes it, but where the ditto
marks (or dots, the intention of which I do not know) just precede
those, no name appears."
There is other testimony equally confusing as to the
Page 236 U. S. 654
roll of 1846. He testified that some portions of it were rotted
out. But how far this affected the roll does not clearly appear.
And as to the roll of 1848, he testified that it was so mutilated
and torn that he was unable to arrive at any conclusion as to how
the lands were assessed therein, and further, that he was unable to
give the names that were entered between the letter P and the
letter S, for the reason that, by decay, they had become so dim and
stained that he was unable to make them out. The testimony was
clearer as to the roll of 1849, and the name of Teresa Rodriguez
did not appear thereon. The witness testified that Teresa
Rodriguez's name did not appear on the roll of 1850, but he was not
able to say whether her property was attempted to be assessed or
not; that he was only prepared to say that her name was not on the
roll. The certificate to this roll stated
"that the foregoing assessment of state taxes corresponds
exactly with that contained in the book filed by me in the office
of the judge probate, and were retained by me, John Simpson, tax
assessor and collector."
It may be observed in passing that John Simpson, as sheriff and
tax collector, levied upon and sold to John Starke lands "supposed
to belong to Teresa Rodriguez." There is some presumption that he
proceeded upon a knowledge of the records and the requirements of
the law. We have seen the statute required the sheriffs to make
assessments if the assessors failed to make them.
On cross-examination, the clerk of the comptroller's office
repeated that he was unable to determine if Teresa Rodriguez's
lands had been assessed; that, "in the absence of specific
descriptions, it would be impossible to determine a question of
that nature."
Testimony was offered on the part of defendant to the effect
that the courthouse of Orange County, where the lands are situated,
was destroyed by fire in 1868 or 1869, and one only of the books of
record was saved, it not being in the courthouse at the time of the
fire. It was a miscellaneous
Page 236 U. S. 655
record, separate volumes of deeds, mortgages, and miscellaneous
matter not then being required. There was nothing in its index
which covered tax sales or tax assessments.
It will be observed, therefore, the testimony as to assessments
is somewhat uncertain and confused, and that the courts below made
no attempt to analyze or explain it, their view of the case making
it unnecessary.
There are other contentions equally dependent upon testimony.
For instance, defendant asserts that the record shows that
complainants were guilty of laches, more than twelve years having
elapsed from the date of the patent to the filing of the bill, and
that, besides, the suit is barred by the statute of limitations.
And further, that one of the parties in the tax title took
possession immediately upon his purchase of the lands in 1872, and
remained in possession until 1882, cultivated a portion of the
lands, cut timber therefrom, and exercised other acts of ownership.
That his successor in title succeeded also to the possession,
holding it until his sale in 1884 to the Florida Colonization
Company, the grantor of the defendant, from which, in 1890,
defendant received the title and possession.
It is contended that, during all such time, complainants neither
paid nor offered to pay taxes, that the other parties did, the
defendant successively from 1890, and that it also made other
expenditures; that complainant asserted no claim to the lands
against it and let twelve years elapse after patent was issued
before bringing this suit.
The courts below rejected these contentions. The trial court
seemed to have arrived at its conclusion by disregarding the
possession, whatever it was, which was held by defendant's
predecessors in the title, or its possession prior to the issue of
the patent. "It makes no difference," the court said,
"what the occupation or possession may have been while the title
to the property was in the United States, and it is not considered
that the possession during
Page 236 U. S. 656
such time can be resorted to to determine whether or not the
property was, after the issue of the patent, in the actual
possession of the defendant through its agent sufficient to legally
bar a right to maintain a bill to remove cloud from title."
We think the learned court erred in this. The continuity of
possession was a factor to be considered -- we do not say
determinative. The evidence of numerous witnesses seems to conflict
upon the character and extent of such possession, an analysis of
which can better be made in the first instance by the master or the
trial court than by an appellate court.
There are other contentions, besides, which were not passed
upon. The validity of the deed from the sheriff to Starke is
questioned because, it is asserted, it has neither subscribing
witnesses nor evidence of having been acknowledged, and, it is
contended, under the laws of Florida, a certified copy of a deed is
not admissible in evidence as proof of the execution or contents of
the original if the record has not been made upon the evidence of
execution required by the statute, citing
Kendrick v.
Latham, 25 Fla. 819. Indeed, the contention is even that a
deed without subscribing witnesses does not convey the land
described for a term of more than two years, citing
Hart v.
Bostwick, 14 Fla. 162, 173;
Neal v. Gregory, 19 Fla.
356.
To this defendant opposes the contention that the laws of
Florida did not require subscribing witnesses to a deed from a
sheriff, made in execution of a levy upon the property for the
collection of taxes, and that, further, even if so, there was a
right to receive a deed from the successor of the sheriff, and that
therefore an equitable title was conveyed to Starke which was
subject to taxation and to sale upon his delinquency.
We do not pass upon the contention, nor intimate an opinion of
the other contentions we have mentioned, or
Page 236 U. S. 657
which are presented by the pleadings. We refer to them to show
that, on account of the view of the courts below on the taxability
of the lands, they omitted to pass on a number of important issues,
some of which require a consideration of testimony, and some -- it
may be all -- an examination of the local laws and decisions, as
dependent on such testimony. And, we repeat, a consideration of
such testimony should be made in the first instance by the trial
court.
Chicago, Milwaukee &c. Ry. v. Tompkins,
176 U. S. 169;
Owensboro v. Owensboro Water Works Co., 191 U.
S. 358.
Decree reversed and cause remanded for further proceedings
in accordance with this opinion.
