The certificate of the secretary of the Spanish governor of
Florida is
prima facie evidence of the existence of a
grant of land.
The Spanish governor had authority to issue such a grant.
In the case of a grant made before 24 January, 1818, it is
valid, although the survey was not made until after that day,
provided the survey was made before the exchange of flags.
It is not a good objection to such a grant that the metes and
bounds were not set forth.
The facts in this case are fully set forth in the opinion of the
Court.
MR. JUSTICE CATRON delivered the opinion of the Court.
This is an appeal from the decree of the Superior Court of East
Florida confirming eight thousand acres of land to Domingo Acosta
under the acts of Congress for the adjustment of land claims in
Florida.
The claim is founded on an alleged petition of Acosta dated May
2, 1816, and a decree of Governor Coppinger thereon dated the 20th
day of the same month and year. The petition (record 8) sets
forth:
"That by the certificates which he presented, signed by the
commandants of Fernandina, who had governed it successively since
1808, his Excellency would be informed that he had been a permanent
resident of the said town, engaged all the while in commerce, and
had served (in all that had offered itself) the wishes of the
government for the good of the province, and that he had been
particularly prompt with his person, his funds, and his influence
for the defense, the support, and the advancement of the town, and
that he had at no time had any stipend, recompense, or remuneration
of his expenses, supplies, and losses, and had refrained from
importuning the government with solicitations. He therefore prayed
for a grant in property, of eight thousand acres, but as he was
ignorant of the lands that were vacant, and desirous to avoid
interference and dissensions with any person, he further prayed his
Excellency would be
Page 42 U. S. 25
pleased to grant them at the places where the surveyor general
might survey them as vacant lands."
The decree (record 8) states that
"In virtue of the certificates which this party presents, and it
being the will of the sovereign that the merits of his subjects
should be rewarded, the lands solicited in this instance are
granted, with special charge to the surveyor general to survey them
to him without injury to third persons."
The originals of the petition and decree were not produced in
evidence, neither are they to be found in the archives at St.
Augustine. A certified copy dated 24 June, 1816, under the hand of
Thomas de Aguilar, secretary of the government, stated to be
faithfully drawn from the original in his office, was alone
offered, and was objected to on the part of the appellants.
The appellee also offered the following plats and certificates
of survey, purporting to be made by George J. F. Clarke, surveyor
general of the province:
No. 1. Dated 12 January, 1818, for one thousand acres of land,
on Bowlegs' old plantation, and situated northwardly and contiguous
to the same Bowlegs' Prairie, westward of Payneston.
No. 2. Dated 15 January, 1818, for one thousand five hundred
acres of land, in the hammock called Jobbin's Hammock,
southwestwardly of the road called Ray's Trail, leading from the
natural bridge of the Santa Fe, the point of Alachua called
Hogtown.
No. 3. Dated 14 February, 1818, for one thousand five hundred
acres of land, northward of Dunn's Creek, running from Dunn's Lake
to the River St. John.
No. 4. Dated 20 January, 1820, for four thousand acres of land,
on the west side of Indian River and at a place called Flounder
Creek.
After hearing testimony as to the manner in which muniments of
title were kept in the archives at St. Augustine, the court made a
decree confirming the four several tracts of land to the claimant,
from which decree the present appeal is taken.
On the part of the United States it was contended that the said
decree ought to be reversed on the following grounds:
1. That there is not sufficient evidence to show that Governor
Coppinger ever made the alleged concession or grant.
Page 42 U. S. 26
2. That if Governor Coppinger made such a grant, it was made
without authority.
3. That there is no description whatever in the said pretended
grant, of the lands alleged to be granted, and no valid survey
could be made so as to sever any lands from the public domain.
4. That there is no evidence of the surveys.
The foregoing statement, offered on part of the United States,
presents the facts of the case and the objections to the decree
below.
In answer to the first, that there is not sufficient evidence
the grant was made, we refer to the case of
Wiggins, 14
Peters, which determines that the official certificates of the
secretary Aguilar was
prima facie proof of the existence
of the original grant at the date when the copy was made and of its
contents.
In this case, Alveraz proves the certificate of the secretary
genuine, and that he was in office at the date of the certificate.
It was in proof that no original could be found in the proper
office where it should be on file. This was sufficient to let in a
copy, and there being no proof to contradict or impair the force of
Aguilar's certificate, the court below properly held that the grant
had been made by Governor Coppinger.
To the second objection it is sufficient to say that the
governor, as the King's deputy, was the sole judge of the merits on
which the claim is founded, and had undoubted power to reward the
merits of the grantee; so this Court has held in many cases.
3. Although there is no description of any place where the land
granted shall be located, in the governor's decree, still it was
binding so far as it went. The surveyor general was ordered to
survey the lands solicited, on places vacant, and without injury to
third persons. The acts of this subordinate officer came in aid of
the decree; he had the authority conferred to sever the land
granted from the public domain; had he done so before 24 January,
1818, then there could be no doubt the grantee took title to the
particular lands, because up to this date all grants made by the
King of Spain, in whatever form, are recognized as valid by the
article of the treaty. The difficulty in this case is that two of
the surveys were made after 24 January, 1818, and did the grant
take effect from the date of the surveys, then, by the stipulations
of the 8th article,
Page 42 U. S. 27
it would be void. This question was first presented in
Sibbald's
Case, 10 Pet. 321. It was thought by this Court
that the 8th article of the treaty operated on grants made by the
governor after 24 January, 1818, but not on the subordinate acts of
the surveyor in giving effect to the grant, and that surveys could
be made at any time before the change of flags between this
government and that of Spain. Still, had that officer failed to
make the surveys, the grant would not be binding on this
government. We followed the case of
Sibbald in that of
Clarke v.
Atkinson, at the last term, 16 Pet. 231. This
construction was given to the 8th article of the treaty in a spirit
of liberality to this description of claimants, who could not be
held justly responsible for the delays of the surveyor general, and
because the incipient claim, by the governor's decree, was not cut
off by the treaty. The surveyor general having executed the
governor's decree, we are of opinion that the surveys made after 24
January, 1818, as well as those made before that date, are valid.
That there are several surveys is no objection to their validity;
the decree in this case obviously so contemplated.
4. It is objected that no sufficient evidence is furnished by
the record that the surveys were made. The cause was first
submitted to the court below in 1834; then the two surveys last
made were objected to and admitted by the court. The judge
continued the cause on his own motion for further proofs, and it
stood over on continuances until 1840, when the four surveys were
read without objection. We think the proofs authorized the decree,
and order that it be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Superior Court for the District of East Florida and was
argued by counsel. On consideration whereof, it is now here
ordered, adjudged, and decreed by this Court that the decree of the
said superior court in this cause be and the same is hereby
affirmed in all respects.