Where the objection to a grant of land in California was that
the grantee was a foreigner, and therefore not entitled to hold
land, this Court is of the opinion that the testimony of
conversations of admissions, relied upon to prove that fact, ought
not to be received to outweigh the
prima facie if not
conclusive presumptions arising from the expediente and definitive
title.
The title of Dalton to the land which he claimed is set forth in
the opinion of the Court.
The board of commissioners confirmed the title, but the district
court reversed the decree, apparently upon the ground stated in the
following exception:
Upon the trial of this cause, the United States district
attorney offered to prove, by Daniel Sexton and J. S. Mallard,
witnesses called on the part of the United States, that Henry
Dalton, the appellee in this case, was not, at the time of the
grant of the land to him in this case, a citizen of Mexico, but was
an alien and a subject of Great Britain, which proof was objected
to by J. R. Scott, counsel for appellee; but his honor the judge
overruled the objection, and permitted the evidence to be given, to
which the appellee, by his counsel, excepted, and prays the court
to sign this his bill of exceptions, and make the same part of the
record in the case, which is accordingly done.
The evidence of these two persons upon this subject was as
follows:
Daniel Sexton sworn, and said:
1.
Question. What is your name, age, place of
residence, and occupation?
Answer. My name is Daniel Sexton; my age, about 37; I
reside in San Gabriel; I am a farmer.
2.
Q. How long have you lived in California?
A. I have lived in this part of California, County of
Los Angeles, since the fall of 1841.
Page 63 U. S. 437
3.
Q. Do you know or not Henry Dalton, the appellee in
this case?
A. I do.
4.
Q. How long have you known him?
A. I have known him since the latter part of 1844, or
beginning of 1845.
5.
Q. Do you know how long he has resided in
California?
A. Yes; since the latter part of 1844 or beginning of
1845.
6.
Q. Do you know the country of his birth?
A. He has frequently told me he was an Englishman.
7.
Q. Do you recollect the last time he told you
so?
A. Yes -- in May, I think it was, in 1847; I was
coming, in company with Mr. Dalton, from Azusa to Santanita; he
told me that he was an Englishman; that he never was a Mexican
citizen, and never intended to be an American citizen.
J. S. Mallard:
My name is J. S. Mallard; residence, San Gabriel; my age is 39,
and a merchant by occupation; I have resided in California five
years, and in Los Angeles county the same length of time, with the
exception of four months. I know Henry Dalton, and have known him
since January, 1850, as a resident of Los Angeles city.
Question. Do you know the rancho of San
Francisquito?
Answer. I don't know that I do, only from report.
Q. Do you know the country of Mr. Dalton's birth?
A. I do not.
Q. Do you know whether or not Mr. Dalton, the appellee
in this case, is a native of Mexico? And if not, state generally
how you know the fact.
A. Sometime in the year 1853, I heard Mr. Dalton say
that he claimed not to be a citizen of the United States, nor of
Mexico. I know it was in a court of justice, and think he was
called as a juror; the court reserved their decision I think he was
under oath, but am not certain. I think it was in the court of
sessions, whilst I was sitting as an associate justice; but I am
not certain if it was in that court, or in a justice's court,
whilst I was a judge of both courts. I think he was excused on that
ground.
Page 63 U. S. 438
Q. Did you ever hear Mr. Dalton say, on any other
occasion, that he was not a naturalized citizen of Mexico?
A. I do not recollect that I ever did.
Cross-examined by Claimant's Counsel
Question. Did he say anything more than that he claimed
not to be a citizen?
Answer. My answer is that he did. My recollection is
that he stated, that while in Mexico, he had either applied to
become a citizen, or had some papers made out; and that, from some
reason, which I do not recollect, the business of his
naturalization was not completed.
Q. Did he not say this that the papers had been made
out in Mazatlan, but that they had not reached him?
A. It might have been so; but my recollection was that
the action on his application had not been completed, and that, for
that reason, he Dalton said he did not consider himself a Mexican
citizen.
Page 63 U. S. 439
MR. JUSTICE GRIER delivered the opinion of the Court.
The title of Dalton is found in the archives, and its
authenticity is not disputed. The expediente exhibits:
1st. A petition of Henry Dalton, dated March 12, 1845, at Los
Angeles, setting forth that he is a resident of that city; that he
is endeavoring to increase the number of cattle on the premises
which he possessed, called Azusa, but that he lacked more land for
that purpose; that the Mission of San Gabriel
Page 63 U. S. 440
owned a large plain adjoining his tract of Azusa, which was
useless to them. It was accompanied with a diseno or map of the
land. The quantity desired was two sitios.
On the 13th of March, Pio Pico, Acting Governor, makes the usual
marginal order for information, referring the petition to Father
Thomas Estinega, minister to the mission of San Gabriel, to
report.
March 26. Estinega reports, that the tract solicited is one of
those which the mission cannot cultivate, because it is deficient
in water; and considering that Dalton offers to deliver him, as a
gift for the Indians, five hundred dollars, he consents that a
grant of the land be made to Dalton.
This petition was referred also the municipal counsel of Los
Angeles, who reported in favor of the grant, and on the 14th of
April certified their approval to the governor.
On the 26th of May, 1845, Governor Pico orders a grant to be
made out for two sitios, and sent to the departmental assembly for
their approval.
June 9th, 1845. The departmental assembly, upon report of the
committee on waste lands, to whom the expediente had been referred,
approve the grant as in conformity with the law of August 18, 1824,
and the regulations of 21st of November, 1828.
In pursuance of this grant, judicial possession was delivered to
Dalton, February 14, 1846, in due form, with a regular survey of
the boundaries.
The only objection urged in this Court to this title, as
justifying its rejection, is that Henry Dalton was a foreigner, and
had not been naturalized, and was therefore incapable of taking a
grant of land.
The counsel for the plaintiff in error deny both the law and the
fact as assumed in this objection.
1st. They contend that it was no part of the policy of the
Spanish or Mexican government to exclude foreigners from holding
lands; that the colonization law of 1824 invites foreigners to
"come and establish themselves within the Mexican territory, and
gives them privileges against taxation," &c.; and provides
that, until after 1840, the General Congress
Page 63 U. S. 441
shall not prohibit any foreigner as a colonist, unless imperious
circumstances should require it with respect to
individuals of
a particular nation.
2d. They contend, also, that the regulations of 1828 require the
governor to obtain the necessary information as to whether the
petitioner is a person within the conditions required to receive a
grant; that the expediente found in the record shows a full
compliance with the law; that the definitive title, which is a
valid patent, recites that the petitioner was "in the actual
possession, by
just title, of a rancho" known by the name
of Azusa; that this is a legislative adjudication of the fact of
the grantee's capacity to hold land, and
per se a
naturalization, if he had previously been an alien; that, at least,
it affords a
prima facie if not a conclusive presumption
of the grantee's capacity to receive a further grant of lands.
3d. They contend, also, that any legislation repugnant to this
policy of the government of Mexico since that time originated in,
perhaps, a just jealousy of their American neighbors, and was aimed
wholly at them, and intended to apply only to the colonies bounding
on the United States; that this is apparent from the edict of Santa
Anna of 1842, which permits foreigners not citizens, residing in
the Republic, to acquire and hold lands, and excepts only the
departments
"upon the frontier and bordering upon other
nations;" that California was never treated as within this
category, as the colonized and settled portion of it is separated a
thousand miles from the frontier or border of any nation, and was
at that time almost a
terra incognita to the rest of the
world.
4th. They contend that, by the Spanish as well as by the common
law, a foreigner is not incapable of taking a grant of land, but
holds it subject to be denounced in the one case, and forfeited by
an inquest of escheat in the other; that the grant in this case
being complete, neither the United States land commissioners, nor
the courts authorized to adjudicate the Mexican title under the
treaty, can exercise the functions either of denouncers or
escheators.
5th and lastly. It is contended, that even if the court
considered itself bound to declare this grant void by reason
Page 63 U. S. 442
of the alleged incapacity of the grantee to take or hold, yet
that there is no sufficient evidence to establish the fact of
alienage against the strong presumption of the contrary, arising
from the face of the expediente and definitive title.
The court do not intend to express any opinion upon the first
four of these propositions, as the last suggests a sufficient
reason for the confirmation of this grant.
In all cases, the testimony of admissions or loose conversations
should be cautiously received, if received at all. They are
incapable of contradiction. They are seldom anything more than the
vague impressions of a witness of what he thinks he has heard
another say -- stated in his own language, without the
qualifications or restrictions, the tone, manner, or circumstances,
which attended their original expression. If a complete record
title with ten years' possession could be divested by such
testimony, its tenure would be very precarious, especially where
the owner is surrounded by a population of settlers interested in
defeating it. All the evidence on the record on the subject of
alienage, besides that of a brother who proved
himself an
alien, is in the deposition of two witnesses. One states that
Dalton, in
order to avoid serving as a juryman, said "he
did not claim to be an American or Mexican citizen." He might well
have been a citizen, although he was not desirous of setting up
such a claim on that occasion. The other states that in 1847,
during the war, when the country was occupied by the American
forces, he said "he was not a Mexican, and never intended to become
an American citizen." At such a time, he may have had many motives
prompting him to make such a representation. The Mexican government
had ceased to protect him, and the Treaty of Guadalupe Hidalgo had
not then made him an American citizen.
Now assuming that these witnesses have remembered and reported
the precise words used by the claimant in these loose
conversations, they contain no positive assertion that he had never
been naturalized, or was born out of Mexico. Such testimony ought
not to be received to outweigh the
prima facie if not
conclusive presumptions arising from the expediente and definitive
title.
Page 63 U. S. 443
In this respect, this case closely resembles the case of
United States v.
Reading. 18 How. 1.
The decree of the district court is reversed, and the title
of the claimant to the land in question is hereby
confirmed.
