A petition was presented to the board of commissioners in
California, claiming the confirmation of a title to land, which
petition alleged:
1. That a grant had been issued by Micheltorena, and delivered
in June, 1843.
2. That it was recorded.
3. That it was not to be found in the archives, because the
record had been burned.
4. That the grant was approved by the departmental assembly, but
that the record of such approval had been burned.
5. That therefore the claimant could not produce any evidence
that the grant had been so approved.
The secondary evidence offered does not prove the existence of
such records, nor their destruction. The recital in the grant is
not sufficient evidence of this.
The paper produced by the claimant, purporting to be a grant,
must therefore be judged by itself. There was no evidence that it
had been preceded by the usual formalities, such as a petition, an
examination, an inquiry into the character of the applicant, an
order for a survey, a reference to a magistrate for a report, a
transmission of the grant to the departmental assembly, nor was
there an expediente on file.
Where these requirements do not appear, a presumption arises
against the genuineness of the grant, making it a proper subject of
inquiry before that fact can be admitted.
The evidence produced in this case does not establish the
genuineness of the grant.
There is also an absence of all proof that the grant had been
delivered to the grantee, then a minor, or to anyone for him. If
the grant was genuine, and not delivered until after the cession of
California to the United States, it would not give the grantee any
right to claim the land.
A recital in the paper or grant, that the prerequisites had been
complied with, is not sufficient ground for a presumption that they
had been observed.
The cases decided heretofore by this Court do not support the
position.
These cases examined.
If the conditions imposed by the grant were conditions
subsequent, yet the grantee allowed years to pass without any
attempt to perform them until a change of circumstances had taken
place, which amounts to evidence of an abandonment.
Page 63 U. S. 444
The nature of the title, and evidence in support of it, are
stated and commented on in the opinion of the Court, and need not
be repeated.
Page 63 U. S. 450
MR. JUSTICE WAYNE delivered the opinion of the Court.
The appellant has come to this Court asking for a confirmation
of his claim to eleven leagues of land, called Potrero. The paper
under which he claims the land purports to be a grant from Governor
Micheltorena. It recites that the land is within the ex-mission of
San Jose, bounded on the north by the locality called the Warm
Springs, on the south by Palos, on the west by the peak of the hill
of the ranchos Tulgencio Higuera and Chrysostom Galenda, and on the
east by the adjoining mountains. In also recites that the governor
had taken all the necessary steps and precautionary proofs which
were required by the Mexican laws and regulations for granting
lands, and that he had granted the land upon the following
conditions to the appellant:
1. That he should enclose it without prejudice to the crossways,
roads, and uses; that he shall have the exclusive enjoyment of it,
and apply it to such use and culture as may best suit his
views.
2. That he should apply to the proper judge for judicial
possession of the same, by whom the boundaries shall be marked out,
and along which landmarks should be placed to designate its limits,
and that fruit and forest trees shall be planted on the land.
3. That the land given should contain eleven leagues for large
cattle, as is designated by a map said to be attached to the
expediente. The land is to be surveyed according to the ordinance,
and should there be an overplus, it was to inure to the benefit of
the nation.
Page 63 U. S. 451
The title is to be recorded in the proper book, and then to be
delivered to the petitioner for the land, for his security. This
paper bears date the 12th June, 1843, and has the name of
Micheltorena to it, which is denied to be his signature.
The first inquiry, then, concerning it, should be into its
genuineness. Was it executed by Governor Micheltorena? Has the
party claiming proved it?
The testimony introduced in support of the genuineness of the
paper is to be found in the depositions of Zamon De Zaldo, Jose
Abrego, Manuel Castro, and Joseph L. Folsom. Zaldo declares himself
to be chief clerk and interpreter to arrange and classify the
Spanish and Mexican archives in the custody of the Surveyor General
of California. He was not interrogated as to the signature to the
paper, and says nothing about its having been executed by
Micheltorena. He was asked what he knew of the book of land titles
of the Mexican government for the year 1843. He answers that he
knew that a book for the year 1843 was not in the office, though he
did not know of his own personal knowledge that such a book ever
existed, and that all that he did know about it had been learned
from a correspondence in the office, that such a book belonging to
the archives had been in the possession of J. L. Folsom, United
States quartermaster at the time, and that he had learned, in the
same way, that it was destroyed with Folsom's papers by the fire in
San Francisco of 1851. Folsom states that a book of records,
containing grants of land in Upper California, had been put into
his possession in the spring of 1851, to be used as evidence in the
suit of
Leese & Vallejo v. Clark, then pending in the
Superior Court of the City of San Francisco. It was in the Spanish
language, and came from the archives of the Mexican government of
California, then in the possession of the commanding general at
Benicia, and was delivered to him as an officer of the army, for
safekeeping. He adds: after the book was used as evidence, it was
returned to me, and was deposited in my office in the City of San
Francisco, and whilst there, the great fire of the 3d and 4th May,
1851, occurred, by which my office and its contents, including the
said book, were destroyed. And he then concludes
Page 63 U. S. 452
his deposition, saying:
"I am not positive as to the date of the grants contained in the
said book, but from my best recollection, my impression is that
they were for the years 1843 and 1844."
The purpose for which Zaldo and Folsom were made witnesses for
the claimant was to connect the book which Zaldo said was not among
the archives with the book which Folsom said had been burned, that
it might be inferred, from the date of the paper upon which Fuentes
rests his claim, that it had been recorded in that book. It is
stated in the petition that the grant was issued and delivered in
due form of law on the 12th June, 1843; that it was recorded at the
time it was issued; that it was not to be found in the archives;
and that he believes that the copy of the grant was burned, and on
that account could not be produced. It is further stated, that the
grant had been approved by the territorial legislature, and was in
all respects formally completed according to law, but that the
records of the legislature for the year 1843 were in like manner
destroyed by fire at the same time with the record of the grant,
and that the claimant could not produce any evidence of the
approval of the grant by the legislature. In this recital from the
petition we find a very exact anticipation of what the evidence
ought to be, to prove that such a grant had been issued, and that
it had been duly recorded, but none such was introduced. Zaldo
believes, from a correspondence in the office, that a book
belonging to it had been burned while it had been in the
safekeeping of Folsom. Folsom says a book from the archives was
burned, but that he cannot be positive as to the date of the grant
in it, but that from his best recollection his impression was, the
grants in it were for the years 1843 and 1844; and Zaldo declares
that he had no personal knowledge that such a book ever existed,
but adds, that there is wanting in the office a book for the year
1843. This falls far short of the evidence which was necessary to
connect the alleged grant with the archives of the office. There is
no other evidence in the record to supply such deficiency. And it
is admitted now that the paper was never sent to the departmental
assembly.
In truth, between that burned book and the Fuentes paper,
Page 63 U. S. 453
the testimony in the record makes no connection whatever. The
mere declaration that it was dated in 1843 cannot do so. Nor can
any implication of the kind be raised from the testimony of Abrego
and Castro. Neither of these witnesses was interrogated concerning
the burned book, nor was any attempt made to prove that any of the
records of the departmental assembly,
especially its approval
of this grant, had been burned at the same time. What has been
said of the insufficiency of the evidence to prove the record of
the paper applies with equal force to the certificate which is
alleged to have been given by Jimeno, that the paper set out in the
petition as a grant had been recorded in the proper book, which is
used in the archives of the secretary's office.
The case, then, stands altogether disconnected from the
archives, and exclusively upon the paper in the possession of
Fuentes. It has no connection with the preliminary steps required
by the Act of Mexico of the 18th August, 1824, or with the
regulations of November 28, 1828. It is deficient in every
particular -- unlike every other case which has been brought to
this Court from California. There was no petition for the land; no
examination into its condition, whether grantable or otherwise;
none into the character and national status of the applicant to
receive a grant of land; no order for a survey of it; no reference
of any petition for it to any magistrate or other officer, for a
report upon the case; no transmission of the grant -- supposing it
to be such -- to the departmental assembly or territorial
legislature, for its acquiescence; nor was an expediente on file in
relation to it, according to the usage in such cases.
All of the foregoing were customary requirements for granting
lands. Where they had not been complied with, the title was not
deemed to be complete for registration in the archives, nor in a
condition to be sent to the departmental assembly, for its action
upon the grant. The governor could not dispense with them with
official propriety; nor shall it be presumed that he has done so,
because there may be, in a paper said to be a grant, a declaration
that they had been observed,
Page 63 U. S. 454
particularly in a case where the archives do not show any record
of such a grant.
The act 1824 and the regulations of 1828 are limitations upon
the power of the governor to make grants of land. They are, and
were also considered to be, directions to petitioners for land,
before they could get titles. Where the petition and the other
requirements following it have not been registered in the proper
office with the grant itself, a presumption arises against its
genuineness, making it a proper subject of inquiry before that fact
can be admitted. It is not to be taken as a matter of course; nor
should slight testimony be allowed to remove the presumption. Both
the kind and quantum of evidence must be regarded. We proceed to
state what they are in the record.
None can be found to establish with a reasonable probability the
genuineness of the paper upon which the claimant relies. The only
testimony bearing upon the genuineness of the paper is that of
Abrego and Castro. Both speak of the signature of Micheltorena, and
no further. Abrego says that he knew the governor; that he had
frequently seen him write, and that he had examined the signature
to the document presented to him, and that he knows it to be the
signature of Governor Micheltorena.
Castro is more particular, but not so positive, and he gives a
narrative of the origin of the paper, which is certainly peculiar,
and from which a reasonable suspicion may be indulged against his
disinterestedness. He says:
"An instrument in writing is now shown to me, purporting to be a
grant Jose Maria Fuentes, dated June 12, 1843, and it is attached
to the deposition of Jose Abrego, heretofore taken in this case,
and marked H.J.T., No. 1. I know the paper; it is in my
handwriting. I was at the time secretary in the prefect's office in
Monterey, and being on terms of friendship with Secretary Jimeno
and Mr. Arce, a clerk in his office, I frequently assisted them in
their official duties, at their request, and in that manner I wrote
the body of this grant. It was written in June, 1843, at the time
of its date. I know the signature of Micheltorena; and the
signature purporting to be his
appears
Page 63 U. S. 455
like his; and the signature of Jimeno on said paper also
appears like his."
The words of the witness have been given.
The signature of Jimeno, of which Castro speaks, purports to be
a certificate from Jimeno that the grant had been recorded, the day
after its date, in the proper book of the archives of the
secretary's department. It is upon the same paper with the title,
and purports to have been put upon it by the order of the governor,
"that the title might be delivered to the party interested, for his
security and ulterior ends."
Abrego, in a second deposition, says he knew Fuentes and his
family, and that he was not of age, but was a minor, on the 7th
July, 1846 -- more than three years after the date of the
grant.
Such is all the testimony in this record to prove the
genuineness of the signature of Micheltorena, unless it be the
notarial certificate, given under the seal of the national College
in the City of Mexico, which, as it is presented in this case, is
not evidence, and of no account at all.
We will now show that the testimony of Abrego to the signature
of Micheltorena is insufficient to establish that fact, and that
Castro's deposition gives to it no aid. In truth, the whole case
has no other evidence in support of the genuineness of the
signature of the governor than what Abrego has said. In showing
this, we shall have no occasion to impeach his character as a man,
or his truthfulness as a witness, as there is nothing in this
record, whatever there may be in others, to justify such an attack.
The case must be decided upon what its own record contains, and
upon nothing else.
Abrego's deposition has not that foundation which the rules of
evidence require a witness to have, to enable him to prove the
genuineness of an official signature to a public document, or a
signature to a private writing. The document in this instance
purports to be genuine; but whether so or not, it discloses the
fact that there is upon it an official witness of its execution and
record, who should have been called to prove it, if he was living,
and if absent beyond the jurisdiction of the court, whose signature
should have been proved by a witness who was familiar with his
signature and handwriting, before
Page 63 U. S. 456
secondary evidence could be received of his own signature, or
that of the official who is said to have executed the paper.
It was the duty of Jimeno to record all grants which were made
by the governor, and to give attestations of that fact, and which
it is said Jimeno did give to the paper in this instance. Why was
not Jimeno called? It seems that he was overlooked or not thought
of.
The simplest and best proof of handwriting is the testimony of
one who saw the signature actually written, and inferior evidence
as to his handwriting is not competent until it has been shown that
his testimony to the execution of the paper could not have been
procured. And when a document, either public or private, is without
a witness, the best evidence to disprove the signature, and to
prove it forged, is the testimony of the supposed writer, if he be
not incompetent from interest, and can be produced. In the latter
case, the next best evidence is the information of persons who have
seen him write, or been in correspondence with him.
Such, however, is not this case, though it was acted upon in the
court below as if it was so.
Abrego here, then, is in the attitude of an incompetent witness,
who was called and permitted to testify before the party by whom he
was introduced, had laid a foundation for the next best evidence,
when the paper submitted to him showed the fact that the better
could have been had, either primarily or secondarily, in the manner
we have already indicated. Abrego swears that he knew Micheltorena;
that he had frequently seen him write; that he had examined the
signature to the document presented to him, and that he knew it to
be the signature of governor Micheltorena. But had Secretary Jimeno
been called as a witness, as it was his official duty to test the
signature of the governor to grants, his would have been the best
testimony to prove its genuineness in this instance, and that the
grant had been transferred to him officially, for delivery to the
grantee.
Castro's deposition is in the same predicament with that of
Abrego but with an aggravation of its insufficiency to prove the
signature of Micheltorena, and of his incompetency as a
Page 63 U. S. 457
witness. He was not asked if he knew Micheltorena, or was
familiar with his handwriting or with his signature, or if he had
ever seen him write. He only says: I know the signature of
Micheltorena, and the signature to the paper appears like his, and
the signature of Jimeno appears like his. He does not say how he
had become qualified, by comparison or otherwise, to swear to the
signature of Micheltorena; and notwithstanding his declared
friendship with Jimenoso much so, that he was frequently asked to
assist him in the duties of his office, and particularly asked to
write out in his own hand the paper in question -- he has left it
to be inferred that he only knew enough of Jimeno's handwriting to
enable him to say that the signature to the grant which he wrote
out in his own hand appears like Jimeno's signature.
If such was the way of doing business in the secretary's office,
which we have no cause for believing, it must have been an easy
matter to get from it such a paper as that now in question, and not
at all difficult to have been accomplished by one who had such
familiar access to the office as Castro represents himself to have
had, especially if all of the prerequisites of a grant enjoined by
the act of 1824 and the regulations of 1828 were allowed to be
disregarded.
This narrative of De Castro, instead of bringing the mind to any
conclusion in favor of the genuineness of the signatures of
Micheltorena and Jimeno, rather suggests caution in receiving it,
and that it ought to be corroborated by other witnesses before that
shall be done. It seems to us, too, somewhat remarkable that this
witness, familiar as he was with the origin and object of this
paper prepared by himself, should not have been questioned
concerning its delivery to Fuentes, then a minor, to whom it was
delivered for him, or what was done with it at the time of its
date, or in whose possession it was from that time until it was
presented to the land commissioners for confirmation, in 1852.
There is entire absence of all proof of its having been
delivered to Fuentes himself, or to anyone for him; but it seems to
have found its way to the City of Mexico, as the record snows, and
reappears in California years after its cession to
Page 63 U. S. 458
the United States, and more than eight years after it is said to
have been executed. The assertion in the paper itself, that the
governor had directed it to be delivered, can be no proof of that
fact, until its genuineness shall have been ascertained. If the
minority, too, of Fuentes is considered, in connection with the
conditions upon which this grant is said to have been made, it may
well be inferred that it was not delivered to the grantee, as he
was not then in a situation to carry out the conditions of the
grant, without the intervention of a tutor or guardian, and nothing
was done to perform those conditions at any time afterward.
We do not speak now of such nonperformance as a cause sufficient
for denying a right claimed under a genuine grant; but only as a
fact in this case accounting for the nonperformance of the
conditions of the grant, and making it probable that Fuentes did
not receive this paper until some time after its date from
Micheltorena, and not until after the cession of California to the
United States. A delivery after the latter event, by a former
Governor of California, would not give a grantee a right to claim
the land by any obligation imposed upon the United States by the
Treaty of Guadalupe Hidalgo.
We have given to this case a very careful examination, and have
concluded that no evidence can be found on its record to sustain
the genuineness of the paper under which the land is claimed. That
there is none to prove its registry in the archives of the
secretary's office, at the time of its date or afterwards. That no
reliable proof has been given to connect it with the book of
records, which had been committed to the care of the witness,
Folsom, and was burned in his office. That it does not appear that
anyone of the precautionary requirements, before a grant of land
could be made by a Governor of California, had been complied with
in this case. That there is no proof whatever that such a paper as
that in question had been delivered to the claimant at any time
before the power of Mexico in California had ceased; and it was
admitted, in the argument of the case here, that no such paper had
been sent to the departmental assembly for its acquiescence, as a
grant from the governor.
Page 63 U. S. 459
It was, however, urged in the argument, that such prerequisites
for a grant of land should be assumed to have been observed, on
account of a recital in the paper or grant that they had been.
Several cases from the reports of this Court were cited, being
supposed by counsel to support the position. None of them do so. We
have not been able to find a case reported from this Court, either
under the Louisiana or Florida cession, that does.
Peralta's
Case, 19 How. 343, does not do so. The decision
there is that when a claimant of land in California produced
documentary evidence in his favor,
copied from the archives in
the office of the Surveyor General, and other original grants
by Spanish officers, the presumption is in favor of the power of
those officers to make the grants. There, the authenticity of the
documents was admitted, and the validity of the petitioner's title
was not denied, on the ground of any want of authority of the
officers who made the grant. This Court then said, that the public
acts of public officers, importing to be exercised in an official
capacity and by public authority, shall not be presumed to be
usurped, but that a legitimate authority had been previously given
or subsequently ratified.
In the case of
Minturn v.
Crommelin, 18 How. 88, it was ruled that when a
patent for land has been issued by the officers of the United
States, the presumption is in favor of its validity, and passes the
legal title, but that it might be rebutted by proof that the
officers had no authority to issue it, on account of the land not
being subject to entry and grant. In
Delassus'
Case, 9 Pet. 117,
34 U. S. 133,
the inquiry was, whether the concession was legally made by the
proper authority; but the concession, being in regular form,
carried
prima facie evidence that it was within the power
of the officer to make it, and that no excess or departure from
instructions should be presumed, and that he who alleges that an
officer entrusted with an important duty has violated it, must show
it. But there was no question in that case about the genuineness of
the concession. That was admitted. The genuineness of the grant in
Arredondo's case, 9 Pet. was not questioned. Nor was the
genuineness of the patent in
Bagnel's
Case, 13 Pet.
Page 63 U. S. 460
437, a subject of controversy. This Court ruled in that case
that a patent for land from the United States was conclusive in an
action at law, and that those who claim against it must do so on
the equity side of the court. It is not, however, to be supposed
that no title in California can be valid, which has not all of the
preliminary requirements of the act of the Mexican Congress of
1824, and of the regulations of 1828. But if none of them are to be
found in the archives, and it cannot be established by the proof
that they were registered there, this Court will not presume that
they were preliminary to a grant, because the governor recites in
the grant that they had been observed. In what we have said upon
this point, we are reaffirming this Court's opinion in
Cambuston's
Case, 20 How. 59. And we now take this occasion to
repeat that when it shall appear that none of the preliminary steps
for granting land in California have been taken, this Court will
not confirm such a claim. For the reasons already given, we shall
affirm the decree of the district court in this case.
But we also concur with that court in its rejection of this
claim, supposing it to be genuine, upon the ground that there was
no proof of a survey or measurement of this land, or any
performance of its conditions, from which it may be inferred that
the grantee had abandoned his claim. It is said that these were
conditions subsequent, the nonperformance of which do not
necessarily avoid the grant. This is the case as to some of them,
but even as to such, when a grantee allows years to pass after the
date of his grant without any attempt to perform them and without
any explanation for not having done so, and then for the first time
claims the land, after it had passed by treaty from the national
jurisdiction which granted it, to the United States, such a delay
is unreasonable and amounts to evidence that the claim to the land
has been abandoned, and that a party under such circumstances,
seeking to resume his ownership, is actuated by some consideration
or expectation of advantage, unconnected with the conditions of the
grant, which he had not in view when he petitioned for the land,
and when it was granted. The language just used was suggested in
the
Fremont Case. The
Page 63 U. S. 461
occasion has arisen in this case, when it becomes necessary to
affirm it as a rule, to guide us in all other cases hereafter which
may be circumstanced as this is.
The decree of the district court in this case is
affirmed.