1. A complete espediente in a land title according to the laws
and customs of Mexico consists of a petition with diseno annexed,
order of reference, decree of concession, and copy of the
grant.
2. Where there is no map annexed to the petition, no order of
reference, or informe, but the decree of concession follows
immediately after the petition, the inference is a reasonable one
that no order of reference or informe was ever made in that
case.
3. Where the decree of concession appears to have been made
without an informe upon that petition, and yet recites an informe
as having been made by a certain alcalde, and that alcalde did
actually make an informe upon another petition to a former
governor, the presumption is that the recital refers to the informe
actually made.
4. If the informe was originally adverse to the petitioner, but
was altered after the conquest so as to make it a favorable report,
and it is recited in the decree as a favorable report, the
inference is that the decree was not made until after the
alteration, and consequently not until after the conquest of the
country.
5. The fact that an espediente is included in an index made by
an American officer in 1847 and 1848 shows that it was in the
archives when that index was made, but it shows nothing more. The
index cannot in any sense be regarded as a Mexican record.
6. The papers of the espediente in question not being previously
filed,
Page 66 U. S. 228
numbered, or indexed by Mexican authority, and no fact appearing
to show when or by what means they came into the Surveyor General's
office, evidence that the grant was recorded is entirely
wanting.
7. The fact that a grant bearing date 4th May, 1846, was not
sent by the governor to the departmental assembly for approval
among the others which were so sent on the 3d and 10th of June is
entitled to very considerable weight as a circumstance against the
authenticity of the grant.
8. Assuming it to be competent to establish a title without
record evidence, still the burden is on the claimant to prove that
the grant was issued, and he cannot give parol evidence of its
contents without first proving its existence and loss.
9. But a claim cannot be confirmed without record evidence.
10. To maintain a title by means of secondary evidence, the
claimant must show that the grant was obtained and made in the
manner required by law and that it was recorded in the proper
public office.
11. Evidence that a book or other record is lost cannot avail a
claimant unless it be also proved that the grant under which the
claim is made was duly and properly entered on the lost record.
This was an appeal by the United States from the decree of the
District Court for the Northern District of California. The
appellee Morehead was administrator of Wm. Knight, and in that
character he presented his petition on the 3d day of March, 1852,
to the board of commissioners for the investigation of private land
claims, agreeably to the Act of Congress passed March 3, 1851. The
commissioners rejected the claim, and the petitioner appealed to
the district court, where it was confirmed. The claim was for ten
leagues sitios de ganada mayor of land, situate on the western bank
of the Sacramento, including the region lying between that river
and the arroyo Jesus Maria, and being a large part of what is now
the County of Yolo.
The title averred in the petition as the basis of the claim was
a grant from Pio Pico, Governor or Political Chief of both the
Californias, dated on the 4th of May, 1846. The claimant produced
certain papers from the Surveyor General's office.
Page 66 U. S. 229
The first purported to be a petition addressed by William Knight
to the governor, bearing date at Sonoma on the 1st day of February,
1846, describing the land, setting forth the necessities of his
family as a reason for the appropriation of it to him by the
superior authority, and soliciting the concession in the ordinary
form. On the margin of this was written a short note, "Granted as
prayed by the petitioner," with an order that a title be issued.
This was signed "Pico." Immediately following the petition was a
formal and very full decree of concession dated Angeles, May 4,
1846, to which was attached the full name of
Pio Pico,
with his rubric, and it was attested by
Jose Matias Moreno
as secretary. To these documents was added a borrador of a grant,
also dated May 4, 1846. Several lines of this borrador had been
written and a break made, when the writer (the same or some) other
commenced again at the beginning and wrote to the end of it. The
names of the governor and secretary at the foot of the borrador
were admitted not to be in their hands, but Nicholas Den, who had
been a magistrate in California before the conquest, and John W.
Shore, a clerk in the surveyor general's office, testified that
they were acquainted with the handwriting of Pio Pico, and believed
his signature to the marginal order and decree of concession to be
genuine. Moreno himself was also called, and he swore that he
recollected Knight's presentation of his petition in May, 1846. He
was shown a copy of the espediente, and said he believed it was a
copy of the decree of concession and of the original grant. The
decree he declared was made and signed by the governor, and the
title was issued and delivered to Knight by himself as secretary,
in which occupation he continued until 1848. But he assigned no
dates to the making of the decree or the issuing of the title, or
to the delivery of it, nor did he say that the grant was signed by
the governor, or recorded in any book, or that the espediente had
been filed in the secretary's office. There was no map, no order of
reference to any local magistrate or subordinate officer, and no
informe in the espediente. But the petition refers to a map, and
the decree of concession, as well as the borrador of the grant,
recites a report from the first alcalde of Sonoma.
Page 66 U. S. 230
These papers were among the espedientes arranged, numbered, and
indexed in the years 1847 and 1848 by W. E. P. Hartnell. Mr.
Hartnell was the clerk or assistant of Capt. Halleck when the
latter was secretary for the military government established by
Gen. Kearney after the taking of Monterey. Capt. Halleck was a
witness in this cause, and deposed that, besides the records which
were brought up from Los Angeles, a large quantity were found lying
on the floor of the custom house at Monterey and piled up against
the wall, which were by himself and Mr. Hartnell placed among the
records of the office. Private individuals also brought papers
there and had them filed, but he or Hartnell always endorsed on
these private papers the time at which they were deposited. Capt.
Halleck's testimony does not disclose his reasons nor those of
Hartnell for believing that the papers found in the custom house
were land records of the Mexican government.
To prove the loss of the original grant and excuse its
nonproduction, the claimant took the deposition of Samuel Brannon,
who testified that in 1847 Knight came to San Francisco from the
lower country, where he had been bearing dispatches for the
government, and that he told the witness of an attempt made -- he
did not say when or where -- by the Sanchezes (native Californians)
to lasso him, in consequence of which, and of his fast riding to
escape them, he had lost his title papers. But he did not describe
or allude to any particular paper as being lost.
The evidence showed that Knight was a native of the United
States, had gone to New Mexico as early as 1830, where he had
married "a daughter of the country," and emigrated thence to
California about 1842. In 1843, he seated himself and his family on
the right bank of the Sacramento at a place since called "Knight's
Landing," and within the limits of this claim. In that year or the
year after he built himself a house, and in 1845 he had a wheat
field of five or six acres under cultivation. In 1846 he had a
garden of two or three acres near his house planted with corn and
melons. He left his home early that summer, was in the Bear Flag
insurrection, and joined the American army soon after its first
appearance
Page 66 U. S. 231
on the coast. He served during the war and died in 1849, at the
gold mines on the Stanislaus River.
Knight's relations with the departmental government of
California before and after Pico's accession to power were shown by
testimony taken in the cause and by reference to historical and
official documents. In 1842, very soon after he came into the
country, he solicited Micheltorena for a concession of the same
land which is now claimed. His petition was successively referred
to the prefect of Monterey, the judge of New Helvetia, and the
first alcalde of Sonoma, the last of whom reported against him on
the ground that the land solicited had been previously conceded to,
and was then occupied by, Don Thomas Hardy. Micheltorena never gave
him any grant. He joined the standard of that chief in the autumn
of 1844, when his authority was resisted by Pico and his partisans
in the south. But he was not included within the terms of the
general title which Micheltorena made to his followers, through
Captain Sutter, at Santa Barbara, on the 22d of December, because
he had no report from Sutter, and the report which he had from the
alcalde of Sonoma was adverse to him. Nevertheless Sutter, on the
15th day of April, 1845, gave him a copy of the general title,
believing him as he swore entitled to the land for his military
services under Micheltorena against Pico, the latter of whom was in
power as political chief of the department at the time when the
copy was so delivered. After receiving this copy of the general
title, and after the conquest of the country by the Americans,
Knight, on the 8th October, 1847, got Jacob P. Leese (who had been
the First alcalde of Sonoma in 1844) to alter his informe by
inserting into it the words
"una parte de ella," and
procured from Hardy and Leese certificates that the land solicited
by him in 1844 did not interfere with Hardy's ranch, as Leese had
then reported. He sought the advice of several friends on the value
of this title, and often incidentally spoke of it to others, but to
none of them did he show or mention any except the Sutter title,
unless to
Colonel Fremont, who does not recollect the
papers he exhibited nor the governor under whose grant he claimed,
but "thinks he rather spoke of Pio Pico." The papers from
Micheltorena
Page 66 U. S. 232
and Sutter were found in the possession of his family after his
death. They knew of no others. The hostility of Knight to the Pico
government was like that of the other American settlers in the
north -- uniform and consistent. Captain Gillespie stated in his
deposition that the causes of the Bear Flag war were in operation
from the time of Fremont's appearance on the frontier in March,
1846, and Colonel Fremont himself testified that Knight was
prominently engaged in the insurrection from the beginning, but not
ostensibly so, for he was employed in the month of May as a
spy.
Harrison Gwinn deposed to a conversation with William McDaniel,
who at one time prosecuted this claim, in which the latter said
that when he took hold of the case there were no papers, but he had
made out as good a set of papers as there was to any grant of land
in California. McDaniel, being produced by the claimants,
positively contradicted the testimony of Gwinn. He said that he had
seen certain papers at Benicia with Knight's name upon them, but
not being able to read Spanish, he could make nothing of them.
James M. Harbin swore that Knight was at Los Angeles three weeks
in the spring of 1846, and left there the first week in May.
Nicholas Den declared in his deposition that he had seen him at
Santa Barbara in March, April, or May, going to and returning from
Los Angeles. Both these witnesses say that Knight told them he had
received a title from Pio Pico. On the other hand, Major Bidwell,
Captain Sutter, Major Gillespie, Samuel Neal, Colonel Fremont,
William Bartee, S. W. Chase, William Gordon, Nicholas Algier, John
Grigsby, testified more or less directly to facts wholly
inconsistent with the probability that he could have been at Los
Angeles at the date of the alleged grant. The unusual height of the
waters they swore would have made the journey extremely difficult.
The hostile relations between the government at Los Angeles and the
American settlers on the Sacramento would have made it perilous for
one of them to travel in the South, and some of the witnesses swore
that they knew him to be at home during the months of April and
May. It did not appear that he ever spoke of having made such a
journey.
Page 66 U. S. 241
MR. JUSTICE CLIFFORD.
This was a petition for the confirmation of a land claim under
the Act of the third of March, 1851, and the case comes before the
Court on appeal from a decree of the District Court of the United
States for the Northern District of California, reversing the
decree of the commissioners, and confirming the claim. William
Knight died in October, 1849, and of course never presented any
claim under that law for confirmation. Administration on his estate
was granted to the appellee on the sixth day of November, 1851,
and, on the third day of March following, he, as such
administrator, filed a petition before the commissioners, claiming
a tract of land, called Carmel, situated on the borders of the
Sacramento river, and containing ten square leagues. Said tract, as
the petitioner represented, was granted to his intestate on the
fourth day of May, 1846, by Governor Pio Pico in the name of the
Mexican nation, and was afterwards, during the lifetime of the
decedent, possessed and occupied by him pursuant to the grant under
which the claim is made. Copies of certain documentary evidences of
title were also presented and filed at the same time, and the
petitioner represented in effect that he relied on those documents,
and such other evidence as he might be able to obtain, to show that
the claim
Page 66 U. S. 242
ought to be confirmed. Assuming that the theory of claimant is
correct, the title is one undoubtedly that ought to be protected;
but it is denied by the United States that any such grant was ever
made, and that is the principal question in the case. Vacant lands
in California belonged to the supreme government, and the laws for
the disposition of the same emanated from that source. General
rules and regulations upon the subject were accordingly ordained
authorizing the governors of territories, under certain specified
conditions, to grant such lands to such empresarios, families, and
single persons as might ask for the same for the purpose of
settlement and cultivation, but it was expressly provided that
grants made to families or single persons should not be held to be
definitively valid without the previous consent of the territorial
deputation. By those rules and regulations, every person soliciting
such lands was required in the first place to address a petition to
the governor setting forth his name, country, profession, and
religion, and also to describe the land asked for as distinctly as
possible, by means of a diseno or map, which is usually annexed to
the petition. He was not required to prove his representations, but
it was made the duty of the governor to obtain the necessary
information to enable him to determine whether the case, as
presented in the petition, fell within the conditions specified in
the regulations, both as regarded the land and the applicant.
Petitions and grants, with the maps of the land granted, were
required to be recorded in a book kept for that purpose, and a
circumstantial account of the adjudications was directed to be
forwarded quarterly to the supreme government. To bring the claim
within these rules, the claimant introduced the following documents
before the commissioners:
1. A petition, in the usual form, signed by his intestate,
bearing date at Sonoma, on the first day of February, 1846, and
addressed to governor Pio Pico.
Recurring to the material parts of the instrument, it will be
seen, that the petitioner asked the governor to grant him "the
tract set out in the annexed map," meaning the map annexed to the
petition, containing ten sitios de ganada mayor, more
Page 66 U. S. 243
or less; and after describing the tract, and giving the
outboundaries of the same, stated that, according to the annexed
report of the magistrate of Sonoma, "there seems to be no obstacle
on the part of anyone to its concession." No such map, however, as
that referred to was annexed to the petition at the time it was
introduced; and the espediente contained no report of the alcalde
of Sonoma, or of any other such magistrate.
2. Two decrees, signed by governor Pio Pico, both dated Angeles,
May 4, 1846, were also introduced by the claimant. One was written,
as usual, in the margin of the petition, and was as follows:
"Granted, as prayed by the petitioner. Let the title be issued by
the Secretary of the Department." But the other, which is signed
also by the Secretary, was appended to the petition, without any
intervening informe, or order for the same; and yet the recitals of
the decree plainly import that the action of the governor, in
making it, was based not only upon the petition, but also upon a
report of the alcalde of the district, as set forth in the
petition. Like the preceding decree, it directs that a proper title
be issued to the petitioner, and also that the espediente be kept,
to be submitted to the departmental assembly.
He also introduced another document, which was appended to the
last named decree and which purports to be a copy of the "titulo"
or grant on which the claim is based. It is dated at the City of
Los Angeles on the fourth day of May, 1846, and is in the usual
form.
Failing to produce the original grant, the administrator
introduced his own affidavit to show that he had made diligent
search for the same among the papers of the deceased, and
elsewhere, and that he was unable to find it. Three witnesses were
examined by the claimant before the commissioners, but the
commissioners rejected the claim, and the claimant appealed to the
district court. Testimony was taken on both sides in the district
court, and the claimant also introduced certain additional
documentary evidences which it becomes important to notice.
Page 66 U. S. 244
Nearly three years before the petition was presented to Governor
Pio Pico, the same party, as appears by these documents, had
presented a similar petition to Manuel Micheltorena, then holding
the office of Governor of California, asking for a grant of the
same tract of land. This petition, as then presented, was dated at
Monterey on the eighth day of May, 1843, and on the same day the
governor referred it to the prefect of the district for a report.
John A. Sutter was at that time the principal civil officer in that
section of the department, and the prefect accordingly referred the
petition to him, directing him to furnish the necessary
information; but he referred it to the alcalde or justice of the
peace of Sonoma for the reason, as stated, that the land was in
that district. On the twenty-sixth day of January, 1844, the last
named officer reported to the effect that the land solicited was
occupied by virtue of a concession from the governor in favor of
another individual.
That report was duly transmitted to the governor, and on the
twenty-seventh day of March following, he referred the whole case
to Manuel Jimeno, who, on the same day, made a report recommending
that the petition in question, and all similar cases, should be
suspended until the governor could visit that frontier. Here the
matter dropped, and for reasons which will presently appear, the
petition was never again considered.
Certain prominent persons belonging to the department, of whom
Pio Pico was one, in the fall of 1844, revolted against the
authority of Micheltorena; but John A. Sutter supported the
constitutional governor, and was sent by him to collect the militia
of the northern frontier, to put down the rebellion. Some of the
adherents of the latter had certain claims to lands, and he
suggested to the governor, in the emergency, that grants should be
made to them, probably as the most available means to secure their
services. Pursuant to that suggestion, the governor sent to that
officer the document known as the "Sutter general title," promising
grants to all such claimants as had previously obtained from him a
favorable report. According to the testimony of Sutter, the
claimant's intestate was properly
Page 66 U. S. 245
included in that category, and he accordingly, on the fifteenth
day of April, 1845, gave him the copy of that document which is
exhibited in this record.
Such is the substance of the documentary evidences of title
introduced by the claimant. All those relating to the proceedings
on the petition presented to Micheltorena, together with the copy
of the Sutter general title, were found among the papers of the
deceased; but those appertaining to the Pio Pico espediente, except
the alleged copy of the grant, are traced copies of originals, now
on file in the office of the Surveyor General of California.
It is not pretended that the Sutter general title has any
validity or that the claim in this case can be upheld by the
proceedings that took place on the first named petition. Such
pretensions, if made, could not be supported, as this Court has
determined on several occasions that the former was invalid, and it
is quite obvious that nothing was done by Governor Micheltorena to
give any pretense of title whatever to the claimant's
intestate.
But it is insisted that the parol proofs, taken in connection
with the espediente of 1846, clearly show that Pio Pico, on the
fourth day of May in that year, actually issued the grant to
William Knight, and that, having proved its execution, delivery,
and loss, the claimant is entitled to introduce secondary evidence
to show its contents. Great reliance is placed upon the espediente
as furnishing a ground of presumption that the grant was issued,
and indeed it is contended that if it appears that the espediente
is genuine, then the grant must be confirmed. Whether the
proposition as stated be correct or not, it may properly be
admitted that the question as to the
bona fides of the
espediente, is one of very considerable importance in the case.
When complete, an espediente usually consists of the petition, with
the diseno annexed; a marginal decree, approving the petition; the
order of reference to the proper officer, for information; the
report of that officer, in conformity to the order, the decree of
concession, and the copy or a duplicate of the grant. These several
papers -- that is, the petition, with the diseno annexed, the order
of reference, the
Page 66 U. S. 246
informe, the decree of concession, and the copy of the grant,
appended together in the order mentioned -- constitute a complete
espediente within the meaning of the Mexican law.
Three defects are obvious in the document exhibited in the
record. There is no map annexed to the petition and there is
neither an order of reference nor an informe, and the inference
from the fact that the decree of concession immediately follows the
petition is a reasonable one that no order of reference or report
were ever made.
Those defects, however, are by no means the principal
circumstances that tend to create distrust as to its genuineness.
Much graver difficulties than any suggested by the defects of the
document arise, from what appears affirmatively on its face. Both
the petition and the decree of concession refer to the report of
the alcalde of Sonoma; and the language of the latter plainly
imports that it was founded, in part at least, upon a report of
that magistrate. No such report, so far as appears, was made by
that officer in connection with the espediente under consideration.
He never made but one report, and that, as clearly appears, was
adverse to the application and was made to Micheltorena on the
twenty-sixth day of January, 1844, in which he stated that the land
solicited was occupied by virtue of a concession from the governor
in favor of another individual.
Looking at the terms of the report, it is clear that it is not
to that report, as originally framed, that reference is made either
in the petition or the decree of concession. On the contrary, it is
evident that they both refer to a favorable report, and not to one
that was adverse, which entirely negatives the theory that the
informe previously made and on file was carried into this
espediente. To suppose that the governor referred to an informe
that never had any existence is a theory that cannot be adopted, as
it would impute to him an inconsistency little better than a fraud
upon the government. Some other theory, therefore, must be adopted
to explain the transaction. Referring to the record, it appears
that Jacob P. Leese was the alcalde who made that report, and he
was examined as a witness in behalf of the United States. He
testified that
Page 66 U. S. 247
the words
una parte de ello, translated, a part of it,
now appearing at the close of the report, were inserted by him on
the eighth day of October, 1847, at the solicitation of the
claimant's intestate. That alteration in the informe was made, as
he states, in the presence of the individual who, according to his
original report, was in the occupation of the land by virtue of a
concession from the governor. Two certificates were also introduced
by the claimant which go very far to confirm the statements of the
witness both as to the time when the addition was made to the
informe and the attending circumstances. One of those certificates
is signed by the witness himself, in which, after referring to the
informe, he states in effect that he has discovered since he made
that report that the statement therein made that the land was
occupied by another individual was erroneous, and the other
certificate is signed by the person referred to in the informe as
the occupant of the land; and he certifies that the land solicited,
if "regulated to the plan," would not interfere with his
possession. These certificates bear date on the eighth day of
October, 1847, and the witness testifies that he made the
alteration in the informe at the time he gave that certificate.
Micheltorena was driven from power in 1845, and on the tenth day of
August, 1846, Pio Pico fled from the City of Los Angeles, and never
afterwards had possession of the archives or records of the
department. Before his flight, he placed them in boxes and
deposited them with Luis Vignes for safekeeping. On the thirteenth
of that month, Commodore Stockton entered the City of Los Angeles,
and on the next day Colonel Fremont took possession of the
archives, and kept them until the eighth day of September
following, and then took them to Sutter's fort, on the American
river, where they remained until 1847, when they were sent to
Monterey. They remained at Monterey until February, 1850, when they
were sent to Benicia, and thence to the office of the Surveyor
General. Whatever might have been the motive for making the
alteration in the informe, it is clear that it could not have been
done to influence the official action of the governor, for he had
long before gone out of office; and yet the circumstances strongly
support the hypothesis that it was to
Page 66 U. S. 248
that same report, as altered on the eighth day of October, 1847,
that the reference is made, both in the petition and the decree of
concession embraced in the espediente. Assuming that to be so, then
it is clear that the espediente is antedated and fraudulent, and
the circumstances, when taken together, tend so strongly in that
direction that we think the espediente is not entitled to much
weight. When the jurisdiction of that department was transferred to
the United States, the motive to fabricate titles to real property
became strong and active, and the evidence in this case is
abundantly sufficient to show that opportunities occurred to enable
the unscrupulous to foist simulated evidences of such titles into
the depositories of the archives, after they were seized at Los
Angeles, in spite of any vigilance that those entrusted with their
safekeeping could possibly employ to preserve them from such
fraudulent practices. Interested parties were necessarily allowed
to consult the contents of the packages while they yet remained in
very considerable disorder and without any permanent custodian.
Among those who had such opportunities was one of the witnesses of
the claimant, and the evidence tends to show that he had an
interest in the claim, and that he had stated that when he took
hold of it, there were no papers in the case, but that he had
procured a set as good as any that could be found in the state.
True it is that he denies ever having made that statement, but he
admits that he went to Benicia in 1850 and that he examined the
archives for the purpose of ascertaining whether any grant had been
made to the claimant's intestate. He says he saw papers there with
the name of William Knight on them, but neither he nor the clerks
in charge of them could translate them. Whether the espediente in
this case was in the boxes that fell into the possession of Colonel
Fremont at Los Angeles, or was among the loose papers subsequently
found in the custom house at Monterey, or when or by what means the
espediente was deposited in the archives, does not appear, except
that it was there is 1847 or the first part of the year 1848, when
an officer of the United States, in charge of the archives, made
and completed an index of certain espedientes not previously
indexed,
brk:
numbered, or filed, by Mexican authority.
Page 66 U. S. 249
Sixty-seven, including all those found in the custom house at
Monterey, were then added to the previous list. Mexican numbering
stopped at five hundred and twelve, and the author of the new index
commenced to number where the other closed. That index includes the
espediente in this case as number five hundred and fifty, and it
shows that the espediente was in the archives when that index was
made; but it shows nothing more, and cannot in any sense be
regarded as a Mexican record. Evidence to show that the grant was
recorded is entirely wanting, and there is no pretense that the
espediente was ever submitted to the departmental assembly for its
approval. Absence of such approval, under the circumstances of this
case, is entitled to very considerable weight. More than forty
espedientes were presented to that assembly on the third and tenth
days of June, 1846, and received its approval. Several of the
grants were dated in April, 1846, and one was dated on the first
day of May of that year, and the inference is a reasonable one that
if the espediente in this case had really been completed, and the
grant actually issued, the former would have been included in that
list. Taken together, these various considerations throw great
distrust upon this document and justify the conclusion that it is
entitled to little or no weight. Rejecting the espediente as
unsatisfactory and wholly insufficient under the circumstances,
nothing remains to support the claim in this case except the parol
proof. Claimant's theory is that the grant was issued by Governor
Pio Pico at Los Angeles on the fourth day of May, 1846, and was
then and there delivered to his intestate. At that time, William
Knight lived in the valley of the Sacramento, some seven hundred
miles distant from the seat of government, where it is assumed that
the grant was issued; but it is insisted that he visited that place
the last of April or early in May of that year, and that the grant
was delivered to him in person by the secretary of the department.
Jose M. Moreno was the Secretary at that time, and he testifies
that the grant was issued by the governor on that day, and that he,
the Secretary, delivered the same to the claimant's intestate. But
it is a sufficient answer to the testimony of that witness to say
that it is conceded
Page 66 U. S. 250
by the claimant, that his character for truth is worthless.
Another witness, James M. Harbin, testifies that he saw William
Knight in Los Angeles about that time, and that he said he was
there for the purpose of getting a grant for ten leagues of land on
the Sacramento River; that Governor Pio Pico told him that he had
issued the grant and that he, the witness, saw papers in the
possession of Knight when he started to return, but did not know
what they were. Proof was also introduced by the claimant to show
that the signatures to the marginal decree and the decree of
concession were genuine, and he also introduced an affidavit of J.
C. Davis in which the affiant states that on the 5th day of June,
1846, he heard Knight say, in the camp of Colonel Fremont, that he
had just returned from the lower country, where he had procured his
title papers, and the affiant also stated that he exhibited certain
papers, calling them title papers, but the witness did not examine
them, because he could not read the language. Other declarations of
Knight were also introduced without objection -- such as that he at
one time said he was going to Los Angeles concerning the title to
his land, and that, on his return, he said he had received it, and
that in March, 1847, he said he had lost his grant, and expressed
his fears that he should lose his land in consequence of the loss
of the grant. It was denied by the United States that he made any
such visit to Los Angeles as is alleged, and they also insisted
that he never claimed to have any other title to the land than the
copy of the general title, which was furnished him on the fifteenth
day of April, 1845, and a large number of witnesses were examined
to establish these points. They prove that whenever he spoke of
having a title to the land, he uniformly spoke either in vague
terms or else referred directly to the general title, and never in
a single instance declared that he had a grant of the land from the
last-named governor. They also prove that he was at home during the
winter and spring of that year, and that in the month of April he
was engaged to some extent in agricultural pursuits. One witness
states that he saw him on his ranch about the eighteenth or
twentieth
Page 66 U. S. 251
of that month, and another that he saw him at his house about
the first of May of the same year, and states the circumstances
that enable him to fix the time with certainty. Two other
witnesses, one a boarder in his house and the other a neighbor,
state with great positiveness that he was at home in the early part
of May, sometimes hunting and sometimes farming, until he joined
Colonel Fremont on the twenty-sixth day of that month. Testimony
was also introduced by the United States showing that great
difficulties would have attended such a journey at that season of
the year on account of the swollen state of the streams and the
condition of the roads, and some of the witnesses, who were well
acquainted with the usual route, express the opinion that the
journey, in the ordinary course of traveling, could not have been
accomplished short of a month. These and many other facts were
given in evidence to show that he did not visit Los Angeles at the
time alleged, and clearly the weight of the evidence, to say
nothing of the improbability that the governor would bestow such a
bounty upon one so recently in arms against him, is clearly against
the theory set up by the claimant. Suppose it were competent for
the appellee to prove his claim without record evidence, still the
burden is upon him to show that the grant was issued, and surely be
must first show its existence and loss before he can be allowed to
give secondary evidence of its contents. Applying that elementary
rule to the facts of this case and it is clear that the claimant
has no standing in court. But a more decisive answer to the claim
remains to be stated, and that is that there is no record evidence
that the grant was ever issued, and without such evidence, the
claim cannot be confirmed. That rule is founded upon the Mexican
law, and has been so repeatedly announced by this Court that it
seems unnecessary to adduce any argument in its support. To
maintain a title by secondary evidence, said the Court in
United States v.
Castro, 24 How. 350, the claimant must show that
the grant was obtained and made in the manner the law required, at
some former time, and that it was recorded in the proper public
office; to which it may be added that such was undoubtedly the
Mexican law, and that the rule
Page 66 U. S. 252
there laid down is plainly applicable to the present case.
Similar views have been expressed by this Court on so many
occasions that it would be a work of supererogation to do more than
to refer to the decided cases.
United States v.
Teschmaker, 22 How. 392;
United
States v. Fuentes, 22 How. 443;
United
States v. Cambuston, 20 How. 59;
United
States v. Osio, 23 How. 279,
64 U. S.
280
Evidence was also introduced by the claimant tending to prove
that a book of records appertaining to land titles in California
for the year 1846 was lost, but no attempt was made to show that
the grant in question was ever recorded in that book. All we think
it necessary to say upon that subject at the present time is that
proof of such a loss cannot avail a party in a case like the
present unless it also be shown, at least by circumstances which
will justify the court in finding the fact, that the grant was duly
and properly entered in the lost record. In view of the whole case,
we are of the opinion that the district court erred in confirming
the claim. The decree must accordingly be
Reversed and the cause remanded with directions to dismiss
the petition.
MR. JUSTICE WAYNE.
I content myself now with saying that I do not concur with the
Court in its conclusion in this case. I think it a severer
exclusion of a right of property in land secured by treaty than has
been hitherto adjudged by this Court in any case from
California.
