1. A paper purporting to be a grant of land in California first
produced from the custody of a claimant after the war, and
unsustained by any record evidence, will not be held valid by this
Court.
2. Evidence of the destruction of archives during the war does
not avail the holder of such a naked grant unless he can show where
and how the specific papers necessary to complete his title were
lost or destroyed.
3. The Court again affirms the doctrine that the testimony of
Mexican officials cannot be received to supply or contradict the
public records.
4. The theory of claimants has been that the want of archive
evidence should be excused on the ground that many of the records
were lost or destroyed, but the records of the Mexican government
in California being found in tolerable preservation, and the most
enormous frauds having been attempted on the assumption that this
theory would account for their nonproduction, the Court has been
compelled to reject it as altogether fabulous.
5. A grant not recorded, and for which no espediente is found,
and which is not among the forty-five sent in to the departmental
assembly and confirmed on the 8th of June, 1846, cannot be believed
genuine on the testimony of a Mexican secretary who swears that he
signed and delivered it.
The appellee in this case claimed under the title of Jose
Castro, which was rejected by the Supreme Court at December
Page 66 U. S. 299
Term, 1860,
65 U. S. 24
How. 347. Neleigh and one McKenzie purchased from Castro in 1849
six of the eleven leagues covered by his title, "to be selected
whenever the same shall be located by the proper authority."
McKenzie died soon after the purchase, and Neleigh, by a conveyance
from his widow, under a power in his will, became possessed of his
interest in the land. He presented his petition to the land
commission in September, 1852, asking a confirmation of title to
his six leagues, and in March, 1853, Castro petitioned in his own
name for a confirmation of the remaining five. The reasons for the
rejection of Castro's title, which reached the Supreme Court first,
are set forth very fully in the opinion of the Court delivered in
that case by MR. CHIEF JUSTICE TANEY. Neleigh's claim, after an
adverse judgment in the land commission, was confirmed by the
district court in October, 1859. From this decree the United States
appealed.
No new title papers were offered. The claim rested in this case,
as in that of Castro, upon the naked grant produced from the
custody of the claimant. But much additional parol testimony was
taken, by which it was sought to distinguish the new case from the
old. Four new witnesses, including Pico and Moreno, whose
signatures were appended to the grant, were called to prove its
genuineness. Some additional evidence of occupation was offered,
and the testimony of Col. Fremont introduced to show that he had
lost a portion of the archives in the mountains of San Juan --
among them papers relating to a title to Gen. Castro. A witness was
called to show that there was but one Gen. Castro in California in
1846, thereby connecting the lost papers with the title of the
present claimant. On the part of the United States, no evidence was
added to that offered in the case of Jose Castro.
Page 66 U. S. 305
MR. JUSTICE GRIER.
Neleigh filed his claim before the board of land commissioners
on the 3d of September, 1852. It was for six leagues of land in
Mariposa County, being part of eleven leagues said to have been
granted to Lieut. Col. Jose Castro by Pio Pico, late Governor, on
the 4th of April, 1846. The deed from Castro, dated 8th of June,
1849, purported to convey to Bernard McKenzie and Robert Neleigh
six of the eleven leagues, "to be taken where the grantees might
select." McKenzie's interest was afterwards vested in his co-tenant
by a conveyance from his administratrix. The commissioners
confirmed the claim. But as the grant to Castro had never been
surveyed or located, and, like that to Fremont was vague and
uncertain as to its boundary, it might be located on either or both
sides of the San Joaquin River. Their decree therefore did not
ascertain what land was confirmed, but ordered that it be "selected
by the said petitioner from the said eleven leagues when the same
shall be located by the proper authority." This decision of the
board was affirmed by the district court in October, 1859.
In the meantime, Jose Castro, in March, 1853, filed his claim
for the eleven leagues "for the benefit of himself and those
claiming under him." That case came before this Court at last term,
and may be found reported in
65 U. S. 24
How. 347. It was rejected by this Court for the reason there given,
and which need not be repeated. Nor need we inquire of what use the
affirmation of the decree of the district court would be to Neleigh
of a right to select six leagues out of eleven, which, by judgment
of this Court, never can be surveyed or located. For the purposes
of the present case also we will assume that as Neleigh was not a
party on record in the former case, he is not concluded by the
judgment given in it, and inquire whether he has furnished any new
evidence which, if it had been found in the record of the
Castro case, would have led us to a different conclusion.
Now it must be kept in remembrance that the grant to Castro was not
rejected because
Page 66 U. S. 306
it was not signed by the persons whose names are affixed to it.
It is a historical fact, and proved by satisfactory evidence more
than once, that after that country passed into the possession of
the United States, the late governor was very liberal in executing
grants to any person who desired them and for any quantity of land.
It was easy to prove his signatures, and Pio Pico himself, when
called as a witness, could never recollect anything about
the
date, which was the only material question in the inquiry as
to its validity. Of the last two secretaries who attested these
grants, one has been found capable not only of writing false grants
but of supporting them by his oath. Of the other we have been
compelled to say that he was following in the footsteps of his
predecessor.
It is well known that espedientes and records of the grants made
in Pico's time were carefully put away by him in boxes, which came
into the possession of Col. Fremont, and were delivered to the
public officers. These espedientes are all found safe among the
records, but the
"toma de razon," or short record of them,
has disappeared. Hence, when a grant is produced for the first time
from the pocket of the claimant, and is attempted to be established
by proof of the signatures of the Governor and Secretary, the want
of an espediente or archive evidence is expected to be excused by
the proof that some papers were lost and torn when they were
carried away on mules by Col. Fremont, or used
"as cartridge
paper," according to Pio Pico's theory. The enormous frauds
which have been attempted to be perpetrated, depending on this
theory of the destruction of records, have compelled us to reject
it altogether as fabulous. These archives have been collected, and
are found in a very tolerable state of preservation. Hence the
propositions laid down in the
Castro case and others
preceding it were an absolute necessity to save the government from
utter spoliation of its territory.
It would be superfluous to repeat the principles laid down in
the
Castro case. It is sufficient to say that the
additional testimony in this case does not relieve it from its
deficiencies there stated. The testimony of Colonel Fremont of
having seen some paper concerning a grant to Castro does not
prove
Page 66 U. S. 307
the existence of
this grant, which was not the only
property claimed by Castro in California. The testimony of the late
governor adds nothing to the evidence. He, as usual, acknowledges
the genuineness of his signature, which was not disputed, but as to
the important question whether it was made before or after his
expulsion by the Americans he is entirely silent. He could not
remember historical facts connected with his administration; that
at the
date of this grant, he was at bitter feud with
Castro, who had seized upon the custom house at Monterey and set
the governor at defiance, and that the governor was preparing
troops, at this time, to compel his submission. The declaration of
the witness that he should nevertheless as soon make a grant to
Castro as to any other is no doubt true if it refers to the true
date of the transaction, after they had both been superseded and
deposed by the Americans. Nor does it add anything to the value of
this testimony that the witness explains that by want of
recollection he means his unwillingness to state the truth.
Moreno, who is always a more willing witness and who labors
under no want of memory or imagination, is brought to supply this
want of record proof, and accounts for his signature to the grant
being dated when he was
not Secretary. He swears that he
signed it after its date, in the beginning of May, but whether it
was May, 1846, 1847, or 1848, he does not state directly, but
leaves it to inference that he meant 1846.
But if we were in any doubt as to the credibility of the
testimony of this witness, there are other facts established which
demonstrate that if he had stated explicitly that he signed this
grant and recorded it in May, 1846, the assertion would have been
untrue.
On the 4th of April, 1846, the date of this grant, it is a fact
not only that Moreno was not Secretary, but that Pio Pico
was
not governor. He first presented his appointment as governor
to the assembly, on the 15th of April, 1846, and was inaugurated on
the 18th. The first grant made by him in which he is styled
governor is that to Pedro Sansevaine, dated the 21st of April. In
all his previous grants, he is styled "First Vocal and Governor
ad interim." This deed was evidently written
Page 66 U. S. 308
so long after that this fact had escaped the recollection of the
parties signing it. In the beginning of May, 1846, it was becoming
apparent to all concerned that the power of the governor and the
assembly would soon pass away. Pio Pico therefore prudently
gathered up the grants of land which had not been previously laid
before the departmental assembly for their approval. He
accordingly, on the 3d of June, 1846, sent in to them no less than
forty-five espedientes. One of these was made in 1839. The others
were all dated in 1845 and 1846, the last three on the 2d and 3d of
May, 1846. Fortunately, we have the minutes of the assembly, by
which it appears that these forty-five espedientes were reported
and confirmed on the 8th of June, 1846. This grant to Castro does
not appear among them, and is left to the uncertain testimony of
Moreno to establish its existence, and we are asked to presume that
it alone was kept back from the assembly and that while all the
other genuine grants confirmed by them are found among the archives
in good order, this alone was converted into "cartridge paper." All
these presumptions must be made on the faith of these witnesses,
whose testimony we have heretofore declared could not be received
to contradict or supply record evidence.
In the former case, this grant to Castro was rejected for the
negative reason that there was not the evidence required to prove
it genuine. The testimony in the present case has proved it
positively spurious.
Let the decree of the district court be reversed.
