Malarin v. United States,
68 U.S. 282 (1863)

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U.S. Supreme Court

Malarin v. United States, 68 U.S. 1 Wall. 282 282 (1863)

Malarin v. United States

68 U.S. (1 Wall.) 282


When the validity of a Mexican grant has been affirmed by a decree of the district court, and an appeal is taken by the claimant seeking a modification of the decree as to the extent of land embraced by the grant, but no appeal from such decree is taken by the United States, the validity of the grant is not open to consideration upon the appeal.

When a grant of land, issued and delivered, is subsequently altered in the quantity granted by direction of the grantor, on the application of the grantee, and is then redelivered to the grantee, such redelivery is in legal effect a re-execution of the grant.

When a Mexican grant issued to the claimant is alleged to have been fraudulently altered after it was issued in the designation of the quantity

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granted, a record of juridical possession, delivered to the grantee soon after the execution of the grant, showing that the quantity of which possession was delivered was the larger quantity stated in the grant, is entitled to great consideration in determining the character of the alteration, particularly when there has been a long subsequent occupation of the premises.

Pacheco claimed a tract of land in California, known as the Bolsa de San Felipe, or Sack of St. Philip, under a grant alleged to have been issued to him in October, 1840, by Alverado, then Mexican Governor of the department.

In 1852, he presented a petition to the Board of Commissioners appointed by the Act of Congress of March 3, 1851, to settle the respective rights of the United States and claimants under the former government, asking for the confirmation of his claim. He produced in support of it before the board from the archives of the former government, his petition to the Mexican Governor, Alverado, for the grant specifically of the Bolsa de San Felipe, the reports of the local authorities, and their proceedings thereon. He produced also a formal grant to him, signed by the Governor and attested by the Secretary of state, bearing date on the 4th of October, 1840, with a record of juridical possession delivered to him.

This record contained --

A deed by Governor Alverado, dated October 14, 1840, reciting that Pacheco had solicited the land known by the name of "Bolsa de San Felipe," and that the necessary steps and investigations having taken place, and been made in conformity with the law and regulations, he, the said governor, had granted to him the said land, subject to the approval of the departmental junta, and to certain "conditions;" among these were two, thus expressed:

"He shall request the respective justice to give him juridical possession in virtue of this decree; said justice will designate

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the boundaries, at the limits whereof the grantee shall, besides placing the land marks, plant some fruit trees or wild ones of some utility."

"The land whereof mention is made comprises two square leagues (dos sitios de ganado mayor), a little more or less by the plat which accompanies the expediente. The magistrate who gives possession shall cause it to be measured according to law, leaving the surplus which may result to the nation for the necessary uses."

Next follows a memorandum by Jimeno that "this title has been recorded in the respective book on the back of folio 3." Then a petition from Pacheco himself, dated 1st February, 1841, to the Senor judge of the district, reciting

"that having obtained ownership of the land called Bolsa de San Felipe, which was granted to me on the 14th of October, 1840, as appears by the title and plat which I have the honor to accompany,"

he, Pacheco, begs that the judge, in virtue of his "attributions," would be pleased to fix a day for giving him, Pacheco, possession. A marginal decree, dated February 12, 1841, then follows. "Proceed," it orders,

"to give the possession asked for, to which effect, Friday, the 19th inst., is appointed. Let the neighboring landholders be summoned, appointing previously measurers and counters, informing them thereof, that they accept and take oath."

Accordingly, on the 19th of February, the day which the justices had fixed, the neighboring landholders assembled -- the record mentioned -- on the ground; two citizens were appointed to measure the land; neighbors consented to the appointment; measurers were sworn "in the name of the Lord our God, and by the sign of the Holy Cross" to perform their duty truly; two other citizens were appointed and sworn as counters; the length of the cord was accurately ascertained in the presence of all parties. These preliminaries being all transacted, recorded, and duly attested, the measuring began. The quantity of the land was ascertained to be two leagues, or perhaps a little more, on account of the irregularity of the ground. "Thereupon," continued the record,

"the neighbors being all satisfied with the measurement, they went, with the witnesses, the judge, and the petitioner

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to the center of the land, where the judge ordered the petitioner to enter into possession, which the petitioner did by 'pulling up grass and making demonstrations as owner.' This proceeding was ordered to be recorded, and the original 'expediente' to be returned to the party, which order, as the record showed, had been obeyed, the proceedings being entered in the book of possessions."

The claimant proved that he had been in the use and occupation of the premises where he now was since the date of juridical delivery of possession.

The board adjudged the claim valid, and entered a decree confirming it to the extent of two square leagues, provided that quantity were contained within the boundaries called for in the grant and a map to which the grant referred, but if there were less than that quantity within such boundaries, then the confirmation was to be for such less quantity. In fact, the boundaries embraced a little more than two leagues.

Appeal was taken by the United States to the district court, and while the case was pending there, Pacheco died, and the executors of his will, Malarin and another, were substituted in his place, and the subsequent proceedings were conducted in their names. The district court, while holding the title of Pacheco valid, limited it, notwithstanding, to one league. The court, it seemed, had been led to this decree by the fact that there was an erasure on the original grant. The Spanish word "dos," "two," in designating the quantity preceding the corresponding Spanish word for "leagues," it was plain, had been written upon an erasure, where it was said that the word "uno," "one," had been before. Experts being called, one of them, familiar with writing and with the effect of time on ink, thought that if the alteration had been made at the time of the execution, it might have the appearance which it now presented, and he did not see anything which led him to believe that the alteration was of a later date except that it was an erasure. Another expert, judging from the difference in the color of the ink, thought that the alteration had been

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made at least five years after the rest was written, although if ink of different consistencies had been used, it might have been written at the same time and bear the present appearance.

Governor Alverado, who issued the grant, and a clerk in the office of the Secretary of state at the time, were examined. Alverado was examined twice. On his first examination, which was in May, 1858, he said:

"I noticed when the grant was presented to me for my signature that the clerk had made a mistake by writing one league where he should have written two. I sent the grant back to the secretary's office to repair the mistake, and have the word 'two' inserted instead of 'one,' which he did, and reported to me to that effect."

Alverado swore also that the other which he gave to the secretary was to issue a grant for two leagues, more or less; that this he remembered well, as likewise the order to alter the mistake that was made at the time. In his second examination, however, which was in January, 1861, nearly three years after the first one, he testified that the title, as given to Pacheco, was for one league, and that he (Pacheco) "made the reflection that one league was not conformable, but in fact the title should and ought to have been for two leagues." "Then," continued the witness,

"I gave the order that the title should be returned to the secretary's office, that that amendment should be made, and I was informed that the amendment was made accordingly."

In answer to the question when the title was returned to the secretary's office to be amended, he answered that it was within one, two, or three days from the time the title was delivered, but that he could not say particularly. This last-given testimony of Alverado conformed to that given by the clerk in the office of the Secretary of State, who was examined on the same day and at the same place when Governor Alverado last testified. Alverado also, in answer to a question if he "recollected" by whom the deed was written, answered by "Francisco Arce, clerk in the office." Arce himself swore, however, that it was not written by him, but was written by another clerk named Astrada, whose

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handwriting resembled his own. This clerk was not produced, nor explanation offered for his absence.

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