Where no suspicion, from the absence of the usual preliminary
documentary evidence in the archives of the former government
arises as to the genuineness of a Mexican grant produced, the
general rule is that objections to the sufficiency of proof of its
execution must be taken in the court below. They cannot be taken in
this Court for the first time.
The tribunals of the United States, in passing upon the rights
of the inhabitants of California to the property they claim under
grants from the Spanish and Mexican governments, must be governed
by the stipulations of the treaty, the law of nations, the laws,
usages, and customs of the former government, the principles of
equity, and the decisions of the Supreme Court, so far as they are
applicable. They are not required to exact a strict compliance with
every legal formality.
United States v. Johnson, ante, p. <|68 U.S.
326|>326, approved.
After the cession of California to the United States, Auguisola,
who deraigned title from two persons (Lopez and Arrellanes)
exhibiting a grant that purported to be from the Mexican governor
Micheltorena, laid his claim before the board of commissioners,
which the Act of Congress of March 3, 1851, appointed to examine
and decide on all claims to lands in California purporting to be
derived from Mexican grants. He here produced from the archives of
the Surveyor General of California a petition from the grantees,
the petition being accompanied by a map of the land desired,
Page 68 U. S. 353
the reports of the different officers to whom the matter was
referred for examination, and the concession of Governor
Micheltorena, dated March 17, 1843, in which this governor declares
that the petitioner is
"proprietad del terreno blanado,"
or "owner of the land" in question. He produced, moreover, a formal
grant of the governor, dated contemporaneously with the order of
concession, and a record of possession delivered by the proper
alcade in 1847. None of the parties, however, whose names appeared
as grantors or actors in the various evidences of title, was called
in the court below as witnesses, proof of all the fundamental
documents having been made by a witness who swore to the
genuineness of the various signatures. Neither was the work known
as "Jimeno's Index" -- a list of Mexican grants between the years
1829 and 1845 -- introduced as part of the plaintiff's evidence of
title, though the present grant purported, by memorandum at its
foot, "to be registered in the proper book." The grant was produced
from his private possession. Supposing the papers, however, to be
all genuine -- a matter about which no question was raised before
the commissioners -- the case was properly enough made out in
respect of occupancy, improvement, cultivation, stocking with
cattle, and other matters which were required by the Mexican laws,
the only difficulty being that the boundaries of the land, as set
forth in the papers and on the map, were so undefined that they
could not be ascertained nor surveyed, and that the piece of land
claimed had never been segregated from the national domain.
Auguisola's claim was accordingly rejected by the commissioners.
From this decision he appealed to the district court, and having
shown by new evidence more definite boundaries than he had shown
before, the decree of the commissioners was reversed and his claim
established. To this judgment of the district court the United
States filed thirteen exceptions, being reasons, all of them, to
show why the claim of Auguisola was a bad one. They were based on
an alleged invalidity of the grant, on an asserted illegality of
the juridical possession; on the situation of the land as respected
the seacoast; on the fact that it had
Page 68 U. S. 354
been occupied by missions and could not be colonized; that it
was incapable of identification; that one deed was on unstamped
paper; that the departmental assembly had not approved the grant;
that the land had not been properly occupied and improved, and some
other reasons of a similar kind.
Not one of the reasons,
however, assigned fraud of any kind, of which, indeed, so far as
the record showed, there was no suggestion anywhere below.
Page 68 U. S. 355
MR. JUSTICE FIELD delivered the opinion of the Court:
The respondent deraigns his title from Lopez and Arellanes, the
alleged grantees of the Mexican governor Micheltorena. In support
of his claim before the board of commissioners created under the
act of 1851, he produced from the archives in the custody of the
Surveyor General of California the petition of the grantees for the
land, the reports of the different public officers to whom the same
was referred for information as to the property and the
petitioners, the sketch or map accompanying the petition, and the
concession of the governor, made on the 17th of March, 1843,
declaring the petitioners "owners of the land" in question. He also
produced a formal grant of the governor, bearing the same date with
the order of concession, and a record of juridical possession
delivered by the alcalde of the vicinage in 1847. No question was
raised before the commissioners as to the genuineness of the
several documents produced, and with proof of the signatures
attached to the above grant and record, and that the grantees had
constructed a house upon the premises immediately after receiving
the grant; that the house was occupied by one of the grantees until
the
Page 68 U. S. 356
sale to the claimant and has been occupied by the claimant ever
since, and that the land has been cultivated and used for the
pasturage of cattle since its first occupation, the case was
submitted. The board rejected the claim, not from any conclusion
that the papers produced were not genuine, but solely upon the
ground that the boundaries of the land granted were vague and
indefinite and that the land had not been segregated from the
public domain. The case being removed by appeal to the district
court, the attorney of the United States, in answer to the
claimant's petition for a review of the decision of the
commissioners, set forth thirteen grounds for holding the claim
invalid. Two of them related to the alleged invalidity of the
transfer from the grantees to the claimant, two to the illegality
of the juridical possession of the alcalde in 1847, and the
remaining grounds were substantially these: that the land was
situated within ten leagues of the seacoast; that it was occupied
by the missions of the territory, and therefore could not be
colonized; that the grant had not the conditions required by the
colonization law of 1824, or the regulations of 1828; that it did
not give in itself or with the aid of the map produced any
description by which the land could be identified; that it was not
executed upon lawfully stamped paper; that it had not been approved
by the departmental assembly, and that the grantees had not
complied with the conditions annexed by constructing a house within
a year, and inhabiting it and cultivating the land, and soliciting
the proper judge for juridical possession. No objection was made
that the title papers produced were not genuine or not executed at
the time they purport to have been executed, and the additional
evidence taken in the district court was intended to show the
location and boundaries of the land, and thus remove the objection
to the confirmation given by the commissioners. The district court
reversed the decision of the board and adjudged the claim of the
respondent to be valid, and confirmed it to the extent of three
square leagues. From this decree the United States have appealed,
and in this Court for the first time take the grounds, 1st that the
grant produced,
Page 68 U. S. 357
even if genuine, was not legally proved, and 2d that the grant
is fraudulent and void.
The first objection arises from the fact that the governor who
signed and the secretary of state who attested the grant were not
called to prove it or their absence accounted for, and that the
instrument was admitted upon proof of their signatures. The usual
preliminary proceedings to the issue of a Mexican grant in
colonization having been produced from the archives, there was no
presumption against the genuineness of the grant in question,
requiring the strict proof of its execution mentioned in the cases
of
United States v. Teschmaker, [
Footnote 1] and
Fuentes v. United States.
[
Footnote 2] Under these
circumstances, the objection should have been urged before the
commissioners or the district court, and notice thus given to the
claimant to procure further proof by calling the parties or to show
good reason for not calling them. Where no suspicion from the
absence of the usual preliminary documentary evidence arises as to
the genuineness of the instrument produced, the general rule is
that objections to the sufficiency of the proof of its execution
must be urged in the first instance before the inferior tribunal.
In the present case, it is possible that the governor and secretary
were without the jurisdiction of the court at the time the grant
was produced, or the objection to the proof may not have been urged
by the attorney of the government, who was present when it was
given, because satisfied himself from other sources that the
signatures were genuine, and that the grant was executed at the
time it purports to have been executed, or because of his knowledge
that the objection could have been readily obviated by testimony
within the reach of the claimant. [
Footnote 3]
The objection that the grant is fraudulent and void rests mainly
upon the allegation of counsel that it is not mentioned in the list
of expedientes known as "Jimeno's Index." We say upon the
allegation of counsel, for Jimeno's Index is
Page 68 U. S. 358
not in evidence, nor was any proof offered of its contents, and,
under the circumstances of this case, if the fact were as alleged,
it would not be entitled to much weight.
To the objections urged by the appellants, and to all objections
of a similar kind, the observations of MR. JUSTICE GRIER in the
case of
United States v. Johnson, decided at the present
term, are applicable. "In taking objections to these Mexican
grants," says the learned Justice,
"it ought to be remembered that the case is not brought here on
a writ of error with a bill of exceptions to the admission of every
item of testimony offered and received below. Nor is it a part of
the duty of counsel representing the government to urge microscopic
objections against an honest claimant and urge the forfeiture of
his property for some oversight of the commissioners in not
requiring proof according to the strict rules of the common law.
When there is any just suspicion of fraud or forgery, the defense
should be made below, and the evidence to support the charge should
appear on the record. If testimony of witnesses is alleged to be
unworthy of belief, the record should show some reason to justify
the court in rejecting it. The former opinions of this Court may be
referred to on questions of law, but cannot be quoted as evidence
of the character of living witnesses."
To these observations we will only add that the United States
has never sought by its legislation to evade the obligation
devolved upon it by the Treaty of Guadalupe Hidalgo to protect the
rights of property of the inhabitants of the ceded territory or to
discharge it in a narrow and illiberal manner. It has directed
their tribunals, in passing upon the rights of the inhabitants, to
be governed by the stipulations of the treaty, the law of nations,
the laws, usages, and customs of the former government, the
principles of equity, and the decisions of the Supreme Court, so
far as they are applicable. It has not desired the tribunals to
conduct their investigations as if the rights of the inhabitants to
the property which it claims depended upon the nicest observance of
every legal formality. It has desired to act as a great nation, not
seeking, in extending
Page 68 U. S. 359
its authority over the ceded country, to enforce forfeitures,
but to afford protection and security to all just rights which
could have been claimed from the government it superseded.
Decree affirmed.
[
Footnote 1]
63 U. S. 22 How.
392.
[
Footnote 2]
63 U. S. 22 How.
443.
[
Footnote 3]
Pelletreau v. Jackson, 11 Wendell 123;
Jackson v.
Waldron, 13
id. 184.
