1. Where the usual preliminary proceedings to the issue of a
Mexican grant in colonization are preserved in the archives of the
former government, the proof of the signatures of the grantor and
attesting secretary will be deemed by the Supreme Court sufficient
to establish the genuineness and due execution of the grant unless
objection is taken to its sufficiency before one of the inferior
tribunals.
United States v. Auguisola, ante, p. <|68
U.S. 352|>352, approved.
2. The fact that Mexico declared, through her commissioners who
negotiated the Treaty of Guadalupe Hidalgo, that no grants of land
were issued by the Mexican governors of California after the 13th
of May, 1846, does not affect the right of parties who, subsequent
to that date, obtained grants from the governors whilst their
authority and jurisdiction continued. The authority and
jurisdiction of Mexican officers in California are regarded as
terminating on the 7th of July, 1846. The political department of
the government has designated that day as the period when the
conquest of California was completed and the Mexican officers were
displaced, and in this respect the judiciary follows the action of
the political department.
3. The absence from a Mexican grant in colonization of
conditions requiring cultivation and inhabitancy and the
construction of a house within a year does not affect the validity
of the grant.
The respondent claimed a tract of land called La Sierra,
situated in the present County of Los Angeles, State of California,
and in October, 1852, presented a petition to the board of
commissioners created by the Act of March 3, 1851, to ascertain and
settle private land claims in California, asking for the
confirmation of their title. In November, 1854, the board rejected
his claim, but on appeal to the district court the claim was, in
December, 1856, adjudged valid and confirmed to the extent of four
square leagues. From this decree the appeal was taken.
In support of his claim, the respondent produced from the
archives of the former government in the custody of the Surveyor
General of California his petition to the governor for the land,
the reference by him to the local authorities for information, and
their reports on the subject; also various proceedings had with
reference to an adverse interest in the land asserted by the widow
of his deceased brother and a
Page 68 U. S. 413
draft or copy of the grant issued. He also produced the grant
delivered to him, which was issued by Governor Pio Pico on the 15th
of June, 1846. It is signed by the governor and tested by his
secretary of state, but neither the governor nor secretary was
called to prove the execution of the grant. The genuineness of
their signatures was proved by a third party, no objection being
taken to its sufficiency at the time by the law agent of the United
States, who was present at the examination of the witness.
The grant was apparently much in the form common to these
grants, except that it had not the usual requirements or conditions
requiring cultivation, inhabitancy and the construction of a house
within a year. [
Footnote 1]
The respondent also proved that he had been for several years
previous to receiving the grant in the occupation and use of the
land in connection with his deceased brother.
Page 68 U. S. 421
MR. JUSTICE FIELD delivered the opinion of the Court:
Three objections are urged by the appellants to the decree of
confirmation.
1st. That the grant to the claimant was proved by secondary
evidence.
2d. That the grant was issued by the Mexican governor of
California, after the 13th of May, 1846; and
3d. That the grant does not contain conditions requiring
cultivation and inhabitancy and the construction of a house within
a year.
1. The first objection rests upon the fact that the governor who
signed and the secretary who attested the grant were not called to
prove its execution, and that the instrument was admitted upon
proof of their signatures. This proof
Page 68 U. S. 422
of their signatures by a third party is characterized by counsel
as secondary evidence of the execution. Whether with strict
accuracy it can be thus characterized is immaterial. Their
testimony, or at least testimony establishing something more than
the genuineness of their signatures, might have been required, if
the usual preliminary proceedings to the issue of a Mexican grant
in colonization had not been produced in the case from the archives
of the former government in the custody of the Surveyor General of
California. In the absence of the preliminary proceedings,
suspicion naturally arises as to the genuineness of any grant
produced, and in such cases the strict proof mentioned in
United States v. Teschmaker, [
Footnote 2] and in
Fuentes v. United States,
[
Footnote 3] may be demanded.
But where the preliminary proceedings are preserved in the archives
and no doubts in consequence are created as to the genuineness and
due execution of the grant, the proof of the signatures of the
grantor and attesting secretary will, on appeal, be deemed
sufficient by this Court unless objection is taken to its
sufficiency in the first instance before one of the inferior
tribunals. Such is the purport of the recent decision in the case
of
United States v. Auguisola. [
Footnote 4]
2. The invalidity of grants issued by the Mexican governors of
California after the 13th of May, 1846, is asserted upon the
declaration of Mexico, through her commissioners, who negotiated
the Treaty of Guadalupe Hidalgo, that no such grants were issued
subsequent to that date. It is true that such declaration was made
and embodied in the
projet of the treaty originally
submitted to our government. But as the clause containing it was
stricken out by the Senate, it cannot be affirmed that the treaty
was assented to by the United States on the faith of the
declaration. Even if the case were different and the treaty had
been concluded in reliance upon the truth of the declaration, that
fact could not affect the rights of parties who, subsequent to the
13th of May, 1846, obtained grants from the governors of
California
Page 68 U. S. 423
whilst their authority and jurisdiction in the country
continued. The rights asserted by the inhabitants of the territory
to their property depend upon the concessions made by the officers
of the former government having at the time the requisite authority
to alienate the public domain, and not upon any subsequent
declaration of Mexican commissioners on the subject.
The authority and jurisdiction of Mexican officials are regarded
as terminating on the 7th of July, 1846; on that day, the forces of
the United States took possession of Monterey, an important town in
California, and within a few weeks afterwards occupied the
principal portions of the country, and the military occupation
continued until the treaty of peace. The political department of
the government at least appears to have designated that day as the
period when the conquest of California was completed and the
Mexican officials were displaced, and in this respect the judiciary
follows the action of the political department. [
Footnote 5]
3. The absence from the grant of conditions requiring
cultivation and inhabitancy and the construction of a house within
a year does not affect the validity of the grant. The omission to
insert them probably arose from the fact that the grantee, together
with his deceased brother, had been for years previous in the
occupation and use of the premises. The object of the general
colonization law of 1824, and the regulations of 1828, which were
adopted to carry that law into effect, was the settlement of the
vacant lands of the Republic, and to secure that object concessions
like the one in this case were generally made subject to the
conditions of cultivation and inhabitancy, although the conditions
were not always inserted in the title papers. It would be
unnecessary to insert them when such cultivation and inhabitancy by
the grantee already existed. In the grant to Sutter, the validity
of which was affirmed by this Court, [
Footnote 6] there was a similar omission, and no doubt for
like reasons.
Decree affirmed.
[
Footnote 1]
Its exact form, translated, was as follows:
"
PIO PICO, CONSTITUTIONAL GOVERNOR OF THE DEPARTMENT OF THE
CALIFORNIAS:"
"Whereas, the citizen Bernardo Yorba has asked, for his personal
benefit and that of his family, a piece of land which for many
years he has legally possessed, called the Sierra, on the banks of
the River Santa Ana, bounded by the said river and the rancho of
Temiscal, the proper proceedings having been taken and inquiries
made, in the exercise of the powers which are conferred upon me, in
the name of the Mexican nation, I have, by a decree of this day,
granted him the said land, declaring it his property by these
presents, in conformity to the law of the 18th of August, 1824, and
the regulation of the 21st of November, 1828, subject to the
approval of the Departmental Assembly, and under the following
conditions:"
"1st. He shall have power to enclose it, without injury to the
crossings, roads, and servitudes; he shall enjoy it freely and
exclusively, applying it to the use and cultivation which may best
suit him."
"2d. He shall solicit the proper judge to give him the judicial
possession in virtue of this decree, by whom the boundaries shall
be marked with the necessary monuments."
"3d. The land of which donation is made is four leagues 'de
ganado mayor.'"
"The judge who shall give the possession shall have it measured
in conformity to the ordinance, leaving the surplus, if any
remains, to the nation, for the purposes for which it may be
required."
"Wherefore I order that this title, being held firm and valid,
be recorded in the proper book and be delivered to the party
interested for his security, and other purposes."
"Given in the city of Los Angeles, on this common paper, for
want of sealed, the 15th of June, 1846."
"PIO PICO"
"JOSE MATIAS MORENO,
Sec'y ad int."
"This superior decree is recorded in the proper book, dated as
above."
"MORENO"
[
Footnote 2]
63 U. S. 22 How.
392.
[
Footnote 3]
63 U. S. 22 How.
443.
[
Footnote 4]
Ante, p. <|68 U.S. 352|>352.
[
Footnote 5]
See United States v.
Pico, 23 How. 326.
[
Footnote 6]
62 U. S. 21 How.
170.
