author: Mr. Justice Wayne

text:
    Ann Buyck, widow of Don Augustin Buyck, deceased, and the unknown heirs of said Buyck, Appellants, v. The United States, Appellees.
    The decree of the Superior Court of East Florida, by which a.grant for fifty thousand acres of land, made by Governor White, the Spanish governor of East Florida, dated July 29, 1802, was rejected, affirmed.
    The land had been granted by Governor White, on a petition,/from the grantee, stating his intention to occupy and improve. the same with Bozale negroes, and native citizens of the United States; and stating that other grants of the same lands had been made, on condition of settlement, which conditions had not been performed, and such grants were therefore void. The petitioner promised to make the settlement within an>early period after the grant. The Governor granted the iand, referring to the petition falso, with the condition, that the grantee'should not cede any part of the land, without the consent of the government. • No improvement or settlement was at any time made on the land by the grantee. Held, that the government of the United States were not b'ound, under the Florida treaty, to confirm the grant.
    THe description of the portion of land asked for from the Spanish Governor, “ lands, at Musquito, fifty thousand acres, south and north of said place,” is not sufficiently definite; and from such a description, no exception could be made from the public lands acquired by the United States under the Florida treaty. The regulations for granting lands in Florida, by the Spanish authorities, required- that grants should be made in a certain place; and there were no floating rights of survey out of the place designated in the grant; unless wheie the land granted could not be got there in its exact quantity, and an equivalent was provided for.
    The laws and ordinances of the government of Spain, in relation to grants of lands by the Spanish government, must be of universal application in the construction of grants. It is essential to the validity of such grants, that the Iand granted shall be described, so as to be capable of being’ distinguished from other things of the same kind, or capable of being ascertained by extraneous testimony.
    The cases of Sibbald, 12 Peters, 313. 348. Arredondo, 6 Peters, 133. Fleming, 478. Huertas, 488. Arredondo, 13 Peters, 133, cited.
    APPEAL from the Superior Court of East Florida.
    On the 23d of May, 1829,.Ann Buyck, the appellant, presented a petition to the Superior Court for .the Eastern District of Florida, claiming title to a tract of land containing fifty thousand acres, south and north of the Musquito river.
    The title -on which the claim was founded, was a Spanish grant from Governor White. The proceedings on which the grant was made, and the grant,.were as follow:
    His Excellency the Governor :
    'Don Augustin Buyck, a resident of this place, with the greatest respect, appears before your-excellency, and says :
    That, having a large number of new negroes, (negroes bozales,) and there-being also some white persons, natiye citizens of-the United States of America, who wish-to join him for 'the settlement and cultivation of the lands at Musquito, he solicits that this government will grant him fifty thousand acres of land, south and north of said place, with the privilege of, and asking for more in proper time, as he may néed it; within which lands it is hot the intention o.f your petitioner, that the tract which yoúr excellency granted to Don Ambrosio. Hull should be embraced; who, at this time, has abandoned the possession of his settlement, owing to Indian hostilities, but who is determined to return to said settlement, in consequence of the protection that. a large number of settlers in that neighbourhood may afford : and that the right ,to the grant I pray for shall not be-interrupted by the right that some individuals of this place, or foreigners, may have, or pretend to have, to whom part of said lands may have been granted by order of your excellency; and because the first, of these persons have suffered a long time to elapse without taking any steps for the pretended cultivation of said land, which makes'it appear that their right has, in some degree, become diminished, and there being others who offer to cultivate said land, in'accordance with-the wishes of the king, who is desirous of having the whole province settled; and as regards the latter, the same reasons apply-in consequence of their not having complied with what they promised. Your petitioner promises, positively, to ■carry into effect said 'settlement, between the period' embraced from this time and the month of December next; after which period it will remain discretionary with your excellency to grant the said, tract to any other person who may ask for it. The considerable number' of settlers whom your petitioner offers to carry to that point, will open á vast field towards fulfilling his majesty^s will, and to refrain the savages from committing robberies and hostilities, who have by their incursions, until now, troubled the plantations situated north of the capital;■ and your petitioner, not doubting that' such considerations will have their due weight on your excellency’s mind, who is always disposed to do what seems best for the service of the king and of the country, your petitioner respectfully reiterates his prayer for .this favour from the accustomed bounty , of your excellency.
    (Signed) ' A. Buyck.

      Si. Augustine of Florida, 2%d July, 1802.
    ORDER FOR REPORT.

      St. Augustine, July 22d, 1802; Let the engineer comniandant report.
    (Signed) White.
    REPORT OF ENGINEER.
    Being informed of the premises, and in compliance with the foregoing decree, I report to your excellency, that the settlement and cultivation of the lands at Musquito; presents ■ no obstacle either to the general or particular defence of the province, and so far as this department is concerned, there may be granted to .the petitioner, for the purposes he mentions, the number of acres which your excellency , may deem propeí. This is all which I have to report to your excellency, who will act in the matter at your pleasure.
    (Signed) Nicholas Barcelo.
    GRANT TO BUYCK.

      St. Augustine, 29th Julyy 1802.
    The land which the party solicits is granted to him, in manner as he proposes; and with the condition that he shall not cede any part thereof to any pérson whatever, without the knowledge and approbation of the government.
    (Signed) White.
    A certificate was issued.
    (Signed) . Fierra.

      I certify that the foregoing is a correct translation of the annexed document, written in the Spanish language.
    John^M- Fontane,

      Translator arid Interpreter S. C. D. E. F.

      St. Augustine, July 16M, 183S.
    The decree of the Superior Court of Florida was against' the claim of. the petitioner, and this appeal was prosecuted by him.
    The case was argued by Mr. Downing, for the appellant; and by Mr. Gilpin, Attorney General, for the United States.
    Mr. Downing contended:
    1. That the grant was made without conditions precedent, and vested a title in the grantee.
    2. The grantee never sold any portion of the land; and the title of the appellant is complete.
    Mr. Gilpin, Attorney General, for the United States.
    The principles involved . in this case, are essentially the same as those discussed in that of The United States a. The Heirs of Forbes. The evidence of the alleged grant is insufficient; the locality of the tract is not ascertained, either by the terms of the concession itself, or by a subsequent survey; .and the conditions, express and implied, have not been performed.
    1. The evidence of the grant consists of a copy of the memo rial and concession thereto annexed, which copy is certified by a person named Pierra, in the following words: “a certificate issued.” This is clearly not within the rule laid down by t^his Court,ún the case of The United States v. Wiggins, 14 Peters, 348. . Not only is there no evidence, even indirect, of the .existence of the original concession^ or of its being deposited in the archives, or of the truth of the copy: but the presumptive evidence is certainly strongly, against its genuineness. There is no petition, order, or certificate of survey- produced, of even alleged to have been ■ issued. There is no corroborative evidence to supply this deficiency, or adequate to sustain the alleged grant. The' only evidence of this sort, is a translation of an alleged assessment of thirty dollars, made by Governor White, in 1802, just after the date of the alleged grant, on “ Don Augustin Buyck, fot hiiúSelf, and ■ his settlers on the fifty thousand acres of land south;” and an alleged receipt, dated about á year after, of Bernardo Segui, to the attorney of Buyck, for the thirty dollars. From that time to 1823, there is no evidence, even of a claim to any land, founded on.such a grant. These papers were objected to in the Court" below, "and were supported by no proof whatever of the existence of the originals, the signatures of the Governor, or Segui, or -the correctness of the copy; but had they been duly authenticated in these respects, it is yet clear that they are not such corroborative evidence of the grant, as will be required;- there is.no ground but mere conjecture, to ^suppose they referred to the lands said to have been granted. Add to this, 'the well known fact, that Governor'White was remarkable for hiiS uniform refusal-to make large grants,on slight causes; and it must be admitted,-that no copy of a concession -has ever been adduced, which is less entitled to credit in the absence of the original.

      2, But if granted, the tract never yiras, and never can .be located according to the grant; “ the description in the petition,” to use the words of this Court, in the case of The United States v. Arredondo, 13 Peters, 133, “of the locality of the concession, is too indefinite to enable a survey to be made,” and the claimant therefore can “ take nothing under the concession.” - The concession is of fifty thousand acres, “ south and north of lands at Musquitp;” there is no authority, as in the case of The United States v, Sibbald, 10 Peters, 321, to make the location at any other place; the inlets or interior bays which open into the coast of Florida, at Musquito, extend for more ■ than, fifty miles y hot. is it possible to locate a tract by means- of a description so indefinite ?
    3. If there is proof of the .grant, and if-a sufficient location was made; have the prescribed conditions been complied with, so as to vest a valid title in the claimant? The alleged concession bears date- in 1802, nineteen years before the surrender of-Florida to the United States. The petitioner does not assert the performance of any services; the grant is not given to him as a reward. He “ promises positively to carry into effect his settlement, between the period embraced from the date of the grant and the month of December following;” he engages “ to restrain the savages from committing robberies and hostilities, who had by.their incursions troubled the plantations;” and he says that he has “a large number of new negroes, and that there are some white- persons, native citizens of the United States, who- wish to join him in the settlement” he proposed. These are substantial inducements; a large force capable of cultivating,the land, and affording protection to the neighbourhood, to be placed upon the tract, within six months. A grant founded on. such inducements, and subject to -their fulfilment, was altogether in accordance with the regulations of the Spanish land law, as it existed in Florida. 2 White’s New Rec. 288. If they were not fulfilled, neither by the intention of the parties, nor by the Spanish law, did any title accrue to the grantee; the tract in question was- never separated from' the > royal domain. In the petition, the claimant himself said, that if the settlement was not carried into effect within the period promised, it would remain discretionary with the Governor to “ grant the said tract to any other person, who might ask for it.” “ Those who having obtained a. concession of lands, have not' cultivated' them from the time they were granted,” says Saavedra, confirmed by. Governor Coppinger, “ can have no right to them;” and he afterwards adds, that “the certificates (issued by the secretary of the government) are of no value nor effect, unless the prescribed conditions have been complied with; otherwise, such papers deserve no regard, nor can the grantees, by means of'them, claim any right to the lands granted, which should now be considered vacant.” 2 White’s New Rec. 283. The alleged concession in this'case is a certificate of the kind thus referred to.
   Mr. Justice Wayne

delivered the opinion of the Court.

Appeal from the Superior Court of East Florida.

The land in controversy in. this case is claimed by virtue of an alleged concession or grant, for fifty thousand acres, dated July 29th, 1802.

In the Court below, the claim was adjudged not to be valid.

The evidence offered and.read on the trial is,

1. A memorial from Don Augustin Buyck, 22d-July, -1802, with an order annexed by Governor White to the engineer commandant, to report; and the report of the engineer.

2; The decree of Governor White as follows: The land which the party solicits is. granted to him in manner as he proposes; and with the condition that he shall not cede any part thereof, to any person whatever, without the knowledge and approbation of the government. .

3. An assessment, by order of Governor White, dated 30fh October, 1802, upon Buyck, and others, for building a bridge. The assessment upon Buyck being thirty dollars, for hifhself and.his settlers of the fifty thousand acres of land, south;” attached to which is the return of one Bernardo Segui, of the names of the persons assessed.; such of them as had paid, others' who had not, with Segui’s receipt, dated a year after, for thirty dollars, paid by one Robira, as attorney for Buyck, said to be “ his proportion of the tax,’’ in consequence of a grant of fifty thousand acres of land, and others which he possesses in this province.

The paper purporting to be a grant was received in evidence, without any certificate, that it was the copy of a grant, from an original in the office in which grantfe are required to be deposited; without proof of the handwriting of the Governor, or of Pierra, who says a certificate was issued; indeed without any official attestation of authenticity, or proof of any kind that such a paper was' ever issued, or on file in the proper office. The same may be said of the other pápers. One Fontane certifies that he has translated them correctly from Spanish originals. That is all that is said of-them. No proof is given that the originals were to be found in the “ office of the archives.” It is not alleged that they were lost or destroyed, by any mutilation of the records or other accident. The other proof relied upon to sustain the claim, is Segui’s receipt, and the papers in connexion with it, already mentioned. Where that paper, came from, the record does not show. The authenticity of the Governor’s order, assessing the tax; the signature of the person, signing himself government notary; the appointment of Segñi to.collect the tax; all rest upon the receipt of Segui for Buyck’s assessment, and' upon the paper purporting to be a report to the Governor of those who had not paid; and of the sum of money which he had in hand from those who had paid assessments. We do not intend, however, as the attorney for ’the United States* in the Court below, did not object to the memorial and grant as evidence, though he. did so as to the papers connected with the assessments; to allow- any formal objection to the proof of a grant to weigh with us in this decision; the opinion of the Court rests upon grounds connected with the merits.

The memorialist asks for the land, first stating that he has a large number of ne negroes, and that some white persons, native citizens óf the United States of America, wish to join him in the settlement' and cultivation of the. lands "at Musquito.”' He'prays that his right to the grant may not be denied by the right which others may claim, or pretend to have, on account of former grants to them; because they had suffered a long time to pass without taking any steps to cultivate the lands, and as-others are ready to cultivate them; and he promises to carry ■ into effect his settlement by the month of December after the date of his memorial, after which time, if he 'does not do so,-he says it will remain discretionary with the Governor to grant the land to any other person who may ask for it. The Governor replies, the land which the party solicits is granted to,him in manner as he proposes, and restrains his alienation of it, without the consent of government. The undertakings of the memorialist were voluntary, and-were the inducement held out by him to obtain the grant. None of them were complied with. The forfeiture then of the land results.from the conditions not having been performed, which the memorialist himself proposed as the terms upon , which he was to hold it, and which were recognised by the Governor as the terms upon which he should have what he asked for. The memorial, report of the engineer, and decree, are all parts of the same instrument, each having a distinct reference to the other. If, therefore, for the purpose of .determining the quantity of the land intended to be granted, and where it was granted, we must go. out ,of the decree into the memorial, we must" do the like to ascertain the conditions annexed to the grant. Besides, the forfeiture is only in accordance with .what-the memorialist, states had been incurred by others, to whom grants had been made, who had neglected to settle them, and which he says will be his own case, if he does not make his settlement within the time stated in his petition. In this view of the case, then, the grant is without merits; and the judgment of the Court below should be affirmed.

But further, supposing proof of the grant to be made, and that it was free from the conditions, which, not having been complied with, has forfeited it; still it could convey no land, from the want of identity or ascertainable locality.

The memorialist says, wishing to make the settlement and cultivation of the lands at Musquito, he solicits a grant of fifty thousand acres, south and north of said place.

Musquito is an inlet on the eastern coast of the peninsula made by Halifax river, or lagoon, which extends from Musquito bar, northward more than twenty miles, and by the southern, or what is known as Hillsborough lagoon, which extends from Cape Caraverel to Musquito inlet, a distance of forty miles. Both lagoons aré navigable for about the same distance by vessels of such draught as can cross the bar. Creeks run into the first from the mainland, and Smyrna is on the western- bank of the 'south lagoon, four or five miles from Musquito tar. Where then shall the land claimed by the appellant be surveyed ? Shall it border on the ocean, north and south of the inlet, twenty-five thousand acres on either side to make up the quantity; or on the inner shore of the lagoon in the same way; or shall it be on the mainland, west of the inlet; or on some of the creeks emptying into Halifax river. The description of the grant is, “ south and north” of the lands “at Musquito.”’ Musquito is-not a designation of a land district fixed and known by the Spanish authorities ; nor do: we know, from any usage the Unfits of the lands, at Musquito. If it be the application of the name of an inlet to lands without and within it; still, how shall boundaries be fixed, within which surveys shall be made, without other specific call than “ north and .south of lands at Musquito ?” The regulations for granting lands in Florida, by the Spanish authorities, required that grants should be made in a certain place, and there were no floating rights of survey out of the place designated in the grants unless the land granted could not be got there in its entire quantity, and an equivalent-was provided for; as in Sibbald’s case, reported in 10 and 12 Peters, 313. 488; one of the surveys of which was at Turnbull’s swamp, at Musquito.

. In. all of the decisions of this Court upon grants in Florida, it has gone as far as the most liberal equity can go, in adopting some natural, or a' tificial point, in the description of the grants, however subordir. ate or minor they ir.ay have been, tó givé locality to grants. ’ Such was the fact in the leading casé upon Florida grants. Arredondo, 6 Peters, 133. So in Percheman’s case, 7 Peters, 91. Also in the cases of Fleming and Huertas, 8 Peters, 478, 488. Arredondo’s case, in 13 Peters, 133, was upon most indefinite calls. No survey had been made .whilst.Florida was a province of- Spain, nor had the gfant been surveyed when the case was brought by appeal to this Court. The -Court said, “we do not consider the want of a survey, as interfering with the right of the party to the land granted; it must be taken near as may be, as it is described-in the petition, where it was asked for, and cannot be taken elsewhere.” The Court then declares, if the . points indicated .in that case for a survey cannot be found, then, that the description was too indefinite for a survey to be made; and that' the claimants could take nothing under the concession. And so in this case, the description “ south and north of the lands at Musquito,” is too indefinite for a survey to be made; for' there-is nothing in it, which can be aided by relation to something certain. The claimants, then, can take nothing under the . concession.

We know from the eighth regulation of Governor White, October 12th; 1803, White’s New Rec. 278, that this want of certainty in the description of grants, had been productive of disputes and mistakes. When he declared, that those, for the future, who ask for lands, must indicate a fixed spot; he. only re-enforced- a neglected law in Florida; Indeed, with a few exceptions, grants in Florida, which have been before this Court, have been particular, in respect to the object from which the survey was to be. made.

It is proper for us to remark, that in coming to our conclusion upon this point, we have not been influenced by. any of the English common law rules, which make grants void for uncertainty. Such, as, for instance, if the. king grants land in' a .peat waste, without ascertaining what part, or the special name of the land, or how bounded, it is void for uncertainty; for there can be no election .in that case. Bacon, vol. iv. tit. Grant, 81; and yet, if an individual so grant, it would be góod. •We apply,to the case, 'the laws, and ordinances of the government under which the claim originated; and that rule which must- be of universal application in the construction of grants,' which is essential to their validity, that the thing granted should be so described as to bé capable of being distinguished from other things bf the same kind, or be capable of being ascertained by extraneous testimony.

The decree of the Court below is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The United States, Appellants, v. The Heirs of Joseph Delespine and others, Appellees.
    A claim for-a square of four miles of land, under a grant from Don Jose Coppinger, Spanish Governor of East Florida, situated at' the north head of Indian river, confirmed.
    The certificate of Don Tomas de Aguilar, Secretary of the Government and Province, of the copy of the grant of the Governor, stating the same “to be faithfully drawn from the original in the Secretary’s office under his charge;” was legal evidence of the grant; and was properly admitted as such, in support of the same. The case of The United States v. Wiggins, -14 Peters, and. The United States v. Rodman, at ’ this term, deciding the same point, cited. The case of The United States v. Perche-' ■' man, 7 Peters, 96, cited.
    ' A grant of ten thousand, two hundred and forty acres of land, by the Spanish Governor of Florida, which recited, among other things, that it was made under a royal order of the King of Sjiain-, of 29th March’, 1815, and which was not in conformity with the'grant; hut which was made in. the exercise of other powers to grant lands, which had been vested in the Governor; was-mót made invalid by the recital of the royal order as the authority for the grant. , The grant recited also, that it was made in .consideration of military services, and was also'in. consideration of the surrender of another grant, previously made, which surrender had been accepted by the Governor. These were sufficient inducements to the grant.
    APPEAL from the Superior Court of East Florida.
    Joseph Delespine' and others presented a petition to the Superior Court of East Florida, claiming ten thousand two hundred and forty acres of land, at the north head .of-Indian river, by virtue of a concession from Governor Coppinger, the Spanish Governor of East Florida, to Pablo Fontane, dated November 10, 1817.
    . The grant, and circumstances of the case, are full stated in the opinion of the Court.
    The Superior Court of East Florida decreed a confirmation of the grant; and the United States prosecuted this appeal.
    The case was argued by Mr. Gilpin, for the United. States; Mr. Downing appeared as counsel for the appellees.

      'Mr. Gilpin, for the United States, relied on the following grounds
    1. That the evidence in the case is insufficient to prove that the alleged grant or concession was ever made.
    2. That if it be proved or admitted that the alleged grant or concession was ever made, still, that the same was not in conformity to the royal order of 29th March, 1815, by virtue of which, it is declared that the concession was made.
    1. This is an alleged concession of Governor Coppingerl 'The evidence to support it is a copy of the concession, certified by Tomas de Aguilar, and it is accompanied by an order and certificate of survey. The only point, to be considered in regard to this evidence is, whether or not the facts bring the case within the rule established in that of The United States v. 'Wiggins, 14 Peters, 348. This Court certainly 'will not extend the scope of that rule, so as to give any weight to these secondary evidences of title which it does not indisputably recognise. It is not denied that the production of the order of survey, and the plat and certificate made in pursuance thereof, go far to bring it within that decision; but it may not be improper to ask.the particular consideration of the Court to the depositions annexed to the record, which would seem to show that the existence of the original concession was a matter of doubt at a very early period; that in March, 1822, very shortly after the cession of Florida, before the alleged losses of papers are supposed to have occurred, and when the grantee was yet living, and sold part of his interest to Delespine, it appears' not to have been in existence; and that the particular fact of its actual existence, at any time, is not proved by a single witness.
    2. This grant purports to be founded on the royal order of 29th of March, 1815, 2 White’s New Rec. 279. That order authorizes, the Governor to grant land to the soldiers in the militia; the quantity being the same “ as established by regulation in the province, agreeably to the number of persons composing each familyand it also contemplates special rewards to certain officers mentioned in' it. If Fontane, the grantee, was, as it is presumed he was, one of the militia authorized to lake under this order, yet he Hvas entitled only to the quantity “ established by regulation,” which was much less than that included in the alleged concession. It may then be said, iff the language of this Court, in. the case of The United States v. Ciárke, 8 Peters,' 448, that “If the validity of the grant depends on its being' in conformity with the royal.order, it cannot be supported.?’ .It is true, that this Court, in the case of The United States v, Percheman, 7 Peters, 96, in examining the effect of a recital of the'foyal order of 29th March, +815, in a grant of -a large body of land, declared “ that the reference to' it was- to be regarded .no farther than as showing that the favourable attention of .‘the king had been directed to the petitioner.” If the facts of the present .case are similar to those which led the Court in that case, so to regard the effect of the royal, order, it is admitted that the grant; if made, was valid. / But are they similar? In the first place, Percbqman was a distinguished officer of dragoons, who h’ad rendered important military services; and this Court said, that the Governor made the grant, as a reward for these, services, which hé/hfd full authority tó do under the laws of? the Indies. But, in. the second place, it happened that. Percheman was himself phe of the officers individually mentioned in the royal order, of 18J5,as entitled,to á. special reward; aftd, therefore, the order was naturally and properly recited in the grant.: These considerations evidently made a'large grant, in that casej perfectly consistent with "a reference to the royal order of 1815. But neither of them is applicable to the present case. Neither the petition nor the grant refers directly or indirectly to any military services; nor was the grantee, Fontane, one of those specially named in it. How, then, can such a grant, solicited and made, as this purports to be, “ in virtue of the said royal order,” be valid ?
    3. The grant is for a tract of land “ on a creek which, issuing from the north head of Indian rivér, westwardly, runs to the northwest.” The certificate of the survey is for á tract “in the territory-of Musquito, northwestwardly of Indian river.” The petition of the claimant is for a tract “ at the north head of the river Ys, or Indian river, on the west side thereof.” This discrepancy is fatal to tire validity of the claimant’s title. , The land surveyed and claimed is not identical with that granted; the title to the latter has never been perfected, even by a survey: it is .too late for this now to bé done: and, thérefore, the decree' of the Superior Court of East Florida,made pursuant to,the. de-. scription in the grant, cannot cure the defect resulting from the negligence of the claimant himself. It falls within the principles which have already been before the Court at this term, in the case of The United States v. The Heirs of Forbes.
   Mr. Justice Wayne

delivered the opinion of the Court.

Appeal from the Superior Court of East Florida.

The decree of the Court declares the claim to be valid, to a square of four miles of land on a creek, issuing from the north head of Indian river, -westwardly, and running to the northwest.

The following is the memorial and grant offered by the appellees, to maintain- the claim:

His Excellency the Governor.

Don Pablo Fontane, an inhabitant and merchant of this place, with due respect represents to your Excellency, that in consequence of the orders of His .Majesty of the twenty-ninth of March, one thousand eight hundred and fifteen, in which he has been pleased to grant, gratuitously, to his faithful subjects of this' Province, lands in proportion to the services rendered by them, and as your petitioner considers himself included in the said royal favour, this government granted to him, under date of the twenty-fifth of June, of the present year, in absolute property, as it appears by the document duly annexed, a quantity of land comprehended in a square of four miles, on Trout creek, of the river St. John, and-as it happened that when he went to take possession of the said land, he found it in the possession óf Dona Beig Bagely, widow, and this he represents to your Excellency, in order that you be pleased to withdraw the said document of ownership which is annexed, and to. grant him another in lied thereof, for the same quantity of land on another creek, which, issuing from the. north head, of Indian river westwardly, runs to • the north-west. Therefore, your petitioner supplicates your Excellency to consider as returned the mentioned document of concession, and, in virtue of the said royal order, to grant him, in absolute, property, the square of four miles of land, at the place • which he has just designated, as the same is vacant, which favour. •■he hopes to receive from the justice of your Excellency.- St. Augustine of Florida, tenth of November, one thousand eight hundred and seventeen. Pablo Fontane.

St. Augustine, tenth of November, one thousand eight hundred and seventeen: I accept the retrocession which this party offers, of the' land which was granted ;to him on the twenty-sixth of June last past, for the reasons which he exhibits in this petition, and in lieu thereof, I grant him in lawful property, in conformity to the royal order to which he refers, and as he is entitled thereto, the square of four miles of land on the north head of Indian river, which he designates, and to this effect let the Secretary’s office issue to him a copy, conforming to this decree, to which will be - annexed the copy of this petition, on which the decree was rendered. In testimony thereof, and in order that at all times it may serve as a title in form to the interested party.

Coppinger.

CERTIFICATES OF. AGUILAR.

I, Don Tomas de Aguilar, sub-lieutenant of the army and secretary of the government of this place, and of the Province thereof, for his majesty, do certify that the preceding copy is faithfully drawn from the original, which exists in the Secretary’s office in my charge, and in obedience to order, I give the present in St. Augustine of Florida, on the eleventh of November, one thousand eight hundred and seventeen.

Tomas De Aguilar.

We, Don Francisco Fatio., and Don Juan Huertas, members of this illustrious council constitutional, do certify, that the signatures affixed in this expedient, are the same which the signers use, and in testimony thereof, we sign this in St. Augustine, on the thirteenth of June, one thousand eight hundred and twenty-one. Francisco J. Fatio,

Juan Huertas.

St. Jlugustine, 16th May, 1832. — I certify that the preceding is a correct translation of the Spanish document annexed.

A. Gat Translator and Interpreter f the Sup’r Court.

It, is contended that the decree should be reversed, because the evidence is insufficient to prove that the grant was made. The proof is a certificate of Aguilar, the secretary of the government, which has been ruled to be sufficient in the case of The United States v. Wiggins, 14 Peters; and again, at this term, in the case of The United States v. Rodman.

The second objection, is, that if the grant is proved, it is not in conformity to the royal order of the 29th March, 1815, by virtue of which it is declared the grant was made.

That royal order has been under-the consideration of this Court in Percheman’s case, 7 Peters, 96. In that case, it will be seen that the petitioner refers in his memorial to the order of'the 29th March, 1815; and that the Governor in the grant-for the land says: “In consideration of the provisions of the royal order, under date of 29th March last, which is referred to, I do grant to him in absolute property,” &c.;. but the Court (referring to certificates which were annexed to the memorial for .the grant, which the grant refers to as certificates annexed) said, “ military service is the foundation of the grant, and the royal order is referred to only as showing that the favourable attention of the king had been directed to the petitioner.” 7 Peters, 96. The Court' sustained the grant in that case; notwithstanding it was said to have been made in consideration of the royal order of 1815, which limits grants to one hundred acres, and to persons of a particular regiment. The power in the Governor to make a larger grant of land, was not thought to be restrained in making a grant to one,-who was not of the regiment designated in the order, and who applied, for it on the ground of services. The reasoning in that decision cannot be shaken. It applies with full force to the grant now under consideration; the decree of the Governor being alike in both cases. But this has an additional consideration, recited in the memorial. ' The surrender of another grant previously made for services ; recognised by the Governor in his acceptance of the retrocession offered by the memorialist. This is a grant in absolute property. Though it recites the order of the 29th March, 1815, the inducements for making it are considerations, which plainly show it was not intended ffiy the Governor to be restrained to the number of acres limited by that order.

The judgment of the Court below will be affirmed^ but as the survey given in evidence in this case was rejected by the Court, as it should have been, this Court will direct a survey to be made at the place designated in the decree of the Court below, for the number of acres decreed, without prejudice to the rights of third parties.

This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel. On consideration whereof, it is adjudged and decreed by .this - Court, that the decree of the said Superior Court in this cause, so far as it declares the claim of the petitioners to be valid, be, and ..the same is hereby, affirmed in all respects ; and that a survey be made of the lands contained in -the said concession, according to the terms thereof, for the number of acres, and at the place therein designated; provided, it does not interfere with the rights of third parties: and it is further ordered by the Court, that a mandate be issued to the Surveyor of . Public Lands, directing him to do, and cause to be done, all 'the. acts and things enjoined on him by laAV, and as required by the decree and opinion of this Court in this case; and that this ca¿e be remanded to the said Superior Court for further proceedings to be had therein, in conformity to this decree, and the opinion of this Court, Avhich must be annexed to the mandate