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United States v. Fossat/Opinion of the Court

THIS was an appeal from the District Court of the United States for the northern district of California.

Fossat claimed an interest of three-fourths in the tract of land granted to Justo Larios by Governor Alvarado, on the 1st of August, 1842. The mesne conveyances need not be stated, as the only dispute in this court related to the location of the land.

In June, 1842, Larios presented a petition to the Governor, stating that he had previously presented one in 1836, and another in 1840, both of which were lost. He stated that he had purchased a house upon the premises, and resided there since 1836. Whereupon, the following grant was issued:

Juan B. Alvarado, Constitutional Governor of the Californias:

Whereas the citizen Justo Larios has asked, for his own benefit and that of his family, the land known by the name of the Capitancillos, bounded by the sierra, by the Arroyo Seco, on the side of the establishment of Santa Clara, and by the rancho of citizen Jos e R. Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and Arroyo de los Alamitos, southward to the sierra, passing by the eastern base of the small hill situated in the centre of the ca nada, the necessary steps having been taken and inquiries made, according to the laws and regulations on this subject, by virtue of the powers conferred upon me, in the name of the Mexican nation I have granted him the said land, declaring it hsi property by these presents, subject to the approval of the Departmental Assembly and to the following conditions:

1st. He may enclose it without injury to the passes, roads, and servitudes; he may enjoy it freely and exclusively, using or cultivating it as may best suit him, and within one year he shall build a house, and it shall be inhabited.

2d. He shall solicit the proper judge to give him juridical possession, in virtue of this decree, by whom the boundaries shall be marked out, and he shall put on the boundaries, in addition to the landmarks, some fruit trees or useful forest trees.

3d. The land herein referred to is one league of the larger size, a little more or less, as is explained by the map accompanying the espediente. The judge who shall give the possession shall have it measured, in conformity to law, leaving the surplus which remains to the nation, for the purposes which may best suit it.

4th. If he should violate these conditions, he shall lose his right, and liable to be denounced by another.

Wherefore I order that this title, being held firm and valid, shall be registered in the book of adjudications of vacant lands, and delivered to the person interested, for his protection and other purposes.

Given in Monterey, the 1st of August, 1842.

The reporter will endeavor to give the reader an idea of the locality without a map, which it would be difficult to make.

Let him imagine himself standing upon a range of hills or sierra about three thousand feet above tide. Looking to the north, he sees another range of hills about half as high as the one upon which he stands, and running nearly parallel therewith. The two ranges are connected together by a spur, running from one to the other, and from either side of this spur springs flow, which, running down ravines to his right and left, find their way around the lesser hills in front. Upon his left hand, the spectator may be supposed to trace the Arroyo Seco, which is Larios's boundary on that side; and upon his right he may see the marked line which had been mutually agreed upon by Larios and his neighbor Berreyesa as the separating line between them, and which constituted Larios's boundary upon that side. Thus standing at one end of a narrow parallelogram, the spectator may see the two lines upon his right and left, looking indefinitely into the distance for the closing line.

In this state of things, two questions arise:

1st. Which is the sierra where the tract of land begins? Is it the range of hills upon which we have supposed the spectator to stand, or the lesser range in front, called 'Lomas Bajas.'

2d. How far does the tract run in the direction where no boundary is given? Does it run as far as the dividing line is laid down between Larios and Berreyesa, or does it stop where the quantity of land called for in the grant is obtained? The board of commissioners adopted the former rule, and therefore continued the tract up to the Arroyo Seco, which was the termination of the boundary line between Larios and Berreyesa. It may not be easy for the reader to apprehend precisely the different decisions hereafter referred to, because the points of the compass did not exactly correspond with those heretofore mentioned in the general view which a spectator is supposed to take from the top of the sierra.

The decree of the commissioners was as follows:

In this case, on hearing the proofs and allegations, it is adjudged by the commission that the claim of the said petitioner is valid, and it is therefore decreed that the same be confirmed.

The land of which confirmation is hereby made is a portion of the place known by the name of Los Capitancillos, situated in Santa Clara county, and the same which was formerly occupied by Justo Larios, and the portion thereof hereby confirmed to the petitioner is bounded and described as follows, to wit:

On the south, bounded by the sierra; on the north, by the Arroyo Seco; on the west, by the middle of the ridge of the low hills running north and south, (which hills lie at the western end of said rancho los Capitancillos,) and the said division line being the same line of division adopted in a partition of said rancho, made by William Wiggins, and John B. Weller, and James M. Jones, as will appear by their deeds of partition recorded in the office of the recorder of deeds for Santa Clara county, in liber 'C' of deeds, page 458; and on the east, by the place known as the rancho of the citizen Jos e R. Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and Arroyo de los Alamitos, southward to the sierra, passing by the eastern base of the small hill situated in the ca nada.

The said premises containing three-fourths of a square league of land, a little more or less; reference to be had to the grant of said rancho to said Justo Larios, and to the map which constitutes a part of the espediente, which are on the file in this case.

ALPHEUS FELCH,

THOMPSON CAMPBELL,

R. AUG. THOMPSON, Commissioners.

Filed in office, February 28, 1854.

(Signed) GEO. FISHER, Secretary.

The United States appealed from this decision to the District Court of the United States for the northern district of California.

In that court there were a number of depositions and plats filed.

In August, 1857, that court passed the following decree, by which it will be seen that the tract of land was ordered to begin at the higher range of hills, and to run as far as the boundary line reached which had been adopted by Larios and Berreyesa:

Transcript from Board of Commissioners, No. 340.

THE UNITED STATES, APPELLANTS, v. CHARLES FOSSAT, APPELLEE.

STATED TERM, JUNE, 1857.

On appeal from the final decision of the board of commissioners to ascertain and settle private land claims in the State of California.

This cause came on to be heard at a stated term of the court, on appeal from the final decision of the board of commissioners to ascertain and settle the private land claims in the State of California, under the act of Congress approved on the 3d of March, A. D. 1851, upon the transcript of the proceedings and decision of the said board of commissioners; the papers and evidence on which the said decision was founded, the petition of the appellants and answer of the appellee, and the further evidence given in this court, by leave of the court, and it appearing to the court that the said transcript has been duly filed according to law, and the appellee in open court confessing error in the said decision of the board of land commissioners, in this, that it does not describe in a manner sufficiently definite the boundaries of the tract of land intended to be confirmed to the claimant; and consenting that the said decision be reversed, and such decree be entered in this court as may be lawful and proper upon the whole evidence; and counsel for the respective parties having been heard, it is by the court hereby ordered, adjudged, and decreed, that the said decision of the board of land commissioners be, and the same is hereby, reversed.

And the court now proceeding to render a new decree in the premises, it is further hereby ordered, adjudged, and decreed, that the grant made to Justo Larios, from whom the appellee, Charles Fossat, derives his title, is a good and valid grant to said Larios of the place known by the name of Los Capitancillos, situated in the present county of Santa Clara, and formerly occupied by the said Justo Larios, and bounded and described as follows, to wit: On the south by the main sierra, on a spur of which sierra is situated, as shown in evidence, a certain well-known and conspicuous live-oak tree, or enci no, and a portion of which sierra is separated, as shown in evidence, by the stream called the Arroyo de los Capitancillos, from the range of hills called Cuchilla de la Mina, or Cuchilla de la Mina de Luis Chabolla, in which are situated the quicksilver mines known as the Guadalupe, San Antonio, and New Almaden mines; on the west by the Arroyo Seco, on the side of the establishment of Santa Clara, the said Arroyo Seco being the continuation of the same stream above designated as the Arroyo de los Capitancillos; on the east by a line running from the junction of a certain other rivulet called Arroyo Seco, and the Arroyo de los Alamitos, southward to the aforesaid main sierra, passing by the point or part of the small hill situated in the centre of the ca nada which is designated, in the espedientes and grants of Justo Larios and Jos e Reyes Berreyesa, as La Falda de la Loma, and crossing the range of hills designated above as the Cuchilla de la Mina, or Cuchilla de la Mina de Luis Chabolla, and in which are situated the said Guadalupe, San Antonio, and New Almaden mines, and which is the same range of hills designated Lomas Bajas on the dise no, or map, in the aforesaid espediente of Jos e Reyes Berreyesa, the said eastern line herein described being intended to be the same line agreed upon as the line of division between the lands of Justo Larios and Jos e Reyes Berreyesa, as expressed in the respective espedientes and grants of said Justo Larios and Jos e Reyes Berreyesa, and delineated by the dotted line on the said dise no, or map, in the espediente of Jos e Reyes Berreyesa; in the location of said line, reference to be made to the description thereof in the said espedientes and grants, and the delineation thereof on the said dise no, or map, in the espediente of Jos e Reyes Berreyesa; which espedientes, grants, and dise no, or map, are on file and in evidence in this case; and the northern boundary of said tract of land granted to Justo Larios being the same which is shown in the dise no, or map, contained in the espediente of Justo Larios, which is on file and in evidence in this case, the said tract of land containing one square league, more or less.

And it is likewise further ordered, adjudged, and decreed, by the court, that the claim of the appellee to a portion of the said described tract of land is a good and valid claim, and that the said claim be, and the same is hereby, confirmed.

The land of which confirmation is hereby made to the appellee is the whole of the tract of land described above, and which was granted to Justo Larios, with the exception of the two adjacent parcels thereof lying at the westerly end of said tract, and claimed by the Guadalupe Mining Company, and which were conveyed to the said Guadalupe Mining Company by the two instruments of writing which are on file and in evidence in this case, and marked, respectively, 'Exhibit M' and 'Exhibit P;' the line dividing the land intended to be confirmed hereby to the said Charles Fossat, from the land of the said Guadalupe Mining Company, being the same which is expressed in said exhibits to be the eastern line of the tracts thereby severally conveyed, and the same which is more particularly designated as the eastern line of the lands of the Guadalupe Mining Company by the survey made by John La Croze, whose deposition, with the field notes of said survey attached, is on file and in evidence in this case, and delineated on the map of said survey, certified by John C. Hayes, U.S. Surveyor General, which is also on file and in evidence, marked 'Exhibit I M,' attached to the deposition of John La Croze, to which exhibits, map, deposition of John La Croze, and field notes, reference is made for a more full description of the said line, which is the western line of the land hereby confirmed to the said appellee, Charles Fossat.

OGDEN HOFFMAN, U.S. Dist. Judge.

August 17, 1857.

The United States appealed from this decree to this court.

It was argued by Mr. Gillett and Mr. Reverdy Johnson for the United States, which whom were the Attorney General and Mr. Rockwell, and by Mr. Badger and Mr. Bayard for the appellee, with whom were Mr. Carlisle and Mr. Stanton.

It is not possible to do more than merely state the points assumed by the counsel. The arguments from geographical considerations and those founded on authorities must necessarily be omitted.

It has already been mentioned that the two questions which arose in the case were—

1st. Whether more land could be given than the quantity called for in the grant.

2d. Where was the sierra at which the location was to begin?

Upon the first branch, the counsel for the United States made the following points:

I. The decree of the District Court confirming this claim to the entire amount included in the boundaries of the tract, with out regard to the quantity, is erroneous.

II. By the law in force in Mexico when this grant was made, and for a long time prior to that time, a grant like the one in question was regarded as a grant of a certain quantity of land within the boundaries named, to be ascertained by measurement and separated from the residue of the tract, which residue or surplus continued to be the property of the nation.

III. This clause requiring the survey, and that the surplus shall remain to the nation, is embraced in most of the California grants, and has received an almost uniform construction by all the tribunals which have been called upon to adjudicate upon these claims. The decision of the commissioners has been uniform, that a grant like the present was only a grant of a quantity of land to be ascertained by measurement, and not a grant by metes and bounds. The same has been the decision of the Circuit Court, and in most cases by the District Court, and these decisions of the commissioners and District Court have been sustained by the Supreme Court of the United States in the cases which have been to that court, although the question was not expressly raised in these cases, nor does it appear that the counsel or court doubted it.

IV. In this very case of Fossat, the commissioners in their opinion regard the grant in this case as one of quantity, and only for one league.

V. Such we claim is the rule according to the law governing the case, yet these views are, we think, strengthened by the principles which prevail at common law in relation to public grants generally, and especially as to the construction of a grant like the one in question.

VI. It is true, as a general rule at common law, that in conveyances between individuals, monuments and definite boundaries are to control in preference to quantity, where the difference of quantity named in a deed does not greatly vary from the amount included within the boundaries, especially when the words 'more or less,' or 'be the same more or less,' are used; but this rule does not prevail where the boundaries are not definite, or where the excess or deficiency is large. Nor would the rule apply where the grant was from the Government, nor in a case like the present, where the words are, 'a little more or less.'

VII. The rule in relation to the survey of confirmed claims under the statute, and the practice adopted by the executive department of the Government, show that the decree of the District Court is erroneous. (9 Stat. at L., 633.)

On the second branch of the subject, the counsel contended that this grant was void for uncertainty, and could not be located. They also contended that the location should not commence at the highest range of hills, which we have seen was on the extreme south.

The southern boundary. The grant calls for the sierra. In the dise no, the only ranges of hills or mountains shown are the Lomas Bajas on the north, and a range on the south, designated as Sierra del Enci no.

It is in proof, and not denied, that between these two ranges is a valley called the Ca nada de los Capitancillos, in which was the house of Justo Larios, and that the eastern and western boundaries being defined, this part of the ca nada contained about one square league.

There is no evidence whatever of any possession or occupation by Justo Larios of any land beyond these limits.

This embraced the whole of the ca nada between the eastern and western boundaries of this rancho.

The western portion of the same ca nada was the rancho of Berreyesa, which was by a grant of a similar kind, with a description by metes and bounds in the body of the grant, but limited to one league, and which he himself described as a grant of 'one league only.' We claim on behalf of the United States that this ca nada was alone granted-that it is bounded on the south by the highland, and only highland in that direction, represented on the dise no; that either as the sierra mentioned in the grant, or the Sierra del Enci no as named in the dise no, it was clearly designed as the southern boundary of the tract.

The claimants contend that there is at a point much further south a live oak, an enci no, at a considerable elevation, which is more properly called Sierra del Enci no; and that the hills or mountains lying north of it, and on which are the New Almaden mines, are included in the grant. We will examine this question of boundary in reference to the language of the grant alone. 2. In connection with the dise no or map of Justo Larios. And 3. In view of any evidence connected with the claim of Berreyesa.

[The counsel then went into a minute examination of these several points.]

The counsel for the appellee had to establish the three following points:

I. That the land of Larios had to begin at the range of high hills, (where we placed the spectator in the beginning of this report,) instead of the lesser range of hills.

II. That it had to run as far as the boundary line which had been established between Larios and Berreyesa.

III. That by the insertion of the words 'a little more or less' in the grant, it was intended that the grantee should not be confined to a league.

1. At the time when Larios obtained his grant, he presented a map or dise no upon which were depicted, in a very rough way, the boundaries of the land he was soliciting. Upon this map there was a representation of hills, marked Sierra del Enci no, or Sierra of the Live Oak, and upon the plat introduced upon the argument there was marked the locality of a large oak tree, which some of the witnesses said could be seen for many miles off.

2. Upon this point the remarks of the counsel were as follows:

A corresponding grant to Berreyesa had been made on the 20th of August. The boundaries of this grant are as follows:

'A part of the place called Ca nada de los Capitancillos, bounded on the north by the Low Hills (Lomerias Bajas) in the vicinity of the plain of the town of San Jose; on the south by the mountain, (sierra;) on the east by the Laurel-tree Hills, (Lomerias del Laurel;) and on the west by the rancho of the citizen Justo Larios, which has for a boundary the angle which the Arroyo Seco (Dry Creek) forms with that of the Alametos' (Little Poplar's) direction; southward the eastern base of the low hill situated in the centre of the valley, (ca nada,) until reaching the sierra.'

On comparing these grants, it appears that the sierra is called for as the boundary of both-the Pueblo Hills form the northern boundary of both. The division line between them is described in both grants as beginning at the same point, the junction of the Arroyo Seco with the Alametos, and extending southward until reaching the sierra, passing the eastern slope of the lometa or small hill in the centre of the ca nada. The rancho of one is called for in the other's grant as its abuttal. The division line extending from the junction of the Alametos with the Arroyo Seco, until reaching the sierra, is in Berreyesa's grant declared to be the boundary of Larios's rancho, while in Larios's grant the same line is designated as the boundary of Berreyesa's rancho.

Both ranchos had exactly the same boundary on the south, the southern boundary of both being the same sierra, named in the dise no of one Sierra Azul, and by the other, Sierra, del Enci no.

3. As to the quantity of land which was conveyed by the grant, there is room only to insert the two first points, which were as follows:

In the District Court, the counsel for the New Almaden Company sought to limit the quantity to the exact measure of one square league, and no more. By the official survey, the quantity within the boundaries confirmed by the court is one league and a fraction of about three-fourths of a league.

The point made by the New Almaden Company rests upon the following condition annexed to the grant:

'2. The land herein referred to is one league of the larger size, a little more or less, as is explained by the map accompanying the espediente. The judge who shall give the possession shall have it measured, in conformity to law, leaving the surplus which remains to the nation, for the purposes which may best suit it.'

1. The direction to the judge to 'have it measured in conformity to law, leaving the surplus which remains to the nation,' is a formal direction, accompanying most, if not all, California grants, and does not in this case limit or define any precise quantity. This direction is annexed to grants, whether there be or be not any surplus, and it does not import that any surplus will remain.

The surplus to be left to the nation is what remains after 'it,' viz: 'the land herein referred to' shall be measured. But the 'land referred to' is one league of the larger size, a little more or less, as is explained by the map accompanying the espediente. No exact quantity is expressed in the condition, but reference is made to the espediente as explaining what has been granted and is to be measured. The condition therefore expresses an indeterminate quantity, to be made certain by measurement according to the boundaries defined in the grant itself, in connection with which the condition is to be interpreted, and by the map to which reference is made. The words 'a little more or less' following the words 'one league of the larger size,' repel the idea that exactly one league and no more was intended; for if that exact quantity was meant, the words 'a little more or less' would not have been added.

In every California case decided by the Supreme Court, it has been held that the subsequent conditions could not defeat the precedent grant. And although a limitation of quantity clearly expressed may restrict prior terms of larger import, yet, in the absence of clear expression, such restriction is not to be imposed. It is a fundamental rule of construction, that a consistent and reasonable effect is to be given, if possible, to all the words of a written instrument. The addition of the words 'a little more or less,' implies some meaning in the grantor-for explanation of that meaning, distinct reference is made by the condition itself to the dise no. The grant, then, is for land not limited to an exact quantity by the condition, but 'as is explained' in the dise no. The grantor used words having some meaning, and referred to a particular document to explain, and which does explain, that meaning consistently with the boundaries specified in the body of the grant; the words therefore cannot be rejected, nor the condition construed as if they were stricken out.

In the case of The United States v. Larkin et al., 18 How., 561, the Supreme Court held that 'the plan or sketch in the espediente, in connection with the description given in the grant, furnishes all the materials essential to determine the boundaries.' That creeks, hills, and mountain ranges, exhibited on the maps or dise no, and referred to in the grant, are adequate monuments, and define boundaries of California grants with sufficient certainty, was decided in Pedrorena's case. (19 How., 365.)

No principle of law is better settled, than that designated boundaries called for in a grant control in general the quantity of land that passes by the grant.

Of the multitude of cases on this point, reference to a few only need be made. 'Where the boundaries of land are fixed, known, and unquestionable monuments, although neither courses nor distances, nor the computed contents, correspond, the monuments must govern.' (6 Mass., 131; 2 Mass. Rep., 380; 5 Pick. Rep., 135; 6 Wheat., 582; 8 Wend., 183; 1 U.S. Dig., Bound., 474, and cases cited.)

'Where a deed describes land by its admeasurement, and at the same time by known and visible monuments, these latter shall govern. '(4 U.S. Dig., Bound., and cases cited; Cleveland v. Smith, 2 Story, 278; Nelson v. Hall, 2 McLean, 518.)

'In locating lands, well-ascertained natural or artificial boundaries are to prevail over course, distance, and quantity; and although the boundaries included 136,000 acres instead of 14,900, the number called for by the deed, the boundaries were held to govern.' (Sturgeon v. Floyd, 3 Rich, 80.)

An illustration of this rule is furnished by an early decision of the Supreme Court of the United States, Lodge's Lessee v. Lee, 6 Cranch, 237, where a grant of an island by name, superadding courses, distances, and quantity, which were found to exclude a part of the island, was held to pass the whole island, without regard to the courses, distances, and quantity, called for by the deed. (6 Cranch, 237.)

But it is deemed needless to multiply authorities upon a rule of law so well established.

Mr. Justice CAMPBELL delivered the opinion of the court.

The appellee presented to the board of commissioners, appointed under the act of Congress of the 3d March, 1851, (9 Stat. at L., 632, ch. 41,) to settle private land claims in California, a claim for three-fourths of a league of land, known as part of the Ca nada de los Capitancillos. He produced to the board satisfactory evidence of the authenticity of a grant from the Governor of California, bearing date in 1842, to Justo Larios, for a parcel of land having that name; also that Larios had occupied, improved, and cultivated it, conformably to the conditions of the grant; that in 1845 he had sold it to a person from whom the appellee deduced his title to an undivided three-fourths interest, and that his share had been set apart to him by a valid conveyance. The board pronounced in favor of the validity of the grant, and rendered a decree of confirmation in favor of the claimant for land included in specific and well-defined boundaries, but adding as a part of the description the quantity that was embraced in them. It is somewhat doubtful whether the board designed to impose a limitation to the claim for the quantity thus declared. From this decree the United States appealed to the District Court. In that court the appellee confessed that the decree of the commissioners was erroneous, because it did not describe in a manner sufficiently certain the boundaries of the tract of land intended to be confirmed to the claimant, and consented that the decision should be reversed, and such decree be entered in the District Court as might be lawful and proper upon the whole evidence.

The claimant proceeded to examine a number of witnesses to identify the locative calls of the grant to Larios, and produced documentary evidence from the archives disclosing the circumstances under which the grant was asked for and obtained, in order to determine with exactness the subject on which it was designed to operate. He also procured a survey from the surveyor general of California, to exhibit the extent and description of the land included in the claims of those who now represent the rights of Larios. Much counter evidence was adduced under the direction of private and adversary claimants, to whom the law officers of the Government of the United States in California seem to have committed the preparation of the case on the appeal to the District Court, and who were allowed to maintain, in the name of the United States, the alternative of the issue tendered by the claimant.

The District Court confirmed the claim of the appellee to land limited by specific boundaries, and ascertained those boundaries, as they exist on the land, with precision. Under this decree, the grant to Larios includes seven thousand five hundred and eighty-eight and ninety hundredths acres.

It is the opinion of the court that the intervention of adversary claimants in the suit of a petitioner, under the act of 3d March, 1851, for the confirmation of his claim to land in California, is a practice not to be encouraged. The board of commissioners was instituted by Congress to obtain a prompt decision on the validity of private land claims, to enable the Government to distinguish the public land from that which had been severed from the public domain by Mexico; and that it might fulfil the obligation assumed at the time of the cession of California, to secure and protect the property of its inhabitants. The jurisdiction of the board of commissioners in the first instance, and the appellate jurisdiction of the courts of the United States, are limited to the making of decisions on the validity of the claim, preliminary to its location and survey by the surveyor general of California, acting under the laws of the United States. This officer is required to survey and to furnish plats of the claim that may be confirmed.

In reference to interfering and conflicting claims, he is authorized to decide by adopting the lines agreed to by the claimants; and in the absence of an agreement, to follow the rule of justice. The acts of Congress provide, that neither the decisions of the commissioners, nor of the District or Supreme Court, nor of the surveyor general, nor the surveys or patents made in pursuance of them, shall preclude a legal investigation and decision, by the proper judicial tribunal, between parties having such interfering claims; and provision is made in the act of 3d March, 1851, for a contest of the right of the confirmee before the issue of the patent, but after the location and survey; and a patent under the act is only conclusive between the United States and the claimant, and does not affect third persons. (9 Stat. at L., 631, ch. 41; 4 Stat. at L., 492, ch. 116, sec. 6.) The language and policy of these enactments limit a controversy like the present to the United States and the claimant.

We concur in the opinion of the board of commissioners and of the District Court, that affirms the validity of the grant of the Governor of California to Justo Larios, and the regularity of the conveyances through which the claimant deduces his title.

The papers in the record show, that in 1842 the proprietors of adjacent ranches in the valley de los Capitancillos (Larios and Berreyesa) had a dispute concerning the location of their line of separation, which was carried before the public authorities for settlement; that Larios, after the adjustment of the controversy, represented to the Governor that, since 1836, he had occupied his place in the ca nada under a purchase from a former proprietor; that the records of his title had been lost, and that he desired to obtain a grant which would declare his right. This petition was accompanied by a sketch of the property, and its contents were represented to be one league, a little more or less. The Governor made the necessary order for the issue of the grant, in conformity to the prayer of the petition, and the grant itself was issued in August, 1842. In the grant, the petition for the land known as Capitancillos-bounded by the sierra, by the Arroyo Seco on the said of the establishment of Santa Clara, and by the rancho of the citizen Jos e R. Berreyesa, which has for boundary a line running from the junction of the Arroyo Seco and Arroyo de los Alamitos, southward, to the sierra, passing by the eastern base of the small hill situate in the centre of the ca nada-is recited; and the Governor granted it to Larios, to be his property, subject to the approval of the Departmental Assembly, and to the performance of four conditions. The second and third of these conditions are:

'2d. He shall solicit the proper judge to give him judicial possession, in virtue of this decree, by whom the boundaries shall be marked out, and he shall put on the boundaries, in addition to the landmarks, some fruit trees or useful forest trees.

'3d. The land herein referred to is one league of the larger size, a little more or less, as is explained by the map accompanying this espediente. The judge who shall give the possession shall have it measured, in conformity to law, leaving the surplus which remains to the nation, for the purposes which may best suit it.'

The southern, western, and eastern boundaries of the land granted to Larios are well defined, and the objects exist by which those limits can be ascertained. There is no call in the grant for a northern boundary, nor is there any reference to the dise no for any natural object, or other descriptive call, to ascertain it. The grant itself furnishes no other criterion for determining that boundary than the limitation of the quantity, as is expressed in the third condition. This is a controlling condition in the grant. The delivery of judicial possession, an essential ceremony to perfect the title in the land system of Mexico, was to be accommodated to it. The dise no presented by the donee to the Governor, to inform him of his wants, represents the quantity to be one league, a little more or less. This representation is assumed to be true by the Governor, and it forms the basis on which his consent to the petition is yielded. He prescribes to the officer to whom he confided the duty of completing the title, to measure a specified quantity, leaving the surplus that remains to the nation, as preparatory to the delivery of judicial possession to the grantee. The obligation of the United States to this grantee will be fulfilled by the performance of the executive acts, which are devolved in the grant on the local authority, and which are declared in the two conditions before cited. We regard these conditions to contain a description of the thing granted, and, in connection with the other calls of the grant, they enable us to define it. We reject the words 'a little more or less,' as having no meaning in a system of location and survey like that of the United States, and that the claim of the grantee is valid for the quantity clearly expressed. If the limitation of the quantity had not been so explicitly declared, it might have been proper to refer to the petition and the dise no, or to have inquired if the name Capitancillos had any significance as connected with the limits of the tract, in order to give effect to the grant. But there is no necessity for additional inquiries. The grant is not affected with any ambiguity. The intention of the Government of California is distinctly declared, and there is no rule of law to authorize us to depart from the grant to obtain evidence to contradict, vary, or limit its import.

The grant to Larios is for one league of land, to be taken within the southern, western, and eastern boundaries designated therein, and which is to be located, at the election of the grantee or his assigns, under the restrictions established for the location and survey of private land claims in California by the executive department of this Government. The external boundaries designated in the grant may be declared by the District Court from the evidence on file, and such other evidence as may be produced before it, and the claim of an interest equal to three-fourths of the land granted is confirmed to the appellee.

The decree of the District Court is reversed, and the cause is remanded to that court, with directions to enter a decree conforming to this opinion.


text: Talk:United States v. Fossat/Opinion of the Court

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text:
Suydam v. Williamson (61 U.S. 427)

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of New York.

It was an action of ejectment brought by the defendants in error against Suydam to recover two lots of ground in the city of New York. On the part of the defendants in error, it was contended that every material question in the case was adjudged by this court in the cases of Williamson v. Berry, 8 Howard, 495; Williamson v. The Irish Presbyterian Congregation, 8 Howard, 565; and Williamson v. Ball, 8 Howard, 566. The counsel for the plaintiff in error alleged that this case was unlike those in several important particulars. But as the decision of this court turned altogether upon the manner in which the case had been brought up, it is only necessary to state so much of it as will illustrate the point of practice.

The record showed a declaration in ejectment, a plea of not guilty, issue joined, suggestion of the death of some of the plaintiffs and substitution of their heirs, empannelling of a jury, their verdict of quilty against Suydam, the case held under a curia, the judgment for the plaintiffs with costs, and a prayer for a writ of possession, which was granted. Judgment signed this 6th day of December, 1854.

R. E. STILWELL, Deputy Clerk.

Then came the following:

Circuit Court United States, Southern District of New York.

WILLIAMINA H. WILLIAMSON ET AL. v. JAMES H. SUYDAM.

This is an action of ejectment for two lots in the sixteenth ward of the city of New York. The declaration is in the usual form; the plea is not guilty. Either party may refer to the pleadings as part of this case.

The plaintiff gave in evidence an exemplified copy of the will, &c., &c., &c.

The plaintiffs thereupon rested.

The defendants' counsel then proved the acts of the Legislature, the deed of Clement C. Moore, the petitions to the Legislature and to the chancellor, the master's reports, the orders of the chancellor, the extracts from the journals of the two Houses, of which copies are hereto annexed; these were all objected to by the plaintiffs' counsel, and were read subject to the objection.

The defendants' counsel then offered in evidence a deed from Thomas B. Clarke to Peter McIntyre, of which the following is a copy, &c., &c., &c.

The plaintiffs' counsel then offered to prove—

1st. That the acts of the Legislature were not for the benefit of the infants, but for the benefit of Thomas B. Clarke merely.

2d. That the orders of the chancellor had the effect to take the proceeds of their future interest in the property sold, and to apply the same to the father's debts, without giving them any benefit, by support or otherwise, out of the interest of the life estate in other parts of the property.

3d. That under the acts and orders he actually aliened the lot on Broadway and all the southern moiety of the Greenwich property, excepting two lots, and that none of the children received any benefit from such alienation.

4th. That nearly the whole of the property mentioned in the acts of Legislature was mortgaged or conveyed by Thomas B. Clarke for old debts; that no proceeds were ever invested or secured, or ever received, from the grantors or mortgagees.

5th. That so far from providing for the children or protecting the estate, he suffered a large portion of the northern moiety to be sold for assessments, and was proceeding to dispose of the same moiety for twenty-one years, when, on the 31st of March, 1826, a bill was filed against him on behalf of the children, and an injunction issued.

6th. That on the death of his wife he broke up housekeeping, and ceased to live with his children; that the plaintiff was Mrs. Williamson; was, from the death of her mother, in August, 1815, supported and educated entirely by one of her aunts; and that, after about two years from the mother's death, the other children were supported and educated by their friends, and were entirely neglected by their father.

The defendants' counsel objected; the objection was sustained. The plaintiffs' counsel excepted.

A verdict was then, by direction of the court, taken for the plaintiffs for the premises claimed, subject to the opinion of the court upon the questions of law, with liberty to either party to turn this case into a special verdict or bill of exceptions.

SAMUEL R. BETTS. [L. S.]

Endorsed: 127, Circuit Court, southern district New York. Williamina H. Williamson et al., agt. James H. Suydam.-Cr. case. Jas. L. Sluyter, plaintiffs' attorney.

Filed this 29th January, 1855.

Then followed a transcript of other papers in the case. The writ of error was dated 18th December, 1854.

This was the state of the record upon which the case was brought up to this court.

It was argued by Mr. Ellingwood for the plaintiff in error, and Mr. Field for the defendants; but as their arguments were upon the merits of the case, they are omitted in this report.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Suydam v. Williamson (61 U.S. 427)


text: Talk:Suydam v. Williamson (61 U.S. 427)

title: Talk:Suydam v. Williamson (61 U.S. 427)


text:
Suydam v. Williamson (61 U.S. 427)/Opinion of the Court

This was a writ of error to the Circuit Court of the United States for the southern district of New York.

The view we have taken of this case, as it is exhibited in the record, renders an extended statement of the facts entirely unnecessary. It was an action of ejectment brought in the court below to recover the possession of a certain parcel of land, with the appurtenances, situated in the sixteenth ward of the city of New York, and described as lots sixty-four and sixty-five, according to a certain map made by George B. Smith. The declaration, which was in the usual form, was filed in the Circuit Court for the southern district of New York on the 15th day of August, 1845, and the defendant, James H. Suydam, appeared, by his attorney, and pleaded that he was not guilty of unlawfully withholding the premises claimed by the plaintiffs, as was alleged in the declaration, and tendered an issue, which was duly joined by the plaintiffs. During the pendency of the suit, and before the trial, two of the plaintiffs, being the two first named in the declaration, died, and the cause was regularly revived in the name of the survivors and the heirs of those deceased. At the adjourned session of the Circuit Court held at the city of New York on the first Monday of October, 1849, the parties went to trial on the general issue, and the jury returned a general verdict in favor of the plaintiffs; after the verdict, the cause was continued, as the record states, until the first Monday of October, 1850, and 'the same day is given to the parties to hear the judgment of the court,' and on that day the judgment was rendered on the verdict for the plaintiffs, that they do recover against the said James H. Suydam the possession of the said premises according to the said verdict of the jury, and for their damages, costs, and charges; and a writ of possession was duly issued, directed to the marshal of the district. All these proceedings were in the usual course of judicial action, and were duly and formally entered on the record of the suit, and consequently furnish no ground of complaint whatever on the part of the present plaintiff, who was the defendant in the court below. The declaration contained on its face a good cause of action, and the general issue and joinder were regularly filed in the cause, and were entirely sufficient to make up a valid issue between the parties to the suit; and the verdict, which was strictly formal and legal, was in every respect responsive to the issue formed. It appears that the jury found, in the very words of the issue, that the defendant was guilty of unlawfully withholding the premises claimed by the plaintiffs, as alleged in the declaration; and the judgment followed the verdict, and was founded upon it, for the premises as they were set forth and described in the pleadings. Every step in the cause, from the filing of the declaration to the issuing of the writ of possession, was in exact conformity to the most approved practice and precedents in the Federal courts.

We do not understand that the pleadings or the regularity of the proceedings are in any manner called in question, except as the foundation of a judgment, which it is insisted was erroneous, for reasons altogether aside from any connection with mere matters of form. The real controversy between the parties has reference more especially to the right of possession, and consequently extends to the title of the premises described in the declaration, and necessarily involves the principal questions which were presented to this court at the December term, 1850, in the case of Williamson et al. v. Berry, 8 How., 495; and we regret that the facts of the case, and the rulings of the court below, are not now exhibited in a manner to justify this court in giving the subject a re-examination with the aid of the additional light which has been thrown upon it by the elaborate and very able discussion at the bar; and the more so, as it appears that a case depending upon the same evidences of title has since that time been before the Court of Appeals of the State of New York, where a conclusion was reached widely different from the one expressed by this court on the former occasion, in the answers given to the questions then submitted for its consideration. The difficulty, however, in the way of any such examination at this time, is insurmountable, for the reason that the record does not contain either a bill of exceptions, special verdict, or an agreed statement of facts. Some of the questions discussed at the bar might have been satisfactorily presented in a special verdict, or by an agreed statement of facts, while in respect to others, apparently regarded as important, such as the rulings of the court in admitting or rejecting evidence, it is proper to remark that they could only be brought to this court for revision by a bill of exceptions. Such rulings are never properly included in a special verdict, any more than in an agreed statement of facts. A special verdict is where the jury find the facts of the case, and refer the decision of the cause upon those facts to the court, with a conditional conclusion, that if the court should be of opinion, upon the whole matter thus found, that the plaintiff has a good cause of action, they then find for the plaintiff; and if otherwise, they then find for the defendant; and it is of the very essence of a special verdict, that the jury should find the facts on which the court is to pronounce the judgment according to law, and the court, in giving judgment, is confined to the facts so found; and every special verdict, in order to enable to appellate court to act upon it, must find the facts, and not merely state the evidence of facts; so that, where it states the evidence merely, without stating the conclusions of the jury, a court of error cannot act upon matters so found. In practice, the formal preparation of such a verdict is made by the counsel of the parties, and it is usually settled by them, subject to the correction of the court, according to the state of facts as found by the jury, with respect to all particulars on which they have passed, and with respect to other particulars, according to the state of facts which it is agreed they ought to find upon the evidence before them. After the special verdict is arranged, and it is reduced to form, it is then entered on the record, together with the other proceedings in the cause, and the questions of law arising on the facts found are then decided by the court, as in case of a demurrer; and if either party is dissatisfied with the decision, he may resort to a court of error, where nothing is open for revision, except the questions of law inferentially arising on the facts stated in the special verdict; and we here remark, for the purpose of illustration, that it is not so much because the proceeding is denominated a special verdict, that the party by virtue of it is authorized to invoke the aid of a revisory tribunal, as it is because it has the effect to incorporate the facts of the case into the record, which otherwise would have rested in parol, and therefore could not have been reached on a writ of error; and the same remark applies to a bill of exceptions, which is a still more comprehensive method of enlarging the record by incorporating into it not only the facts of the case, but the rulings of the court in admitting and rejecting evidence, and the instructions given to the jury; and after it is signed, sealed, and filed in the case, it becomes a part of the record, and the matters therein set forth can no more be disputed than those contained in any other part of the same record, and are alike subject to revision in a court of error. It is a mistake, however, to suppose that in such cases the writ of error operates only on the bill of exceptions. Such is never the fact, unless the whole record is set forth in the bill of exceptions; as the operation of the writ of error addresses itself to the record as an entirety, and not to any separate portion of it as distinct from the residue; and when the cause is removed into the appellate court, any error apparent in any part of the record is within the revisory power of such tribunal. The rule is, that whenever the error is apparent on the record, it is open to revision, whether it be made to appear by bill of exceptions, or in any other manner. (Bennet v. Butterworth, 11 How., 669; Slacum v. Pomeroy, 6 Cranch, 221; Garland v. Davis, 4 How., 131; Cohen v. Virginia, 6 Wheat., 410.)

When a party is dissatisfied with the decision of his cause in an inferior court, and intends to seek a revision of the law applied to the case in a superior jurisdiction, he must take care to raise the questions of law to be revised, and put the facts on the record for the information of the appellate tribunal; and if he omits to do so in any of the methods known to the practice of such courts, he must be content to abide the consequences of his own neglect. Evidence, whether written or oral, and whether given to the court or to the jury, does not become a part of the record, unless made so by some regular proceeding at the time of the trial and before the rendition of the judgment. Whatever the error may be, and in whatever stage of the cause it may have occurred, it must appear in the record, else it cannot be revised in a court of error exercising jurisdiction according to the course of the common law. A bill of exceptions undoubtedly is the safest method, as it is the most comprehensive one in its operation; and where the facts are disputed, and cannot be arranged except from evidence admitted under the ruling of the court as to its admissibility, oftentimes it becomes the only effectual mode by which all the rights of the complaining party can be preserved. On the other hand, where there is no dispute in regard to the facts, and consequently no necessity for any ruling of the court in admitting or rejecting evidence, the same purpose may be safely accomplished by a special verdict, or, according to the rule established in this court, by an agreed statement of facts. (United States v. Ellason, 16 Pet., 291; Stimpson v. Railroad Company, 10 How., 329; Graham v. Bayne, 18 How., 60.) Where the facts are without dispute, and agreed between the parties, a statement of the same may be drawn up and entered on the record, and submitted directly to the court, for its decision, without the intervention of a jury; or a general verdict may be taken, subject to the opinion of the court upon the facts so agreed; and in either case, the aggrieved party may bring error after final judgment, and have the questions of law, arising upon the facts thus spread upon the record, re-examined, as in the case of a special verdict. (Faw v. Bordeau, 3 Cran., 174; Brent v. Chapman, 5 Cran., 358.)

It should be observed, however, that the rulings previously made by the court, in admitting or rejecting evidence during the progress of the trial, are no more revisable on a special case, as it is called, when the verdict is taken subject to the opinion of the court on an agreed state of facts, than where the agreed statement is submitted directly to the court, without the intervention of the jury; and for the obvious reason that, in the one case as much as in the other, the foundation laid for the action of the revisory tribunal is based upon the consent of the parties to the suit, and consequently the action of the appellate court must be confined to the facts as they were agreed, and as they appear in the record of the case. (Arthurs v. Hart, 17 How., 6; Bixler v. Kunkle, 17 S. and R., 310.) At one time an attempt was made to introduce a different practice into this court; but it was distinctly disclaimed, and has never been sanctioned in writs of error to any of the Circuit Courts in States where the proceedings are according to the course of the common law. (Shankland v. The Corporation of Washington, 5 Pet., 390.)

In that case, it was agreed by the parties that the question of the admissibility, competency, and sufficiency of the evidence to maintain the action, should be submitted to the court, and that, in considering the evidence, the court should draw from it, so far as it was admissible and competent, every inference of fact and law which it would havd been competent for a jury to have drawn from it; and that agreement was appended to an agreed statement of facts, on which the case was submitted to the determination of the Circuit Court in this District. Subsequently, it was brought into this court on a writ of error for revision, and was heard and determined upon the matters properly exhibited in the record; but this court, in giving judgment took occasion to characterize the agreement as an unusual one, and denied that it was competent for parties to impose any such duties on this court, and expressly declared that the case was not to be drawn into precedent. Whenever the parties to a pending suit desire to place the facts of the case upon the record, so as to secure the right to have the law arising on the facts revised on a writ of error, they must adopt some one of the methods already suggested to effectuate that purpose, as there are no other effectual methods by which it can be accomplished.

Other modes are known to the practice of this court, by which the evidence produced against a party may in certain cases be put on the record either in whole or in part, according to the circumstances, so as to secure the right to have the questions of law arising upon it revised on a writ of error; but every proceeding of that kind is either so limited in its application or so tied up by conditions, that they are seldom of much practical importance, and are only referred to on the present occasion to confirm the proposition already advanced, that no ancillary step in the cause is of any avail to a party as laying the foundation to support a writ of error, any farther than it has the effect to placed on the record what otherwise would rest in parol. Formerly it was considered that a party might always demur to the evidence produced against him, as a matter of right; and while that was so, a demurrer to evidence was equally effectual with a bill of exceptions to the extent of its operation. (4 Chitt. Gen. Prac., 7; 2 Inst., 427.) The bill of exceptions was always the more comprehensive remedy, because it extended, as it still does, not only to the facts in the case, but also to the rulings of the court in admitting or rejecting evidence, and to the instructions given to the jury upon its legal effect. A demurrer to the evidence, while its operation in one respect is nearly the same as that of the bill of exceptions, in another is very different. It extends only to the evidence produced, as the term imports, and has no effect at all upon the rulings of the court by which it was received; and as a necessary cosequence, where the error of the court consists in having admitted improper evidence, the effect of a demurrer to it would be to waive the objection to the ruling, instead of laying the foundation to correct the error. (Bulkely v. Butler, 2 Barn. and Cress., 434.) A demurrer to evidence is defined by the best test writers to be a proceeding by which the court in which the action is depending is called upon to decide what the law is upon the facts shown in evidence, and it is regarded in general as analogous to a demurrer upon the facts alleged in pleadng. When a party wishes to withdraw from the jury the application of the law to the facts, he may, by consent of the court, demur in law upon the evidence, the effect of which is to take from the jury and refer to the court the application of the law to the facts, and thus the evidence is made a part of the record, and is considered by the court as in the case of a special verdict. A mere description of the proceeding is sufficient to show that it is the evidence, and nothing else, that goes upon the record. Since it was determined that a demurrer to evidence could not be resorted to as a matter of right, it has fallen into disuse; and as long ago as 1813, it was regarded by this court as an unusual proceeding, and one to be allowed or denied by the court in the exercise of a sound discretion under all the circumstances of the case. (Young v. Black, 7 Cran., 565; United States Bank v. Smith, 11 Wheat., 172; Fowle v. Common Council of Alexandria, 11 Wheat., 322.)

Another method by which certain evidence may be incorporated into the record at the nisi prius trial is by oyer, which occurs where the plaintiff in his declaration, or the defendant in his plea, finds it necessary to make a profert of a deed, probate, letters of administration, or other instrument, under seal, and the other party prays that it may be read to him, which in such a case cannot, as a general rule, be denied by the court; and the effect of the proceeding, in certain cases, is to make the instrument a part of the pleadings, and, consequently, to place it within the operation of a writ of error, which, in every case where the proceeding is according to the course of the common law, brings up the whole record; and in all these cases, as well as in the one first named, it is because the evidence, whatever it may be, is made a part of the record by the proceeding, that the questions of law arising upon it become a proper subject of revision on the writ of error. (1 Chitt. on Plead., 10th Am. ed., 431; 1 Tidd. Prac., 3d Am. ed., 586.) And the same effect is produced and the same object is attained when the defendant demurs to the declaration, or when either party demurs to a material portion of the pleadings on which the cause depends; and so it must have been understood by this court in Gorman et al. v. Lenox, 15 Pet., 115, where it was held, in accordance with the principle here advanced, that the action of the Circuit Court of this District, in sustaining a demurrer to a plea of performance in a suit on a replevin bond, was the subject of revision on a writ of error; and the rule adopted in that case was undoubtedly correct, as the effect of the demurrer was to make the error apparent in the record; and when that is so, it becomes the subject of revision just as much as when it is made to appear by a bill of exceptions or a special verdict.

We have now adverted to the several methods acknowledged by courts of error, by which matters resting in parol at the trial in the subordinate tribunal may be put on the record, so as to lay a proper foundation for a revision of the legal questions arising out of them in the appellate court, and there are no others which can be recognised in this court in cases where the proceedings are required to be according to the course of the common law. (Dougherty v. Campbell, 1 Blackf., 24; Cole v. Driskell, 1 Blackf., 16.)

A writ of error is an original writ, and lies only when a party is aggrieved by some error in the foundation, proceedings, judgment, or execution, of a suit in a court of record, and is defined to be a commission, by which the judges of one court are authorized to examine a record upon which a judgment was given in another court, and, on such examination, to affirm or reverse; and it was expressly held by this court, in Cohens v. Virginia, (6 Whea., 410,) that the writ of error operated upon the record, and that its effect, under the judiciary act, was to bring it into this court, and submit it to a re-examination; and it is also laid down by the best writers on pleading, that nothing will be error in law that does not appear on the face of the record, for matters not so appearing are not supposed to have entered into the consideration of the judges. (Steph. on Plea., 121.)

The writ of error in this case was issued on the eighteenth day of December, 1854, and on the twenty-ninth day of January, 1855, an additional paper was filed, which in the transcript is denominated the 'case,' and is the one which furnished all the materials for the discussion at the bar. It purports to contain all the evidence introduced at the trial in the court below, as well that given by the defendant as that given by the plaintiffs, and certain offers of proof on the part of the plaintiffs, which were objected to by the defendant, and excluded by the court. This mass of evidence, with the exhibits, filling sixty pages of the transcript, has respect, on the one side or the other, to the title and right of possession to the premises described in the declaration, and comprises all the evidences of title which were before this court on the former occasion; and, in addition thereto, certain admissions of the parties and other parol evidence. It is now drawn up in the form of a report of the judge who presided at the trial, and is signed by him, and is under seal; and, as we understand the endorsement, is certified to be correct by the counsel of the plaintiffs. The conclusion of the report is as follows:

'A verdict was then, by direction of the court, taken for the plaintiffs, for the premises claimed, subject to the opinion of the court upon the questions of law, with liberty to either party to turn this case into a special verdict or bill of exceptions.'

Whatever might have been the right of the parties under that report, it is too plain for argument, that no one connected with its preparation could have regarded it either as a special verdict or all bill of exceptions. All that it professed to do was to give either party the liberty to turn the case into one or the other of those forms of proceeding; and it is a sufficient answer to any pretensions under the report to say, that the change has not been made; that, for some reason unknown to this court, the right to make the change, if such it was, has never been exercised; and hat it is now presented here in the form in which it was prepared when it is too late to make the alteration. And we also say, that this court cannot so far depart from the settled practice and regular course of proceeding as to give an effect to the paper which neither its contents nor terms would warrant; nor can we attempt to do for the plaintiff in error what it was his duty to have done at the trial, and before the writ of error was sued out; nor are we prepared to admit that the option given to turn case either into a special verdict or a bill of exceptions could have been exercised by either party under the concluding portion of that report, without the assent of the judge who presided at the trial, and irrespective of his authority. On the contrary, we conclude that, 'where a case shall be made with leave to turn the same into a special verdict or bill of exceptions, the party shall not be at liberty to do either, at his election, but the court may, if they think proper, prescribe the one which he shall adopt.' (Conk. Trea., 3d ed., p. 444.)

Nothing less than the presence and assent of the court, we think, can give any legal validity to a special verdict; and in respect to a bill of exceptions, it must always be signed and sealed by the judge, or else it would be a nullity. (Phelps v. Mayer, 15 How., 160.) A special verdict ought always to be settled under the correction of the judge who presided at the trial, and, whether prepared at the time or subsequently, it should be filed as of the term when the trial took place. (Turner v. Yates, 16 How., 14; Sheppared v. Wilson, 6 How., 275.) The necessary effect of the proceeding, where the verdict is taken subject to the opinion of the court, would be to postpone the preparation of the special verdict till after the parties were heard, and the opinion given; and to that extent the delay is allowable, though we are by no means prepared to admit that it may be done after the cause has been removed into this court. The result is, we have come to the conclusion, on this branch of the case, that the paper in the transcript denominated the 'case' must be considered merely as a report of the judge who presided at the trial; that it is not a part of the record, and, consequently, must be wholly disregarded by this court, in determining whether the judgment of the court below ought to be reversed or affirmed. Having come to that conclusion, it becomes unnecessary to notice any of the rulings of the court in admitting or excluding evidence, as no part of that report can be taken into consideration. The question whether the report of a judge who tried the cause was a part of the record, came up directly before this court, in Ingle v. Coolidge, 2 Whea., 363; and, after a deliberate consideration, the court unanimously determined that it did not. It was a writ of error to the Supreme Judicial Court of Massachusetts. The record showed that the jury found a general verdict for the original plaintiff, and the cause was then continued, as the record stated, 'for the opinion of the whole court upon the law of the case, as reported by the judge who tried the same, and at a subsequent term judgment was rendered for the plaintiff upon the verdict. When the record was brought into this court, the report of the judge was annexed to the writ of error with the other proceedings and exhibits in the cause, and this court, in speaking of the report, said: It is not like a special verdict, or a statement of facts agreed of record, upon which the court is to pronounce its judgment. The judgment was rendered upon a general verdict, and the report is mere matter in pais to regulate the discretion of the court as to the propriety of granting relief, or sustaining a motion for new trial.

Other cases have been decided by this court, asserting the same general principle, that nothing can be considered upon a writ of error except what appears upon the record; and one in particular, which, in that point of view, bears a very close analogy to the case under consideration. We allude to the case of Minor v. Tillotson, (2 How., 392,) which was a writ of error to the Circuit Court of the eastern district of Louisiana, under the twenty-second section of the judiciary act. A mass of evidence in that case was received from both parties, consisting of concessions and grants under the Spanish Government, intermediate conveyances, documents showing the proceedings in regard to the title under the laws of the United States, and parol testimony; and the cause was submitted to the court under an agreement that those documents, proceedings, and parol testimony, constituted all the evidence on which the cause was tried, and that the agreement was 'made for a statement of the facts in the case.' This court then said, it seems to have been supposed that the agreement of the counsel that the evidence in the cause should be considered as a statement of facts, was a sufficient ground for a writ of error on which a revision of the legal questions might be made, and intimated, very strongly, that if it were so, it would be to require the court to try the cause on its merits, and emphatically declared, 'this is never done on a writ of error, which issues according to the course of the common law.' And so also it was held in Leland et al. v. Wilkinson, (6 Pet., 317,) that the private laws of a State, and special proceedings of the Legislature of a State, in regard to the sale of the estate of a deceased person for his debts, could not be considered, unless they were found in the record; and in Williams v. Norris, (12 Whea., 117,) it was determined that neither depositions nor exhibits, of any description, constitute 'any part of the record on which the judgment of an appellant court is to be exercised, unless made a part of it by a bill of exceptions, or in some other manner recognised by law.' These cases, we think, have a strong tendency to support the proposition, that the paper, in the transcript denominated the 'case,' cannot be regarded as a part of the record; and if not, then it is clear that it cannot be considered on the present occasion, irrespective of the fact that it was not filed till more than a year after the writ of error issued, which of itself is decisive of the point that it cannot be considered. (Williams v. Norris, 12 Whea., p. 120.)

It is certain, therefore, that there is no error in the record; and the only remaining question is, what disposition ought to be made of the cause, under the circumstances of the case?

An important distinction exists in respect to writs of error issued under the twenty-second section of the judiciary act, from those issued under the twenty-fifth section of the same act, which it becomes necessary to notice in this connection, in order to maintain a writ of error to this court from a State court within the twenty-fifth section of that act, it must appear on the face of the record that some one, at least, of the questions stated in that section did arise in the State court, and that the question was decided in the State court, as required in the section; and if it does not so appear in the record, then this court has no jurisdiction of the case, and in that event the writ of error must be dismissed, as this court, under those circumstances, has no power either to reverse or affirm the judgment brought up for revision; and such was the state of the record in Inglee v. Coolidge, and accordingly the writ of error was dismissed. The writ of error, however, in this case issued under the twenty-second section of the judiciary act, in respect to which a different rule prevails, as will be seen by attending to the language of the act. That section provides, in effect, that final judgments in a Circuit Court brought there by original process may be re-examined, and reversed or affirmed, in this court, upon a writ of error; and where the cause is brought into this court upon a writ of error issued under that section, and all the proceedings are regular, and no question is presented in the record for revision, it follows, by the express words of the section, that the judgment of the court must be affirmed. Beyond question, the record in this case exhibits every fact required by the section to give this court jurisdiction of the cause, and in strict compliance with the terms of the act. The action was originally brought in the Circuit Court for the southern district of New York, and the record shows a sufficient declaration duly filed in court-a proper and valid issue between teh parties-a perfect finding by the jury upon the issue joined, and a regular judgment on the verdict, which was final, unless reversed; and certainly these are all the requisites of a record, according to the requirements of the twenty-second section of the judiciary act, to entitle a party to retain the judgment which has been given in his favor. (Minor et al. v. Tillotson, 1 How., 287; Stevens v. Gladding, 19 How., 64; Lathrop v. Judson, 19 How., 66.) It is only when the special verdict is ambiguous or imperfect, or when it finds only the evidence of facts, and not the facts themselves, or finds but a part of the facts in issue, and is silent as to others, that this court can regard the finding as a mistrial, and order a venire de novo. (Barnes v. Williams, 11 Wheat., 415; Carrington v. Pratt, 18 How., 63; Prentice v. Zane, 8 How., 484.)

When the record exhibits such a state of facts, it is then competent for this court to remand the cause for a new trial, in order that the finding of the jury may be perfected. The record itself in such a case shows the imperfection which it is the purpose of the new trial to remedy, and it constitutes the basis of the action of the court in giving the order to send the cause down to a rehearing. No such imperfection appears on this record. On the contrary, the record shows a perfect finding of the jury, and, on a careful inspection of the transcript, we are unable to discover error in any part of the proceedings.

The judgment of the Circuit Court is therefore affirmed, with costs.


text: Talk:Suydam v. Williamson (61 U.S. 427)/Opinion of the Court


text:
Brown v. Wiley (61 U.S. 442)

THIS case was brought up, by writ of error, from the District Court of the United States for the district of Texas.

Wiley & Co. were citizens of New York, and Brown a citizen of Texas.

The cause of action was the following bill of exchange:

$2,359.26.

SHREVEPORT, March 23, 1854.

On or before the 1st of May next, 1855, please pay to order L. M. Wiley & Co. twenty-three hundred and fifty-nine and twenty-six one hundredths dollars, for value received, and charge same to my account, without further advice.

TAYLOR BROWN.

Messrs. Campbell & Strong, merchants, New Orleans.

By W. L. McMURRAY.

This draft was presented and protested for non-acceptance on the 10th of June, 1854, more than ten months before the time when it was payable; and it appeared from the record that the suit was instituted against the drawer in February, 1855, nearly three months before the maturity of the bill.

The petition, as amended, contained the usual averments of the drawing of the draft, its presentation for acceptance, protest, and notice of dishonor.

The defence was, that there were two bills of similar character, except that one was payable in May, 1854, and the other in May, 1855; and that it was agreed by the parties that the second should not be presented for acceptance until the first was taken up. These pleas were, on motion of the plaintiffs' counsel, stricken out.

The cause then came on for trial, and the defendant offered evidence to prove these facts the result of which is stated in the following extract from the bill of exceptions:'The defendant's counsel then offered to prove, that at the time the draft was delivered, it was expressly stipulated and agreed, by and between W. L. McMurray, the agent of the defendant, and Charles Keith, the agent of the plaintiffs, that the said draft should not be presented for acceptance until the defendant should provide for the payment of a previous draft, drawn by the same party, in favor of the same parties, upon the same drawees, falling due in April, 1854, according to an understanding had with the drawees; and that said draft would not have been delivered to plaintiffs' agent, if he had not have agreed to hold it up. This was objected to by plaintiffs' counsel, and the objection sustained; to which ruling and decision of the court the defendant excepts.'

The jury found a verdict for the plaintiffs, and the defendant brought the case up to this court.

It was argued by Mr. Reverdy Johnson (upon which side there was also a brief by Mr. Hughes) for the plaintiff in error, and by Mr. Larocque for the defendants.

The following notice of the points made by the counsel for the plaintiff in error is taken from the brief of Mr. Hughes:

Is the defence set forth, if true, a good bar of the cause of action of the plaintiffs below?

In regard to this, we think there can be no difficulty. The draft is dated at Shreveport, and the plaintiffs below in their petition state that the draft was drawn 'at Shreveport, in the State of Louisiana,' upon 'Messrs. Campbell & Strong, at the city of New Orleans, in the State of Louisiana.' The draft then was a Louisiana contract, and subject to the law of that State in regard to its validity, force, and effect. (Lynch v. Postlethwaite, 7 Martin R., 213.)

It is admitted that the general rule of the common law is, that it is not competent by parol evidence to alter, vary, or change a written instrument in its essential terms; and this is believed also to be the rule of the Louisiana law. But this general rule has no application to the agreement set forth in the answer of the defendant in the court below. That agreement did not in any sense propose to alter, vary, or change the written agreement between the parties. As already intimated, though the money mentioned in the draft was not due for a year after date, without some limitation of or restriction upon the rule of the law merchant, if presented for acceptance, and acceptance refused, payment might be enforced by suit, on the cause of action furnished by the refusal to accept, without regard to the time of payment stipulated in the draft. To prevent this was the object of the agreement attempted to be set up by the amended answer. That agreement contains nothing which is in conflict with the terms of the draft sued on, or, in any sense, attempts to alter, vary, or change the same in an essential part. It does, however, restrain the holder in raising a cause of action by an act to be done by him; which was an act that he might or might not, at his election, perform, and which, of course, it was competent for him, upon sufficient consideration, to agree not to do, and such agreement would be collateral only to the draft.

In a case in Louisiana, it was offered to prove that the defendant's endorsement on the note sued on was merely as security, and that the same was to be paid out of collections to be made of claims due to the drawers. The court said: 'We have repeatedly held that the article of our code which provides that parol evidence shall not be received beyond or against the contents of a written act, is inapplicable to a case of this kind. The evidence offered was neither to contradict nor explain a written instrument, but to prove a collateral fact in relation to it.' (Dwight v. Linton, 3 Rob. La. R., 57.)

And here, the fact was clearly collateral, for the effect of the agreement was a waiver of the right by the payees to demand an acceptance, and of the consequent right to enforce payment by reason of non-acceptance, until it had been ascertained whether a certain act had been performed; but there was no agreement by which the right to sue or recover was denied, after the expiration of twelve months, the time the draft had to run to maturity.

Again: the same court have said that parol evidence is admissible, to prove an agreement between parties, that a bill of exchange, which had been drawn by one of them in favor of the other, should not be negotiated. (Robertson v. Nott, 2 Martin, N. S., 122.)

In that case, there was nothing to alter, vary, or change a written instrument, but an agreement to waive a right conferred by law, by reason of the nature of the instrument, within the reason of which this case is clearly embraced; for this, like that case, asks for the admission of evidence to prove a collateral fact, which, so far from contradicting, or altering, or changing a written instrument, proves an agreement cotemporaneously with it, which leaves the written agreement intact, but limits the right which the law gives, by virtue of the draft, of presentment for acceptance at an indefinite period before the maturity of the same.

It cannot be said that no injury is done to the plaintiff in error, and that he has no right to complain by reason of the violation of the agreement attempted to be set up, in presenting the draft for acceptance before it had been ascertained whether the other draft had been provided for, and suing, as upon a cause of action, for its dishonor by non-acceptance.

The draft sued on, by its terms, was due on the 23d day of March, 1855, and was presented for non-acceptance, and protested on the 10th day of June, 1854; and the other draft was provided for in July, 1854, and the suit was commenced on the 9th day of February, 1855, one month and fourteen days before the draft sued on became due according to its terms, and without any application for acceptance, on or after the time when the first draft was provided for. From this statement, we think sufficient cause of complaint arises. A debt for a large amount is created, and is to be provided for by payment by the defendant to the plaintiff below; two drafts are drawn by the defendants upon their correspondents in New Orleans in favor of the plaintiff below, one having but a short time to run to maturity, and the other at twelve months after date; and at the time, it is agreed by the parties that the latter draft is not to be presented for acceptance until the former is provided for by the drawer, and this agreement is made in consideration of the drawing of the drafts, and concurrent therewith. The short draft is provided for before the other becomes due; and before the maturity of the same, an action is commenced upon a cause of action, by virtue of a protest made in violation of the agreement on the subject. It would be strange, indeed, if no complaint could be made under such circumstances. We think it enough that contracts are performed, or their performance enforced by suit at the time, or after they become due.

Again: it may be attempted to be maintained that the draft, the providing or non-providing for which was to fix and determine the time for the presentment for acceptance of the draft sued on, being due by its terms in May, 1854, and being then, and continuing up to the time of the protest of the draft sued on unprovided for, the time had arrived at which to present the same for acceptance.

But this was not the agreement; no time was specified in which the short draft was to be provided for. We must presume, from the terms used, that this draft had been accepted by the drawers, and that it was paid at maturity; and were the fact not so, something further would have been heard of it. Whether it was provided for in time, so that the drawers and acceptors might not be compelled to pay without funds in the hand of the drawer, was a matter with which the payees had nothing to do; they had no right to complain, if the draft accepted was paid at maturity. The provision for the bill, when due, was a question between the drawer and his correspondent who had accepted. All that the payees in regard to the draft sued on had to do, was to see that in due time that was done which gave him a right of presentation for acceptance on the draft sued on; and, the act having been performed, then to present his draft for acceptance, and upon refusal, to take such steps as would charge the drawer, or waiting its maturity, to present for payment, and upon refusal, in like manner to charge the drawer by reason of its non-payment. It would be a strange rule, indeed, if the plaintiffs below, having had the full benefit of the agreement attempted to be set up in the acceptance and payment of the first draft, should, in violation of the other part of said agreement, be permitted to maintain a suit, without demanding refusal of acceptance after said first draft was provided for, and before the maturity, by its terms, of the draft sued on; and against this wrong the plaintiff in error thinks he is justified in asking the protection of the court.

Upon the particular point under consideration, Mr. Larocque said:

The proof offered by the defendant on the trial was incompetent and inadmissible. It was to prove a parol agreement, made at the time of drawing the draft, and not embodied in it, inconsistent with its terms and legal effect. This would be contrary to the well-settled rule of law on the subject. (Bank of the United States v. Dunn, 6 Pet., 51; Bank of Metropolis v. Jones, 8 Pet., 12; Rockmore v. Davenport, 14 Texas R., 602; Creery v. Holly, 14 Wend., 30, per Nelson, J.; Thompson v. Ketchum, 8 Johns., 189.)

title: Brown v. Wiley (61 U.S. 442)


text: Talk:Brown v. Wiley (61 U.S. 442)

title: Talk:Brown v. Wiley (61 U.S. 442)


text:
Brown v. Wiley (61 U.S. 442)/Opinion of the Court

It is the lex fori which governs in this case as to the admissibility of the defence offered by plea, or of evidence to support it. The effort is not to show that by the law of Louisiana the legal import of the bill in question is different from the signification attached to it by the general commercial law, but that an agreement by parol, contrary to that legal import, was made at the same time. (Story's Conflict of Laws, secs. 634, 634a, 635, and cases cited in notes, particularly Yates v. Thompson, 3 Clark and Finnell, 577, 580, by Lord Brougham.)

2. The cases cited from Louisiana, of Dwight & Linton, 3 Rob. R., 57, and Robertson v. Nott, 2 Mart., N. S., 122, cannot, with great respect to the court which decided them, be sustained.

3. The agreement set up in this case would be void for repugnance and uncertainty. The other draft actually matured May 15, 1854, before the presentment of the one in suit, which was on the 10th of June, 1854; and the theory of the attempted defence necessarily is, that if the defendant had never chosen to reimburse the drawees the amount of the previous draft, if they had paid it without funds, or never to provide them with funds to pay it, the bill in suit never could be presented, or payment demanded.

1. That the cases of Dwight v. Linton, 3 Rob. La. R., 57, and Robertson v. Nott, 2 Martin, N. S., 122, have not since been followed, even in Louisiana, but substantially, though tacitly, overruled. (Police Jury v. Haw, 2 La. R. 42; Robechot v. Folse, 11 ib., 133; Arnous v. Davern, 18 ib., 42; Barthete v. Estebene, 5 La. Ann. R., 315; Gosserband v. Lacour, 8 ib., 75; Williams v. Flood, 11 ib., 113.)

2. That it is the lex fori, and not the lex loci contractus, which governs the question, according to the decisions in Louisiana herself. (Shewell v. Raguet, 17 La. R., 457.)

Mr. Justice GRIER delivered the opinion of the court.

Wiley & Co., plaintiffs below, declared on a bill of exchange drawn by Taylor Brown on Messrs. Campbell & Strong, of New Orleans, to order of plaintiff, dated 23d of March, 1854, and payable on the 1st of May, 1855. It was presented for acceptance on the 10th of June, 1854, and was protested for non-acceptance; of which the drawer had due notice.

It is admitted the bill was given for full value; but the defendant set up by way of special plea, and offered to prove to the jury, a parol agreement between him and the plaintiffs, that this bill should not be presented for acceptance till after a certain other draft, payable in May, 1854, was provided for, by placing funds in the hands of the drawees, who had agreed to accept the last bill after funds had been received to meet their acceptance of the first.

It is the rejection of this defence by the court below that is the subject of exception. It presents the question, whether parol evidence should have been received, to vary, alter, or contradict that which appears on the face of the bill of exchange.

When the operation of a contract is clearly settled by general principles of law, it is taken to be the true sense of the contracting parties. This is not only a positive rule of the common law, but it is a general principle in the construction of contracts. Some precedents to the contrary may be found in some of our States, originating in hard cases; but they are generally overruled by the same tribunals from which they emanated, on experience of the evil consequences flowing from a relaxation of the rule. There is no ambiguity arising in this case which needs explanation. By the face of the bill, the owner of it had a right to demand acceptance immediately, and to protest it for non-acceptance. The proof of a parol contract, that it should not be presentable till a distant, uncertain, or undefined period, tended to alter and vary, in a very material degree, its operation and effect. (See Thompson v. Ketchum, 8 John., 192.)

Any number of conflicting cases on this subject might be cited. It will be sufficient to refer to the decisions of this court, those of Texas, where the suit was brought, and of Louisiana, where the contract was made.

In the Bank of United States v. Dunn, (6 Peters, 56,) this court have declared 'that there is no rule better settled or more salutary in its application them that which precludes the admission of parol evidence to contradict or substantially vary the legal import of a written agreement.' The case of Brochmore v. Davenport, 14 Texas Rep., 602, a case precisely similar to the present, adopts the same rule. The case of Robishat v. Folse, 11 Louisiana, and of Barthet v. Estebene, 5 Ann. Rep., 315, and several others, acknowledge the same doctrine, thereby overruling some early cases in Louisiana which had departed from it.

This being the only point urged by plaintiff in error as a ground of reversal, the judgment of the court below is affirmed.


text: Talk:Brown v. Wiley (61 U.S. 442)/Opinion of the Court


text: Warner v. Norton

title: Warner v. Norton


text: Talk:Warner v. Norton

title: Talk:Warner v. Norton