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Johnston v. Jones/Opinion of the Court

This case was before this court at December term, 1855. It is reported as then presented, in 13 Howard, p. 250. The judgment of the Circuit Court was reversed, and the cause remanded for further proceedings. The action below was ejectment, brought to recover a part of the land formed by accretion on the shore of Lake Michigan, north of the north pier of the harbor, in the city of Chicago. The land in controversy was claimed to belong to water lot No. 34, in Kinzie's addition to that city. The plaintiff in error sought to recover it, in virtue of his ownership of that lot. Upon the last trial, many days were consumed in submitting to the jury the parol and documentary evidence of the parties. The former was printed as the cause proceeded.

At the close of the argument, prayers for instructions to the jury were submitted by both parties. All the testimony given in the case, the instructions asked for by both parties, and the entire charge of the court as given, are embodied in the record. They make an aggregate exceeding four hundred and fifty printed pages. The bill of exceptions embraces all this matter. It commences with an introduction, setting forth that the whole of the printed evidence was made a part of it, and terminates with a supplement containing the exceptions taken by the plaintiff in error. Six of these exceptions are to the rulings of the court in excluding testimony. They are in this form:

'2. Also to the ruling of the court in excluding the testimony of Samuel S. Greeley, as stated on pages 133 and 134 of the printed report.' The pages of the 'printed report' do not agree with the pages of the printed record. The reference, therefore, affords no aid in finding the matter referred to.

The 8th exception is as follows: 'Also to the charge of the court as contained on page 453, and as stated on page 462.'

It is then stated that, in compliance with the rule of this court, and for the sake of greater caution, the plaintiff below 'specially excepted on the trial, and the exceptions were allowed by the court,' to the parts of the charge which follow.

The first part of the charge, as thus set out, contains a distinct, legal proposition. To this the plaintiff distinctly excepted. This was proper. Then follows nearly two pages containing the views and reasonings of the court, comments upon the evidence, and several legal propositions. They are followed by this exception: 'To the instructions as given by the court to the jury, the plaintiff then and there excepted.' Exception was also taken to the refusal of the court to give to the jury the instructions prayed for by the plaintiff.

It has been found irksome and inconvenient to the court to look through this record and find the parts that are necessary to be considered. The necessity of performing this office has imposed upon us a labor which would have been avoided if the bill of exceptions had been properly framed. In 2 Peters, 15, Pennock and Sellers vs. Douglas, Mr. Justice Story remarked upon the irregularity, inconvenience, and expense of putting the entire testimony in a case into the bill of exceptions, and expressed the regret of the court that such a practice should prevail.

In 4 Howard, 297, Zeller's Lessee vs. Eckert and others, Mr. Justice Nelson, in delivering the opinion of the court, said: 'This mode of making up the error books is exceedingly inconvenient and embarrassing to the court, and is a departure from familiar and established practice.' 'Only so much of the evidence given on the trial as may be necessary to present the legal questions thus raised and noted, should be carried into the bill of exceptions. All beyond serves only to encumber and confuse the record, and to perplex and embarrass both court and counsel.'

The court desires to put on record again its condemnation of this irregularity, and to express the hope that a better practice may prevail hereafter in all cases intended to be brought before this court for revision.

The 38th rule of this court, adopted at January term, 1832, directs that thereafter 'the judges of the Circuit and District Courts do not allow any bill of exceptions which shall contain the charge of the court at large to the jury, in trials at common law, upon any general exception to the whole of such charge, but that the party excepting be required to state distinctly the several matters in law in such charge, to which he excepts, and that such matters of law, and those only, be inserted in the bill of exceptions, and allowed by the court.'

The rule was not observed in this case. It is questionable whether the exceptions, in respect of the greater part of the charge, are so distinct and specific that this court, if the point had been made, could consider them. It is well settled, that if a series of propositions be embodied in instructions, and the instructions are excepted to in a mass, if any one of the propositions be correct, the exception must be overruled. 3 Seld., 273, Hunt vs. Maghee; 2 Kernan, 313, Decker vs. Matthews.

The point was not made by the defendants. We have, therefore, not thought it necessary to consider it. As it may arise hereafter in other cases, we have deemed it proper thus to call attention to the subject.

The same evidence substantially was given upon this trial which was given upon the former trial, as reported in 18 Howard. It would unnecessarily encumber this opinion here to repeat it. The only features claimed to be new by the plaintiff in error are 1st, the title bond of Robert A. Kinzie to Gordon S. Hubbard, of June 10, 1835, for lot 34, and other property therein described. Johnston, the plaintiff, became the assignee of this bond, and under it procured his deed of October 22, 1835, from Robert A. Kinzie, for lot 34. 2d. The deed from John H. Kinzie to the plaintiff, dated July 1, 1857. This deed was offered, but not received in evidence.

The plaintiff in error relies upon the following exceptions. They will be considered as we proceed:

1. The court instructed the jury 'that the controversy turned upon what the fact was, on the 22d October, 1835, as to this water front. Had lot 34 a water front at that time north of the north pier?'

The instruction was according to the ruling of this court, when the case was formerly here. 18 How., 157.

The counsel for the plaintiff in error insists that the deed from Robert A. Kinzie to Johnston related back to the date of the title bond from Kinzie to Hubbard, and that this was a new element in the case, which required a change of the rule, as to the point of time to which the attention of the jury should have been directed. We do not think so. The doctrine of relation cannot be made to work such a result. It is a legal fiction, invented to promote the ends of justice. It is a general rule, that it shall do no wrong to strangers. It is applied with vigor between the original parties, when justice so requires; but it is never allowed to defeat the collateral rights of third persons, lawfully acquired. 4 J. R., 234, Jackson vs. Bard; 3 Caine's Rep., 262, Case vs. DeGoes; 18 Vin. Abr., 287, Relation B.; 13 Coke, 21 Menville's Case; 7 Ohio S. R., 291, Wood vs. Furguson.

The plaintiff could recover only upon a legal title. That title was vested in him, if at all, by the deed from Robert A. Kinzie of the 22d of October, 1835. The equities subsisting at any time between those parties could not in any wise affect the result of the action.

We are satisfied with this instruction. Under it the jury found a verdict for the defendants.

2. It is objected that the court did not instruct the jury correctly as to the value, as evidence, of the surveys, maps, and plats exhibited by the plaintiff upon the trial; but that, on the contrary, it was stated that they were not independent evidence, and that the jury were to receive them only in so far as they were shown to be correct by the other testimony in the case.

The facts touching these maps and plats are not stated in the bill of exceptions. We have been compelled to look over much of the testimony in our search for them. Without intending to lay down any general rule upon the subject, or to question the soundness of the authorities relied upon by the counsel for the plaintiff in error, we content ourselves with saying, that we are not satisfied that the court below committed any error in what was said in this connection.

3. It is insisted, that the court erred in laying down the rule for the partition of the alluvium. It would be sufficient to say, that the jury having found that lot 34, at the time referred to, had no water front north of the north pier, the question did not arise. The instructions given and those refused were, in this view of the subject, abstract and speculative propositions. Those given, whether right or wrong, could not have injuriously affected the plaintiff. A party cannot be allowed to complain of an error which has done him no harm. 9 Gill, 61, Ramsey et al. vs. Jenkins.

But as the views of the court have been misapprehended, and that misapprehension may mislead in other cases, we prefer to deal with the subject as if it were properly before us. The court below instructed the jury in the language used by this court when the case was here in 1855. Upon that occasion, it was intended to adopt the rule laid down by the Supreme Court of Massachusetts in 17 Pickering, 45, 46, Deerfield vs. Arms. That court said: 'The rule is-1, to measure the whole extent of the ancient bank or line of the river, and compute how many rods, yards, or feet each riparian proprietor owned on the river line; 2, the next step is, supposing the former line, for instance, to amount to 200 rods, to divide the newly formed bank or river line into 200 equal parts, and appropriate to each proprietor as many portions of this new river line as he owned rods on the old. When to complete the division, lines are to be drawn from the points at which the proprietors respectively bounded on the old, to the points thus determined, as the points of division on the newly formed shore. The new lines thus formed, it is obvious, will be either parallel, or divergent, or convergent, according as the new shore line of the river equals, or exceeds, or falls short of the old.' It is further said: 'It may require modification, perhaps, under particular circumstances. For instance, in applying the rule to the ancient margin of the river, to ascertain the extent of each proprietor's title on that margin, the general line ought to be taken, and not the actual length of the line on that margin, if it happens to be elongated by deep indentations or sharp projections. In such case, it should be reduced by an equitable and judicious estimate to the general available line of the land upon the river.'

To this rule we adhere. With the qualification stated, it may be considered as embodying the views of this court upon the subject. In this case, if lot 34 had been found to have had a water front north of the north pier at the time stated, the pier front would have had nothing to do with the partition to be made. The lake front, where the accretion occurred, only could have been regarded. The whole of that front should have been taken as the basis of the adjustment.

4. The court refused to instruct the jury as prayed upon the subject of the possession of the alluvium in controversy by the plaintiff in error. It is sufficient to say, that both the prayers upon that subject assume as an element, that lot 34 had, to some extent, a front on the lake north of the north pier. The verdict of the jury, for the purposes of this case, is conclusive upon that subject. It is frankly admitted by the counsel for the plaintiff in error, that if the lot had no such front, his propositions had no application to the case.

5. The court rejected the deed of John H. Kinzie to the plaintiff, when offered in evidence.

Robert A. Kinzie was the patentee of the land upon which his addition to the town of Chicago was laid out. He conveyed lot 34 to John H. Kinzie by a deed which, in describing the lot, referred to the original plat of the addition. John H. Kinzie conveyed the lot back to Robert by a deed describing it, with a reference to the plat as recorded. The original plat showed a water front to this lot. On the plat as recorded, this fact was wanting. The deed from John H. Kinzie to Johnston was executed for the consideration of twenty-five dollars, to correct the alleged error in the deed from John H. to Robert A. Kinzie, in pursuance of a covenant for further assurance in the deed of Robert A. Kinzie to Johnston, and thus to give the plaintiff a title to the alluvium claimed to belong to that lot, if he had not such title already.

If there were any mistake in the original deeds, of which Johnston had a right to avail himself, the remedy should have been sought by a proceeding in chancery had for that purpose, with all the proper parties before the court. The agreement of the parties themselves that there was such error, and a deed made in pursuance of that agreement, cannot affect the rights of third persons. A further and fatal objection to the admission of the deed in evidence is the time at which it was executed. It bears date more than seven years after the filing of the declaration in this case. In ejectment, the plaintiff must recover, if at all, upon the state of his title as it subsisted at the commencement of the suit. Evidence of any after acquired title is wholly inadmissible. 4 Term R., 680, Goodlitle vs. Herbert; 11 Illinois, 547, Wood vs. Martin; 13 Illinois, 251, Pilkin vs. Yaw; 8 Pet., 218, Binney vs. The Canal Co.

6. 'The ruling of the court, in excluding the testimony of Samuel S. Greeley, as stated on pages 133 and 134 of the printed report.'

This, we suppose, refers to the following passage in the testimony of this witness, as it appears in the printed record:

'2. (Presenting Allen's map of 1838.) Look at the accretion at the north side of the north pier, and tell me whether the ratio of increase between what is represented there in '34 and '37, and what was made from '37 to '38, call for any accretions made in '34 and '35; and if so, to what extent and in what year?'

The facts disclosed in the testimony show that Allen's map was not itself original and reliable evidence. A calculation founded upon it was therefore clearly inadmissible. The admissibility of this evidence, as regards other objections, would depend upon a proper foundation being laid for it. As it is not necessary, we have not gone into any inquiry upon that subject.

7th. 'The ruling of the court, in excluding the testimony of Capt. J. D. Webster, as shown on page 191 of the printed report.'

It appears, in the testimony of this witness, that he went to Chicago, in 1841 or 1842, as an officer of the United States. The following also appears:

'Question. Did you hold the position of superintendent of harbors here-the same that Captain Allen did once?

'Answer. Yes, sir, I did, for a while.

'Question. State whether it was any part of your duty, as superintendent of the harbor, to report to the Government the changes that were occurring in and about the harbor?'

The latter question was objected to, and the objection sustained.

The testimony which the question objected to sought to elicit would, in itself, have been immaterial and irrelevant. If intended, as part of the evidence proposed to be drawn out, to prove the duties of Lieut. Allen at a former period, as the language of the court, in deciding the point, seems to imply, it was inadmissible also upon that ground. The official duties of Lieut. Allen could not be proved in that way.

8th. 'The rulings of the court, in excluding evidence tending to affect the credibility of one of defendant's witnesses, viz., Benjamin Jones, as stated on pages 360 and 362 of the printed record.'

The witness Jones was the brother of the defendant Jones, and had been examined in chief for him. In his cross-examination, he stated that his brother formerly owned lot 35, adjoining lot 34; that it had been sold at sheriff's sale; bought in by Dennison; by Dennison conveyed to him, and afterwards by him back to his brother.

He was asked: 'Did you pay Dennison anything?'

This question was objected to by the defendants, and overruled by the court.

We estimate at its highest value 'the power of cross-examination.' The extent to which it may be carried, touching the merits of the case, was defined by this court in 14 Peters, 445; The Philadelphia and T. R. R. Co. vs. Simpson. The rule there laid down, this court has since adhered to. A cross-examination for other purposes must necessarily be guided and limited by the discretion of the court trying the cause. The exercise of this discretion by a Circuit Court cannot be made the subject of review by this court. We have looked through the long and searching cross-examination to which this witness was subjected. There would have been no error if the objection had been overruled. There was none in sustaining it.

9. 'The ruling of the court, in excluding the evidence of Theophilus Greenwood, offered by the plaintiff, as rebutting evidence to the evidence of possession of the alleged accretion by defendants, at the date of the deed to the plaintiff, as stated on page 424 of the printed report.'

Upon looking through the testimony of the witness, we find he was allowed to testify fully upon the subject of possession. The court expressly held, that he should be permitted to do so. The plaintiff in error then proposed to prove by him where, at a certain time, 'the actual water line east of or upon water lot 34 was, in reference to the east line of said lot 34;' * *  * 'which the court refused, on the ground that it should have been introduced as evidence in chief, not as rebutting.' That this evidence was of the former and not of the latter character, seems to us too clear to admit of discussion.

'The mode of conducting trials, the order of introducing evidence, and the times when it shall be introduced, are matters properly belonging to the practice of the Circuit Courts, with which this court ought not to interfere.' 14 Peters, 448, P. and T. R. R. Co. vs. Simpson.

These are substantially all the points pressed upon our attention by the counsel for the plaintiff in error, in his able and elaborate argument. They are all to which we deem it necessary to advert.

We find no error in the record. The judgment below must be affirmed, with costs.

Decree of the Circuit Court affirmed.

title: Johnston v. Jones/Opinion of the Court


text: Talk:Johnston v. Jones/Opinion of the Court

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United States v. Knight's Administrator (66 U.S. 227)

This was an appeal by the United States from the decree of the District Court for the northern district of California. The appellee (Morehead) was administrator of Wm. Knight, and in that character he presented his petition on the 3d day of March, 1852, to the board of commissioners for the investigation of private land claims, agreeably to the act of Congress passed March 3, 1851. The commissioners rejected the claim, and the petitioner appealed to the District Court, where it was confirmed. The claim was for ten leagues (sitios de ga nada mayor) of land, situate on the western bank of the Sacramento, including the region lying between that river and the arroyo Jesus Maria, and being a large part of what is now the county of Yolo.

The title averred in the petition as the basis of the claim was a grant from Pio Pico, Governor or Political Chief of both the Californias, dated on the 4th of May, 1846. The claimant produced certain papers from the Surveyor General's office. The first purported to be a petition addressed by William Knight to the Governor, bearing date at Sonoma, on the 1st day of February, 1846, describing the land, setting forth the necessities of his family as a reason for the appropriation of it to him by the superior authority, and soliciting the concession in the ordinary form. On the margin of this was written a short note, 'Granted as prayed by the petitioner,' with an order that a title be issued. This was signed 'Pico.' Immediately following the petition was a formal and very full decree of concession, dated Angeles, May 4, 1846, to which was attached the full name of Pio Pico, with his rubric; and it was attested by Jos e Matias Moreno, as secretary. To these documents was added a borrador of a grant, also dated May 4, 1846. Several lines of this borrador had been written and a break made, when the writer (the same, or some other) commenced again at the beginning and wrote to the end of it. The names of the Governor and secretary at the foot of the borrador were admitted not to be in their hands; but Nicholas Den, who had been a magistrate in California before the conquest, and John W. Shore, a clerk in the Surveyor General's office, testified that they were acquainted with the handwriting of Pio Pico, and believed his signature to the marginal order and decree of concession to be genuine. Moreno himself was also called, and he swore that he recollected Knight's presentation of his petition in May, 1846. He was shown a copy of the espediente, and said he believed it was a copy of the decree of concession and of the original grant. The decree he declared was made and signed by the Governor, and the title was issued and delivered to Knight by himself as secretary, in which occupation he continued until 1848. But he assigned no dates to the making of the decree or the issuing of the title, or to the delivery of it, nor did he say that the grant was signed by the Governor, or recorded in any book, or that the espediente had been filed in the secretary's office. There was no map, no order of reference to any local magistrate or subordinate officer, and no inform e in the espediente. But the petition refers to a map, and the decree of concession, as well as the borrador of the grant, recites a report from the first alcalde of Sonoma.

These papers were among the espedientes arranged, numbered, and indexed in the years 1847 and 1848 by W. E. P. Hartnell. Mr. Hartnell was the clerk or assistant of Capt. Halleck when the latter was secretary for the military government established by Gen. Kearney after the taking of Monterey. Capt. Halleck was a witness in this cause, and deposed that, besides the records which were brought up from Los Angeles, a large quantity were found lying on the floor of the custom-house at Monterey and piled up against the wall, which were by himself and Mr. Hartnell placed among the records of the office. Private individuals also brought papers there and had them filed, but he or Hartnell always endorsed on these private papers the time at which they were deposited. Capt. Halleck's testimony does not disclose his reasons nor those of Hartnell for believing that the papers found in the custom-house were land records of the Mexican Government.

To prove the loss of the original grant and excuse its nonproduction, the claimant took the deposition of Samuel Brannon, who testified that in 1847 Knight came to San Francisco from the lower country, where he had been bearing despatches for the Government, and that he told the witness of an attempt made (he did not say when or where) by the Sanchezes (native Californians) to lasso him, in consequence of which, and of his fast riding to escape them, he had lost his title papers. But he did not describe or allude to any particular paper as being lost.

The evidence showed that Knight was a native of the United States, had gone to New Mexico as early as 1830, where he had married 'a daughter of the country,' and emigrated thence to California about 1842. In 1843 he seated himself and his family on the right bank of the Sacramento, at a place since called 'Knight's Landing,' and within the limits of this claim. In that year, or the year after, he built himself a house, and in 1845 he had a wheat-field of five or six acres under cultivation. In 1846 he had a garden of two or three acres near his house planted with corn and melons. He left his home early that summer, was in the Bear Flag insurrection, and joined the American army soon after its first appearance on the coast. He served during the war, and died in 1849, at the gold mines on the Stanislaus river.

Knight's relations with the Departmental Government of California before and after Pico's accession to power were shown by testimony taken in the cause, and by reference to historical and official documents. In 1842, very soon after he came into the country, he solicited Micheltorena for a concession of the same land which is now claimed. His petition was successively referred to the Prefect of Monterey, the judge of New Helvetia, and the First Alcalde of Sonoma, the last of whom reported against him on the ground that the land solicited had been previously conceded to, and was then occupied by, Don Thomas Hardy. Micheltorena never gave him any grant. He joined the standard of that chief in the autumn of 1844, when his authority was resisted by Pico and his partisans in the south. But he was not included within the terms of the general title which Micheltorena made to his followers, through Captain Sutter, at Santa Barbara, on the 22d of December, because he had no report from Sutter, and the report which he had from the Alcalde of Sonoma was adverse to him. Nevertheless Sutter, on the 15th day of April, 1845, gave him a copy of the general title, believing him (as he swore) entitled to the land for his military services under Micheltorena against Pico, the latter of whom was in power as political chief of the Department at the time when the copy was so delivered. After receiving this copy of the general title, and after the conquest of the country by the Americans, Knight, on the 8th October, 1847, got Jacob P. Leese (who had been the First Alcalde of Sonoma in 1844) to alter his inform e by inserting into it the words 'una parte de ella,' and procured from Hardy and Leese certificates that the land solicited by him in 1844 did not interfere with Hardy's ranch, as Leese had then reported. He sought the advice of several friends on the value of this title, and often incidentally spoke of it to others, but to none of them did he show or mention any except the Sutter title, unless to Colonel Fremont, who does not recollect the papers he exhibited nor the Governor under whose grant he claimed, but 'thinks he rather spoke of Pio Pico.' The papers from Micheltorena and Sutter were found in the possession of his family after his death. The knew of no others. The hostility of Knight to the Pico government was like that of the other American settlers in the north-uniform and consistent. Captain Gillespie stated in his deposition that the causes of the Bear Flag war were in operation from the time of Fremont's appearance on the frontier in March, 1846, and Colonel Fremont himself testified that Knight was prominently engaged in the insurrection from the beginning, but not ostensibly so, for he was employed in the month of May as a spy.

Harrison Gwinn deposed to a conversation with William McDaniel, (who, at one time, prosecuted this claim,) in which the latter said that when he took hold of the case there were no papers, but he had made out as good a set of papers as there was to any grant of land in California. McDaniel being produced by the claimants, positively contradicted the testimony of Gwinn. He said that he had seen certain papers at Benicia with Knight's name upon them, but not being able to read Spanish, he could make nothing of them.

James M. Harbin swore that Knight was at Los Angeles three weeks in the spring of 1846, and left there the first week in May. Nicholas Den declared in his deposition that he had seen him at Santa Barbara in March, April, or May, going to and returning from Los Angeles. Both these witnesses say that Knight told them he had received a title from Pio Pico. On the other hand, Major Bidwell, Captain Sutter, Major Gillespie, Samuel Neal, Colonel Fremont, William Bartee, S. W. Chase, William Gordon, Nicholas Algier, John Grigsby, testified more or less directly to facts wholly inconsistent with the probability that he could have been at Los Angeles at the date of the alleged grant. The unusual height of the waters (they swore) would have made the journey extremely difficult. The hostile relations between the government at Los Angeles and the American settlers on the Sacramento would have made it perilous for one of them to travel in the South, and some of the witnesses swore that they knew him to be at home during the months of April and May. It did not appear that he ever spoke of having made such a journey.

Mr. Shunk, of Pennsylvania, for the United States. 1. Without record evidence this claim cannot be confirmed. The papers produced by the claimant, and called an espediente, are not records. No witness has ever traced them to the custody of the Mexican officials, who kept the archives of California before the conquest. They are indexed, it is true, by Hartnell, who was a translator in the office of the Secretary of State in 1848. But Hartnell was nothing but an American clerk, and the fact that he covered these papers with a wrapper, endorsed them as an espediente, gave them a number, and noted them in an Index, goes no farther to prove them records than would the like scribbling of any clerk in the Surveyor General's office of our own day. Hartnell's endorsement proves that these papers existed at the time he made his Index, but nothing more. They bear no official impress, made by Mexican hands during the days of the Mexican rule. All the dignity and value they have they got from Hartnell, whose endorsement could not transmute worthless papers into records.

2. Granting them to be records, they do not prove that a valid title was issued to Knight. There is no order of reference, no inform e, no map. Knight asks for ten leagues of land; Pico grants it. The papers, if they prove anything, simply prove that Pico defied the law. Mexican Colonization Law of 1824; Regulations of 1828; United States vs. Cambuston, (20 How., 59;) United States vs. Fuentes, (22 How., 443.)

3. There is no evidence that any grant was ever delivered to Knight. Moreno, the secretary, who is the only witness to this point, is laid out of the case by Judge Hoffman as being unworthy of belief. Moreover, it is proved that Knight was not and could not have been in Los Angeles at the time it is pretended this grant was delivered.

4. Knight was the most unlikely person in the world to get such a grant from Pio Pico. He had been an active and open follower of Micheltorena, and belonged to a class of people who hated Pico, and were hated by him in return. Only a year before the date of this pretended grant, he was in arms against Pico, under Micheltorena, and within two weeks after its date, was in arms against him under Fremont. Pico made no grant to any adherent of Micheltorena, and to this rule Knight was the last man to be made an exception.

5. Knight never occupied and the land after the date of this grant in compliance with its terms. He cultivated a few acres very carelessly, and at long intervals. But he even ceased this little farming from the date of his grant, and virtually abandoned the ranch.

6. All Knight's acts and declarations from the date of this pretended grant to the day of his death are utterly at variance with the idea that he had any such title. He never claimed under it, spoke of it, or exhibited it; but claimed under, spoke of, and often exhibited another title. Even his wife does not appear ever to have heard of it until after his death.

Mr. Stanton, of Washington city, and Mr. Sunderland, of California, for the appellee. 1. The espediente is found among the archives, and bears every mark of genuineness. The signatures of the Governor and Secretary are proved to be genuine, and paper, ink, and every mark by which forgery can be detected, in this case bear comparison with papers in the archives of the same date and of undoubted authenticity. The fact that the espediente is incomplete is a strong circumstance in its favor. If manufactured, the papers, in form, would have been perfect. The grant itself would have been found, or a new one made from the copy on file.

2. This espediente was in the archives early in 1847, as is shown by Hartnell's Index, and by the testimony of Halleck in relation to the method of making that Index. It would have been difficult and almost impossible to introduce papers into the archives by stealth while they were in the custody of Halleck and Hartnell, and where documents were deposited by private persons the fact and date of such deposit were endorsed upon them at the time. The papers in this case bear no such endorsement. The Hartnell Index is a document of high authority. Mr. Hartnell was a man of unquestionable integrity, an accomplished Spanish scholar, and no man in California, with the exception of his brother-in-law Jimeno, was better acquainted with the Mexican laws and Mexican records.

3. It is not unlikely that Pio Pico would have made a grant to Knight on the 4th of May, 1846, but very improbable that he would have made one after that time. Knight had married a Mexican woman, was almost a Mexican himself, and had frequently been employed by the Government. Pico was, therefore, likely to conciliate him and endeavor to secure his friendship by a grant, in view of the difficulties which surrounded the Government in May, 1846. After Knight had joined the Bear Flag and helped to drive Pico out of the country, the idea that he would reward him with an ante-dated grant for these services against himself is preposterous. Moreover, Pico and Knight never met after May, 1846. Knight never had access to the archives after the time when he might have got a grant from Mexico if Pico had sent him one; nor did he introduce the espediente in this case among the archives, because he never referred to it. Having lost his grant, he seemed ignorant to the last that there was any record which might serve him in its stead. The opponents of the claim ought to present some theory of their own to show when, by whom, and how the grant was made, if not made as the claimant alleges.

4. The delivery of the grant is proved by Moreno, and the fact that Knight was in Los Angeles on the 4th of May, 1846, by Harbin. Den saw him on his way there and back, and Davis saw him at the 'Buttes' on his return. Moreno, unfortunately for many honest claimants whose grants he attested, is unworthy of belief. But in this case he is fully corroborated.

5. The attempt of the Government to prove that Knight was at home at the date of his grant, and could not have made the journey to Los Angeles on account of the floods, is a failure. Those witnesses who swear that he was at home in May fix the time by circumstances which have no connection with the year 1846, and may have happened just as well in 1847. The rest contradict each other and themselves. The testimony touching the floods avails nothing, for Knight went by the coast route, which was open beyond dispute. The alleged hostility of the Californians to the American settlers is equally futile as an argument. Knight was a bold and skilful horseman, knew everybody on the road, and carried an unerring rifle. To such a man the dangers of the journey were as nothing.

6. The loss of the original grant is proved by the deposition of Samuel Brannan, to whom Knight told the fact immediately after it occurred, and told it under circumstances which confirmed the truth of his statement.

7. Knight did repeatedly speak of his grant from Pico. He mentioned it to Colonel Fremont, to Davis at the Buttes when he came into the camp, to Harbin at Los Angeles when he got it, and to Den at Santa Barbara on his return home. His omission to speak of it to other witnesses with whom he conversed on the subject after the spring of 1847 is easily explained. He had then lost the grant; he did not know of the espediente in the office, and thought he had no other resource but to fall back on the Micheltorena papers.

Mr. Black, of Pennsylvania, in reply. The United States are not bound to explain how or by whom the fraud was concocted or executed. It is sufficient that we show the theory of the claimant to be false. United States vs. Luco, (23 How., 515.)

Knight's silence concerning a title from Pico can be accounted for in only one of three ways: (1,) The papers must have been fabricated after his death; or, (2,) before his death, without his knowledge; or, (3,) if they existed in his lifetime, and he knew it, he must also have known that they were false, and was therefore afraid to speak of them, lest he should provoke an inquiry which might result in his detection or exposure.

The mere occupancy of land, without a grant from the nation, gives no title under the Mexican law. It is true that where the record of the grant is lost, and the claimant is driven to secondary evidence, the fact of occupancy, with boundaries marked by the proper officers and permanent improvements in the face of the Mexican authorities, may be strong evidence in aid of the presumption that the title was originally regular. United States vs. Jos e Castro, (24 How., 346;) United States vs. Teschmaker, (22 How., 392.) But where a party comes into court with a grant which he cannot prove, or where he produces one which, on examination, turns out to be spurious or void, there the occupancy of the claimant only shows that he was dishonestly trying to possess himself of that which was not his own. This case, like others of the same class, must turn on the question of title.

Did Knight obtain a grant from Pico on the 4th of May, 1846? If he did, and if he has proved it by evidence from the Mexican records, then there is an end of this controversy; for such evidence is and ought to be conclusive. But these papers have no pretensions to be regarded as records. It is true they are now in the Surveyor General's office, and may have been there as early as 1848, when Mr. Hartnell finished making his Index. That shows only that they were not forged since 1848. They exist now in the office, and existed when they were first seen there, merely as loose papers, not recorded or numbered, and wholly unconnected with any other papers or books which are known to be records. The mere fact that a loose paper is found in a public office does not give to that paper the dignity or entitle it to the faith of a public record without some evidence, intrinsic or extrinsic, to show that it is properly a part of the records. Besides, Captain Halleck's testimony in this case shows that there are many papers now in the Surveyor General's office which never had a place among the Mexican archives. All the real records of land titles are known to have been in the Secretary's office at Los Angeles when the country was taken by the American army. But Captain Halleck lets us know that he and Mr. Hartnell and General Kearney mingled with them a large quantity of other papers found in the custom-house at Monterey, and that their bulk was further swelled by private contributions. It is notorious, too, that many false papers were placed among them at different times by dishonest claimants, for their own fraudulent ends. It is impossible, therefore, to tell whether a loose paper found in the Surveyor General's office comes from the sweepings of the custom-house floor, from the documents openly deposited by private persons, or from the felonious droppings of those who fabricated them. Limantour's papers were found in a public office. Benito Diaz had his, by some means, placed in the Surveyor General's office. Francisco Pico's espediente was found there; and Osio appealed, like the present claimant, to what he called 'the archives.' But those men have been gibbeted in the face of the world as the fabricators of false titles.

Jimeno's Index is a catalogue of genuine espedientes, made before the conquest, by a Mexican officer, who had the means of knowing, and did know, the false from the true. Hartnell's is a list in which the genuine are mingled and confused with the fabricated by an American clerk, who knew not how to distinguish the one from the other. It and its author are alike unworthy of the eulogy pronounced on them by the learned counsel for the claimant. Mr. Hartnell could read, write and speak Spanish. That was his sole qualification. He knew nothing of Mexican laws or records. He was wholly without experience, and the egregious blunder he committed in taking the false papers at the custom-house for land records, shows that he was utterly destitute of judgment.

The journals of the Departmental Assembly prove that this pretended espediente did not exist as a Mexican record. If it had, it would have been included in the forty-five sent into that body on the 8th of June, 1846. There is no reason to believe that any unapproved grant then in the office was withheld by the Governor. United States vs. Bolton, (23 How.)

No living witness pretends to have seen these papers among the records in the Secretary's office. Pico was not called at all, and Moreno was not asked a question on the subject.

These papers, then, are not records, and that brings the case to a close; for, as a record, if the claimant had one, would be conclusive in his favor, so the want of a record is conclusive against him. This court has pledged itself to confirm no California title on anything short of record evidence.

But it may be worth while to look at the parol evidence in the cause, for the mere purpose of vindicating the wisdom of the rule which excludes it altogether.

Conceding, for the argument's sake, that a public grant for ten leagues of land may be proved by any kind of evidence which will produce a moral conviction on the mind of an impartial judge that the fact is true, how much ought to be required in a case like this? There are several considerations which must be borne in mind here:

1. This belongs to a very suspicious class of California land grants. It bears the name of Pio Pico, and is dated on the eve of the conquest. In Cambuston's case the court said that all grants of that kind should be carefully scrutinized. They have been so scrutinized, and not one of them has stood the test. Of nine grants bearing that name, and dated between December, 1845, and July, 1846, and contested here on the ground of fraud, not one has been confirmed. Outside of the forty-five confirmed by the Departmental Assembly this court has never seen a genuine grant of Pio Pico. It will be remembered that Dalton's title was dated the first year of Pico's administration; was found recorded in the Toma de Razon; was among the forty-five, and was admitted to be genuine.

2. Knight was an American settler on the Sacramento, thoroughly identified with the other settlers there, and actively engaged with them in all their movements, political and military, before and at the time, and immediately after the date of this pretended grant. Between Pico's government and the chiefs of his party on the one hand, and those settlers on the other, there was no sentiment but that of bitter hostility. Three times within the space of eighteen months they confronted one another with arms in their hands. The enmity was intensified in March, 1846, by the appearance of Fremont on the frontier, and the readiness of every American (Knight among the number) to join him. At the date of this decree of concession, Knight was in actual rebellion against the authority of the Governor, whose name is signed to it.

3. There are many and obvious marks of falsehood upon the face of the papers. There is no map. The want of an inform e is a fatal objection in law to the validity of the grant, and it is also a strong circumstance to show that the whole title is a fabrication. Would Pico have made a grant to a person in such relations with his government without the usual investigations? The recital of an inform e is manifestly false. The inform e is not on the back of the petition. Suppose it to have been written on a detached paper, it should be in the espediente. If it was lost, its loss might have been proved. The Alcalde who made it might have been called. In the absence of such proof the court is bound to believe it never existed.

To establish the honesty and good faith of the title in the face of this strong circumstantial evidence against it will require clear evidence, overwhelming in amount, free from serious contradiction, and perfectly pure in the source from whence it comes. And what have they produced to show the execution, the delivery, or the recording of the grant?

Covarrubias proves nothing about it. Den and Shore swear only to their opinion of the handwriting, which this court has declared to be inadmissible. The whole weight of the case rests upon Moreno. The value of his testimony need not be discussed, for the counsel of the claimant candidly admit him to be unworthy of belief. There is no other evidence that the grant was executed, delivered, or recorded. If Den and Harbin were believed, it would only show that it was possible for Knight to have got a grant in May, 1846. Shall the mere naked possibility that he might have got a grant, stand for proof that he did actually get one?

But even this possibility is swept away from the claimant by the powerful and irresistible proof that Knight was not at Los Angeles, but at home in the valley of the Sacramento, during the whole spring.

If such a grant was ever delivered to Knight, why is it not produced? There is no scintilla of evidence to show its loss. Brannan proves only that Knight told him he had lost his title papers. This declaration is not evidence of the fact declared; much less does it prove the loss of a particular paper, which was not mentioned. That he lost any papers at all must be untrue, for all the title papers he ever had or ever pretended to have were found safe in the custody of his wife, after his death.

This case has all the bad features in it of the worst cases that ever came from California. Like Santillan, the claimant asserted his right to the land under a different title from that now set up; like Luco, he is without record evidence; and like Diaz, he is met by a clearly proved alibi.

If the claimants had been content to rest the cause upon the papers alone, the claim would have been rejected, not as a manifest forgery, but on the ground of insufficient, illegal, and unsatisfactory proof. But they chose to name the place and the time at which the grant was delivered to Knight-at Los Angeles, on the 4th of May, 1846-and they called Den and Harbin to prove it. This gave to the Government the opportunity of demonstrating the falsehood of the whole story by showing that Knight was not there, but seven hundred miles away, at the time. There cannot be an earthly doubt that the papers are fabricated.

Mr. Justice CLIFFORD.


text: Talk:United States v. Knight's Administrator (66 U.S. 227)


text:
United States v. Knight's Administrator (66 U.S. 227)/Opinion of the Court

This was a petition for the confirmation of a land claim under the act of the third of March, 1851, and the case comes before the court on appeal from a decree of the District Court of the United States for the northern district of California, reversing the decree of the commissioners, and confirming the claim. William Knight died in October, 1849, and, of course, never presented any claim under that law for confirmation. Administration on his estate was granted to the appellee on the sixth day of November, 1851, and, on the third day of March following, he, as such administrator, filed a petition before the commissioners, claiming a tract of land, called Carmel, situated on the borders of the Sacramento river, and containing ten square leagues. Said tract, as the petitioner represented, was granted to his intestate on the fourth day of May, 1846, by Governor Pio Pico, in the name of the Mexican nation; and was afterwards, during the lifetime of the decedent, possessed and occupied by him pursuant to the grant under which the claim is made. Copies of certain documentary evidences of title were also presented and filed at the same time, and the petitioner represented in effect that he relied on those documents, and such other evidence as he might be able to obtain, to show that the claim ought to be confirmed. Assuming that the theory of claimant is correct, the title is one, undoubtedly, that ought to be protected; but it is denied by the United States that any such grant was ever made, and that is the principal question in the case. Vacant lands in California belonged to the Supreme Government, and the laws for the disposition of the same emanated from that source. General rules and regulations upon the subject were accordingly ordained, authorizing the Governors of Territories, under certain specified conditions, to grant such lands to such empresarios, families, and single persons as might ask for the same for the purpose of settlement and cultivation; but it was expressly provided that grants made to families or single persons should not be held to be definitively valid, without the previous consent of the territorial deputation. By those rules and regulations, every person soliciting such lands was required, in the first place, to address a petition to the Governor setting forth his name, country, profession, and religion, and also to describe the land asked for as distinctly as possible, by means of a dise no or map, which is usually annexed to the petition. He was not required to prove his representations, but it was made the duty of the Governor to obtain the necessary information to enable him to determine whether the case, as presented in the petition, fell within the conditions specified in the regulations, both as regarded the land and the applicant. Petitions and grants, with the maps of the land granted, were required to be recorded in a book kept for that purpose, and a circumstantial account of the adjudications was directed to be forwarded quarterly to the Supreme Government. To bring the claim within these rules, the claimant introduced the following documents before the commissioners:

1. A petition, in the usual form, signed by his intestate, bearing date at Sonoma, on the first day of February, 1846, and addressed to Governor Pio Pico.

Recurring to the material parts of the instrument, it will be seen, that the petitioner asked the Governor to grant him 'the tract set out in the annexed map,' meaning the map annexed to the petition, containing ten sitios de ga nada mayor, more or less; and after describing the tract, and giving the outboundaries of the same, stated that, according to the annexed report of the magistrate of Sonoma, 'there seems to be no obstacle on the part of any one to its concession.' No such map, however, as that referred to was annexed to the petition at the time it was introduced; and the espediente contained no report of the Alcalde of Sonoma, or of any other such magistrate.

2. Two decrees, signed by Governor Pio Pico, both dated Angeles, May 4th, 1846, were also introduced by the claimant. One was written, as usual, in the margin of the petition, and was as follows: 'Granted, as prayed by the petitioner. Let the title be issued by the Secretary of the Department.' But the other, which is signed also by the Secretary, was appended to the petition, without any intervening inform e, or order for the same; and yet the recitals of the decree plainly import that the action of the Governor, in making it, was based not only upon the petition, but also upon a report of the Alcalde of the district, as set forth in the petition. Like the preceding decree, it directs that a proper title be issued to the petitioner; and, also, that the espediente be kept, to be submitted to the Departmental Assembly.

He also introduced another document, which was appended to the last named decree, and which purports to be a copy of the 'titulo' or grant on which the claim is based. It is dated at the city of Los Angeles, on the fourth day of May, 1846, and is in the usual form.

Failing to produce the original grant, the administrator introduced his own affidavit, to show that he had made diligent search for the same among the papers of the deceased, and elsewhere, and that he was unable to find it. Three witnesses were examined by the claimant before the commissioners; but the commissioners rejected the claim, and the claimant appealed to the District Court. Testimony was taken on both sides in the District Court, and the claimant also introduced certain additional documentary evidences which it becomes important to notice.

Nearly three years before the petition was presented to Governor Pio Pico, the same party, as appears by these documents, had presented a similar petition to Manuel Micheltorena, then holding the office of Governor of California, asking for a grant of the same tract of land. This petition, as then presented, was dated at Monterey on the eighth day of May, 1843, and on the same day the Governor referred it to the Prefect of the district for a report. John A. Sutter was at that time the principal civil officer in that section of the department, and the Prefect accordingly referred the petition to him, directing him to furnish the necessary information; but he referred it to the Alcalde or justice of the peace of Sonoma, for the reason, as stated, that the land was in that district. On the twenty-sixth day of January, 1844, the last named officer reported, to the effect that the land solicited was occupied by virtue of a concession from the Governor in favor of another individual.

That report was duly transmitted to the Governor; and, on the twenty-seventh day of March following, he referred the whole case to Manuel Jimeno, who, on the same day, made a report, recommending that the petition in question, and all similar cases, should be suspended, until the Governor could visit that frontier. Here the matter dropped; and, for reasons which will presently appear, the petition was never again considered.

Certain prominent persons belonging to the department, of whom Pio Pico was one, in the fall of 1844, revolted against the authority of Micheltorena; but John A. Sutter supported the constitutional governor, and was sent by him to collect the militia of the northern frontier, to put down the rebllion. Some of the adherents of the latter had certain claims to lands, and he suggested to the Governor, in the emergency, that grants should be made to them, probably as the most available means to secure their services. Pursuant to that suggestion, the Governor sent to that officer the document known as the 'Sutter general title,' promising grants to all such claimants as had previously obtained from him a favorable report. According to the testimony of Sutter, the claimant's intestate was properly included in that category; and he accordingly, on the fifteenth day of April, 1845, gave him the copy of that document, which is exhibited in this record.

Such is the substance of the documentary evidences of title introduced by the claimant. All those relating to the proceedings on the petition presented to Micheltorena, together with the copy of the Sutter general title, were found among the papers of the deceased; but those appertaining to the Pio Pico espediente, except the alleged copy of the grant, are traced copies of originals, now on file in the office of the Surveyor General of California.

It is not pretended that the Sutter general title has any validity, or that the claim in this case can be upheld by the proceedings that took place on the first named petition. Such pretensions, if made, could not be supported, as this court has determined, on several occasions, that the former was invalid; and it is quite obvious that nothing was done by Governor Micheltorena to give any pretence of title whatever to the claimant's intestate.

But it is insisted that the parol proofs, taken in connection with the espediente of 1846, clearly show that Pio Pico, on the fourth day of May in that year, actually issued the grant to William Knight; and that, having proved its execution, delivery, and loss, the claimant is entitled to introduce secondary evidence, to show its contents. Great reliance is placed upon the espediente, as furnishing a ground of presumption that the grant was issued; and, indeed, it is contended, that if it appears that the espediente is genuine, then the grant must be confirmed. Whether the proposition, as stated, be correct or not, it may properly be admitted that the question, as to the bona fides of the espediente, is one of very considerable importance in the case. When complete, an espediente usually consists of the petition, with the dise no annexed; a marginal decree, approving the petition; the order of reference to the proper officer, for information; the report of that officer, in conformity to the order, the decree of concession, and the copy or a duplicate of the grant. These several papers-that is, the petition, with the dise no annexed, the order of reference, the inform e, the decree of concession, and the copy of the grant, appended together in the order mentioned-constitute a complete espediente, within the meaning of the Mexican law.

Three defects are obvious in the document exhibited in the record. There is no map annexed to the petition, and there is neither an order of reference nor an inform e; and the inference from the fact that the decree of concession immediately follows the petition is a reasonable one, that no order of reference or report were ever made.

Those defects, however, are by no means the principal circumstances that tend to create distrust as to its genuineness. Much graver difficulties than any suggested by the defects of the document arise, from what appears affirmatively, on its face. Both the petition and the decree of concession refer to the report of the Alcalde of Sonoma; and the language of the latter plainly imports that it was founded, in part at least, upon a report of that magistrate. No such report, so far as appears, was made by that officer, in connection with the espediente under consideration. He never made but one report, and that, as clearly appears, was adverse to the application, and was made to Micheltorena on the twenty-sixth day of January, 1844, in which he stated that the land solicited was occupied by virtue of a concession from the Governor in favor of another individual.

Looking at the terms of the report, it is clear that it is not to that report, as originally framed, that reference is made, either in the petition or the decree of concession. On the contrary, it is evident that they both refer to a favorable report, and not to one that was adverse, which entirely negatives the theory that the inform e previously made and on file was carried into this espediente. To suppose that the Governor referred to an inform e that never had any existence, is a theory that cannot be adopted, as it would impute to him an inconsistency little better than a fraud upon the Government. Some other theory, therefore, must be adopted, to explain the transaction. Referring to the record, it appears that Jacob P. Leese was the Alcalde who made that report, and he was examined as a witness in behalf of the United States. He testified that the words una parte de ello, translated, a part of it, now appearing at the close of the report, were inserted by him on the eighth day of October, 1847, at the solicitation of the claimant's intestate. That alteration in the inform e was made, as he states, in the presence of the individual who, according to his original report, was in the occupation of the land by virtue of a concession from the Governor. Two certificates were also introduced by the claimant, which go very far to confirm the statements of the witness, both as to the time when the addition was made to the inform e, and the attending circumstances. One of those certificates is signed by the witness himself, in which, after referring to the inform e, he states, in effect, that he has discovered, since he made that report, that the statement therein made, that the land was occupied by another individual, was erroneous; and the other certificate is signed by the person referred to in the inform e as the occupant of the land; and he certifies that the land solicited, if 'regulated to the plan,' would not interfere with his possession. These certificates bear date on the eighth day of October, 1847, and the witness testifies that he made the alteration in the inform e at the time he gave that certificate. Micheltorena was driven from power in 1845, and on the tenth day of August, 1846, Pio Pico fled from the city of Los Angeles, and never afterwards had possession of the archives or records of the department. Before his flight, he placed them in boxes, and deposited them with Luis Vignes for safe-keeping. On the thirteenth of that month, Commodore Stockton entered the city of Los Angeles, and on the next day Colonel Fremont took possession of the archives, and kept them until the eighth day of September following, and then took them to Sutter's fort, on the American river, where they remained until 1847, when they were sent to Monterey. They remained at Monterey until February, 1850, when they were sent to Benicia, and thence to the office of the Surveyor General. Whatever might have been the motive for making the alteration in the inform e, it is clear that it could not have been done to influence the official action of the Governor, for he had long before gone out of office; and yet the circumstances strongly support the hypothesis that it was to that same report, as altered on the eighth day of October, 1847, that the reference is made, both in the petition and the decree of concession embraced in the espediente. Assuming that to be so, then it is clear that the espediente is ante-dated and fraudulent; and the circumstances, when taken together, tend so strongly in that direction, that we think the espediente is not entitled to much weight. When the jurisdiction of that department was transferred to the United States, the motive to fabricate titles to real property became strong and active, and the evidence in this case is abundantly sufficient to show that opportunities occurred to enable the unscrupulous to foist simulated evidences of such titles into the depositories of the archives, after they were seized at Los Angeles, in spite of any vigilance that those intrusted with their safe-keeping could possibly employ to preserve them from such fraudulent practices. Interested parties were necessarily allowed to consult the contents of the packages while they yet remained in very considerable disorder, and without any permanent custodian. Among those who had such opportunities was one of the witnesses of the claimant, and the evidence tends to show that he had an interest in the claim, and that he had stated that when he took hold of it there were no papers in the case, but that he had procured a set as good as any that could be found in the State. True it is that he denies ever having made that statement; but he admits that he went to Benicia in 1850, and that he examined the archives for the purpose of ascertaining whether any grant had been made to the claimant's intestate. He says he saw papers there with the name of William Knight on them, but neither he nor the clerks in charge of them could translate them. Whether the espediente in this case was in the boxes that fell into the possession of Colonel Fremont at Los Angeles, or was among the loose papers subsequently found in the custom-house at Monterey, or when or by what means the espediente was deposited in the archives, does not appear, except that it was there is 1847, or the first part of the year 1848, when an officer of the United States, in charge of the archives, made and completed an index of certain espedientes, not previously indexed, numbered, or filed, by Mexican authority. Sixty-seven, including all those found in the customhouse at Monterey, were then added to the previous list. Mexican numbering stopped at five hundred and twelve, and the author of the new index commenced to number where the other closed. That index includes the espediente in this case as number five hundred and fifty, and it shows that the espediente was in the archives when that index was made; but it shows nothing more, and cannot in any sense be regarded as a Mexican record. Evidence to show that the grant was recorded is entirely wanting; and there is no pretence that the espediente was ever submitted to the Departmental Assembly for its approval. Absence of such approval, under the circumstances of this case, is entitled to very considerable weight. More than forty espedientes were presented to that assembly on the third and tenth days of June, 1846, and received its approval. Several of the grants were dated in April, 1846, and one was dated on the first day of May of that year, and the inference is a reasonable one, that if the espediente in this case had really been completed, and the grant actually issued, the former would have been included in that list. Taken together, these various considerations throw great distrust upon this document, and justify the conclusion that it is entitled to little or no weight. Rejecting the espediente as unsatisfactory and wholly insufficient, under the circumstances, nothing remains to support the claim in this case except the parol proof. Claimant's theory is, that the grant was issued by Governor Pio Pico at Los Angeles on the fourth day of May, 1846, and was then and there delivered to his intestate. At that time William Knight lived in the valley of the Sacramento, some seven hundred miles distant from the seat of Government, where it is assumed that the grant was issued; but it is insisted that he visited that place the last of April or early in May of that year, and that the grant was delivered to him in person by the Secretary of the Department. Jos e M. Moreno was the Secretary at that time, and he testifies that the grant was issued by the Governor on that day, and that he, the Secretary, delivered the same to the claimant's intestate. But it is a sufficient answer to the testimony of that witness to say, that it is conceded by the claimant, that his character for truth is worthless.

Another witness, James M. Harbin, testifies, that he saw William Knight in Los Angeles about that time, and that he said he was there for the purpose of getting a grant for ten leagues of land on the Sacramento river; that Governor Pio Pico told him that he had issued the grant, and that he, the witness, saw papers in the possession of Knight when he started to return, but did not know what they were. Proof was also introduced by the claimant to show that the signatures to the marginal decree and the decree of concession were genuine; and he also introduced an affidavit of J. C. Davis, in which the affiant states that, on the 5th day of June, 1846, he heard Knight say, in the camp of Colonel Fremont, that he had just returned from the lower country, where he had procured his title papers; and the affiant also stated that he exhibited certain papers, calling them title papers, but the witness did not examine them, because he could not read the language. Other declarations of Knight were also introduced without objection-such as, that he, at one time, said he was going to Los Angeles, concerning the title to his land, and that, on his return, he said he had received it; and that, in March, 1847, he said he had lost his grant, and expressed his fears that he should lose his land in consequence of the loss of the grant. It was denied by the United States that he made any such visit to Los Angeles as is alleged; and they also insisted that he never claimed to have any other title to the land than the copy of the general title, which was furnished him on the fifteenth day of April, 1845; and a large number of witnesses were examined to establish these points. They prove that, whenever he spoke of having a title to the land, he uniformly spoke either in vague terms, or else referred directly to the general title, and never, in a single instance, declared that he had a grant of the land from the last-named Governor. They also prove that he was at home during the winter and spring of that year, and that in the month of April he was engaged, to some extent, in agricultural pursuits. One witness states, that he saw him on his ranch about the eighteenth or twentieth of that month; and another, that he saw him at his house about the first of May of the same year, and states the circumstances that enable him to fix the time with certainty. Two other witnesses, one a boarder in his house, and the other a neighbor, state, with great positiveness, that he was at home in the early part of May, sometimes hunting and sometimes farming, until he joined Colonel Fremont on the twenty-sixth day of that month. Testimony was also introduced by the United States, showing that great difficulties would have attended such a journey at that season of the year, on account of the swollen state of the streams and the condition of the roads; and some of the witnesses, who were well acquainted with the usual route, express the opinion that the journey, in the ordinary course of travelling, could not have been accomplished short of a month. These and many other facts were given in evidence to show that he did not visit Los Angeles at the time alleged; and clearly the weight of the evidence, to say nothing of the improbability that the Governor would bestow such a bounty upon one so recently in arms against him, is clearly against the theory set up by the claimant. Suppose it were competent for the appellee to prove his claim without record evidence, still the burden is upon him to show that the grant was issued; and surely be must first show its existence and loss before he can be allowed to give secondary evidence of its contents. Applying that elementary rule to the facts of this case, and it is clear that the claimant has no standing in court. But a more decisive answer to the claim remains to be stated, and that is, that there is no record evidence that the grant was ever issued, and without such evidence the claim cannot be confirmed. That rule is founded upon the Mexican law, and has been so repeatedly announced by this court that it seems unnecessary to adduce any argument in its support. To maintain a title by secondary evidence, say the court, in United States vs. Castro et al., (24 How., 350,) the claimant must show that the grant was obtained and made in the manner the law required, at some former time, and that it was recorded in the proper public office; to which it may be added, that such was undoubtedly the Mexican law, and that the rule there laid down is plainly applicable to the present case. Similar views have been expressed by this court on so many occasions that it would be a work of supererogation to do more than to refer to the decided cases. United States vs. Teschmaker, (22 How., 392;) United States vs. Fuentes, (22 How., 443;) United States vs. Cambuston, (20 How., 59;) United States vs. Osio, (23 How., 279, 280.)

Evidence was also introduced by the claimant tending to prove that a book of records appertaining to land titles in California, for the year 1846, was lost; but no attempt was made to show that the grant in question was ever recorded in that book. All we think it necessary to say upon that subject at the present time is, that proof of such a loss cannot avail a party in a case like the present, unless it also be shown, at least by circumstances which will justify the court in finding the fact, that the grant was duly and properly entered in the lost record. In view of the whole case, we are of the opinion that the District Court erred in confirming the claim. The decree must accordingly be reversed, and the cause remanded, with directions to dismiss the petition.

Mr. Justice WAYNE.

I content myself now with saying that I do not concur with the court in its conclusion in this case. I think it a severer exclusion of a right of property in land secured by treaty than has been hitherto adjudged by this court in any case from California.

Decree of the Circuit Court reversed and casue remanded, with directions to dismiss the petition.


text: Talk:United States v. Knight's Administrator (66 U.S. 227)/Opinion of the Court


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Rogers v. Law (66 U.S. 253)

Appeal from the decree of the Circuit Court of the United States for the District of Columbia.

This was a proceeding for the distribution of the estate of Thomas Law, deceased, among his creditors and legatees. The same cause was here before, and is reported as Adams et al. vs. Law, in 17 Howard, 417. It was then remanded, and was further proceeded in according to the opinion of this court. The questions which arose afterwards were on the following claims:

1. Lloyd N. Rogers made a claim as creditor for money lent in 1822. It was not shown that this debt had ever been demanded of the decedent in his lifetime, nor or his executors before 1855.

2. Lloyd N. Rogers also claimed as creditor under the deed which will be found described in the opinion of Jr. Justice Nelson.

title: Rogers v. Law (66 U.S. 253)


text: Talk:Rogers v. Law (66 U.S. 253)

title: Talk:Rogers v. Law (66 U.S. 253)


text:
Rogers v. Law (66 U.S. 253)/Opinion of the Court

3. The two children of Lloyd N. Rogers and the administrator of a third one, deceased, (grandchildren of the testator,) claimed legacies of $8,000 each. These legacies were given upon the condition that the legatees should not claim or demand, sue for, or receive any portion of the testator's estate under certain deeds mentioned and described in the will.

Mr. Mason Campbell, of Maryland, for the appellants. 1. The fact of the loan by Mr. Rogers to Mr. Law in 1822 is established; the only objection worthy of notice is that arising our of the lapse of time. The statute of limitations is not interposed by the residuary legatee, but by Mr. May, administrator of two specific legatees. They have no interest in the question. Enough will be left to pay them, whether this claim be allowed or not. But by the law of Maryland (which is the law of the District) it can be set up only by the executor, who in this case has not pleaded it. Bowling vs. Lamar, (1 Gill, 362;) Spencer vs. Spencer, (4 Mar. Ch., 465.)

2. The validity of the claim of Mr. Rogers under the deed to Calvert and Peter was affirmed by this court on the first appeal; but assuming that it was not, it should be affirmed now. The auditor has overlooked the evidence on this point, which shows that the value of the property secured to Mrs. Rogers by that deed was $36,552 45; and Mr. Law's covenant pledged his estate to an equal amount.

3. The claims of the legatees were erroneously rejected by the court. In this the court committed the grave error of supposing that the case one of election. The claims of these legatees, under the deeds mentioned in the will, are as creditors, and creditors are never put to an election. Kidney vs. Coussmaker, (12 Ves., 154;) Deg vs. Deg, (2 P. Wms., 418;) 2 Wms. on Exrs., 888; 2 Story Eq., § 1075. The doctrine of election is wholly inapplicable here. It is founded altogether upon an implied condition that he who accepts a benefit under an instrument must renounce all inconsistent benefits, and as the courts imply the condition they give the party affected by it his right of choice between the two. 1 White's Lead. Cas. in Eq., 233. But where the testator himself expresses the condition none can be implied, and such is this case. This condition has not been broken. Eliza P. Rogers, one of the legatees, died under age and unmarried, and never received a dollar. The acts of her brother and sister cannot affect her interests. Ward on Legacies, 139. The other two legatees claimed nothing prior to this suit. What they claimed here was declared by this court to be without foundation. The other claims, under the marriage settlement, are made exclusively by their father. There has been no money received by any of the family from Mr. Law's estate, on any of the accounts interdicted by him. Suppose, however, the condition to have been broken, there is no bequest over, and so the condition is merely in terrorem, and will not work a forfeiture. 2 Wms. on Exrs., 790; 2 Jarm. on Wills, 46; Ward on Legacies, 139; Wheeler vs. Bingham, (3 Atk., 368.)

Mr. May and Mr. Brent, of Maryland, for appellees. 1. Mr. Rogers withheld his claims, as creditor, until this cause was remanded. His claim for money lent to Mr. Law in 1822 is altogether stale. The plea of limitations is sufficiently relied on by the residuary devisee, and the auditor so reports. This is sufficient in equity. McCormick vs. Gibson, (3 Bl., 499;) 1 Mary. Dig., 411; Binney's case, (2 Bl., 99;) Warfield vs. Banks, (11 Gill & Johnson, 98.) It is true that in actions by creditors against the executor or administrator, in respect to personal estate, the statute can be pleaded only by the personal representative. But this contest practically relates to the proceeds of Mr. Law's real estate. Besides this, the objection of staleness need not be made by exception or plea. Lingan vs. Henderson, (1 Bl., 236;) Salmon vs. Clagett, (3 Bl., 125;) 1 Md. Dig., 441; Hepburn's case, (3 Bl., 95;) 2d Md. Ch. Dec., 231.

2. These remarks apply equally to Mr. Rogers' claim under the deed, and that claim must also fail on its merits. Mr. Law did not covenant to pay any sum until he had notice of the ascertained value of the funds received by Peter and Calvert, as trustees for the use of his daughter. There is no proof which tends to show that any property ever came to the trustees for the purposes of that trust. Nor is there any proof of his ever having had the enjoyment of the residuum of his wife's trust estate, for which he had stipulated.

3. It is too clear for argument that the testator designed to give those legacies to his grandchildren, on the express condition that neither they nor any one of them should claim anything our of his estate by reason of those deeds. Such an intention is legal. 6 Page, 388; 1 Eden., 492; 2 Amb., 157; 8 Gill, 203; 5 Md. Rep., 306; 2 Gill, 181.

Mr. Justice NELSON.

This is an appeal from a decree of the Circuit Court of the Unites States for the District of Columbia.

The appeal is from a decree of the court below, entered there upon the going down of the mandate of this court, in pursuance of its decision when the case was formerly here, on an appeal by the executor and trustee of the estate of Thomas Law, the settlement of which is the subject of litigation.

The case is reported in the 17 How., 417. This court reversed so much of the decree in the court below as gave to the grandchildren of the testator by Eliza, his daughter, wife of Lloyd N. Rogers, an interest, under certain limitations, in the deed of marriage settlement of the 19th March, 1796, amounting to the sum of $66,154 81, and affirmed the residue of said decree. This sum, by the decision, fell, of course, into the residuum of the estate of Law, for distribution among the creditors, legatees, and distributees.

When the case came again before the auditor appointed by the court below, several claims were presented for allowance, which were heard and examined by him, and his decision thereon reported to the court; and, after exceptions and argument, the report was confirmed. These several claims are now the subject of review by this court, upon the present appeal.

The first is a claim by Lloyd N. Rogers, as a creditor of the estate, and is founded upon an alleged loan of money to the testator, Law, as early as 1822. This claim was rejected by the auditor, upon the ground the proofs were not satisfactory that the loan had ever been made by Rogers. The lapse of time, also, since it was alleged to have been made, some thirty-three years, without, for aught that appears, presenting it to the testator in his lifetime, or against the estate since his death, strongly confirms the conclusion of the auditor. We think the item was properly rejected.

The next claim is also by Lloyd N. Rogers, as a creditor of the estate, and is founded upon a deed executed by Thomas Law, the testator, and Eliza Parke Law, his wife, on the 9th August, 1804, to George Calvert and Thomas Peter. The deed conveys to the grantees all the right and interest, real or personal, of Eliza P., the wife, and of Thomas Law, the husband, in right of his wife, to which she might or would be entitled from the estate of George Washington, or from the estate of her father, John Parke Custis, in trust, to convert the same into money, &c., &c., and to apply the interest or income of $10,000 to the sole use of the said Eliza P. during her lifetime. This sum was also made subject to her absolute disposition by will, or, in case of dying intestate, to be conveyed to her heirs; and, after deducting the $10,000 from the fund, to apply the rents, issues, and profits of the residue to the sole use and benefit of the said Eliza P., for and during her life, and, after her death, to pay the said income to Thomas Law, the husband, (if then living,) for and during his life; and after the death of both, then to convey the whole of the residue to Eliza, the daughter. And then comes the covenant of Thomas Law, which constitutes the ground of the present claim. The said Thomas covenants, to and with the trustees, that whensoever the full amount and value of the funds shall be ascertained and known, which may or shall come to their (the trustees') hands, in virtue of this trust, and it can be thereby ascertained what sum shall be secured, to come ultimately therefrom to his said daughter, Eliza, after the death of her father and mother, that he will immediately thereupon secure to his said daughter a like sum, to be paid to her out of his estate at the death of her said father and mother.

It will be seen by this deed that it was made the duty of the trustees, as soon as practicable, and without sacrifice of the interest of Mrs. Law in the estates of George Washington, and her father, John Parke Custis, to convert the property into money, and invest the same in stock or other securities; and, after setting apart the sum of $10,000 assigned to her absolutely, the income of the residue was to be applied to her for life, and, after her death, to the husband, if he survived, for life; and, at his death, the whole, principal and interest, to be transferred to Eliza, the daughter. And it was this residue, thus ultimately to be transferred to her, which, when ascertained and known, the father covenanted immediately thereupon to secure to her a like sum, to be paid out of his estate at the death of both parents. The conversion of the residue of the estate thus limited, and ascertainment of the amount of it in money or stocks or other securities, as prescribed in the deed, are, by the very terms of the covenant, a condition precedent to the obligation of the father to secure a like sum to the daughter. An appraisal or valuation of this residue of Mrs. Law's interest in the two estates will not answer the condition. The amount must be ascertained by a conversion of the property into money, or its equivalent. This is not only the fair meaning of the terms of the covenant, but the obvious intent of the parties in the connection in which it is found.

This being, in our view, the true construction of the covenant, it is only necessary to say, that there was no evidence before the auditor that its condition had been complied with, either in the lifetime of the testator or since his death. We are of opinion, therefore, that the claim was properly rejected.

The third claim arises upon a codicil to the will of the testator, Thomas Law, which bequeaths to the three grandchildren, the children of his daughter Eliza by Lloyd N. Rogers, $8,000 each, upon this express condition, that if the grandchildren, as heirs or devisees of their late grandmother, Mrs. Law, shall claim or demand, &c., any portion of his estate, rights, or credits, under or by virtue of certain indentures in the said codicil specially enumerated, then, and in that case, the bequest in the codicil to be null and void.

The other legatees under the will of the testator object to the allowance of these three legacies, for the reason that the condition upon which they were to become null and void has happened, namely, a claim against the estate of the testator as heirs or representatives of their grandmother, Mrs. Law. The auditor, after stating the facts of the case as presented to him, and the question of law arising out of them, referred it to the court below for their direction.

The court held, that the sum of $32,585 76, which had been awarded to Lloyd N. Rogers, as administrator of Eliza, his wife, and which was claimed and allowed under one of the interdicted deeds, and which belonged to her children, as distributees, if laimed, or received by them, would be inconsistent with their right to the legacies according to the condition of the bequest, and by the decree gave the choice to the legatees to take the legacies under the will, or the distributive shares of the fund. The court were of opinion that no claim had yet been made for the distributive shares; but that, according to the true meaning of the bequest, the legatees were not entitled to both funds, and that, for the purposes of the settlement of the estate, they should be put to their election within a time mentioned. We are inclined to think, upon the facts in the case, a claim had already been made of the fund by the legatees and those representing them, which came from the estate of the testator through their grandmother, under and by virtue of one of the interdicted deeds, and which operated to annul the legacies; but, as the views of the court below, and the decree in pursuance thereof, lead to the same result substantially, it is unnecessary to interfere with them.

The condition upon which the legacies were to fall is very specific and explicit: that 'if the said children,' 'or either of them, or any person or persons on their behalf or account, or in behalf or on account of either of them, as heir or heirs-at-law, or devisees or devisee of their grandmother,' 'shall claim, ask, or demand, sue for, recover, or receive any part or portion of my estate, rights or credits, either in my lifetime or after my decease, under or by virtue of certain indentures-enumerating three-or under or by virtue of any other indenture,' 'which the said Thomas Law and E. P. Law, or E. P. Custis, meaning Mrs. Law, may have been parties, or to which any other person or persons with the said Thomas Law may have been parties for the benefit of E. P. Law, or E. P. Custis, or her heirs; then, and in that case, the bequest, &c., shall be null and void.'

Besides the distributive shares to the grandchildren, which the court below held as coming from one of the interdicted deeds, and inconsistent with the condition upon which the bequests of the legacies were made, the two surviving grandchildren had set up a claim in that court to an interest amounting to the sum of $66,154 84, under the interdicted deeds of 1796, 1800, and 1802, and which sum was awarded to them by the decree of the court. On an appeal to this court the decree was reversed, and the claim disallowed, as will be seen in the report of the case already referred to. We are of opinion this claim and litigation were in violation of the condition annexed to the bequest of the legacies. The legatees are forbidden to claim, ask, demand, sue for, recover, or receive any portion of the estate of the testator under these deeds, as the representatives of their grandmother.

The testator in his will had stated his fears that he had settled upon the children of his daughter-these grandchildren-more than the other grandchildren would receive from his estate, unless his property should rise in value, in which case he would make another will. This impression, doubtless, led to the stringent condition annexed to the bequest in the codicil which was executed nearly two years later. The condition is not put upon the possession, recovery, or receipt of any portion of his estate under these deeds, but upon a claim or demand, or suit for the same; and the testator directs, if the terms of the bequest are not acceptable to the grandchildren, that his executor shall contest with them to the utmost their right to claim the legacies. It may well, we think, be doubted, if the judgment of the court against their claim, under these deeds, after a long and expensive litigation, can save the legacies from a breach of the condition. The very special terms of it would seem to have been intended to save the estate from any such litigation, so far as regarded the right to the enjoyment of the legacies.

An objection was taken, on the argument, to the legal effect and operation of this condition, but we entertain no doubt as to its force and validity. The condition is lawful, and one which the testator had a right to annex in the disposition of his own property. The legatees are not bound to accept the bequest, but, if accepted, it must be subject to the disabilities annexed; it must be taken cum onere, or not at all.

There are some other items of minor importance, to which exceptions have been taken, but we see no well-grounded objection to them.

The decree of the court below affirmed.


text: Talk:Rogers v. Law (66 U.S. 253)/Opinion of the Court


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Attorney General v. Federal Street Meeting-House

Writ of error to the Supreme Court of the State of Massachusetts.

The Attorney General of Massachusetts, at the relation of the Associate Reformed Presbyterian Synod of the State of New York, and others, ministers, elders, and the members of the Presbyterian Church, filed an information in the Supreme Judicial Court of Massachusetts against the proprietors of the Meeting-house in Federal street, Boston, alleging that the land on which said meeting-house is built was conveyed in 1735, by its then proprietor, to trustees, to be held as a place for the preaching and maintaining of the doctrine, worship, and form of government of the Presbyterian Church of Scotland, which was Calvinistic and Trinitarian, teaching the Westminster confession of faith and catechisms; that the meeting-house continued to be used according to the trust expressed in the deed until 1786, when various changes were introduced into the Society, and it became Congregational; that this lasted until 1815, when the trust was wholly perverted and abused by the conversion of the congregation into a Unitarian Society. In 1805, (while it was a Congregatonal Church,) the Legislature of Massachusetts incorporated 'all persons who now are or who may hereafter be the proprietors of pews in the Congregational meeting-house situate on Federal street, Boston,' by the name of 'The Proprietors of the Meeting-house in Federal street, in the town of Boston,' and declared that the said corporation should be deemed seized of the meeting-house, with its appurtenances, &c. The answer of the defendants sets forth, among other things, the act of incorporation, and avers that they were in possession long before the passage of that act; that they were in possession at the time of its passage, and have remained in possession ever since, as the undisputed owners of the premises. The State court dismissed the information, (3 Gray, 1,) and this writ of error was taken by the relators.

Mr. Bartlett, of Massachusetts, for the defendants, moved the court to dismiss the writ of error for want of jurisdiction. The judgment (he said) is sought to be reversed, and the power of this court to do it rests solely on the ground that the act incorporating the defendants was unconstitutional, whereas it does not appear that the validity of that act was in any manner drawn into controversy. Even if the validity of the act had been a question in the court below, and its validity had been sustained, there are various other grounds within the exclusive cognizance of the State court upon which this judgment must be affirmed.

The doctrine is now firmly established, that to give this court jurisdiction, it must appear by the record, or by clear and necessary intendment, that the question on which the jurisdiction is founded must have been raised, and must have been decided, in order to have induced the judgment. Crowell vs. Randall, (10 Peters, 368, 398.) That the question was necessarily involved in the decision, and that the State court could not have given the judgment or decree which they passed without deciding it. Armstrong vs. Treasurer, &c., (16 Peters, 281, 285;) Mills vs. Brown, (16 Peters, 525;) Smith vs. Hunter, (7 How., 738;) Neilson vs. Lagow, (12 How., 98, 109;) Williams vs. Oliver, (12 How., 111, 124;) Grand Gulf R. R. vs. Marshall, (12 How., 165, 167;) Lawler vs. Walker, (14 How., 149, 155;) Maxwell vs. Newbold, (18 How., 511, 515;) Christ Church vs. Philadelphia, (20 How., 26, 28.) It must appear either on the bill or answer, or decree of the court. ''Mich. Cent. R. R. vs. Mich. South. R. R., (19 How., 379.) In this case the bill'' refers to the act of 1795 but once, and there avers in substance that it is valid. The answer avers that the defendants were owners before the date of the act, and continued to be in possession as owners afterwards. The decree simply orders the bill to be dismissed.

Mr. Cushing, of Massachusetts. The act of 1805 purports to transfer the seisin of the lands in dispute to the corporation, and thus impairs the obligation of the trust contract by which the premises were devoted to the religious uses of the Scottish Presbyterian Church. This wrong the State court refused to redress, and this court is bound to reverse the decree for that reason. Fletcher vs. Peck, (6 Cranch, 87;) New Jersey vs. Wilson, (7 Cranch, 164;) Jackson vs. Lamphere, (3 Peters, 280;) Providence Bank vs. Billings, (4 Peters, 514;) Charles River Bridge vs. Warren Bridge, (11 Peters, 490;) Gordon vs.Appeal Tax Court, (3 Howard, 183;) Maryland vs. Baltimore and Ohio Railroad Co., (3 Howard, 576;) West River Bridge Co. vs. Dix, (6 Howard, 507;) Bronson vs. Kenzie, (1 Howard, 111;) Planters' Bank vs. Sharp, (6 Howard, 301;) Phalen vs. Virginia, (8 Howard, 163;) Woodruff vs. Trapnall, (10 Howard, 190;) Poup vs. Drew, (10 Howard, 218;) Baltimore & Susquehanna Railroad Company vs. Nesbit, (10 Howard, 395;) Butler vs. Pennsylvania, 10 Howard, 402;) East Hartford vs. Hartford Bridge Company, (10 Howard, 511;) League vs. De Young, (11 Howard, 105;) Pennsylvania vs. Wheeling & Belmont Bridge Co., (13 Howard, 518;) State Bank of Ohio vs. Knoop, (16 Howard, 369;) Ohio Life Insurance Co. vs. Debolt, (16 Howard, 416;) Christ Church vs. County of Philadelphia, (20 Howard, 28;) Terrett vs. Taylor, (9 Cranch, 43;) Clark's Executor vs. Van Reinsdyk, (9 Cranch, 133;) Sturges vs. Commonwealth, (4 Wheaton, 122;) Farmers & Mechanics' Bank vs. Smith, (6 Wheaton, 131;) Ogden vs. Saunders, (12 Wheaton, 213;) Mumma vs. Potomac Co., (8 Peters, 181;) Beers vs. Haughton, (9 Peters, 329;) Gantley's Lessee vs. Ewing, (3 Howard, 707;) Cook vs. Moffat, (5 Howard, 295;) Crawford vs. Bank of Mobile, (7 Howard, 279;) Curran vs. Arkansas, (15 Howard, 304.)

It is not necessary that it should be expressed on the record that the validity of the act was in controversy; it is sufficient that it appear by clear and necessary intendment that a question which this court has jurisdiction to re-examine was actually decided by the State court. Medberry vs. Ohio, (24 How., 413;) Commercial Bank of Cincinnati vs. Buckingham's Executors, (5 How. 317, 341;) Smith vs. Hunter, (7 How., 738;) Neilson vs. Logan, (12 How., 98;) Williams vs. Oliver, (12 How., 111;) Grand Gulf Railroad vs. Marshall, (12 How., 165;) Lawler vs. Walker, (16 How., 149;) Maxwell vs. Newbold, (18 How., 511;) Christ Church vs. Philadelphia, (20 How., 26.)

Mr. Justice GRIER.


text: Talk:Attorney General v. Federal Street Meeting-House


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Attorney General v. Federal Street Meeting-House/Opinion of the Court

The writ of error in this case suggests, as a foundation for the jurisdiction of this court, 'that there was drawn in question the validity of a statute of said Commonwealth, to wit, an act of the legislature, passed the 15th day of June, 1805, entitled 'An act declaring and confirming the incorporation of the proprietors of the meeting-house in Federal street,' in the town of Boston, being repugnant to the Constitution of the United States, and the decision of the court was in favor of the validity of said statute.'

Is this suggestion of the writ supported by the record, either by direct averment, or by any necessary intendment?

We think it is not.

1. The decree of the court is, simply, that the bill be dismissed without any reasons alleged for such dismissal.

2. The bill itself raises no such issue; it refers to the act in question, only as conferring the privilege of a corporation on the defendant. It does not aver that the defendants pretend to have title to the property in question by virtue thereof, and challenge its validity.

The answer alleges that respondents were incorporated by the act of 1805, and that, 'under it, they are the true and sole owners of the premises, and that said act was passed on the application and petition of parties who, prior thereto, were owners of pews, or tenants in common of the land and the house thereon.' It is not alleged that the act proprio vigore divested the plaintiff's title and vested it in the corporation, but that the title was vested in the corporation at the request of the owners.

The only questions, therefore, which could arise on these pleadings were, whether the persons who obtained the act of incorporation were the owners, and whether, after an adverse possession of forty years, a court of equity would interfere to disturb the posession of respondents.

The answer takes issue on the charge of the bill, that Little and his associates had contributed land and money to support a public charity; it averred that, on a proper construction of the original deed of the premises, the meeting-house was not dedicated to a charitable use, but was erected for their common use, and held by them in proportion to the sums severally contributed; and, consequently, if the representatives of these tenants in common had their rights transferred to the corporation, it was only a transfer of their rights by their consent, and for their own convenience-an enabling act, with which the complainants had no concern. The issue, then, was not on the validity of the act, but on the construction of the original deed or agreement of the parties who built the meeting-house. The validity of the act of assembly of Massachusetts was not, therefore, drawn in question directly by any averment of the pleadings by the decree, or by any necessary intendment from other averments in the pleadings, or evidence on the record.

The opinion of the State court to be found in 3 Gray, 1, confirms this conclusion.

The case is, therefore, dismissed for want of jurisdiction.

Writ of error dismissed.