United States v. Moore

53 U.S. 209, 13 L. Ed. 958, 12 How. 209, 1851 U.S. LEXIS 650

• Court: Supreme Court of the United States
• Decided: January 15, 1852
• Status: Published

Opinion

Mr. Justice CATRON

delivered the opinion of the court.

The petition states, that about the 11th September, 1797, Antonio Yriarte, a resident of the Province of Louisiana, for the sum of 24,708 reals by him- paid, purchased from the proper authorities under the government of Spain, to wit: Juan Ventura Morales, the Intendant of the Province of Louisiana, and Gilbert Leonard, the Treasurer of said Province, sixty thousand arpens of land, &c., all of which more fully appears from the annexed certificate, signed by the said Morales, Leonard and Carsetano Valdes, secretary of the Intendant, acknowledging the Receipt of the consideration and the sale of the land above expressed.

The first question arising on this statement of facts is, whether the paper exhibited affords any evidence that the “ proper authorities” of Spain sold the land to Yriarte, as this party can only sue for lands claimed by virtue of any French or Spanish grant, concession, warrant, or order of survey, “ legally made.”

His petition alleges that the land was purchased on the 11th September, 1797, from Morales, the Intendant, and Leonard, the Treasurer of the Province. The act positively requires that the date of the sale, concession, &e., shall be set forth, and by whom it was made, in order that it may be seen whether the officer making the concession, or sale, had power to do so, at the time it was done; and here, the question of power existing in the Intendant is raised by an allegation of the fact, and a denial in the-answer. Undoubtedly, Leonard had no authority tó sell, or distribute by donation, any part of the public domain; but this would be of no consequence if Morales had such power. When the paper exhibited bears date, a controversy existed between the Intendant Morales and the political and military Governor of Louisiana, as to which of them appertained the power to sell and distribute the King’s domain, the Intendant claiming authority under the laws of the Indies, and the Governor relying on a royal order of August, 1770. The following historical account will best explain how,the matter stood in 1797, when (as is alleged) this sale was made.

O’Rielly, by commission dated 16th April, 1769, was appointed Governor and Captain-General of Louisiana, with “ special power to establish in this new part of the King’s dominions, with regard to the military force, police, administration of justice and finances, such a form of government as might most effectually secure its-dependence and subordination, and promote the King’s service and the happiness of his subjects. 2 Mart. 2.

Unzaga, colonel of the regiment of Havana, who had come with O’Rielly, had a commission as Governor; but was not authorized to enter upon his duties until the departure of O’Rielly, or the declaration of his will. On the 1st December, 1769, O’Rielly made the declaration, and Unzaga assumed the functions of Governor. .2 Mart. 13.

On the 18th February, 1770, O’Rielly made the regulations relating to the granting of land, known by his name. The 12th article declares that all grants shall be made in the name of the King by the Governor-General of the Province. 2 White’s Re-cop. 230,

A royal order of the-24th August, 1770, states, that O’Rielly had communicated the regulations made by him to his govern-, ment, and these declaring that the granting of land had been confided by His Majesty to the Governor and Comisario Ordenador, he considered it would be better in future, that the Governor alone should be authorized by His Majesty to make those grants. - The order to the Governor then proceeds: “ The King having examined these dispositions and propositions of the said Lieutenant-General, approves them, and also, that it should be you and your successors in that government only, who are to have the right to distribute the royal lands, conforming in all points, as long as His Majesty does not otherwise dispose, to the said instructions, the date of which is 18th February of this present year.” 2 White’s Recop. 480.

The Governors who succeeded Unzaga were, Galvez, colonel of the regiment of Louisiana, to whom Unzaga, when he was appointed Captain-General of the Caraecas, was directed to surrender the government provisionally, by a cédula of 10th July, 1776. Galvez entered on the duties of his office 1st January, 1777. 2 Mart. 39.’ '

Miro succeeded Galvez; the government of the province being provisionally vested in him on the departure of Galvez in 1782. 2 Mart. 68.’

Carondelet was promoted from the government of £an Salvador, and entered on his duties 1st January, 1792. 2 Mart. 81-

Gayoso, the commandant at Natchez, succeeded Carondelet in the beginning of 1797. 2 Mart. 149. His regulations for the administration of, posts and distribution of lands, are dated 9th September, 1797.

So far as we have seen, the exclusive authority vested in the Governors to make' grants, stood unrevoked up to this time. But on the ".departure of Rendon, who had been Intendant in 1796, the functions of Intendant devolved on Morales, who had been contador. 2 Mart. 131. Morales, thus Intendant 'ad interim, in a letter to Governor Gayoso of the 29th August, 1797, (a few days before the latter issued his regulations,) claimed the right to grant the lands. 2 White’s Recop. 470. Gayoso declined to yield, but “ resolved to submit the question to higher áuthority, and to allow no innovation until the resolution of His Majesty be made known.” 2 White, 470, 471. Morales also wrote a long letter to Spain on the subject.

A royal order of 22d October, 1798, addressed to Gayoso, states the receipt of his and Morales’s communications “ respecting the right of granting and distributing royal lands in the district under your command, which right has been vested in' the political and military Governor since the order of August 24, 1770,” and proceeds thus : “ The King has resolved for the sake of the better and more exact observance of the 81st article of the royal ordinance for Intendants of New Spain, that the exclusive faculty of granting and distributing lands, of every class, shall be restored to the. Intendancy of the province, free from the interference of any other authority, in the proceedings as established by law, consequently the power hitherto residing in the government to those effects is abolished and suppressed, being transferred to the Intendancy for the future.” 2 White’s Recop. 478.

The royal order was communicated from Spain to Morales on the same 22d October, 1798. In the communication to Gayoso, and that to himself, Morales is styled Intendant ad interim.

The royal order seems to have reached Morales in February, 1799, before it did Gayoso. Some correspondence then took place between them, and Morales became vested with the power of making sales and grants. 2 White, 478-484. lie issued his regulations 17th July, 1799. Ib. 234.

It will thus be seen, that the authorities in Spain considered the royal order of 24th August, 1770, as of force up to February, 1799. The language is too plain to admit of a doubt. The preamble of Morales’s own regulations states, that the power to grant was vested in the military and political government, from 24th August, 1770, to 22d October, 1798.

To the same effect is the report of Pintado, dated at Havana in 1822, respecting lands in Florida, communicated to our government. 2 White’s Recop. 339. See, also, 2 Mart. 158.

At the date of the receipt to Yriarte, 11th September, 1797, the question between Gayoso and Morales had not been settled by thé king. In fact, it was only a few days after he had addressed the first letter to Gayoso on the subject.

In the correspondence of Morales with Gayoso and'the authorities in Spain, he refers to the eighty-first article of instructions to Intendants, as giving some foundation for his claim. The instructions were dated in December, 1787. 1 White’s Recop. 360. They will be found more at length in 2 White, 67, and it will be seen to apply only to twelve intendancies thereby created and expressly named in New Spain; it did not .apply to Louisiana. This article seems not to have been sent to Louisiana, or been known there until Morales brought the question up in 1797. The royal order of 1798, transferring the power to distribute the land for the future, is conclusive that the eighty-first article had no application to Louisiana.

Some of the Governors acted also as Intendants; but that would not alter the power conferred. It was in their capacities as governors they were authorized to make grants, and not as superintendents of the -finances.

The first Intendant seems to have come to the country with O’Reilly. His name was Francisco de Loyola. 2 Mart. 2. He died in 1670, and was succeeded by Gayarre, as Intendant, ad interim. 2 Mart. 21.

Un'zaga had the office of Intendant united to that of Governor. 2 Mart. 34. Galvez, when appointed Governor, was also appointed intendant. 2 Mart- 39. During the time he was engaged in the expeditions against the British possessions in West Florida, he had no time to'bestow on fiscal affairs, and Martin Navarro was appointed Intendant in the beginning of 1781. 2 Mart. 54. He leffrthe province for Spain in 1788, and the two offices were again united in the person of Miro. 2 Mart. 180. Carondelet was Intendant as well as Governor. 2 Mart. 111. On his representation the office of Intendant was separated from that of Governor, and Francisco de Rendon, who had been the Secretary of the Spanish Legation in the United States, was appointed, and arrived at New Orleans in the beginning of 1794. 2 Mart. 122. Rendon was afterwards sent to Zacatecas, and Morales was appointed ad interim, 1796. 2 Mart. 131.

Thus it appears that Morales, in his. letter of August 29th, 1797, to Governor Gayosa de Lemos, claimed the right to sell, distribute, and grant the public lands; and insisted that the Governor should not oppose the intendancy in the free and open, jurisdiction appertaining to it, and with which no one had a right to intermeddlfe. And, on the next day, (30th August, 1797) the governor replied that, as discussion of the question would embarrass the King’s service, and as the Intendant claimed cognizance of causes respecting sales, agreements, and distributions of royal lands, he resolved to submit the question to higher authority, “ and to allow no innovation until the resolution of his majesty be made known.”

Tbe Governor having partly shrunk -from the contest, it is highly probable that the Intendant did assume to make the sale set forth by the receipt, which bears date twelve days after the Governor’s letter. As ho authority existed in the Intendant to deal with the King’s domain from 1769, when Spain first got possession of Louisiana, up to the date of, the King’s order made in October, 1798, it is manifest that Morales had no power to sell in September, 1797; and there is no evidence that the King sanctioned this sale, nor can it be inferred from any thing appearing in the case. We think the contrary is apparent.

In 1797, Yriarte resided at New Orleans, and continued in this country for ten years or more, as Blache states, and then removed to old Spain. He resided at Madrid, when he' transferred the receipt to Moreno in 1835. ‘Yriarte never took possession of the land claimed, nor did he take any further step- to secure the property.

By the regulations of O’Rielly, made in 1770, and sanctioned by the King, Yriarte was compelled, if he was owner, to make mounds or levees in front of his" land on the banks of the Mississippi, and also to clear and ditch the whole front of the depth of two arpens within three years from the date of his purchase; and, in default of fulfilling these conditions, the land was to revert to the King’s domain and be granted anew. Neither could he sell until after three years’ possession, and until the above-mentioned conditions were entirely fulfilled; and, says the third regulation, “ To guard against every evasion in this respect, the sales of said lands cannot be made without a written permission from the Governor-General, who will not grant it, until, on strict inquiry, it shall be found that the conditions above explained have been duly executed.” That is to say, no sale could be made or formal title issued, until these conditions were complied with.

The land claimed fronted on the Mississippi River for twenty miles and more, and on the great western outlet, the Atchafalaya, to an equal extent; and, if no mounds were made, the country below must have been overflowed every year to a ruinous extent. Levees were indispensable; their construction was a high public policy, and forfeiture an inevitable necessity, in case of failure. These were laws and ordinances of the government under which the - claim originated, and which the act of 1824 .instructs us to observe; the Spanish government was not bound to complete the title; but, on the contrary, under a necessity to declare it forfeited. This is plainly manifest. Even admitting that Morales, as Intendant, had full power to make the sale, still forfeiture was inevitable.' Under these circumstances it is idle to assume that Morales’s act of sale received any sanction from the King of Spain, or from any one exercising his authority.

Embarrassed as Yriarte was with the want -of power in Morales to sell, and.the stringency, of O’Reilly’s regulations com pelling him to occupy, .clear, ditch, and levy, a necessity was imposed on him to surrender his purchase and have his money refunded ; and there are severál reasons apparent why we think he did so. In the first place, he labored under no disability or impediment; he remained quiet, never took possession, nor asked for a survey up to the change of flags in 1804; nor did he ask for a confirmation of Morales’s void act from the Spanish authorities. And, after the United States assumed jurisdiction, boards of commissioners almost constantly existed before which his claim could have been presented, and through them, reported to Congress for political action thereon; yet no step was taken, and the claim.slept in the h:ands of Yriarte until 1835, when he sold it in Madrid; and it first made its appearance in this country, when presented to the District Court, in June, 1846. When there adduced- in evidence, the receipt was cut in gashes and stained, having the appearance of a neglected, valueless, and cancelled paper.' To account for its appearance., one Campo deposed for plaintiff, that, in his opinion, the cut and dilapidated condition of the document grew out of this fact: “ that the officers of quarantine in Spain, in order to prevent the spreading of. infectious diseases, immersed docurhents in vinegar, and cut them in this manner. This was in order, to make the vinegar penetrate more easily, and this he thinks has been the case with the document in question, and, therefore, its discolored and cut appearance.” He further states, “that all the documents from Spain are cut in like manner; that he has often seen them; he has in his possession letters cut in the same way.”

This was obviously a private receipt held by Yriarte, and carried by him to Spain; and as the money he had paid in Louisiana went to the royal treasury and was'transmitted to Madrid' as the receipt shows, the fair presumption is, that when the receipt was there presented, and the money refunded, the marks of cancellation were made by cutting the paper in gashes, as no reason can be perceived why the holder would thus deface his own document; nor can it be imagined why á mere sheet of paper should be thus cut to let in an acid,.if such practice prevailed, which we suppose, however, to have no foundation in fact, as witnesses in abundance could have been produced to- support this improbable account, if it were true that all documents, coming from Spain, are cut in like manner and stained with vinegar.

We are called on to decide in this case according to the rules governing a court of equity, and are bound to give due weight to lapse of time.

The party was under no disability, and slept on his rights, as ■he now claims them, for nearly fifty years, without taking a single step. He makes no excuse for his long delay, and cannot now get relief by having his title completed.

No case has come within our experience, where the obscurity and antiquity of the transaction more forcibly than in the present case, required a court of equity to bar a complainant,-on' legal presumptions founded on lapse of time; and where the bar should take the place of individual belief.

The government had taken possession, and had sold out these lands to a great extent, and was bound in good faith to protect its vendees; that these private owners could have relied on the lapse of time, and defeated the claim set up, is clear; and on principle, their vendor could do so likewise.

Even had this claim been adjudged valid by this court, still the decree below is in part erroneous. The part referred to is as follows: “ It is further ordered, adjudged, and decreed, that,, in case said lands so claimed by said petitioner, or any part or portion thereof, shall have been sold by the United States, or otherwise disposed of, said petitioner, Michael Moore, shall be, and is hereby, authorized, to enter in any land-office in the State of Louisiana, in parcels conformable to sectional divisions- and subdivisions, a like quantity of public lands, after the same shall have been offered at public sale.”

By the act of 1824, it is provided that if it shall so happen that the lands decreed to any complainant “ shall have been sold by the United States, or otherwise disposed of, it shall be lawful for the party interested to enter the like quantity on other lands.” Here the decree is general against the United States, and awards to complainant floating warrants for all lands that the United States may have sold, or otherwise disposed of within the bounds of the tract decreed. The act requires the names of all persons claiming the land sued for, or any part of it, to be set forth in the petition, and that they shall be made defendants in due form by citation; and if the entire tract is claimed by private persons, then they shall be sole defendants; but if the government is owner in part, or of the whole, then this fact shall be stated, and the attorney of the district must be served with process, and be allowed to answer for the United States. The purpose of Congress was first, to authorize a suit against the United States ; and, in the next place, to give judicial cognizance of, a description of incipient claims having no standing in a court of justice before the act was passed; and, thirdly, that the petitioner should be bound to sue private persons, claiming' the same land, so that those having an interest, and better -knowledge of facts, and more capacity to defend, than the United States, might be drawn into the contest; and that they should be compelled to produce their title, so that if a decree was made for complainant, the court could ascertain what part of the land should be granted to him by patent; and as this could only be done by a specific ascertainment of interfering claims, the decree must of necessity specify their boundaries and quantities. Nor can it stop here; it must adjudge that a warrant shall issue, and be subject to location. This decree is not only in general terms, but it is contingent, that in case all ■the lands claimed, or any part or portion of them, have been sold or otherwise disposed of by the United States, then the petitioner shall be authorized to enter a like quantity, &c.

The District Court, as we apprehend, did not proceed to adjudge other lands as an equivalent, on the act of 1824, as it originally stood, but on amendatory and repealing clauses found in the 8th section of the act of May 23d, 1828, extending the law to Florida; and especially to the 2d section of the act of 24th May, 1828, giving further time to claimants in Missouri and Arkansas to institute suit§; both of which clauses declare that so much of the act of 1824 as requires petitioners to make adverse claimants parties to the suit shall be, and are thereby repealed. The act of 24th May, 1828, contains various other provisions; some of which modify, and others repeal parts of the act of 1824.

The act of June 17,1844, provides that so much of the act of May 26, 1824, as relates to the State of Missouri is thereby revived and reenacted; and the same jurisdiction is given to the District Courts of Arkansas, Louisiana, Alabama, and Mississippi, as was exercised under said act in Missouri; with the exception of that part of the act (being sections 14 and 15) that applied exclusively to the territory of Arkansas, which only allowed claims of a league square, and under, to be adjudicated. The thirteen previous sections stand incorporated in like manner as they would be, if they had been copied into the act of 1844. No language to this effect, could make it plainer; any attempt to incorporate likewise the act of 24th May, 1828, into that of 1844, would not only be a forced construction, but a manifest perversion. It follows that the law as found in the thirteen first sections of the act of 1824, furnishes all authority the District Court had, to proceed, and to decree an equivalent; and, that the true mode of proceeding, according to the law as it stands, is as above stated, we suppose to be not open to controversy.

This view of the act of 1844 was very forcibly presented to us by the Attorney-General in the case of the United States v. Boisdore’s Heirs, coming up from Mississippi, 11 How. 77, but as we then apprehended that no similar irregularity might again occur, no notice was taken of it in the opinion, dismissing the cause on its merits.

Being of opinion that this canse is destitute of merits, it is ordered that the decree of the District Court be reversed, and the petition dismissed.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is- now here ordered, adjudged, and decreed by this court, that the decree of the said District' Court in this cause be, and the same is hereby, reversed and annulled, and that this cause be and the same is hereby remanded to the said District Court, with directions to dismiss the petition of- the claimants.