Dewey v. W. Fairmont Gas Coal Co., 123 U.S. 329 (1887)
Case details
Citation
123 U.S. 329
Full caption
DEWEY v. WEST FAIRMONT GAS COAL COMPANY. WEST FAIRMONT GAS COAL COMPANY v. DEWEY.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Nov. 21, 1887
DEWEY v. WEST FAIRMONT GAS COAL COMPANY.
WEST FAIRMONT GAS COAL COMPANY v. DEWEY.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA.
Submitted November 9, 1887. — Decided November 21, 1887.
A New York corporation contracted with a partnership consisting of citizens of West Virginia, to furnish a specified quantity of coal within a fixed time at an agreed rate. After delivery of a portion of the coal, the partnership refused to receive more, whereupon the corporation sued the partners in a state court of West Virginia to recover damages for a breach of the contract. On the motion of the defendants this action was removed from the state court to the Circuit Court of the United States, on the ground that the parties were citizens of different States. The partners then, in conformity with the provisions of a statute of West Virginia which authorizes a creditor, before obtaining judgment, to institute any suit to avoid a conveyance of the estate of his debtor which he might institute after obtaining judgment, and to have the relief in respect to said estate which he would be entitled to after judgment, filed a bill in equity in the Circuit Court of the United States to set aside an assignment of the property of the corporation as fraudulent, and to subject that property in the hands of the assignee to the payment of their debt. It was objected to this bill that the court was without jurisdiction, as the assignee, who was one of the respondents, was a citizen of West ' Virginia, of which the complainants also were citizens. Held, that the objection was not well taken, the equity suit being an exercise of jurisdiction in the Circuit Court ancillary to that which it had already acquired in the action at law, and which it might entertain according to the rule in Krippendorf v. Hyde, 110 U. S. 276, and Pacific Railroad Co. v. Missouri Pacific Railway Co., Ill U. S. 505.
From a careful examination of all the evidence in this case, the court is satisfied with the action of the Circuit Court dismissing the bill, and the cross-bill as dependent upon the bill.
In equity to set aside an assignment by an insolvent debtor as fraudulent, and to subject the assigned property to the payment of the complainants’ debt. The respondents filed a cross-bill.
Citations of Counsel.
The decree dismissed the bill for want of equity and the cross-, bill as dependent upon it. The case is stated in the opinion.
J/z. Daniel Lamb, Mr. William IL Ilea/rne, and Mr. Henry M. Russell, for Dewey and others cited: Railway Co. v. Railway Co., Ill IT. S. 506 ; Great Falls Mfg. Co. v. Henry, 25 Grattan, 575 ; Krippendorf v. Hyde, 110 IT. S. 276; Ragsdale v. Hagy, 9 Grattan, 409 ; Jones v. Andrews, 10 Wall. 327; Jaynes v. Brock, 10 Grattan, 211; Lindsay v. Jackson, 2 Paige, 581; Taylor v. Okey, 13Ves. 180; Gay v. Gap, 10 Paige, 369; Kelsey v. Hobby, 16 Pet. 269; Hudson v. Kline, 9 Grattan, 379; HeiTbutt v. Hickson, L. R. 7 C. P. 438; Foot v. Bentley, 44 N. Y. 166; Swett v. Shumway, 102 Mass. 365; Stoops v. Smith, 100 Mass. 63; Kellogg Bridge Co. v. Hamilton, 110 IT. S. 108; Sheppard v. Pybus, 3 Man. & Gr. 868; Jones v. Just, L. R. 3 Q. B. 197; Hogins v. Plympton, 11 Pick. 97; Chapin n . Dobson, 78 N. Y. 74; Gerst v. Jones, 32 Grattan, 518 ; White v. Miller, 71 N. Y. 118; S. C. 78 N. Y. 393; Wolcott v. Mount, 9 Vroom (38 N. J. L.), 496; Randall v. Newson, 2 Q. B. D. 102.
Mr. William P. Hubbard and Mr. James Morrow, Jr., for the West Fairmont Gas Coal Co. cited: 2 Benj. on Sales, 4th Am. ed., page 916, notes and cases cited; Phillips, dec., Construction Co. v. Seymour, 91 IT. S. 646, 652; Davis v. Fish, 1 G. Greene (2 Iowa), 447; xS7. C. 48 Am. Dec. 387; Hedden v. Roberts, 134 Mass. 38; Chanter n . Hopkins, 4 M. & W. 399; Ollivant v. Bayley, L. R. 5 Q. B. 288 ; Mason v. Chappell, 15 Grattan, 572; Port Carbon Iron Co. v. Groves, 68 Penn. St. 149; Brown v. Edgington, 2 Man. & Gr. 279; Hoe v. Sanborn, 21 N. Y. 552; A. C. 78 Am. Dec. 163; Cunningham v. Hall, 4 Allen, 268, 274; Archdale v. More, 19 Ill. 565; Whitaker v. Eastwick, Penn. St. 229; Kirk n . Nice, 2 Watts, 367; Sa/nds v. Taylor, 5 Johns. 395; & C. 4 Am. Dec. 374; Kain v. Old, 2 B. & C. 627; Osborn v. Ga/ntz, 60 N. Y, 540; Robinson Works n . Cha/ndler, 56 Ind. 575 ; Gar diner v. Gray, 4 Campb. 144; Fisher v. Samuda, 1 Campb. 190; Couston v. Chapman, L. R. 2 Sc. App. 250; Hargous v. Stone, 5 N. Y. (1 Seld.) 73, 86; McCormick n . Sarson, 45 N. Y. 265; Dounce v. Dow, 64
N. Y. 411; Reed v. Randall, 29 N. Y. 358; 8. C. 86 Am. Dec. 305; Holden v. Clancy, 58 Barb. 590; Warren Glass Works Co. v. Keystone Coal Co., 65 Maryland, 547.
Mr . Just ice Matt hew s delivered the opinion of the court.
In October, 1872, a contract was entered into between the firm of Dewey, Vance & Company and the West Fairmont Gas Coal Company, the terms of which are stated in a letter from the former to the president of the coal company, dated October 7, 1872, as follows: “We beg to ratify our verbal agreement of October 4th, by which you are to deliver us until July, in 1873, an average of three cars of coke per day, at six cents per bushel of 41 pounds, we to settle for same by our note of 90 days from the 1st of each month for the previous month’s delivery.” This was acknowledged as an acceptance of a previous offer in identical terms by a letter from the president of the coal company to Dewey, Vance & Company. Under this contract the coal company were bound to deliver 681 car-loads as ordered, equivalent to 424,944 bushels, which at the contract price would amount to $25,496.64. From the date of the contract to November 30, 1873, the coal company delivered in all 246 car-loads, which had been ordered and were received and paid for according to the terms of the contract, the period during which deliveries were to have taken place having been extended by mutual consent. Dewey, Vance & Company refusing to order or receive any more, the coal company, on January 17, 1877, brought an action at law against them in the Circuit Court of Ohio County, West Virginia, for damages for the breach of the contract. The defendants in that action caused it to be removed from the state Court to the Circuit Court of the United States for the District of West Virginia on June 7, 1877, on the ground that the parties were citizens of different States, the West Fairmont Gas Coal Company, the plaintiff, being a corporation of the State of New York, and the defendants citizens of West Virginia and Ohio. Thereupon, on October 3,1877, the surviving partners of the firm of Dewey, Vance & Company filed the p. 332present bill in equity against the West Fairmont Gas Coal Company, the plaintiff in the action at law, and the West Fairmont and Marion Consolidated Gas Coal Company, a corporation organized under the laws of West Virginia, alleging that under the contract of October 4,1872, the sale of coke was by sample, the quality of which was to be equal to that of a certain trial lot previously tested, accompanied by an implied warranty that the coke to be delivered under the contract should also be fit and suitable for the purpose of being used in the furnace of Dewey, Vance & Company for making pig-iron; that in point of fact the coke actually delivered under the contract was not equal to the quality of the sample, and was not fit for the purposes for which it was to be used; that in consequence thereof the complainants had ceased and refused to order or receive any more than that delivered and paid for, and that by reason of the bad quality of the coke actually received and used they had suffered a large amount of damages; that the West Fairmont Gas Coal Company in the meantime had become and was insolvent, and that they had made a fraudulent assignment of their property to their codefendant, the West Fairmont and Marion Consolidated Gas Coal Company. The prayer of the bill was that the amount of damages sustained by the complainant might be ascertained, that the assets of the West Fairmont Gas Coal Company, so fraudulently assigned, be subjected to the payment thereof, and that in the meantime all proceedings in the action at law brought by the West Fairmont Gas Coal Company should be stayed.
The right to maintain such a creditor’s bill is based upon the code of West Virginia, c. 133, § 2, which provides that: “A creditor, before obtaining a judgment or decree for his claim, may institute any suit to avoid a gift, conveyance, assignment, or transfer of or charge upon the estate of his debtor, which he might institute after obtaining such judgment or decree, and he may, in such suit, have all the relief in respect to said estate which he would be entitled to after obtaining a judgment or decree for the claim which he may be entitled to recover.”
To this bill the defendants in the first instance objected, by p. 333way of plea and demurrer, for want of jurisdiction in the court, on the ground that one of the defendants, the West Fairmont and Marion Consolidated Gas Coal Company, was a citizen of the State of West Virginia, of which also a portion of the complainants were citizens. This objection, however, is not well taken. The suit in equity was an exercise of jurisdiction on the part of the Circuit Court ancillary to that which it had already acquired in the action at law, which it might well entertain according to the rule adjudged in Krippendorf v. Hyde, 110 U. S. 276, and Pacific Railroad Co. v. Missouri Pacific Railway Co., Ill IT. S. 505.
The defendants having answered, denying the equity of the bill, set up their right to recover damages for the alleged breach of the contract on the part of Dewey, Vance & Company, in refusing to receive the remainder of the coke deliverable under the contract, by way of cross-bill, in which they sought a decree for the amount thereof. Issues having been made upon the bill and cross-bill, the cause was heard upon its merits, when the Circuit Court rendered a decree dismissing the bill for want of equity, and the cross-bill, with costs, to the original defendants as dependent thereon. From this decree an appeal is prosecuted by the original complainants, and also by the defendants, by way of cross-appeal, from so much as dismisses their cross-bill.
From a careful examination of all the evidence in the cause, we are satisfied with the conclusions of the Circuit Court. We find as matter of fact that the sale of coke was not by sample. A trial lot of 34 car-loads, prior to the making of the contract, was furnished and used, the complainants being satisfied with it, but there was no agreement, either express or implied, that all deliveries under the contract should be equal to it in quality. The object of the test evidently was to determine, on the part of the complainants for themselves, whether they were willing to run the risk of using coke to be manufactured by the coal company from the slack of their mines at the price offered. The coke which was subsequently furnished under the contract was used by the complainants and paid for according to the contract without objection, except as to a lot p. 334furnished in December, 1872, which was complained of as being inferior. On investigation it turned out to have been made from material taken from a slack pile outside of the mine which had been for some time exposed, and had become unfit for the purpose. Thereafter no material was used except the fresh slack taken from the inside of the mines, and deliveries continued to be made as ordered until the last which took place in November, 1873. There was no warranty expressed, nor can any be reasonably implied from the circumstances, that the coke under the contract should be suitable for use in the furnace for making pig-iron. On the contrary, it was expressly understood that it would not be suitable for that purpose by itself. The only question to be determined was whether it could be used in combination with Connellsville coke, which was the standard for that purpose, and if so, in what proportions; to determine this was the object of testing the trial lot. The complainants continued to use it, as already stated, from time to time, without objection or complaint, paying for what they received according to the terms of the contract, and not at any time giving notice of any intention to refuse the further performance of the contract, although ceasing to give any orders after November, 1873. On November 28, 1873, the coal company, in a letter from its president to Dewey, Vance & Company, asked for the reason for the order to discontinue shipping, in reply to which, on December 4, 1873, Dewey, Vance & Company wrote: “Yours of the 28th inst. was duly received. We were accumulating stock, and stopped shipments from Fairmont and curtailed from Connellsville ; have no definite idea at what time we shall again need.” No further communications appear to have taken place between the parties until the beginning of the action at law.
We think the Circuit Court did not err upon the merits in dismissing the complainants’ bill, and, as the cross-bill was dependent upon it and sought no relief purely equitable, it was also properly dismissed, with costs to the complainant therein, thereby remitting it to its remedy in the pending action at law.
The decree of the Circuit Court is accordingly affirmed.
Syllabus.
UNITED STATES v. MORANT.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA.
Argued October 25, 26, 1887. —Decided November 21, 1887.
The testimonio granted to Cerilo de Morant, September 22,1817, was full and particular, and both that and the testimonio to Quina, dated May 1, 1818, made complete titles under the Spanish laws.
In Florida a sheriff’s deed given in evidence without production of the judgment or execution, and read without objection, is sufficient evidence of sale by sheriff.
The objection to the claimant’s title that no evidence was given of cultivation, as required by the Spanish grant, is not well founded, as the proof is conclusive that the grantees built houses and resided on the granted land shortly after the date of the grants.
Whatever may be the proper construction of the 8th article of the Treaty of 1819 with Spain as to the necessity of a survey prior to the date when the obligation to recognize Spanish grants ceased in order to validate a Spanish grant, the act of June 22, 1860, 12 Stat. 85, under authority of which this suit was commenced, makes the date of the transfer of possession to the United States, viz., July, 1822, the point from which to test the validity of the grants.
The act of June 22, 1860, 12 Stat. 85, was passed to give relief to a large class of grantees of former Spanish governments, whose claims had been rejected by the different boards of commissioners, and by the courts, under the strict construction of the treaties required by prior laws. This case does not come within the proviso in § 3 of the act of June 22, 1860, excluding claims from the jurisdiction of the commission.
There is no reason why a part owner of lands in Florida under a Spanish grant should not have the benefit of the proceedings authorized by the act of June 22, 1860, 12 Stat. 85.
The failure to annex a sworn copy of the government surveys to a petition for confirmation of title filed under the act of June 22, 1860, 12 Stat. 85, is not a question of jurisdiction, but a matter relating merely to the form of procedure, which should be objected to when the pleadings are in fieri, and when the petitioners can apply for leave to amend.
The evidence in this case shows that the grants were genuine, and that the land was surveyed, mapped, and segregated from the public domain in the spring of 1818.
In affirming the decree below this court merely confirms the validity of the grant, but does not give a decision which entitles the party to possession if the government has sold the lands in whole or in part, or if the sur-1 veyor general shall ascei*tain that they cannot be surveyed and located.
The case is stated in the opinion of the court.
Solicitor General for appellants.
I. The jurisdiction in this case is a special one, granted by the act of June 22, 1860, 12 Stat. 85, c. 188. The act only authorizes the court to assume jurisdiction when the parties claiming represent title to the whole of the claim. The evidence shows the title to one undivided fourth of the land to be in John Chabaux.
II. There was no sufficient evidence of the genuineness of the grants, and without this they were not admissible without proof, it not appearing that there was thirty years’ possession under them.
III. The grants, if genuine, are invalid, and did not warrant the decree of confirmation. See United States v. Clarke, 8 Pet. 436, and Smith v. United States, 10 Pet. 326. These cases settled that where an imperfect grant is indescriptive it does not exist as a valid grant to land until it is actually located by survey, and such survey made after the 24th day of January, 1818, under an indescriptive grant, does not validate a grant and should not be confirmed. They also established that a descriptive grant, which by survey after the 24th of January, 1818, is located on other lands than those described in the grant, should not be confirmed as to such grants. Both of the grants presented in this case purport to have been located by survey on the 6th day of March, 1818. The application for the grant by Cerilo de Morant describes the land as “ sixteen hundred arpents of said vacant lands, twelve miles to the NW. of this place (Pensacola), on the SE. side of the land established by Mr. Manuel Goverder.” The grant is for “the sixteen hundred acres of land that he asks, . . . and that the surveyor general proceed to the measurement and survey, drawing a figurative plan, which, with the proceedings, will be annexed to this matter.” Until the same was made on this grant, by its terms no land was “severed from the domain of the king.” All that was fixed by it was the locality in which the future severance was to be made by survey.
No monuments were referred to which defined the boundary. Nor was the length of any side given by which the quantity of land might be located; nor was the figure or form of the survey defined. Hence no particular land was granted, but only an executory agreement made that when survey was had the land so surveyed should be granted. See Lilley v. Paschal, 2 S. & R. 394, 400; Starr v. Bradford, 2 Penn. (P. & W.) 384, 395; Lau'rnan v. Thomas, 4 Binney, 51; Boyes v. Kelly, 10 S. & R. 214.
IV. Specific performance of the alleged grant should not be decreed, on account of laches of the alleged grantees and their privies. The grants, if made, were prior to the 24th of January, 1818. After their making the legal title to the land was transferred to the United States. On the 8th of May, 1822, the United States by statute provided for their confirmation. 3 Stat. 709, c. 129. On the 3d of March, 1823, the presentations of claims was again urged, with penalty of a bar if not presented before the 1st of December, 1823. 3 Stat. 754, c. 29. On the 8th of February, 1827, a similar act was passed limiting the time for filing to the first of November, 1827. 4 Stat. 202, c. 9.
On the 23d of May, 1828, another act was passed which prescribed by its 12th section that all claims not presented within one year should be forever barred. 4 Stat. 286, c. 80, § 12. From time to time thereafter, until the act of 1860, similar legislation was had, which, with the act of 1860, extended the time until 1865. The government was diligent, urgent on the claimants to present claims, giving ample notice, time, and opportunity. The act of 1860, which applied to these claims, by the second section provided that they should be passed upon according to “ justice and equity.” No possession is shown by the alleged claimants for over forty years. Flagrant laches have existed with reference to the claims. The act of 1860 infused no new life into the claims to be presented, but only removed the bar of prior limitations. No evidence was given to account for or excuse the negligence of the claimants. Courts of equity, acting on their own inherent doctrine of discouraging, for the peace of society, antiquated
VOL. CXXIII—22
demands, refuse to interfere in attempts to establish a stale trust except, where, 1st, the trust is clearly established, 2d, the facts have been fraudulently and successfully concealed by the trustee from the knowledge of the cestui que trust. Badger v. Badger, 2 Wall. 87.
Mr. Abram Wintersteen for appellees. Mr. Wayne MeVeagh filed a brief for same; and Mr. Robert B. Lines filed a brief for Laurent Millandon.
Mr . Jus ti ce Brad le y delivered the opinion of the court.
The petition in this case was filed in the District Court of the United States for the Northern District of Florida for the confirmation of a Spanish grant, under the 11th section of the act of June 22d, 1860, entitled “ An Act for the final Adjustment of Private Land Claims in the States of Florida, Louisiana and Mississippi, and for other purposes,” 12 Stat. 85; and the appeal was taken directly from the decree of the District Court to this court pursuant to the provisions of said section. The petition was filed November 22d, 1869, within the time prescribed by the act of March 2d, 1867, 14 Stat. 544. It is conceded by a stipulation filed of record in the cause that the petitioners are the legal representatives of Cerilo de Morant, Doqumeniel1 de Morant, and Laurent1 Millandon, who are deceased. The title of the petitioners is deduced from these deceased parties.
The petition states that on the Sth day of October, 1817, the King of Spain, by Don Jose Masot, governor of West Florida, granted to Cerilo de Morant, then a subject of Spain, a certain tract of land containing 1600 arpents, situated northwest of Pensacola, in West Florida, about twelve miles and a half, bounded northwardly by lands previously granted to Don Emanuel Gonzales, and by public lands, eastwardly and westwardly by public lands, and southwardly by lands granted to Desiderio Quina; that on the 1st of March, 1818, the said land was surveyed for the grantee by the deputy surveyor for West
1
The varied spelling of the record is followed by the court.
Florida, and that on the 6th of March, 1818, the said deputy-surveyor delivered to the proper authorities his certificate and plan of said survey, a copy of which is annexed to the petition. That thereupon the grantee proceeded to clear, occupy, settle and cultivate the land. A copy of the expediente is annexed to the petition.
It then proceeds to state that another grant was made in the same manner on the 20th day of January, 1818, to Desiderio Quina, of 800 arpents of land, situated about eleven miles northwest of Pensacola, and surveyed for the grantee by the same deputy surveyor. The plats annexed show that the two tracts adjoin each other. The petition further states that Quina, on the 29th of October, 1818, sold and conveyed his grant to Cerilo de Morant; and that the latter subsequently sold and conveyed three undivided fourth parts of both tracts to Laurent Millandon, Louis Doqumenil de Morant and John Chabaux, one undivided fourth to each; and that Laurent Millandon afterwards purchased the interest of Chabaux, and thus became owner of one undivided half of the land.
The petition further states that the heirs of Cerilo de Morant petition as well in behalf of the interests of the heirs of Louis Docmeniel de Morant, and those of Laurent Milla,ndon, as for themselves.
On the trial the petitioners produced in evidence their documentary title in Spanish, with English translations accompanying the same. The title of each tract consists of a testimonio in the usual form in such cases. The testimonio of the tract granted to Cerilo de Morant consists of, first, Morant’s petition to the governor, for 1600 arpents of land, indicating the locality, and dated September 22, 181T; secondly, the governor’s reference to the surveyor general to ascertain if the lands were vacant, and to the fiscal, or attorney general of the royal treasury, for his advice as to the legality and merits of the application; thirdly, the favorable answers of these functionaries ; fourthly, an order of the governor that the applicant take the oath required by the fiscal, and that the surveyor general proceed to the measurement and survey of the land, and to annex a figurative plan to his return; fifthly, a certifi- p. 340340 ‘ OCTOBER TERM, 1887.
cate of the oath taken by the applicant; sixthly, the return of the surveyor, dated March 6, 1818, stating the survey of the tract in detail, with a plat annexed; seventhly, the governor’s certificate to the testimonio, declaring that it conforms with the original, and that it is issued at the request of the party at Pensacola, on the 5th of April, 1818. This testimonio is very full and particular. The other, issued to Quina, omits a report from the fiscal, as the petitioner merely stated the quantity of land desired, and left it to the governor to designate its location, who referred it to the surveyor general. The latter located the land adjoining to the tract granted to Morant. A survey was made accordingly, and a testimonio issued to the grantee dated the first day of May, 1818.
Both of these testimonios (including the surveys) made complete titles under the Spanish laws.
The petitioners also produced in evidence certain acts of sale and transfer, to wit:
1. A sale by Quina to Cerilo de Morant for the tract of 800 arpents granted to the former. This act is dated 29th October, 1818.
2. A sale by Cerilo de Morant to John Chabaux, Laurence Millandon, and Louis Doquminel de Morant, junior, of three undivided fourth parts of the tract of 800 arpents granted to Quina. This act of sale is dated November 9th, 1818.
3. A sale by Cerilo de Morant to John Chabaux, Laurence Millandon and Company, of three undivided fourth parts of the tract of 1600 arpents, reserving to himself one undivided fourth part of the same. This act is dated June 14th, 1821.
4. A marshal’s deed, dated August 3d, 1835, from James W. Evans, marshal of the Western District of Florida, to Laurence Millandon, for the one undivided fourth part of both said tracts which belonged to John Chabaux. This deed recites a judgment against the executor of John Chabaux recorded in the Superior Court of the Western District of Florida, in May Term, 1825, and an execution sued out m May, 1836, and a sale thereunder by said marshal to said Millandon, in pursuance of which the deed purports to have been made. The judgment and execution were not produced, but p. 341no objection to the admission of the deed was made on this account; and the practice in Florida as to proof of judicial sales by sheriffs seems to be very liberal. (See Hartley v. Terrell, 9 Fla. 374, where a sheriff’s deed was given in evidence without, so far as appears, the production of the judgment or execution.) The fact that the judgment was against the executor was no objection, since real estate was made assets in the hands of executors by the territorial act of 1833, and equally liable with personal property to an execution upon a judgment against the executor. Act of Feb. 17, 1833, §§ 2, 4; Thompson’s Digest, 202, 203.
In 1824, these Spanish titles were presented by Cerilo de Morant to the commissioners for ascertaining claims and titles to land within the district of West Florida, and were rejected by them, on the ground, as appears from their report, that no evidence was given of cultivation as required by the grants. Another reason assigned by the commissioners for rejecting grants in the list containing those in question, was that the claims had not emanated from His Catholic Majesty, or his lawful authorities in West Florida, prior to January 24, 1818, or that the order of survey had not been actually executed anterior to that period. See Commissioners’ Report in American State Papers, Public Lands, Vol. IV., pp. 198, 199.
These objections are repeated before us, and are, amongst other things, assigned as grounds of error in the judgment of the court below. They may as well be disposed of here.
As to not cultivating the land, it was proved very conclusively on the trial that the grantees actually built houses and resided upon it shortly after the dates of the grants.
As to the dates of the surveys, it is true that they were both made after the 24th day of January, 1818, namely, in the beginning of March in that year, although the grants were made before that period. The objection is based upon the terms of the treaty entered into with Spain, in 1819, by which Florida was ceded to the United States. By the 8th article of this treaty it was stipulated that all grants of land made before the 24th of January, 1818, by His Catholic ajesty, or by his lawful authorities, in the ceded territories^
should, be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty; but all grants made since the 24th of January, 1818, when the first proposal on the part of His Catholic Majesty for the cession of the Floridas was made, were declared and agreed to be null and void.
The commissioners construed these provisions of the treaty as invalidating grants made prior to the date named, if the surveys were not completed until after that date. This construction was opposed by the claimants who were affected by it, and a different view, perhaps, might well have been taken. But, be that as it may, the act of 1860, under which the present proceedings were instituted, made the date of cession to the United States, or the time of transferring possession, the point from which to test the validity of grants. That act was passed for the relief of parties who claimed lands in Florida, Louisiana, or Missouri, “by virtue of grant, concession, order of survey, permission to settle, or other written evidence of title, emanating from any foreign government, bearing date prior to the cession to the United States of the territory out of which said States were formed, or during the period when any such government claimed sovereignty or had the actual possession of the district or territory in which the lands so claimed were situated.” (See the act, 12 Stat. 85, §§ 1,11.) The act of 1860 was intended to give relief to a large class of grantees of former governments, whose claims had been rejected by the different boards of commissioners, and by the courts, under the strict construction of the treaties, which prior laws had required. The history of the question is given at some length in the opinion of this court in the case of United States v. Lynde, 11 Wall. 632, and need not be repeated
here.
The treaty by which the Floridas were ceded to the United States was not concluded and signed until the 22d day of February, 1819 * and the ratifications were not exchanged until two years afterwards. The cession certainly did no take place, therefore, before the date named; and possession p. 343of the territory was not taken until July, 1822; whilst all the acts constituting the titles in question were passed prior to May, 1818. We cannot hesitate to conclude, therefore, that these titles were completed within the time required by the act of 1860.
We will proceed, then, to examine the other errors assigned on behalf of the government.
1. It is contended that the court below had no jurisdiction of the case, (a) because the record does not show that the claim did not come within the purview of § 3 of the act of 1860; (J) because the alleged claimants do not represent the whole title to the land claimed ; (c) because no sworn copy of the government surveys was annexed to the petition. The first of these grounds is based on that clause of the 11th section of the act of 1860, which excludes from the jurisdiction of the District Court claims which come within the purview of the 3d section of the act. It requires only a momentary examination of that section to determine that the purview of it here referred to is the proviso, which declares, in substance, that in no case shall the commissioners embrace in classes one and two (namely, those which in their opinion ought to be confirmed) any claim previously presented to a board of commissioners, or other public officers acting under authority of Congress, and rejected as being fraudulent, or that had been rejected twice by previous boards. The present case does not come within either of these categories. The other matters assigned as grounds for want of jurisdiction are insufficient. We perceive no reason why a part-owner, or the heirs or representatives of a part-owner, should not have the benefit of the proceeding, even if the present petitioners did not show title to the entire interest in the lands; and the failure to annex a sworn copy of the government surveys to the petition is not a question of jurisdiction, but a matter relating merely to the form of procedure, which should have been objected to when the pleadings were in fieri, and the petitioners could have obtained leave to amend. A plat of the two grants, laid down in connection with the sections and subsections of the government surveys, certified as correct by a civil engineer p. 344and surveyor, was put in evidence at the trial without object tion, and forms part of the record here. There seems to have been no controversy as to the location of the grants, either before the commissioners in 1824, or on the trial of the present cause.
2. The next assignment of error is, that there was no sufficient evidence that the alleged grants were genuine. This assignment cannot be sustained. The original testimonios seem to have been given in evidence at the trial, since the signatures to the same were identified by the witness Francisco Moreno, who had been attached to the public office in Pensacola under the Spanish government as treasurer of the customs and auditor of accounts, and was familiar with this kind of documents. The English translations are certified by the keeper of public archives of West Florida, in whose office both the Spanish originals and the translations of all claims laid before the commissioners of 1824 were recorded in pursuance of the act of March 3,1825. 4 Stat. 125. It may be added that the genuineness of these titles was not disputed before the said commissioners, and do not seem to have been disputed in this case in the court below, where these titles are familiar to the courts and members of the bar.
3. The last assignment of errors is, that the grants, if genuine, were void. It is contended that they were void, because they were indescriptive grants which had not been surveyed on the 22d day of January, 1818. We have already shown that, although this was the epoch fixed in the treaty for determining the validity of grants, yet that the act of 1860 made the date of cession of the territory, or of yielding possession thereof, the epoch to be observed under that act; and as this latter epoch was certainly as late as the 22d of February, 1819, when the treaty was concluded and signed, the objection falls to the ground. The land was actually surveyed and mapped, and segregated from the public domain in the spring of 1818. The old cases, therefore, which were formerly decided by this court, and which are referred to by the counsel of the government, have no application to the case before us. Prior statutes, inconsistent with the provisions of the act of I860, no longer control our decision.
We do not think that any of the alleged errors are well founded.
The decree of the District Court is affirmed.
This decision merely confirms the validity of the grants, but does not entitle the parties to possession. If the government has sold the lands in whole or in part, or if the surveyor general shall ascertain that they cannot be surveyed and located, the petitioners, under § 6 of the act of 1860, will be entitled to scrip for other public lands of equal extent, to those so sold, &c.
Affirmed.