9 F. 726 | U.S. Cir. Ct. | 1882
Demurrer to the bill. Briefly stated, it is substantially alleged that between July 26, 1866, and October 27, 1867, the grantors of complainant, without stating who they are or the particulars of their acts, in pursuance of the act of congress of July 26, 1866,
The bill further alleges all these fraudulent acts set out to have been performed with the knowledge of defendant and of the said Maria, the grantee and patentee; but alleges no active participation on the part of said Maria, the patentee. Complainant asks that said
The patent described in the bill was issued upon a Mexican grant made in 1846, after confirmation by the board of land commissioners, affirmed by the United States courts on appeal, in pursuance of the act of congress of March 3,1851, “to settle private land claims in the state of California.” 9 St. 631. The effect of a patent issued upon such confirmation of a Mexican grant of the kind has been settled by the supreme court of the United States as well as by numerous decisions of the supreme court of California. In Beard v. Federy, 3 Wall. 491, the supreme court oE the United States states the effect of such a patent in the following language:
“In the first place, the patent is a deed of the United States. As a deed, its operation is that of a quitclaim, or rather of a conveyance of such interest as the United States possessed in the land, and it takes effect by relation at the time when proceedings were instituted by the filing of the petition before the hoard of land commissioners. In the second place, the patent is a record of the action of the government upon the title of the claimant as it existed upon the acquisition of the country. Such acquisition did not affect the rights of the inhabitants to their property. They retained all such rights, and were entitled by the law of nations to protection in them to the same extent as under the former government. The treaty of cession also stipulated for such protection. The obligation to which the United States thus succeeded was, of course, political in its character, and to he discharged in such manner and on such terms as they might judge expedient. By the act of March 3, 1851, they have declared the manner and the terms on which they will discharge this obligation. They have there established a special tribunal, before which all' claims to land are to he investigated; required evidence to be presented respecting the claims; appointed law officers to appear and contest them on behalf of the government; authorized appeals from the decisions of the tribunal, first to the district and then to the supreme court; and designated officers to survey and measure off the land, when the validity of the claims is finally determined. When informed by the action of its tribunals and officers that a claim asserted is valid, and entitled to recognition, the government acts and issues its patent to the claimant. This instrument is, therefore, record evidence of the action of the government upon the title of the claimant. By it the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now, so as to embrace the premises as they are surveyed and described. As against the government this record, so long as it remains unvacated, is conclusive. And it is equally conclusive against parties claiming under the government by title subsequent. It is in this effect of the patent as a record of the government that its security and protection chiefly lie. If*730 parties asserting interests in lands acquired since the acquisition of the country could deny and controvert this record, and compel the patentee, in every suit for his land, to establish the validity of his claim, his right to its confirmation, and the correctness of the action of the tribunals and officers of the United. States in the location of the same, the patent would fail to be, as it was intended it should be, an instrument of quiet and security to its possessor. The patentee would find his title recognized in one suit and rejected in another, and if his title were maintained, he would find his land located in as many different places as the varying prejudices, interests, or notions of justice of witnesses and jurymen might suggest. Every fact upon which the decree and patent rest would he open to contestation. The intruder, resting solely upon his possession, might insist that the original claim was invalid, or was not properly located, and therefore he could not be disturbed by the patentee. ÍTo construction which will lead to such results can he given to the fifteenth section. The term “third persons,” as there used, does not embrace all persons other than the United States and the claimants, but only those who hold superior titles, such as will enable them to resist successfully any action of the government in disposing of the property.”
In Teschemacher v. Thompson, 18 Cal. 26, the supreme court of California, by Chief Justice Field, says:
“ This instrument (the patent) is not only the deed of the United States, but it is a solemn record of the government of its action and judgment with respect to the title of the claimant existing at the date of the cession. By it the sovereign power, which alone could determine the matter, declares that the previous grant was genuine; that the claim under it was valid, and entitled to recognition and confirmation by the law of nations and the stipular tions of the treaty; and that the grant was located, or might have been located, by the former government, and is correctly located by the new government so as to embrace the premises as they are surveyed and described. While this declaration remains of record, the government itself cannot question its verity, nor can parties claiming through the government by title subsequent. * * * But as the record of the government of the existence and validity of the grant, it establishes the title of the patentees from the date of the grant.”
In this case that would be from 1846. And again:
“ The ‘ third persons ’ against whose interest the action of the government and patent are not conclusive, under the fifteenth section of the act of March 3,1851, are those whose title accrued before the duty of the government and its rights under the treaty attached.” Id. 27.
This view was established in Leese v. Clark, 20 Cal. 412, 420, 423, and repeated in numerous other cases! See Bissell v. Henshaw, 1 Sawy. 565, and cases cited; and S. C. 18 Wall. 268.
In Carpentier v. Montgomery, 13 Wall. 495, the court says that the provision of the fifteenth section of the act of congress cited “ was intended to save the rights of third persons not parties to the
But complainant has no standing to impeach the transaction on another ground. He has no apparent title from the United States. His right, whatever it may be,¡is, at best, only inchoate. It is a mere privilege; a first right to purchase, or pre-emption right under the acts of congress, of which he may avail himself or not as he chooses if he should succeed in vacating the patent. He is not bound to purchase of the government, and may abandon his claim at any moment. Neither he nor his grantor has ever tendered the purchase money to the United States or to defendant, or applied for a patent, and it so appears in the bill, and non constat that he ever will do either. He is in no better position as regards title, in his relation to the government, than the parties in Hutton v. Frisbie, 37 Cal. 481, and Frisbie v. Whitney, 9 Wall. 187. Complainant as yet has no privity with the government in the lands in dispute, and no ground for equitable relief on that score. Doll v. Meador, 16 Cal. 295. The United States, if anybody, is the party injured; and the right to vacate the patent for fraud, if any such right exists, is in the United States, and the United States should file the bill to vacate the patent. Moore v. Robbins, 96 U. S. 533. Justice can only, be done, if at all, upon a bill filed by the United States — the party to the transaction, and the party injured. It is not claimed that the grant confirmed and patented is not valid and properly confirmed; but it is said it is improperly located. The patentee, then, is entitled, to 11 leagues of land somewhere. Even upon a bill filed by the government, if the location should be vacated on the ground of frauds practiced by the officers in locating it, with or without the knowledge of the patentee, it is at least doubtful if it could be relocated in the proper place. The ordinary courts have no jurisdiction in the location of grants except in the mode prescribed by the special act of congress on the subject.' But suppose the complainant should succeed in charging the defendant as a trustee, on account of fraudulent acts occurring before he had any interest in the matter, and obtain a decree for conveyance of the whole or a part of the land, there could be no relocation on
The United States is no party to the bill, and would not be affected by the decree. Clearly the United States is the proper party, and the only proper party, to a suit upon the facts set out in this bill. No decree could be rendered against the defendant in a suit by any other party which could do it justice, or protect and preserve its rights under the Mexican grant, confirmed and patented. The fraud charged, if it exists, certainly deserves the severest punishment ; but the law does not punish it in that way. In my judgment, the case does not fall within the principle announced in Johnson v. Towsley, 13 Wall. 72, and followed in subsequent cases of a like character. U. S. v. Flint, 4 Sawy. 74. The complainant, in my opinion, is not in a position to maintain this bill. The genuineness of the grant and its “correct location” were the very questions in issue and determined in the proceedings for confirmation and segregation under the acts of congress, and these questions cannot be re-examined in other tribunals even upon a bill filed by the United States, as was held in U. S. v. Flint; U. S. v. Throckmorton; and U. S. v. Carpentier, 4 Sawy. 42, affirmed in 98 U. S. 61. In U. S. v. Flint [ had occasion to observe that—
“It is a startling proposition to those who hold patents to lands issued upon confirmed Spanish or Mexican grants, that after 25 years of compulsory litigation, intended, in the language of the various acts of congress, to ‘ settle titles to laud in the state of California,’ the holders of all such patents are liable to be called upon to relitigate their claims with the government in the ordinary courts of justice; and that the patent, instead of being conclusive evidence of a ‘ settlement’ of the title — the end of litigation — is but the foundation for the beginning of a new contest to unsettle it, in the tribunals*734 of the country, which before had no jurisdiction whatever over the subject-matter. The very institution of these suits in the name and by the authority of the government, was well calculated to produce, and undoubtedly did produce, a general distrust of such titles, and a wide-spread if not a well-founded alarm.” Id. 85-6.
It is a still more “startling proposition,” that any citizen at his own option, 13 years after a claim for confirmation of a Mexican grant has been presented to the proper tribunals of the country, and nearly three years after the decree of confirmation has been affirmed by the supreme court of the United States, and pending the survey and final location, and during the ordinary delays incident to issuing a patent, can by a mere entry or trespass upon the lands so claimed, and in litigation between the government and the claimant, acquire a status that will enable him to attack and avoid the whole proceedings, and for his own benefit control the title vested by the patent under the grant, in which grant he has no interest In this case there is no attack on the genuineness of the grant. It is only the location of the grant that is assailed. Upon the inviolability of the location, Mr. Justice Field, with the concurrence of the circuit and district judges in U. S. v. Flint, 4 Sawy. 61, said:
“As to the alleged error in the survey of the claim, it need only be observed that the whole subject of surveys upon confirmed grants, except as provided by the act of 1860, which did not embrace this case, was under the control of the land department, and was not subject to the supervision of the courts. Whether the survey conforms to the claim confirmed, or varies from it, is a matter with which the courts have nothing to do; that belongs to a department whose action is not the subject of review by the judiciary in any case, however erroneous. The courts can only examine into-the correctness of a survey when, in a controversy between parties, it is alleged that the survey made infringes upon the prior rights of one of them; and can then look into it only so far as may be necessary to protect such rights. They cannot order a new survey, or change that already made.”
This was said in a case where the United States was complainant in the bill. A fortiori must this be true as to a party having the status of the complainant in this bill. In the conclusions stated by Hoffman, J., in U. S. v. Flint, 4 Sawy. 84, 85, and especially in 1, 2, 3, and 6, I fully concur. See, also, pages 86, 87. The government, to carry out the provisions of the treaty, committed this whole matter to other and special tribunals, except so far as brought before the ordinary courts for review or appeal. The circuit courts, in the exercise of their general and ordinary jurisdiction, had nothing to do with
If this court should now assume jurisdiction to vacate the location, it cannot do equity by giving other lands in place of those taken away. Besides, in the mean time, relying upon this location, other parties may have acquired from the government the title to all other lands upon which it might be located. These patents ought not to bo lightly interfered with, at the will or caprice of parties entering upon lands claimed under Mexican grants pending proceedings for confirmation and location, and setting up recent claims under general'preemption laws, or laws authorizing the location and purchase of mines. Whether this case has any feature that brings it within any of the exceptions stated in the last cases cited, it will be time enough to determine when the United States files a bill to vacate the patent on the ground of the frauds charged. In my opinion, the bill presents no ground for equitable relief.
So, also, in my judgment, the suit, in analogy to the statute of limitations of the state, is barred by lapse of time. If complainant is entitled to any relief it is wholly on the ground of fraud. Such suits are barred within three years. Code Civ. Pro. § 338, clause 4. According to the allegations of the bill, the fraud was consummated October 27, 1867. The bill was filed September 8, 1S80, nearly 13 years alterwards. The statutory period had, therefore, run more than four times before the filing of the bill, unless the case is within the provision that the cause of action shall “not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.” It is attempted to take the case out of the statute by the simple averment “that your orator never heard of the various actings and doings hereinbefore in articles 12, 13,14, 15, 16, 17, 18, and 19 of this bill set forth, or any of them, until within two years last past.” No reason is given for not discovering the fraud. There certainly should be some showing on this point, in view of the public and notorious acts alleged. The bill is singularly barren of allegations of specific facts, though amply full as to general charges
The great and substantial facts in the case are all facts of public record, and public proceedings under the law, and of public notoriety. The survey and the patent are of record, and open to' everybody’s inspection and examination. The incorporation of the defendant is a matter of public record. Notice of the survey appears from the allegations of the bill to have been published under the statute, and to have produced its proper results, as the bill shows upon its face that parties other than complainant’s grantor actually appeared in the surveyor general’s office as provided by statute, and filed therein objections to the survey on the very fundamental grounds of the fraud stated and'relied on in this bill, and that the objections were -overruled. Thus, not only the survey and patent, but the very facts charged as the equitable grounds for relief in this bill, were pufon the public records of the surveyor general’s office, and ruled upon by that office. The facts charged and the rulings, therefore, became public records prior to October 27,1867, open to the inspection and examination of all; so, also, the fact, if it be a fact, that the grant was located in such a manner that it did not approach within 6 miles at the nearest point, or within 20 miles of some points, of the exterior bounds of the tract within which it could lawfully be located, and did
In my judgment, upon both grounds discussed, the bill fails to present any grounds for the relief sought; and it is manifest, under the views expressed, that the bill cannot be truthfully so amended as to obviate the objections. The demurrer to the bill is sustained, and the bill dismissed. Let a decree be entered accordingly.