68 F. 637 | U.S. Circuit Court for the District of Eastern Arkansas | 1895
By the statute of Arkansas the pleadings in the action of ejectment are very nearly assimilated to those of a suit in equity to quiet title. The pleading is special, and not general. In Ms complaint the plaintiff must set forth “all deeds and other written evidences of title on which he relies for the maintenance of his suit, and shall file copies of the same, as far as the same can be obtained, its exhibits therewith, and shall state such facts as shall show a prima facie title in himself to the Laid in controversy.” Sand. & H. Dig. § 2578. All objections to exhibits must: be made by exceptions to their admissibility before the trial. Id. § 2579. The object of this statute is to prevent: surprise to either party; also to prevent, as far as may be, the discussion of questions of evidence during the trial, so that trials
“All grants shall he made in the name of the king by the governor general of the province, who will at the same time appoint a surveyor to fix the bounds thereof, both in front and depth, in the presence of the .iudge ordinary of the district and of two adjoining settlors, who shall be present at the survey. The above-mentioned four persons shall sign the process verbal, which shall be made thereof. The surveyor shall make three copies of the same, one of which shall be deposited in the office of the scrivener of the government, another shall be directed to the governor general, and a third to the proprietor to be annexed to the title of his grant.” Copied also in U. S. v. Boisdore, 11 How. 76. Also in volume 5, Am. St. Papers, pp. 289, 290.
Tkese regulations were approved by tbe royal order of the king of Spain of August 24, 1770, after which they had the force of statutes which no official had the right to disregard. U. S. v. Moore, 12 How. 217. The Spaniards “were a formal people, and their officials were usually careful in the administration of their public affairs.” White v. U. S., 1 Wall. 680. Some degree of conformity with laws thus actually in force must be shown by the plaintiff, “otherwise there can be no protection against imposition and fraud in these cases.” U. S. v. Teschmaker, 22 How. 405. The applicant for a Spanish grant presented to the governor a petition, or “requete,” as it was called, accompanied by what was called a “figurative” or “conjectural” map or plan of the land desired. This map was not made from' an actual survey, but served to indicate in a general way the location of the land sought to be acquired, so that the officials might know whether it was vacant or not, and something' of its real or prospective value. Without some such information, the governor could not act advisedly in making or in refusing the grant In all cases there was an actual survey on the ground before the title of the crown was divested, followed by an. actual putting the grantee in pedal possession; a jmoceeding which was the equivalent of delivery of seisin at common law, both ceremonies being derived from the feudal law. The figurative plan has sometimes been
“It follows that the description, when applied to the facts, is too vague and indefinite for any survey to be made, and that, therefore, the'claimants can take nothing- under the concession, and that it is our duty to order the decree of the superior court of East Florida to be reversed, and the petition to be dismissed. We would remark, in addition, that this concession, in its leading features, cannot be distinguished from various others that have heretofore been brought before this court for adjudication, where no specific laud was granted, or intended to be granted, but it was left to (lie petitioner to have a survey made of the land in the district referred to by the concession, by the surveyor general of the province, in due form, on the ground, and 1o cause the plat and certificate of such survey to be recorded by the surveyor general, by which additional public act the land granted was severed from the king-'s domain, but remained part of it until the survey was made and recorded. Until iliis was done, the warrant was a floating warrant of survey, not recognized by the government of Spain before the cession, nor by this government since, as conferring an individual title to any specific parcel of land on the petitioner.”
Huch an inchoate claim as Filhiol possessed at the time of the cession was of no kind of validity as against the United Stales, and, even if it hadi been expressly confirmed by act of congress, it would have derived its validity alone from that act, “and not from any French or Spanish element which entered into its previous existence.” Dent v. Emmeger, 14 Wall. 312. Though the land had been actually surveyed as required by the regulations of Gov. O’Reilly, still the claim would have had no validity, unless a copy of the survey had been filed in the office of the scrivener of the government, as therein provided. “But the examination of the surveyor, the actual survey, and the return of the plat were conditions precedent, and he had no equity against the government, and no just claim to a grant until they were performed.” Fremont v. U. S., 17 How. 554. On this subject the supreme court say:
“This concession was an incomplete grant, and did not vest a perfect title to the property in the grantee, ’ according to the Spanish usages and regulations, until a snivey was made by the proper official authority, and the party thus put in possession, together, also, with a compliance with other conditions,*642 if contained in tlie grant, or in any general regulations respecting the disposition of the public domain. Possession, with definite and fixed boundaries, was essential to enable him to procure from the proper Spanish authority a complete title.” U. S. v. Hughes, 13 How. 2; U. S. v. Hanson, 16 Pet. 199.
If these are the rules to be applied where the grant in itself says nothing about a survey, they must have a more obvious application where the concession itself specifically requires such an actual survey .to be made and returned. The grant in this case expressly provides, “that this land is to be measured so as to include the site or locality known by the name of ‘Hot Waters.’” Not only was an actual survey on the ground required by the law, but the grant itself made such an actual survey a condition precedent to any investiture of title. The governor approved the “figurative” survey of Trudeau, but he, as was certainly meet and proper, required that the land referred to should be measured and identified by an actual survey, which should leave nothing to conjecture. No right, legal or equitable, vested in the petitioner until survey was made and returned according to law. “The original concession granted on his petition was a naked authority or permission, and nothing more.” Fremont v. U. S., 17 How. 554; Peralta v. U. S., 3 Wall. 440. Not .only was it necessary that the actual survey should be made, but it and the survey must have been returned and filed as provided in the regulations of O’Reilly; otherwise there was no valid grant. In the Peralta Case, supra, the court said:
“Written documentary evidence, no matter how formal and complete, or how well supported by the testimony of witnesses, will not suffice if it is obtained from private hands, and there is nothing in the public records of the country to show that such evidence ever existed. But it may be said that the archives of the country may be lost or destroyed, and, if so, that the party in interest should not suffer. This is true; and if the claimant can show, to the satisfaction of the court, that the grant was made in conformity to law, and recorded, and that the record of it has been lost or destroyed, he will then be permitted to introduce secondary evidence of it But the absence of record evidence is necessarily fatal, unless that absence can be accounted for.”
See, also, U. S. v. Wiggins, 14 Pet. 350; U. S. v. Kingsley, 12 Pet. 476; Chouteau v. Molony, 16 How. 234; U. S. v. Cambuston, 20 How. 59; U. S. v. Castro, 24 How. 346; U. S. v. Knight, 1 Black, 227; U. S. v. Castillero, 2 Black, 163; Hornsby v. U. S., 10 Wall. 224; U. S. v. Power, 11 How. 577; U. S. v. Pico, 22 How. 406; U. S. v. Vallejo, Id. 416; U. S. v. Bolton, 23 How. 341; U. S. v. Vallejo, 1 Black, 541; U. S. v. Sutter, 21 How. 175; U. S. v. Hanson; 16 Pet. 199; Glenn v. U. S., 13 How. 250.
In this case, as in De la Croix v. Chamberlain, 12 Wheat. 601, the requirement mentioned in the grant being that there should be an actual survey, the title could in no event be perfected or completed until such survey was made and returned according to the provisions of the Spanish laws. See,, also, Purvis v. Harman-son, 4 La. Ann. 421. This survey could not “be done by conjecture. Lines and corners must be established by the finding so as to close the survey.” Denise v. Ruggles, 16 How. 243; Hunnicutt v. Peyton, 102 U. S. 359. From a careful review of the authorities, which are numerous, and in perfect harmony, it is clear that the
The treaty between the United States and France concerning the cession of Louisiana to the United States, adopted April 80, 1803, whereby the United States bound itself to protect the rights of the inhabitants of the province, has no application to merely inchoate claims, which were not binding on the governments of either Spain or France, but which existed only in entreaty. The treaty added nothing to the law of nations on the subject, and precisely the same rule has always been applied to inchoate entries made under the laws of the United States. Frisbie v. Whitney, 9 Wall. 192; Yosemite Valley Case, 15 Wall. 87; Shepley v. Cowan, 91 U. S. 330; Hot Springs Cases, 92 U. S. 713. So, the title of Filhiol, being incomplete at the time of the cession, the treaty “imposes upon the United States no obligation to make a title to lands of which the grantee had neither an actual seisin nor a seisin in law.” U. S. v. Miranda, 16 Pet. 153; U. S. v. Hughes, 13 How. 2. In this case there' is no pretense that there was ever anything in any Spanish record that could show any compliance with the Spanish laws in respect of, the grant In question. Therefore the grant must be held to be ineffectual to convey any title, legal or equitable. White v. U. S., 1 Wall. 680. The necessity of an inquiry as to whether the contemporary Spanish law has been conformed to is emphasized by consideration of the case of U. S. v. King, 3 How. 773, where a suit was brought on a Spanish grant that liad been forged; to the case of U. S. v. Samperyac, Hempst. 118, 7 Pet, 222, in which it was shown that 117 decrees rendered in the superior court of the territory of Arkansas were set aside on bills of review because such decreés had all been based on forged grants, and other cases growing out of similar frauds. At any rate the questions now' under consideration are all settled by decisions of the supreme court of the United States.
The grant under examination, without a subsequent actual survey on the ground, describes no land whatever that can be identified. "A tract of land of one square league’'" does not, as a term of description, suggest any boundary whatever. The fact that: (lie tract is described as “one league square” refers only to contents, and not to shape. No one familiar with Spanish grants would infer that the tract was to he square. The map of the United States published under the direction of the commissioner of the general land office purports to show in red colors ail the Spanish and Mexican grants in our country. A glance at this map will disclose that such grants have been in all sorts of shapes, apparently at (he will of the grantee; that only a few are square or in the form of a parallelogram, and that hardly any of them are laid off with any special reference to the cardinal points of the compass. A tract of land “about tw'o leagues and one-half distant from said Biver Ouachita” Is in the highest degree indefinite. The exact distance from the river is not mentioned, nor is there anything to indicate any point on the river to serve as a place of
“We apply to the case the laws and ordinances of the government under which the claims originated,-and that rule which must he of universal application in the construction of grants, which is essential to their validity, that the thing granted should be so described as to be capable of being distinguished from other things of the same kind, or be capable of being ascertained by extraneous testimony.”
Only perfect titles were protected by the law of nations and by the treaty between France and the United States, and there could be no perfect title without an actual survey made previous to the cession of Louisiana. Dent v. Emmeger, 14 Wall. 312. So indispensable was an accurate survey that it has often been held that decrees confirming Spanish or Mexican grants under the various acts of congress allowing confirmations were void if the grants and surveys would not enable the courts to ascertain the specific boundaries of the tracts referred to. Ledoux v. Black, 18 How. 473; Menard v. Massey, 8 How. 293; Snyder v. Sickles, 98 U. S. 203; West v.
“The law is settled that, where there is a specific tract of land confirmed according to ascertained boundaries, the confirmee lakes a title on -which, he may sue in ejectment. The case of Bissell v. Penrose, 8 How. 317, lays down the true rule. But where the claim has no certain limits, and the judgment of confirmation carries along with it the condition that the land shall be surveyed, and severed from the public domain and the lands of others, then it is not open to controversy that the title attaches to no land; nor has a court of justice any authority in law to ascertain and establish its boundaries, this being reserved to the executive department. The case of West v. Cochran, 3 7 How. 40,'i, need only be referred to as settling this point. And the question here is whether tlie concession to Perry Is indefinite and vague, and subject to ho located at different jfiaces. It is to be forty by forty arpens in extent. It is to lie along the 1 liver Des Peros, from the north to the’south; and to be bounded on the one side by the lands of Louis llobert, and on the ether by the domain of the king. On which side of Roberts’ land it is to lío we are not informed, further than that it is to lie along the river from north to south. The record shows that, if surveyed west of Roberts’ tract, the forty by forty arpens includes the River Des Pores, but, if surveyed east of Roberts’ land, it will not include the river. The uncertainty of out-boundary in this instance is too manifest, in our opinion, to require discussion to show that, a imlfiic survey is required to attach the concession to any land.’’
To (he same effect, see Lafayette v. Blanc, 3 La. Ann. 59.
The tvhole doctrine is summed up in what was said by Miller, J., in (lie Scull Case, supra:
“'The title must be complete under the foreign government. The land must have been identified by an actual survey with metes and bounds, or the description in the grant must be such that judgment can be rendered with precision by suclrmetes and bounds, natural or otherwise. There must be nothing left to doubt or discretion in its location. If there is no previous actual Mirvey which a surveyor can follow, and find each lino and its length, there must be such a description of natural objects for boundaries that he can do the same thing de novo. The separation from the public domain must not be a new or conjectural separation, with any element of discretion or uncertainty.”
Nor does (he certificate of the surveyor Trudeau help the matter. This merely recites a survey “to be verified by the accompanying figurative plan,” but a recital in a grant that prerequisites had been complied with is not sufficient ground for a presumption that they have been observed. Fuentes v. U. S., 22 How. 443. The certificate of survey in this case is of no probative value whatever. It refers to no landmarks, natural or artificial, gives no lines of boundary, no metes, identifies nothing. It adds not a ray of light to the grant itself. In U. S. v. Castant, 12 How. 439, the boundaries were described by Trudeau “with great precision,” and possession had been delivered by him to (he grantee. Though the certificate of 'Trudeau in this case shows that he was directed by the governor in his grant to put Filhiol in possession of the land (which, however, is not true), it does not show that he had done so. The delivery of possession under the Spanish law was a formal and indispensable requisite. In U. S. v. Davenport, 15 How. 5, it is shown'how the ceremony was performed. The official went on the land in the presence of the grantee and of witnesses, and took the grantee “by the right hand,
“Those grants were almost uniformly made upon condition of settlement, or some other improvement, hy which the interests of the colony, it was supposed, would he promoted. But until the survey -was made, no interest, legal or equitable, passed in tlie land. The original concession granted on his petition was a naked authority or permission, and nothing more. But when he liad incurred the expense and trouble of the survey, under the assurances contained in the concession, he had a just and equitable claim to the land thus marked out by lines, subject to the conditions upon which he had originally asked for the grant. But the examination of tlie surveyor, the actual survey, and the return of the plat were conditions precedent, and«he had no equity against the government, and no just claim to a grant, until they were performed; for he had paid nothing, and done nothing, which gave him a claim upon the conscience and good faith of the government.”
In order to avoid the force of these numerous cases, learned counsel for plaintiffs favored the court during the argument with plats purporting to indicate the land granted. These were made either by themselves or at their instance. They could only at best duplicate the plan or map to which Trudeau refers in his certificate, and which is not produced. For this effect they are not even persuasive in the most remote degree. They are based on four assumptions: First, that: the hot springs are to be taken as the center of tlie tract; second, that tlie lines of the tract must have been contemplated as running east and west and north and south; third, that the tract must have been intended to be laid off in a square; and, fourth, that Trudeau must have intended to lay off the trad, and did lay it off, as thus indicated. Thus we have a conjectural reproduction of what was only a figurative survey. This is piling conjecture upon conjecture, neither of which is supported by any presumption of law or fact. It is needless to say that such vague speculations cannot be used as muni-ments of title.
We are referred by counsel for plaintiffs to Strother v. Lucas, 12 Pet. 438, where the court say:
“He who would controvert a grant executed by the lawful authority with all the solemnities required by law, takes on himself the burden of showing-that the officer has transcended the powers conferred upon him, or that the transaction is tainted with fraud.”
For the reasons stated, the court is of opinion that the grant and survey pleaded by the plaintiffs are not admissible in evidence in this cause, and hence the exceptions to them are sustained.
We are now called upon to consider the sufficiency of the demurrer to the complaint. Does the complaint state a prima facie cause of action? “When a complaint fails to state a fact which is essential to the cause of action, objection to it should be taken by demurrer.” Fagg v. Martin, 53 Ark. 453, 14 S. W. 647; Wilson v. Spring, 38 Ark. 181. The court is of the opinion that the demurrer should be sustained for the following reasons:
1. The claim is barred under the act of congress of May 26, 1824, entitled “An act enabling the claimants to lands within the limits of the state of Missouri and territory of Arkansas to institute proceedings to try the validity of their claims.” 4 Stat. 52. This act permitted all persons claiming under French and Spanish grants to file petitions in various courts therein designated in order to have their titles confirmed. The fifth section is as follows:
“And be it further enacted, that any claim to lands, tenements or heredita-ments, within the purview of this act, which shall not he brought by petition before the said courts, within two years from the passing of this act, or which, after being- brought before the said courts, shall, on account of the neglect or delay of the claimant, not be prosecuted to- a final decision within three years, shall be forever barred, both at law and [in] equity, and no other action at common law, or proceeding in equity, shall ever thereafter be sustained in any court whatever, in relation to said claims.”
In respect hereof our attention is invited by counsel for the plaintiffs to the case of U. S. v. Percheman, 7 Pet. 90. But in that case the commissioners had no power save to report to congress. They were not, as the court declared, “a court exercising judicial power and deciding finally on titles.” This act was several times extended; the last time for five years, by act of June 17, 1844 (5 Stat. 676). It does'not appear from the complaint that Filhiol or any of his heirs or grantees ever complied with the terms of this act. But counsel for plaintiffs say that the act in question can have no application to perfect titles. Conceding that to be so, we cannot find that the claim sued upon was at any time a perfect title. In fact it lacked almost every essential element of perfection. We can only use the words of the supreme court:
“Claimant calls this a grant, and it is his privilege to do so; but it is in vain for him to expect that this court can give its sanction to any such manifest error.” U. S. v. Castillero, 2 Black, 103.
2. The claim is barred by the act of congress known -as the “Hoi: Springs Act.” Under the provision of the act of June 11, 1870 (16 Stat. 149), all persons claiming title, either legal or equitable, “to the whole or any part of the four sections of land constituting what is known as the ‘Hot Springs Reservation,’ in Hot Springs county, in the state of Arkansas,” had an opportunity to institute suit, in the nature of a bill in equit3r, against the United
3. After so great a lapse of time, the claim, if originally valid, must be considered as having been abandoned. In U. S. v. Hughes, 13 How. 3, a delay of 40 years to bring suit to enforce a Spanish claim was held to be fatal. In U. S. v. Philadelphia, 11 How. 652, a delay of 10 years was held to be a constructive abandonment. In Fuentes v. U. S., 22 How. 460, the court came to the same conclusion, though The delay could not have been for more than 50 years. In U. S. v. Repeutigney, 5 Wall. 211, an abandonment was presumed from a delay to bring suit; for more than 100 years, during which time the claimants had been in possession for more than 4 years. In U. S. v. Moore, 12 How. 222, the same presumption was raised where the plaintiffs had delayed to sue for nearly 50 years. In Valliere v. U. S., Hempst. 338, Fed. Cas. No. 16,822, the same presumption was indulged where the delay was for more than 50 years. It does, indeed, appear that the heirs of Filhiol brought a suit for confirmation in the name of James Rail, as assignee, in the superior court of Arkansas territory, under the act of May 26,1824, which was pending at the time that the various suits on the forged grants mentioned in U. S. v. Sampevyae, supra, were also pending; that a question of forgery in the Rail Case was also raised, and that, on a rule being made by the court for the production of the original papers, and on noncompliance therewith, the suit was dismissed (Frauds in Land Tilles in Arkansas. 5 Ann. St. Papers, 364, 365, 366, 430, 338); but this is certainly no adequate showing of diligence. Tin; American Slate Papers, having been published under authority of law, are evidence of whatever they contain. Watkins v. Holman, 16 Pet. 50, 55; Bryan v. Forsythe, 19 How. 334. I could not be more or less impressed, in passing on the exceptions, with the circumstances that both the survey and the grant are apparently written by the same hand, on the same kind of paper, and with the same ink; that both contain words badly spelled, and ungrammatical phrases, showing that they were gotten up by illiterate persons; and that, though the grant purports to be attested by the armorial seal of the governor, yet (here is no impression of a seal of any kind, but merely a seal of wax, evidently made to adhere to the jiaper bv the application of
It must also be conceded that the present suit makes no appeal to our sense of justice. As shown by the facts alleged in the complaint, Juan Filhiol never paid anything for the land sued for. He never paid even the trival fee necessary to be paid in order to have his grant registered. He never complied with the terms of the grant, or with the requirements of the laws in force at the time that, as alleged, the lands were donated to him. The taxes that have accrued on the property covered by the grant during so many years, with accrued interest, must amount to a very large sum, of which it is extremely improbable that the plaintiffs have paid anything. In 1788 the hot springs were upon lands occupied and owned by a tribe of Indians, and were far from any European settlement. They were in the midst of an unbroken wilderness, and they could be reached from such places as New Orleans or St. Louis only after many days of arduous travel through a country where there were only rude Indian trails instead of roads. Such a journey would have been attended by perils and by every kind of discomfort. It could only be made by men in robust health and in the full vigor of
On the grounds stated, the demurrer to the complaint is sustained, and an order will be entered that, unless the plaintiffs amend within 30' days from this date, this suit shall be dismissed.
