40

U.S. 226
15 Pet. 226
10 L.Ed. 719

UNITED STATES, Appellants,

v.
Heirs of JOSEPH DELESPINE and others, Appellees.
January Term, 1841
1

APPEAL from the Superior Court of East Florida. Joseph Delespine and others
presented a petition to the superior court of East Florida, claiming 10,240 acres
of land, at the north head of Indian river, by virtue of a concession from
Governor Coppinger, the Spanish governor of East Florida, to Pablo Fontane,
dated November 10th, 1817. The grant, and circumstances of the case, are full
stated in the opinion of the court. The superior court of East Florida decreed a
confirmation of the grant; and the United States prosecuted this appeal.

The case was argued by Gilpin, for the United States; Downing appeared as
counsel for the appellees.

Gilpin, for the United States, relied on the following grounds:

1. That the evidence in the case is insufficient to prove that the alleged grant or
concession was ever made. 2. That if it be proved or admitted, that the alleged
grant or concession was ever made, still, that the same was not in conformity to
the royal order of 29th March 1815, by virtue of which, it is declared that the
concession was made.

I. This is an alleged concession of Governor Coppinger. The evidence to

support it is a copy of the concession, certified by Tomas de Aguilar, and it is
accompanied by an order and certificate of survey. The only point to be
considered in regard to this evidence is, whether or not the facts bring the case
within the rule established in that of the United States v. Wiggins, 14 Pet. 348.
This court certainly will not extend the scope of that rule, so as to give any
weight to these secondary evidences of title which it does not indisputably
recognise. It is not denied, that the production of the order of survey, and the
plat and certificate made in pursuance thereof, go far to bring it within that
decision; but it may not be improper to ask the paticular consideration of the
court to the depositions annexed to the record, which would seem to show, that
the existence of the original concession was a matter of doubt at a very early
period; that in March 1822, very shortly after the cession of Florida, before the
alleged losses of papers are supposed to have occurred, and when the grantee
was yet living, and sold part of his interest to Delespine, it appears not to have
been in existence; and that the particular fact of its actual existence, at any time,
is not proved by a single witness.

II. This grant purports to be founded on the royal order of 29th of March 1815.
2 White's New Rec. 279. That order authorizes the governor to grant land to the
soldiers in the militia; the quantity being the same 'as established by regulation
in the province, agreeably to the number of per sons composing each family;'
and it also contemplates special rewards to certain officers mentioned in it. If
Fontane, the grantee, was, as it is presumed he was, one of the militia
authorized to take under this order, yet he was entitled only to the quantity
'established by regulation,' which was much less than that included in the
alleged concession. It may then be said, in the language of this court, in the
case of the United States v. Clarke, 8 Pet. 448, that 'if the validity of the grant
depends on its being in conformity with the royal order, it cannot be supported.'
It is true, that this court, in the case of the United States v. Percheman, 7 Pet.
96, in examining the effect of a recital of the royal order of 29th March 1815,
on a grant of a large body of land, declared, 'that the reference to it was to be
regarded no further than as showing that the favorable attention of the king had
been directed to the petitioner.' If the facts of the present case are similar to
those which led the court in that case, so to regard the effect of the royal order,
it is admitted, that the grant, if made, was valid. But are they similar? In the
first place, Percheman was a distinguished officer of dragoons, who had
rendered important military services; and this court said, that the governor
made the grant, as a reward for these services, which he had full authority to do,
under the laws of the Indies. But, in the second place, it happened, that
Percheman was himself one of the officers individually mentioned in the royal
order of 1815, as entitled to a special reward; and therefore, the order was
naturally and properly recited in the grant. These considerations evidently made
a large grant, in that case, perfectly consistent with a reference to the royal
order of 1815. But neither of them is applicable to the present case. Neither the
petitioner nor the grant refers directly or indirectly to any military services; nor
was the grantee, Fontane, one of those specially named in it. How, then, can
such a grant, solicited and made, as this purports to be, 'in virtue of the said
royal order,' be valid?

III. The grant is for a tract of land 'on a creek which, issuing from the north
head of Indian river, westwardly, runs to the northwest.' The certificate of the
survey is for a tract 'in the territory of Musquito, north-westwardly of Indian
river.' The petition of the claimant is for a tract 'at the north head of the river
Ys, or Indian river, on the west side thereof.' This discrepancy is fatal to the
validity of the claimant's title. The land surveyed and claimed is not indetical
with that granted; the title to the latter has never been perfected, even by a
survey; it is too late for this now to be done; and therefore, the decree of the
superior court of East Florida, made pursuant to the description in the grant,
cannot cure the defect resulting from the negligence of the claimant himself. It
falls within the principles which have already been before the court at this term,
in the case of the United States v. Heirs of Forbes.

WAYNE, Justice, delivered the opinion of the court.

Appeal from the superior court of East Florida. The decree of the court declares
the claim to be valid, to a square of four miles of land on a creek, issuing from
the north head of Indian river, westwardly, and running to the north-west. The
following is the memorial and grant offered by the appellees, to maintain the
claim:

10

His Excellency, the Governor. Don Pablo Fontane, an inhabitant and merchant
of this place, with due respect, represents your excellency, that in consequence
of the orders of his majesty of the 29th of March 1815, in which he has been
pleased to grant, gratuitously, to his faithful subjects of this province, lands in
proportion to the services rendered by them, and as your petitioner considers
himself included in the said royal favor, this government granted to him, under
date of the 25th of June, of the present year, in absolute property, as it appears
by the document duly annexed, a quantity of land comprehended in a square of
four miles, on Trout creek, of the river St. John; and as it happened, that when
he went to take possession of the said land, he found it in the possession of
Dona Beig Bagely, widow, and this he represents to your excellency, in order
that you be pleased to withdraw the said document of ownership which is
annexed, and to grant him another in lieu thereof, for the same quantity of land
on another creek, which, issuing from the north head of Indian river
westwardly, runs to the north-west. Therefore, your petitioner supplicates your
excellency to consider as returned the mentioned document for concession, and,
in virtue of the said royal order, to grant him, in absolute property, the square of
four miles of land, at the place which he has just designated, as the same is
vacant, which favor he hopes to receive from the justice of your excellency.

11

St. Augustine of Florida, tenth of November 1817.

12

PABLO FONTANE.

13

St. Augustine, 10th of November 1817: I accept the retrocession which this
party offers, of the land which was granted to him on the 26th of June last past,
for the reasons which he exhibits in this petition, and in lieu thereof, I grant him
in lawful property, in conformity to the royal order to which he refers, and as he
is entitled thereto, the square of four miles of land on the north head of Indian
river, which he designates, and to this effect let the secretary's office issue to
him a copy conforming to this decree, to which will be annexed the copy of this
petition, on which the decree was rendered. In testimony thereof, and in order
that at all times it may serve as a title in form to the interested party.

14

COPPINGER.

15

CERTIFICATES OF AGUILAR.

16

I, Don Tomas de Aguilar, sub-lieutenant of the army, and secretary of the

government of this place, and of the province thereof, for his majesty, do
certify that the preceding copy is faithfully drawn from the original, which
exists in the secretary's office in my charge, and in obedience to order, I give
the present, in St. Augustine of Florida, on the 11th of November, 1817.

17

TOMAS DE AGUILAR.

18

We, Don Francisco Fatio and Don Juan Huertas, members of this illustrious
council constitutional, do certify, that the signatures affixed in this expediente,
are the same which the signers use, and in testimony thereof, we sign this, in St.
Augustine, on the 13th of June 1821.

19

FRANCISCO J. FATIO,

20

JUAN HUERTAS.

21

St. Augustine, 16th May 1832.I certify that the preceding is a correct
translation of the Spanish document annexed.

22

A. GAY, Translator and Interpreter of the Sup'r Court.

23

It is contended, that the decree should be reversed, because the evidence is

insufficient to prove that the grant was made. The proof is a certificate of
Aguilar, the secretary of the government, which has been ruled to be sufficient,
in the case of the United States v. Wiggins, 14 Pet. 334; and again, at this term,
in the case of the United States v. Rodman (ante, p. 130).

24

The second objection is, that if the grant is proved, it is not in conformity to the
royal order of the 29th March 1815, by virtue of which it is declared the grant
was made. That royal order has been under the consideration of this court in
Percheman's Case, 7 Pet. 96. In that case, it will be seen, that the petitioner
refers in his memorial to the order of the 29th March 1815; and that the
governor, in the grant for the land, says: 'In consideration of the provisions of
the royal order, under date of 29th March last, which is referred to, I do grant to
him in absolute property,' &c.; but the court (referring to certificates which
were annexed to the memorial for the grant, which the grant refers to as
certificates annexed) said, 'military service is the foundation of the grant, and
the royal order is referred to only as showing that the favorable attention of the
king had been directed to the petitioner.' 7 Pet. 96. The court sustained the grant
in that case; notwithstanding it was said to have been made in consideration of
the royal order of 1815, which limits grants to one hundred acres, and to
persons of a particular regiment. The power in the governor to make a larger
grant of land, was not thought to be restrained in making a grant to one, who
was not of the regiment designated in the order, and who applied for it on the
ground of services. The reasoning in that decision cannot be shaken. It applies
with full force to the grant now under consideration; the decree of the governor
being alike in both cases. But this has an additional consideration, recited in the
memorial. The surrender of another grant previously made for services;
recognised by the governor in his acceptance of the retrocession offered by the
memorialist. This is a grant in absolute property. Though it recites the order of
the 29th March 1815, the inducements for making it are considerations which
plainly show it was not intended by the governor to be restrained to the number
of acres limited by that order.

25

The judgment of the court below will be affirmed; but as the survey given in
evidence in this case was rejected by the court, as it should have been, this
court will direct a survey to be made at the place designated in the decree of the
court below, for the number of acres decreed, without prejudice to the rights of
third parties.

26

THIS cause came on to be heard, on the transcript of the record from the
superior court for the district of East Florida, and was argued by counsel: On
consideration whereof, it is adjudged and decreed by this court, that the decree
of the said superior court in this cause, so far as it declares the claim of the
petitioners to be valid, be and the same is hereby affirmed in all respects; and
that a survey be made of the lands contained in the said concession, according
to the terms thereof, for the number of acres, and at the place therein
designated; provided, it does not interfere with the rights of third parties: And it
is further ordered by the court, that a mandate be issued to the surveyor of
public lands, directing him to do, and cause to be done, all the acts and things
enjoined on him by law, and as required by the decree and opinion of this court
in this case; and that this case be remanded to the said superior court for further
proceedings to be had therein, in conformity to this decree, and the opinion of
this court, which must be annexed to the mandate.