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JOHN SMITH, T., APPELLANT v. THE UNITED STATES.

January 1, 1836

JOHN SMITH, T., APPELLANT
v.
THE UNITED STATES.



ON appeal from the district court of the United States for the district of Missouri. This case was argued at January term 1830 by Mr Benton for the appellant, and by Mr Wirt, for the United States. The court held it under advisement for the reasons stated in the case of John Smith, T. v. The United States, 4 Peters 511. The case is fully stated in the opinion of this court.

The opinion of the court was delivered by: Mr Justice Baldwin delivered the opinion of the Court.

Pursuant to the provisions of the act of 1824, for the adjustment of land claims in the state of Missouri, John Smith T. filed his petition in the district court on the 3d of October 1827, claiming a confirmation of his title to ten thousand arpents of land in that state, in virtue of a Spanish concession to James St Vrain, a resident of Louisiana, legally made before the 10th of March of 1804 by the proper authorities. He alleged that his claim was protected by the treaty between France and the United States for the cession of Louisiana; and might have been perfected into a complete title under the laws, usages and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States.

His claim is founded on a petition of James St Vrain to the governor-general of Louisiana, in November 1795, praying for a grant in full property to him and his heirs of ten thousand superficial arpents of land; with the special permission to locate in separate pieces, upon different mines, of what nature they may be, salines, mill seats, and any other place that shall appear suitable to his interest, without obliging him to make a settlement; which grant as prayed for was granted by the said governor-general the 10th of February 1796. He alleges that he became owner of the grant by purchase from St Vrain and wife before the act of 1824, and has caused several parts thereof to be located in Missouri, which he specifies in the petition; and prays that the validity of his claim may be examined by the court.

On the face of the petition, the petitioner shows a case within the provisions of the first section of the law of 1824; which directs the court to take jurisdiction to hear and determine it.

The petition of St Vrain to the governor-general of Louisiana states, that misfortunes had induced him to settle in Louisiana at St Genevieve, where he had rendered himself useful in repressing a certain party; that his knowledge of mineralogy had induced his father to make over to him the contract which he had with the government for the supply of a certain quantity of lead. To enable him to comply with this contract, and to insure him an honourable existence, he prays for a grant as specified in the petition of the appellant. At the foot of this petition there was the following writing. 'New Orleans, 10th of February 1796. Granted.

'THE BARON DE CARONDELET.'

The original petition, with this entry upon it, was produced before the land commissioners in Missouri in 1806: the signature of the baron was proved to be in his handwriting, and the residue to be that of the secretary of the government. The original was lost in 1807 or 1808, but a copy certified from the land records, was produced at the hearing in the court below, and competent evidence was given of the existence and loss of the original; the district court did not, in their decree, decide on the effect of this evidence, nor do we think it necessary to consider it; for the purposes of this case, the genuineness of the grant and its loss, are assumed. On the 6th of February 1808, St Vrain and wife, in consideration of 5000 dollars, conveyed the concession to the petitioner by deed duly recorded.

In 1811 the petitioner caused a survey of two hundred and ninety-four arpents of land to be made by a private surveyor, pursuant to the concession to St Vrain; other surveys were afterwards made in like manner of several tracts specified in the record, varying in quantity from one thousand two hundred to fifty arpents, several of them including lead mines; the one for fifty acres being on a mill seat. The claim was acted on by the United States board of land commissioners in Missouri; who, in December 1811, gave their opinion that it ought not to be confirmed. The district court of Missouri have also rejected it by their final decree; from which the petitioner has taken an appeal to this court, in the manner directed by the act of 1824.

At the January term in 1830, this cause, with that of Soulard, was very ably and elaborately argued by the counsel on both sides: they were the first cases which came before us since the law giving jurisdiction to the district court of Missouri to decide on claims to land in that state, subject to an appeal to this court. The subject was a new one both to the court and the bar: the titles and tenures of land in Louisiana had never undergone a judicial investigation, which could give the court such information as could lead them to any satisfactory conclusion. Hence, and notwithstanding the full argument in these cases; there seemed to be much matter for consideration in the developments to be made of the laws, usages and customs of Spain, in relation to grants of land in Louisiana. These cases were held under advisement.

At the next term, finding that appeals had been made in cases from Florida, arising under a law authorizing a judicial decision on claims to land in that territory, on the consideration of which the whole subject of Spanish titles would be thoroughly examined, these causes were further postponed till the ensuing term. One of the Florida cases was then decided on principles which did not apply to them; and it was though that still further information must be presented in some of the numerous cases before us for final adjudication, and a further postponement was therefore deemed advisable. At each successive term since, it has been out duty to decide on claims to land under the government of Spain, if not in all the aspects in which they can be presented, at least in those sufficiently varied as to enable us to decide this case on principles entirely satisfactory to ourselves. It was never doubted by this court that property of every description in Louisiana was protected by the law of nations, the terms of the treaty and the acts of congress; nor that in the term 'property was comprehended every species of title, inchoate or perfect, embracing those rights which lie in contracts; those which are executory, as well as those which are executed. In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away' 4 Peters 512. Such, in 1830, was our general view of the Missouri cases. Our difficulty was in ascertaining the powers of the governor-general, of the intendant and his sub-delegates, and the local governors or commandants of posts to make grants of lands; what acts by either operated by way of grant, concession, warrant or order of survey; so as to sever any portion of land from the royal domain, and create in it a right of property in an individual. The law submitting claims of either of these four descriptions to judicial cognizance, confined the court to such as had been legally made, granted or issued before the 10th of March 1804, which were protected by the treaty of 1803, and might have been perfected into a complete title under the laws, usages, and customs of Spain, if she had continued to hold the government of the province.

It was also made the duty of the court to conduct the proceedings on all petitions according to the rules of a court of equity; and to decide upon them according to the principles of justice, and the laws and ordinances of the government under which the claim originated. In thus consenting to be made defendants in equity at the suit of every claimant for land in Missouri, the United States waived all rights which the treaty could give them as purchasers for a valuable consideration without notice. They bound themselves to carry into specific execution by patent every grant, concession, warrant or order of survey which, before the 4th of March 1804, had created any legal or equitable right of property in the land so claimed; so that in every case arising under the law one general question was presented for the consideration of the court: Whether in the given case, a court of equity could, according to its rules and the laws of Spain, consider the conscience of the king to be so affected by his own, or the acts of the lawful authorities of the province, that he had become a trustee for the claimant, and held the land claimed by an equity upon it amounting to a severance of so much from his domain; before the 10th of March 1804, in Missouri, and the 24th of January 1818, in Florida; the periods fixed by the law in one case, and the treaty in the other.

In all our adjudications on either class of cases, we have considered the term lawful authorities to refer to the local governors, intendants, or their deputies; the laws and ordinances of Spain, as composed of royal orders, of those of the local authorities, and the usage and custom of the provinces, respectively, under Spain; that any inchoate or perfect title, so made, granted or issued, is legally made by the proper authorities. We have as uniformly held, that in ascertaining what titles would have been perfected if no cession had been made to the United States, we must refer to the general course of the law of Spain, to local usage and custom; and not to what might have been, or would have been done by the special favour, or arbitrary power of the king or his officers. It has also been distinctly decided, in the Florida cases, that the land claimed must have been severed from the general domain of the king, by some grant which gives it locality by its terms, by a reference to some description, or by a vague general grant, with an authority to locate afterwards by survey making it definite; which grant or authority to locate must have been made before the 24th of January 1818. That where the grant is descriptive, a survey in any other place is unauthorized: and that where a survey was made of part of a descriptive grant before that time, an order or permission to survey the residue elsewhere, made afterwards, is void, in contravention of the terms of the treaty and the act of congress; it being in effect and substance a new grant, made after the power of the governor to make grants had ceased. That where the grant was specific, a survey might be made after the time fixed by the treaty; and where the grant was vague, or contained an authority to locate, which was executed by a survey made before, it was valid. United States v. Clarke, 8 Peters 466, 467.

The same principles apply to the cases in Missouri; between which and those from Florida, there is (generally speaking) no other difference than that as to the latter, the treaty annuls all claims acquired after the 24th of January 1818; while the act of 1824 limits the jurisdiction of the court to cases of claims made in virtue of grants, &c. made before the 10th of March 1804. This limitation on the power of the court as effectually prohibits their confirmation of grants, &c. subsequently made, or titles acquired, as if they had been declared void by the terms of the law, or the Louisiana treaty.

In his petition to the governor-general, St Vrain asks for a grant in full property, of ten thousand arpents, to be located at his pleasure as to place, time or quantity: it was considered by him as authorizing locations throughout Louisiana, not only while under the government of Spain, but after its cession to the United States, and its division into the two territories of Orleans and Missouri. So it was considered by the petitioner Smith, after he purchased from and held under St Vrain; and such appears to be the true construction of the petition. The grant is contained in the one word granted, which must be referred to every thing prayed for in the petition; its object was not to obtain a grant merely in the upper province, or it would have been addressed to the local governor: it must have been intended to extend to both provinces, as it was addressed to the governor-general, whose power was general over both. He, by his grant, without qualification or restriction, has acted in the plenitude of his authority, which authorizes ...


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