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made by officers who, at the time, were authorized to act for the government, and was consummated according to the forms of pro cedure then recognized as essential. It was undoubtedly the duty of Congress, as it was its purpose in the various statutory enact ments it has made in respect to Mexican titles, to recognize and establish every title and right which before the cession Mexico recognized as good and valid In other words, in harmony with the rules of international law, as well as with the terms of the treaties of cession, the change of sovereignty should work no change in respect to rights and titles; that which was good before should be good after; that which the law would enforce before should be enforceable after the cession. As a rule, Congress has not specifically determined the validity of any right or title, but has committed to some judicial tribunal the duty of ascertaining what were good and valid before cession, and provided that when so determined they should be recognized and enforced.

now before us disclose that about the time
the intendant acted in this case similar action
was taken by him in respect to other applica
tions for the purchase of land; that through
a series of years from 1824 downward,
the commissary general, the officer created
by the act of September 21, 1824,
recognized his acts as creating equitable 225
obligations on the part of the government,
and attempted to consummate the sales by
papers passing the legal title; that the title
papers thus executed were duly placed of
record in the proper office, and fail to show
that subsequently thereto the Mexican
government took any steps to question the
title or disturb the possession. While this may
not be conclusive as to the validity of the
grants and the existence of the power ex-
ercised by the intendant, it certainly is
persuasive, and we should not be justified in
lightly concluding that he did not possess the
power which he was in the habit of exercis-
ing.

What powers did the intendant possess at Of course in proceeding under any partic- the time this sale is alleged to have taken ular statute the limitations prescribed by place? It is conceded by the government [224]that statute must control; and whatever *may that by the ordinance of December 4,1786 (at be the obligations resting upon the nation which time Mexico was a province of Spain), by virtue of the rules of international law the intendants had full authority in reference or the terms of a treaty, the courts cannot to the sale of lands. Article 81 of that pass beyond such limitations. In the case of ordinance (Reynolds' Spanish & Mexican Hayes v. United States, just decided, 170 U. Land Laws, p. 60) is as follows: S. 637 [42: 1174], we called attention to the Art. 81. "The intendants shall also be fact that in the act creating the court of pri-judges, with exclusive jurisdiction over all vate land claims there was a prohibition upon matters and questions that arise in the the allowance of any claim "that shall not ap- provinces of their districts in relation to the pear to be upon a title lawfully and regularly sale, composition, and distribution of crown derived from the government of Spain or and seignioral lands. The holders thereof, Mexico, or from any of the states of the Re- and those who seek new grants of the same, public of Mexico having lawful authority to shall set up their rights and make their ap make grants of land," and pointed out the plications to said intendants, who, after the difference between this statute and those con matter has been duly examined into by an strued in the Arredondo Case, 6 Pet. 691 attorney of my royal treasury, appointed by [8: 547]; and the act of March 3, 1851, con- themselves, shall take action thereon, in aesidered in the Peralta Case, 19 How. 343 [15: cordance with law, and in conjunction with 678]. We held that under the act of 1891 their ordinary legal advisers. They shall the court must be satisfied, not merely of the admit appeals to the superior board of the regularity in the form of the proceedings, but treasury, or, should the parties in interest also that the official body or person assuming fail to employ that recourse, submit a report to make the grant was vested with authority, thereto, together with the original proceedor that the exercise of power, if unwarranted, ings, when they consider them in condition was subsequently lawfully ratified. We are to issue the title. The board shall, after exnot to presume that, because certain officials amination thereof, return them either for ismade a grant, therefore it was the act of the sue of title, if no correction is necessary, or, Mexican government and to be sustained. It before doing so, for such other proceedings as must appear that the officials did have in the opinion of the board are required, with the power, and we are not justified in resting the necessary instructions. In the meantime, upon any legal presumption of the existence and without further delay, the necessary con of power from the fact of its exercise.

While this is true, yet when the statutes and ordinances defining the powers and duties of an officer are somewhat indefinite and general in their terms, and that officer was in the habit of exercising the same power as was exercised in the case presented, and such exercise of power was not questioned by the authorities of Mexico, and grants purporting to have been made by him were never challenged, there is reason to believe that the true construction of the statutes or ordinances supports the existence of the power. Cases

firmation may be made, which said superior
board shall issue at the proper time, proceed-
ing in this matter, as also the intendant 226,
their deputies and others, in accordance with
the requirements of the royal instructions of
October 15, 1754, in so far as they do not con-
flict with these, without losing sight of the
wise provisions of the laws therein cited and
of law 9, tit. 12, book 4."

It is, however, contended that prior to the transfer of title in this case this authority was taken away from the intendant. In support of this contention four matters are

referred to by counsel: 1. The adoption of the Constitution of March 18, 1812, and the promulgation of the law of January 4, 1813. 2. The resolution of the council of the Indies, before a full board at Madrid, December 23, 1818. 3. The decrees of Ferdinand VII. re-establishing the Constitution of 1812, and convoking the Cortes, March 6, 7, 9, 1820. 4. The imperial colonization law of January 4, 1823.

"The governor intendants shall resume all the powers appertaining to them before the promulgation of the Constitution, so called; and shall consequently exercise said powers, as well in matters of government as in those of economy and litigation relating to the royal treasury, agreeably to the laws and ordinances respecting intendants."

ficers would simply have to respond to new superiors, and that is all.

Nor do we think that the re-establishment of the Constitution, even if the re-establishment of that instrument carried with it the re-enactment of the law of the Cortes of January 4, 1813, put an end to the office of intendant, or wholly abrogated his powers. So far as the act of January 4, 1813, is concerned, while it did authorize the distriOf these in their order, though it may be bution of part of the lands on account of milwell here to note that the colonization law itary service, it still provided that half of the was not passed until after the sale in contro- public and crown lands should be reserved to versy had taken place. serve as a mortgage for the payment of the On March 18, 1812, in the midst of troub-national debt, and recognized the disposition lous times in Spain, a Constitution (Reynolds, of such lands by the "provincial deputation," p. 79) was adopted, and by it and the law of as it was called. Turning to the Constituthe Cortes of January 4, 1813 (Reynolds, p. tion we find the following provisions in chap83), it is insisted that a different mode of ter 2, article 324: "The political governdisposing of the public lands was created. ment of the provinces shall reside in the suAs, however, this continued in force only un-perior chief appointed by the King in each til May 4, 1814, when the King, Ferdinand one of them." Article 325: "In each prov[228] VII., returned to the throne and issued a ince there shall be a deputation called decree refusing to recognize the existing order provincial, to promote its prosperity, preof things and declaring the Constitution of sided over by the superior chief." Article 1812 revoked, it would seem that the powers 326: "This deputation shall be composed of theretofore vested in the intendants were re- the president, the intendant, and seven memestablished. Indeed, on December 28, 1814, bers elected in the manner that shall be the King issued a royal cédula or edict, the stated." While it may be that under the minth article of which is as follows (2 White, terms of these and subsequent articles the New Recopilacion, p. 168): general control over the affairs of a province was vested in the provincial deputation, of which deputation the intendant was to be one member, we find nothing in them that either put an end to the office of intendant or had any other effect than to subject his actions to the control of the provincial deputation. The question is not what the prov incial deputation when organized would do, but whether the mere re-establishment of the Constitution, which provided for a provincial deputation, operated before any action taken under it, to put an end to the powers thereOn December 23, 1818, a resolution passed tofore vested in the intendants. It may by the council of the Indies, at Madrid, and well be that in thus arranging for a new sysapproved by the King, provided that all busi- tem of control, without abolishing the office ness pertaining to the alienation of lands in of intendant, but on the contrary, in terms New Spain should belong to the department of recognizing its continuance, the purpose was the office of the treasury of the Indies at not to create an interim in which no person Madrid. Hall, Mexican Law, p. 76, § 188. should have power to act for the government In March, 1820, Ferdinand VII., under in the alienation of its lands, but that the inpressure from the people, adopted the tendant should continue to exercise the Constitution of 1812 and took an oath powers he had theretofore exercised until the to support it. Did this resolution of King should appoint a superior chief, and the December, 1818, or this re-establish- other members of the deputation be elected. ment of the Constitution, or both together, The very next year witnessed the separaput an end to the power of the intendants in respect to the sale of lands? Clearly the resolution of December, 1818, would not have that effect. The mere placing of the control overland matters in a particular government department at Madrid would in no manner affect the powers of local officers until and unless such department should so order, and there is no suggestion that any orders to that effect were ever issued. The resolution would have no more effect on the powers of local officers than would a transfer of the land department of this government from the control of the Secretary of the Interior to that of the Secretary of the Treasury. The local of171 U. S. U. S., Book 43.

Clearly thereafter the intendants had the [227]powers given *them by the ordinance of 1786. Sabariego v. Maverick, 124 U. S. 261 [31: 430].

10

tion of Mexico from the kingdom of Spain
On February 24, 1821, a declaration of in-
dependence was made in the form known as
the plan of Iguala, and this declaration of
independence was made good by the surren
der of the city of Mexico on September 27,
1821. The 15th section of this plan provided
that "the junta will take care that all the
revenues of departments of the state remain
without any alteration whatever, and all the
employees, political, ecclesiastical, civil, and
military, will remain in the same state in
which they exist to-day." Prior to that time,
and on August 24, 1821, what is known as the
treaty of Cordoba was signed at that village

145

was entered on December 21, 1895. 12 Utah, and Delecto Maston." This is followed by a 278. On the same day the maternal note of evidence, showing what took place aunts, who were embraced in the first class, during the trial in the district court, which applied for and were allowed an appeal to this is also supplemented by the oral and docucourt, and on December 21, 1895, a bond for mentary evidence offered in the trial of the costs was filed in the supreme court of the cause. It appears that Mrs. Amy offered the territory, and was approved by the chief decree of divorce between herself and ner husjustice thereof. The citation on appeal, band and the complaint filed in the suit in however, was not issued until about six which the judgment of divorce was entered. months thereafter, September 21, 1896. As, This was objected to on the ground that the in the meanwhile, the state of Utah had been documents were irrelevant, inasmuch as withadmitted into the Union this citation was out the summons issued in the cause they approved by the chief justice of the state of proved nothing. The counsel tendering the Utah, and on the same day findings of fact proof thereupon declared that although the and conclusions of law were made by the su- decree on its face recited the fact that the preme court. These findings, as the record summons had been regularly issued and certifies, were prepared by the late chief served, it was absent from the record, and he justice of the territorial court, and were proposed by further evidence to show that the adopted by the supreme court of the state of summons was regularly issued and due notice Utah as its own. From the findings thus thereof had been given to the defendant as made we have ascertained the facts above the law required. stated, and the findings moreover show that The court received the evidence subject to the controversy involved two issues. First, the objection. That is to say, it declared whether the brothers and sisters of the hall that it would pass on the objection when all blood were entitled to a distribution of the the evidence in the case had been offered, property left by the deceased in preference to thus treating the objection as in a measure the maternal aunts; and, second, whether going to the effect. Mrs. Amy and her Jennie Amy, the appellee, was the wife of the former husband, the defendant in the divorce decedent, it being conceded that if she was his proceedings, were then called, and testimony wife under the laws of Utah, she inherited the was given by both tending to show that the property left for distribution to the ex- summons had teen issued in conformity to clusion of his maternal aunts. The first ques- law and the defendant in the divorce suit tion, that is, the right to distribution as was personally cognizant of the suit, as he[183, serted in favor of the brothers and sisters of received and had in his possession the copies the half blood, may be at once dismissed from of the newspaper containing the published view, as the decree of the supreme court re- summons, and that due service thereof, in jected their claim, and they have not ap- the manner required by law, had been made. pealed. The second question, that is, whether All this testimony was objected to, and the Jennie Amy, the appellee, was the wife of the court likewise received it subject to objec deceased, depended upon the validity of a tion, no exception being taken to such acjudgment of divorce against a former hus- tion. In the course of the testimony of these band which had been rendered in her favor in witnesses various exhibits were offered tend1879 in the probate court of Washington ing to show the preparation of the summons county, Utah, the marriage having been con- in compliance with law, the publication in tracted in Utah and the ground for the di- the newspaper of the summons in conformity vorce being the abandonment of the wife by to legal requirements, its service on the dethe husband. After this judgment of fendant, and that he had both legal and acdivorce Mrs. Amy, on the 4th of August, tual notice of the suit, all of which was ob1886, was married to Oscar A. Amy, the de-jected to, and this, like the other objections, ceased. The controversy, then, between the was reserved to be considered when the eviparties now before us turned upon a claim dence was all in. The counsel of Royal D. [182]advanced by the maternal aunts, that Amy and others, the sisters and brothers of the judgment of divorce rendered between the half blood, offere in evidence what they Mrs. Amy and her former husband was void; designated as the judgment roll of the dithat she hence did not enter in a lawful mar-vorce proceeding. This was also objected to riage with the deceased, and was not entitled, therefore, as his wife to his estate.

The record contains, as we have stated, findings of fact made by the supreme court of the state and the conclusions of law, which the supreme court held to be decisive of the issues which the case involved, and to which we shall have occasion hereafter to refer. The findings of fact and conclusions of law are immediately followed in the record by this recital: "The foregoing is a statement of the facts found upon the evidence in the case, and the following are the rulings of the court on the admission and rejection of the evidence, which were duly excepted to by counsel for Adelia Young, Cedina C. Young,

*

by the counsel for the maternal aunts on the ground that the record was not complete and did not show compliance with the legal requisites, and was objected to by Mrs. Amy because it contained inatters asserted not to be properly a part of the judgment roti, and which were therefore not admissible. The court also reserved the objection to this evidence.

At the conclusion of the trial the court sustained all the objections to the evidence and the testimony, and decided the case against Mrs. Amy and in favor of the maternal aunts. To the rulings of the court rejecting the documentary and oral evidence, Mrs. Amy excepted, and upon the record as thus made the

were regular and that the sale ought to be consummated. Under those circumstances it is not inappropriate to refer to what was said in Mitchel v. United States, 9 Pet. 711, 742 [9:283, 294], in reference to the validity of a grant in Florida:

"It was done on the deliberate advice of an officer responsible to the crown, which makes the presumption very strong, if not irresistible, that everything preceding it had been lawfully and rightfully done."

under the laws and orders of the government,
the proceeds from the revenues and the con-
tingents of the states.

"Art. 5. The revenue on powder, salt deposits, the proceeds from the revenue on tobacco that belong to the federation, national properties and vacant lands (cascos), contingents, customs, tolls, and all the branches pertaining to the public credit, shall be administered directly by the commissary. The revenue on tobacco in the places where Again, it must be noticed that according raised, that from the maritime customs, from to the report of the proceedings the money the mail and lotteries, shall continue under received for this land was paid into the pub-their special administration, subordinate in lic treasury, the entry on the account book all respects to the commissaries." being in these words:

_232] Charged one hundred and sixteen dollars, two reales and five grains paid by Don Jose Maria Serrano in the name of and as attorney for Don Leon Herreros, resident of the company of Pimas at Tubac, in the following manner: One hundred and five dollars as the principal value for which was auctioned by this intendencia one sitio and three quarters of another of lands for raising cattle contained in the place of San Jose de Sonoita, situated in the jurisdiction of said company; six dollars, one real and seven grains for the said half annual charge and eighteen per cent for transfer to Spain; two dollars, ten grains for the two per cent as a general charge, and the three dollars as dues for the extinguished account, as is explained by the order of the intendencia marked No. 32, $116 2r. 5g.

Escalante.
Fuente.

Jose Maria Serrano.

Obviously these articles gave to this newly created officer the fullest powers in respect to the national revenues. When an office is created with such large powers as these, and the incumbent thereof, reviewing proceedings theretofore had by prior representatives of the government, and finding that a sale made by one of such prior officers has resulted in the payment of the cash proceeds thereof into the public treasury, confirms his action, ratifies his proceedings and issues appropri ate titie papers therefor, it would seem that any doubts which might hang over the power of the prior officer were put at rest, and that thereafter no question could be raised as to the validity of the sale.

And, indeed, such seems to have been the

assumption on the part of the government of Mexico, for there is no suggestion that from the time of the execution of these title papers in 1825 up to the date of the cession, 1853, the government ever raised any question as to the validity of the sale or sought to disIt would seem not unwarranted and un-turb ne possession of the grantee. While of reasonable to refer to the familiar rule that course time does not run against the governwhere an agent, even without express author-ment, and no prescription, perhaps, may be ity, makes a sale of the property of his prin- affirmed in favor of the validity of this grant, cipal, and the latter with full knowledge re- yet the inaction of the government during ceives the money paid on account thereof, these many years is very persuasive, not his retention of the purchase price is equiva- merely that it considered *that the intendant[234] lent to a ratification of the sale. We do not had the power to make the sale, but that in mean, however, to state this as a general fact he did have such power. These considproposition controlling all municipal and erations lead us to the conclusion that this governmental transactions, but only as one grant was one which, at the time of the cesof the circumstances tending to strengthen sion in 1853, was recognized by the governthe conclusion that these acts of the intend- ment of Mexico as valid, and therefore one ant were not mere usurpations of authority, which it was the duty of this government to but were in the discharge of duties and the respect and enforce. exercise of powers conceded to belong to his We pass, therefore, to a consideration of office. the second question, and that is, the extent Passing beyond the action of the intend-of the grant. It is claimed by the appellant ant, we find that in 1825 the commissary that the grant should be sustained to the exgeneral executed title papers, thereby rati- tent of the outboundaries named in the surfying the sale made by the intendant four vey. He insists that the accepted rule of years before. We have heretofore quoted the common law is, that metes and bounds articles 1 and 2 of the act of September 21, control area; that a survey was in fact made 1824, creating such office. We now quote and possession given according to such surarticles 3, 4, and 5: vey, and that although it now turns out that "Art. 3. These commissaries shall be, in the area within the survey is largely in exthe state or states and territories of their de-cess of the amount applied and paid for, the [233]marcation, head officers of all *branches of the grant must be held effective for the area exchequer. Consequently they are responsible within the survey.

for the prompt execution of the laws that We had occasion to examine this question
govern their administration, and all employ-in Ainsa v. United States, 161 U. S. 208, 229
ees thereof shall be subordinate to them. [40:673, 680], and there said:

“Art. 4. They shall collect and disburse,

"So monuments control courses and dis

tances, and courses and distances control | same time, that, continuing the measurement
quantity, but where there is uncertainty in
specific description, the quantity named may
be of decisive weight, and necessarily so if
the intention to convey only so much and no
more is plain."

along the cañon (because it was impossible to
go in any other direction on account of the
roughness of the ground), by reason of the
many turns that had to be made, so many
cords should be deducted from the total
number measured as would be calculated to
result in excess of the *real length measured (230
taken on a straight line, and considering
his demand reasonable I ordered the con-
tinuation of the survey as follows, to wit.

We think this case comes within the rule thus stated. The defendant in his answer alleges that the grant comprises 12,147.69 acres, while counsel for the government say that the measurements given by the surveyor make the area 22,925.87 acres. The amount of land appraised, advertised, sold and auc"And in view of the suggestion made by tioned off was one and three quarter sitios the claimant to reduce the number of cords (7,591.61 acres). While, of course, any slight actually measured so much as might be caldiscrepancy between the area of the survey culated to be in fact in excess of the true and that ostensibly sold might be ignored, measurement by reason of the many turns of yet the difference between the amount which the cañon over which the survey was made, as was understood to have been sold and the it could not be carried on straight, I ap amount now found to be within the limits of pointed for that purpose Lieutenant Don the survey is so great as to suggest the pro- Manuel Leon and the citizen Don Jose Ma. priety of the application of the rule laid down Sotelo who were unanimously of the opinion in Ainsa v. United States, supra. There can to deduct twenty-five cords out of the three be no doubt from the record of the proceed- hundred and twelve cords measured in the ings that one and three quarter sitios was all last survey down the cañon, the claimant conthat the purchaser supposed he had pur-senting thereto as just; the survey was cal [235]chased, all that the intendant supposed he culated to be two hundred and eighty cords, had sold, and all that was advertised or paid with which this survey was finished, resultfor. The original petition, after stating that ing from it one sitio and three fourths of anthere was a place known as San Jose de other sitio, registered by Don Leon Herreros Sonoita, declared that the petitioner for raising stock and for farming purposes." registered "in the aforesaid place two sitios The appraisers reported as follows: of land," which he desired to have surveyed, and to pay therefor the just price at which it might be valued. The petition therefore was not for any tract known by a given name, but for a certain amount of land in such place. The report of the survey is very suggestive. We quote from it as fol

bows:

"In virtue thereof they said that according to and because of the examination they had made and being aware of the existing regulations on the subject, the price should be fixed at, and they fixed it at, sixty dollars for each sitio, because they have running water and several banks of arable land which can be made use of by cultivation."

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"In the ancient abandoned place of San The direction for the almoneda or offer of Jose de Sonoita, on the 26th day of the month sale was of the lands "composed of one sitio of June, 1821, I, the said lieutenant com- and three fourths of another." The first almander and subdelegate of the military post moneda was of lands "comprising one sitio and company of Tubac and its jurisdiction, in and three fourths of another. .. and order to make the survey of the land de- appraised in the sum of one hundred and five nounced by Don Leon Herreros of this dollars, at the rate of sixty dollars per sitio." vicinity, delivered to the appointed officials The property put up for sale was lands "com■ well twisted and stretched cord, and in my prising one sitio and three fourths of another, presence was delivered to them a castilian appraised at one hundred and five vara, on which cord were measured and dollars, at the rate of sixty dollars each counted fifty regulation varas, and this be- sitio." The report of the promoter fiscal ing done, at each were tied poles, and stand-opens with this statement: ing on the spot assigned by the claimant as "The promoter fiscal of this treasury has the center, which was in the very walls of the examined carefully the expediente of the already mentioned Sonoita, there were lands surveyed in favor of Don Leon Hermeasured in a northeasterly direction sixty-reros, resident of the military post of Tubac, three cords, which ended at the foot of some by the Commissioner Don Elias Ygnacio low hills, a little ahead of a spring-a chain Gonzales, lieutenant commander of the 237] of mountains of a valley which goes on and post, in the place called San Jose de Sonoita, turns to the east, where was placed a heap in that jurisdiction, from which resulted one of stones as a monument; and being about sitio and three fourths of another, for raising to return to the center, the claimant ex-stock and horses, valued at sixty dollars each pressed a desire that the survey should be continued down the cañon until the two sitios should be completed, that on each side we should survey to him only twenty-five cords, because if the survey should extend further, by reason of the broken-up condition of the country and the rocky hills in sight, such land would be useless to him, saying, at the

sitio, which sums up one hundred and five dollars, as it has running water and some pieces of land fit for cultivation."

Subsequently to this report the direction was made for three public auctions, which were made, and the record of the first auc tion, the others being similar, is in these words:

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