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SUPREME COURT OF THE UNITED STATES.

No. 40.

THE UNITED STATES, APPELLANTS,

VS.

MICHAEL C. NYE.

BRIEF.

This is the first of a series of similar cases which are before this court to be decided. The grant from which the claimants derive title was made by Gov. Micheltorena on the 22d December, 1844, and reads as follows: (This translation, taken from Rose and Kinlock's case, No. 147, as being the most accurate.)

"Manuel Micheltorena, general of brigade of the Mexican army, &c. "This supreme government of the department not being able at the present time, on account of being closely occupied, to extend one by one the respective titles to all the citizens who have petitioned for lands, with favorable reports from Senor Don Augustus Sutter, captain and judge in charge of the jurisdiction of the New Helvetia and Sacramento;-by these letters, in the name of the Mexican nation, I grant unto them and their families, the lands described in their petitions and maps; to all and each one of them who has solicited and obtained from said Senor Sutter, up to the day of this date, favorable reports. That no one may be able to dispute their ownership, a copy of this given them hereafter by said Senor Sutter, serving them as a formal title, with which they shall present themselves to this government, for the purpose of delivering to them the said title in due form, and upon paper of the corresponding seal.

"And for the due testimony thereof at all times, I give this present document, which shall be acknowledged and respected by all the civil and military authorities of the Mexican nation in this and all the other departments.

"Duly authenticated under the military and governmental seals at Monterey, on the 22d day of December, 1844.

"MAN'L MICHELTORENA.”

This is the "general title," under which a large number of parties claim.

In this particular case it is shown by the testimony that Michael C.

Nye, on the 22d December, 1843, made his application for the place called "Willy," four square leagues, with description of the land, and map. (See p. 9.) He styles himself in his petition "a native of the United States, and resident in this department for two years. December 31, 1843.-Micheltorena refers the petition to Jimeno, the secretary of state.

January 4, 1844.-Jimeno refers it to Sutter.

January 27, 1844.-Sutter reports the land to be unoccupied.

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June 8, 1846.-Sutter certifies a copy of the general title to Nye. In the latter part of 1845 Nye built a log hut on the land, and occupied it with stock for three or four months, when, in consequence of İndian hostilities, he abandoned it, and never returned. (Testimony of John Sanders, p. 4.)

The first question to be decided is the validity of the general grant.

It is not denied that a deed may be valid without designating the donee by name. If there is such a description as identifies the person with certainty, it is sufficient.

This question turns upon the special laws and principles, applicable to the alienation of the public lands of California.

If such a deed would be good between individuals, it does not follow that it is good as a grant of land by the governor of California.

The power of the Mexican governors to alienate the public domain, was guarded by very well defined and wise limitations and conditions. A petition was to be presented, describing with particularity both the applicant and the land applied for. (2d rule of 1828.)

That petition was to be referred by the governor to some proper authority, to report on the fitness of the grant, both as to the land and the applicant. (3d rule.)

The report being made, the governor was still to judge of the propriety of granting. (4th rule.)

If he determined to grant, his duty was to issue a documentary title, in which it was to be stated that all the prerequisites of the law had been complied with. (8th rule.)

The grant shall be duly recorded, with the petition, in a book kept for the purpose. (9th rule.)

The governor shall designate a time within which he shall occupy and cultivate, and the grant to be void if this is not complied with (11th rule.)

Finally, the approbation of the departmental assembly, or of the supreme government, was required to give definite validity to the grant. (5th and 6th rules.)

If this grant can be sustained as legal, the wholesome restraints imposed by these regulations are in vain. The petition and the information are wholly insufficient; the one does not state the religion, the profession, nor the number of the family; the other does not supply any of this information, nor does it inform the governor whether the land is irrigable or not, which is necessary under the 12th section of the decree of August 18, 1824.

But the "informe," such as it was, had never been before the govThere is no evidence that he ever saw it, and from the fact

ernor.

that, in this and the other cases, the petition and "informe" are produced from the custody of the petitioners, instead of being retained, as was the rule and custom, to be laid before the assembly and recorded in the proper book, we have a right to conclude, what was doubtless the fact, that these petitions and Sutter's report had never been returned to the governor.

It is a farce to say that the governor had passed judgment upon the propriety of these applications, when he did not, and could not know what cases would be embraced in his grants; for it includes all who, up to that date, had obtained favorable reports from Sutter; and it is not pretended that even any list of the reports had been furnished. The grant is issued in such a way that the record of the title and the approbation of the assembly is made impossible, unless at the choice of the grantee. It places it in the power of one man (Sutter) to make the grant extend to all, or any, of those whose petitions had been referred to him; and even to others, for the grant is not to those whose petitions had been referred to Sutter, but to those who had obtained favorable reports. Some of the cases depend on a report of Sutter given without any reference, and it is hard to say why the grant, if valid, should not cover them.

If the governor had given to Sutter blank grants already signed, to be filled up and issued at his discretion, no one will say that it would have been legal; yet this transaction virtually amounts to the same thing.

The necessity of the approbation of the assembly is utterly ignored. No provision whatever is made for submitting the matter to them. So far from any record of the titles being kept in any book, it does not appear that any list or memorandum was kept by any one. Indeed the inference is irresistible that Gov. Mitcheltorena did not know to whom he was granting titles. Under the provisions of the Mexican law, if the grant is lost, a permanent record is accessible to show at least that a grant was issued, and to whom, and where the land lay. Several cases exist under this grant, where the claimants allege that the petition (and the report written on it) is lost. There is no record anywhere, to show that they ever did petition; and we are left to parol evidence of two or three men, testifying to the date and contents of papers that they have not seen for eight or ten years. And upon such evidence, if this grant be sustained, vast quantities of the best land in California pass to individuals.

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The testimony of Sutter (p. 16) shows that the grant was issued by Micheltorena, to ingratiate himself with the Americans for his personal benefit, and was, in every view of it, a gross abuse of the power intrusted to him.

The grant is further defective in not stating that the requisites of the law had been complied with. (8th rule of 1828.) It could not be so stated truthfully, and the case shows the necessity and wisdom of the rule.

The grant does not designate any time within which the grantee shall occupy and cultivate. (11th rule.)

These are the objections to the legal validity of this general grant. They are both to the form and to the substance.

The paper is not such as the law requires; the preliminary proceedings are not such as the law requires'; and the action of the governor is such as to open the door wide for fraud, and utterly defeat the precautions of the legislature.

Upon what sort of testimony must these grants be confirmed? Not upon a solemn grant under the hand of the governor and the seal of the State; not upon authentic record books in which the title is preserved; not upon the journals of the departmental assembly, but solely upon parol evidence, and virtually on the evidence of one man; for it depends entirely on the statement of Mr. Sutter, to show that his report was anterior to the order of the governor. The petition, report, and map do not appear to have been taken from any Mexican archives. They are produced by the claimant and seem to have been entirely in his custody.

For all these reasons we insist that there is no legal validity in the general grant of Micheltorena.

In this particular case, and in most of the others, its validity may be still more conclusively impeached.

In 1842 a decree of the Mexican government was enacted, (found in 1st Rockwell's Sp. and Mexican Law, p. 611,) by the 9th article of which foreigners are forbidden to acquire land in the frontier departments, without express license from the supreme government.

California was a frontier department, and Mr. Nye was a foreigner. He was, moreover, a native of the United States, and by a decree of the supreme government of July 4, 1843, reiterated October 9, 1843, the natives of the United States were especially forbidden, not only to become residents, but to remain in the country.

These decrees are found in a volume of Mexican archives, filed in Limantour's case, and are marked in that volume as exhibit U, Nos. 1 and 4.

It was directly in the teeth of these laws, that Micheltorena, to subserve his own interests, issued this grant.

The only possession proved in this claimant is, (Sanders's testimony, p. 3,) that in 1845 Nye built a log house and staid on the place three or four months; he then abandoned, and seems to have taken no notice of it from June 7, 1846, when Sutter gave him his copy of the title, up to May, 1852, when he filed this claim. He shows that in 1845 or 1846 he left in consequence of Indian hostilities; but does not show that such hostilities prevented him from returning during six

years.

No injury will accrue to Mr. Nye in consequence of his being deceived into a belief of his title; and the claim should be rejected.

The further position is taken by the appellants, that, at the time this grant was made, General Micheltorena was not de facto the governor of California, and had no right to make grants of land.

He was not actually in possession of the government, and his power was not acknowledged by the assembly nor the other officers of State. This we insist upon, even if the general grant is correctly dated; but we also insist that the grant, if made at all, was a subsequent transaction.

For these points we shall refer to the history of the times as exhibited in the volume of archives attached to the record in Limantour's case.

We shall insist, moreover, that no public officer can make a grant of public land except by matter of record.

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