United States v. Moore. 12 H.

Moreno in 1835. Yriarte never took possession of the land claimed, nor did he take any further step to secure the property.

By the regulations of O'Reilly, made in 1770, and sanctioned by the king, Yriarte was compelled, if he was owner, to make mounds or levees in front of his land on the banks of the Mississippi, and also to clear and ditch the whole front of the depth of two arpens within three years from the date of his purchase; and, in default of fulfilling these conditions, the land was to revert to the king's domain and be granted anew. Neither could he sell until after three years' possession, and until the above-mentioned conditions were entirely fulfilled; and, says the third regulation: "To guard against every evasion in this respect, the sales of said lands cannot be made without a written permission from the governor-general, who will not grant it, until, on strict inquiry, it shall be found that the conditions above explained have been duly executed." That is to say, no sale could be made, or formal title issued, until these conditions were complied with.

The land claimed fronted on the Mississippi River for twenty miles and more, and on the great western outlet, the Atchafalaya, to an equal extent; and, if no mounds were made, the country below must have been overflowed every year to a ruinous extent. Levees were indispensable; their construction was a high public policy, and forfeiture an inevitable necessity, in case of failure. These were laws and ordinances of the government under which the claim originated, and which the act of 1824 instructs us to observe; the Spanish government was not bound to complete the title; but, on the contrary, under a necessity to declare it forfeited. This is plainly manifest. Even admitting that Morales, as intendant, had full power to make the sale, still, forfeiture was inevitable. Under these circumstances, it is idle to assume that Morales's act of sale received any sanction from the king of Spain, or from any one exercising his authority.

Embarrassed as Yriarte was with the want of power in Morales to sell, and the stringency of O'Reilly's regulations compelling him to occupy, clear, ditch, and levy, a necessity [* 222] was imposed on him to surrender his purchase and have his money refunded; and there are several reasons apparent why we think he did so. In the first place, he labored under no disability or impediment; he remained quiet, never took possession, nor asked for a survey up to the change of flags in 1804; nor did he ask for a confirmation of Morales's void act from the Spanish authorities. And, after the United States assumed jurisdiction, boards of commissioners almost constantly existed before which his claim could have been presented, and through them, reported to congress for

United States v. Moore. 12 H.

political action thereon; yet no step was taken, and the claim slept in the hands of Yriarte until 1835, when he sold it in Madrid; and it first made its appearance in this country, when presented to the district court, in June, 1846. When there adduced in evidence, the receipt was cut in gashes and stained, having the appearance of a neglected, valueless, and cancelled paper. To account for its appearance, one Campo deposed for plaintiff, that, in his opinion, the cut and dilapidated condition of the document grew out of this fact: "That the officers of quarantine in Spain, in order to prevent the spreading of infectious diseases, immersed documents in vinegar, and cut them in this manner. This was in order to make the vinegar penetrate more easily, and this he thinks has been the case with the document in question, and, therefore, its discolored and cut appearance." He further states, "that all the documents from Spain are cut in like manner; that he has often seen them; he has in his possession letters cut in the same way."

This was obviously a private receipt held by Yriarte, and carried by him to Spain; and as the money he had paid in Louisiana went to the royal treasury, and was transmitted to Madrid as the receipt. shows, the fair presumption is, that when the receipt was there presented, and the money refunded, the marks of cancellation were made by cutting the paper in gashes, as no reason can be perceived why the holder would thus deface his own document; nor can it be imagined why a mere sheet of paper should be thus cut to let in an acid, if such practice prevailed, which we suppose, however, to have no foundation in fact, as witnesses in abundance could have been produced to support this improbable account, if it were true that all documents, coming from Spain, are cut in like manner and stained with vinegar.

We are called on to decide in this case according to the rules governing a court of equity, and are bound to give due weight to lapse of time.

The party was under no disability, and slept on his rights, as he how claims them, for nearly fifty years, without taking a [223] * single step. He makes no excuse for his long delay, and cannot now get relief by having his title completed.

No case has come within our experience, where the obscurity and antiquity of the transaction more forcibly than in the present case, required a court of equity to bar a complainant on legal presumptions founded on lapse of time; and where the bar should take the place of individual belief.

The government had taken possession, and had sold out these lands to a great extent, and was bound in good faith to protect its

United States v. Moore. 12 H.

vendees; that these private owners could have relied on the lapse of time, and defeated the claim set up, is clear; and on principle, their vendor could do so likewise.

Even had this claim been adjudged valid by this court, still, the decree below is in part erroneous. The part referred to is as follows: "It is further ordered, adjudged, and decreed that, in case said lands so claimed by said petitioner, or any part or portion thereof, shall have been sold by the United States, or otherwise disposed of, said petitioner, Michael Moore, shall be and is hereby authorized to enter in any land-office in the State of Louisiana, in parcels conformable to sectional divisions and subdivisions, a like quantity of public lands, after the same shall have been offered at public sale.”

By the act of 1824, it is provided that, if it shall so happen that the lands decreed to any complainant "shall have been sold by the United States, or otherwise disposed of, it shall be lawful for the party interested to enter the like quantity on other lands." Here, the decree is general against the United States, and awards to complainant floating warrants for all lands that the United States may have sold, or otherwise disposed of, within the bounds of the tract decreed. The act requires the names of all persons claiming the land sued for, or any part of it, to be set forth in the petition, and that they shall be made defendants in due form by citation; and if the entire tract is claimed by private persons, then they shall be sole defendants; but if the government is owner in part, or of the whole, then this fact shall be stated, and the attorney of the district must be served with process, and be allowed to answer for the United States. The purpose of congress was, first, to authorize a suit against the United States; and, in the next place, to give judicial cognizance of a description of incipient claims having no standing in a court of justice before the act was passed; and, thirdly, that the petitioner should be bound to sue private persons, claiming the same land, so that those having an interest, and better knowledge of facts, and more capacity to defend, than the United States, might be drawn into the contest; and that they should be compelled to produce their title, so that, if a *decree was made for complain- [* 224 ] ant, the court could ascertain what part of the land should be granted to him by patent; and, as this could only be done by a specific ascertainment of interfering claims, the decree must of necessity specify their boundaries and quantities. Nor can it stop here; it must adjudge that a warrant shall issue, and be subject to location. This decree is not only in general terms, but it is contingent, that, in case all the lands claimed, or any part or portion of them, have been

United States v. Moore. 12 H.

sold or otherwise disposed of by the United States, then the petitioner shall be authorized to enter a like quantity, &c.

The district court, as we apprehend, did not proceed to adjudge other lands as an equivalent, on the act of 1824, as it originally stood, but on amendatory and repealing clauses found in the 8th section of the act of May 23, 1828, extending the law to Florida; and especially to the 2d section of the act of 24th May, 1828, giving further time to claimants in Missouri and Arkansas to institute suits; both of which clauses declare that so much of the act of 1824 as requires petitioners to make adverse claimants parties to the suit shall be and are thereby repealed. The act of 24th May, 1828, contains various other provisions; some of which modify, and others repeal, parts of the act of 1824.

The act of June 17, 1844, provides that so much of the act of May 26, 1824, as relates to the State of Missouri, is thereby revived and reënacted; and the same jurisdiction is given to the district courts of Arkansas, Louisiana, Alabama, and Mississippi, as was exercised under said act in Missouri; with the exception of that part of the act (being sections 14 and 15) that applied exclusively to the territory of Arkansas, which only allowed claims of a league square, and under, to be adjudicated. The thirteen previous sections stand incorporated in like manner as they would be if they had been copied into the act of 1844. No language to this effect could make it plainer; any attempt to incorporate likewise the act of 24th May, 1828, into that of 1844, would not only be a forced construction, but a manifest perversion. It follows that the law, as found in the first thirteen sections of the act of 1824, furnishes all authority the district court had, to proceed, and to decree an equivalent; and that the true mode of proceeding, according to the law as it stands, is as above stated, we suppose to be not open to controversy.

This view of the act of 1844 was very forcibly presented to us by the attorney-general, in the case of The United States v. Boisdore's Heirs, coming up from Mississippi, 11 How. 77; but, as we then apprehended that no similar irregularity might again occur, no notice was taken of it in the opinion, dismissing the cause on its merits.

[* 225 ]

*Being of opinion that this cause is destitute of merits, it is ordered that the decree of the district court be reversed, and the petition dismissed.

15 H. 1, 31, 36.

WYLLYS LYMAN, GEORGE P. MARSH, JOHN PECK, and JOHN H. PECK, Plaintiffs in Error, v. THE PRESIDENT, DIRECTORS, AND COMPANY OF THE BANK OF THE UNITED STATES.

12 H. 225.

In an action to recover the consideration of a sale and conveyance of real and personal property, for which three notes were given, two of which were admitted to have been paid, and the third was produced and tendered to be given up; Held, 1. That the other notes need not be produced; 2. That, as defendants gave their notes for the purchase-money, the presumption was that the conveyances had been made, and the deeds need not be produced; 3. That there was no presumption that the notes were received in satisfaction of the purchase-money.

THE case is stated in the opinion of the court.

Phelps, for the defendants.

No counsel contrà.

NELSON, J. delivered the opinion of the court.

[ *243 ]

This is a writ of error to the circuit court of the United States for the district of Vermont.

The suit was brought in the court below by the bank against the defendants to recover a balance claimed to be due, of the purchasemoney agreed to be given for the property and assets of their branch at Burlington. The amount of the purchase-money was a fraction under one hundred and forty-two thousand dollars, ($142,000,) payable in instalments; and for securing payment of which four notes of thirty-five thousand five hundred dollars ($35,500) each, were executed and delivered at the time. These notes were payable to "Samuel Jaudon, Esq., cashier, or order," and had not been indorsed by him to the plaintiffs, nor in blank.

The declaration contained the usual money counts, an account stated, and also counts for the original consideration of the notes.

On the trial, the plaintiffs offered in evidence the last of the series of notes, the previous ones having been paid, for the purpose of sustaining the action, which was objected to on the ground that no title was shown in the bank, the note not having been indorsed. This objection was sustained and the note excluded, but the plaintiffs were permitted to recover under the count for the original consideration.

The question, therefore, whether or not it was competent to con nect the plaintiffs with the note by parol evidence, that it had been given to their cashier, and was their property, is not in the case, and need not be passed upon.