# United States v. Auguisola

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United States Supreme Court
68 U.S. 352
United States v. Auguisola
THIS was an appeal by the United States from a decree of the District Court for the Southern District of California, confirming to one Auguisola a tract of land in California.
After the cession of California to the United States, Auguisola, who deraigned title from two persons (Lopez and Arrellanes) exhibiting a grant that purported to be from the Mexican governor, Micheltorena, laid his claim before the board of commissioners, which the act of Congress of March 3, 1851, appointed to examine and decide on all claims to lands in California purporting to be derived from Mexican grants. He here produced from the archives of the Surveyor-General of California a petition from the grantees; the petition being accompanied by a map of the land desired; the reports of the different officers to whom the matter was referred for examination, and the concession of Governor Micheltorena, dated March 17, 1843, in which this governor declares that the petitioner is 'proprietad del terreno blanado,' or 'owner of the land' in question. He produced, moreover, a formal grant of the governor, dated contemporaneously with the order of concession, and a record of possession delivered by the proper alcade in 1847. None of the parties, however, whose names appeared as grantors or actors in the various evidences of title, were called in the court below as witnesses, proof of all the fundamental documents having been made by a witness, who swore to the genuineness of the various signatures. Neither was the work known as 'Jimeno's Index'-a list of Mexican grants between the years 1829 and 1845-introduced as part of the plaintiff's evidence of title, though the present grant purported, by memorandum at its foot, 'to be registered in the proper book.' The grant was produced from his private possession. Supposing the papers, however, to be all genuine-a matter about which no question was raised before the commissioners-the case was properly enough made out in respect of occupancy, improvement, cultivation, stocking with cattle, and other matters which were required by the Mexican laws; the only difficulty being that the boundaries of the land, as set forth in the papers and on the map, were so undefined that they could not be ascertained nor surveyed; and that the piece of land claimed had never been segregated from the national domain. Auguisola's claim was accordingly rejected by the commissioners. From this decision he appealed to the District Court; and having shown, by new evidence, more definite boundaries than he had shown before, the decree of the commissioners was reversed, and his claim established. To this judgment of the District Court the United States filed thirteen exceptions; being reasons, all of them, to show why the claim of Auguisola was a bad one. They were based on an alleged invalidity of the grant, on an asserted illegality of the juridical possession; on the situation of the land as respected the sea-coast; on the fact that it had been occupied by missions and could not be colonized; that it was incapable of identification; that one deed was on unstamped paper; that the Departmental Assembly had not approved the grant; that the land had not been properly occupied and improved, and some other reasons of a similar kind. Not one of the reasons, however, assigned fraud of any kind; of which, indeed, so far as the record showed, there was no suggestion anywhere below.
Mr. Wills, for the United States:
1. The grant, if genuine, is not legally proved: i, because the evidence offered to authenticate it is secondary; and ii, because no legal basis was laid for its introduction. The parties whose names appear in the documentary evidences of title as grantor, or witnesses, were not called as witnesses. Nor was any legal ground laid for the omission. The only evidence offered to authenticate the paper title is the testimony of a witness, who swears to the genuineness of all the signatures to all the papers, from the grant down to the record of judicial possession.
But this is not sufficient without calling the parties or accounting for their absence: i, because it is a departure from the established order of proof; and ii, because the signatures may be genuine, and yet the papers be forgeries, because antedated.
2. The grant is fraudulent and void. The first suspicious circumstance against it is the fact before referred to, viz., the failure to call or to account for the absence, as witnesses, of the original parties to the grant and accompanying papers. If fraudulent, it is an ingenious device, whereby forgery may be committed without perjury. In the absence of proof to the contrary, the legal presumption is, that all these parties were living and accessible. The fact that the governor, secretary, and others are not called as witnesses in support of the authenticity and validity of grants, when accessible, is a circumstance entitled to weight against a grant.1
The second suspicious circumstance against it is, that this grant is not mentioned in Jimeno's Index, nor is it shown to be registered in any other contemporary record. Registry is required by the regulations of 1828. Evidence of the registration of a grant must be produced, or its absence accounted for. Jimeno's Index embraces all grants made from and including the year 1830, to December 24, 1844. As the grant purports to have been made March 17, 1843, and to be 'registered in the proper book,' if it had been made at that date, it must have appeared in that Index, or in some other contemporary record, in common with all other genuine grants of that date. But no such record is produced. Its absence, therefore, from those records, furnishes presumption that the grant is a forgery.
Mr. Justice FIELD delivered the opinion of the court:

## Notes

* ↑ United States v. Teschmaker, 22 Howard, 404, 405; Fuentes v. United States, Id. 455, 456; Luco v. United States, 23 Id., 534.
* ↑ United States v. Teschmaker, 22 Howard, 405; United States v. Bolton, 23 Id., 350.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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