# United States v. Galbraith.

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United States Supreme Court
67 U.S. 394
United States v. Galbraith.
This was a land claim originating before the Commission appointed under the Act of March 3d, 1851, and coming into this Court by appeal from the decree of the District Court for the Northern District of California.
The petition of John D. Galbraith, John Sime, Richard H. Sinton, and David T. Bagley asserted their right to a tract of land containing four square leagues in Sonoma, called the Bolsa de Tomales, bounded by lands of Juan Viojct, Bartolo Bojorques, the bay of Bodega and the creek (entre) of Tomales, under a grant from the Governor, dated 12th June, 1846, to Juan N. Padilla, whose title by sundry mesne conveyances became vested in the petitioners.
The title papers consisted of 1. A petition for four square leages, signed by Padilla, addressed to the Governor and dated at Monterey, May 14th, 1846. 2. A marginal order of the Governor, dated Los Angeles, May 20th, 1846, directing the Prefect of the Second District 'to report about the state of this land with all the particulars concerning the same,' and declaring that 'when the return is made the Governor will resolve.' 3. A certificate of the Prefect (Manuel Castro) dated May 10th, 1846, that Padilla had made application for the land; that the espediente was in that prefecture; and that the reports show the land to be vacant and grantable. 4. A decree of concession dated June 12th, 1846. 5. A borrador of a grant for five leagues, dated same day. 6. The grant or titulo alleged to be the original and bearing the date of February 12th, 1846, signed by Pio Pico as Governor, and attested by Moreno as Secretary. 7. A certificate dated 14th June, 1846, and signed in the same way by Pico and Moreno, that the grant had been confirmed by the Departmental Assembly.
The last two of these papers were produced by the claimants from their private custody; the other five were brought from the Surveyor-General's Office, where they were found filed, arranged and deposited in the form of an espediente with a class of documents known as being comprised in Hartnell's Index. An account of that Index will be found in United States vs. Knight's adm'rs., (1 Black, 227.)
Parol evidence was given by the claimants to prove the handwriting of Padilla to the petition, of Castro to the informe, of Pico to the order of reference, and of Pico and Moreno to the grant and certificate of approval. Moreno, the Secretary, was himself called, and he testified that the signatures to the grant and to the certificate of approval were genuine and made at the time those documents bear date. On cross-examination, he said that the grant appearing to be dated on the 12th of February, he could not have signed it then, for he was not in office until afterwards, but he must undoubtedly have signed it before the 4th of May, and he was convinced that he did so.
The word Febrero was plainly written as the date of the original grant; all copies of it in the record have it so; and every official translation gives February as the date. The claimants, themselves, at first, recited it as of that date in their petition. But it appeared from the remarks of the Land Commission and otherwise, that the date had been altered by writing Febrero over some other word, probably Junio. Of this alteration no explanation was given to show when, how, or by whom it was made. The paper did not appear ever to have been in any custody but that of the claimants themselves, or the persons from and through whom the title was deduced.
The certificate of approval was shown not to be true by the journals of the Departmental Assembly. It was made certain by these records that no such grant as this to Padilla was ever laid before that body. But there was no evidence in the case besides that of Moreno, to show whether the false certificate was actually made by the Governor and Secretary or by some other person who counterfeited their signatures.
Mr. Hopkins, clerk in the Surveyor-General's Office and keeper of the archives, was a witness in the cause, and gave it as his opinion that the espediente was genuine. His testimony proved that this espediente was numbered 571 on Hartnell's Index, and that the grants in numbers 569, 570, 572, and 573, as well as some others indexed by Hartnell, were originally dated on days subsequent to the conquest, and afterwards altered to other days before the conquest. He regarded these latter grants as fraudulent.
Evidence was given of the occupancy and use of the land by the claimants. It did not establish any clear, notorious or well settled possession previous to the conquest or at any time soon afterwards.
The Land Commission decreed the confirmation of the title with strong expressions of reluctance and much doubt concerning its honesty. That decree was affirmed by the District Court from whence it came up to this Court by appeal where the decree of the District Court was reversed and the cause remitted with directions to take further evidence, (22 How. 89). Much of the evidence referred to above was taken after the cause went back.
The District Court upon the whole evidence considered and adjudged the claim to be well founded in law. The decree in accordance with that opinion was brought to the Supreme Court on this appeal by the United States.
Mr. Black, of Pennsylvania, and Mr. Gillet, of Washington City, for the United States.
The title is not proved. The claimant has produced certain witnesses who swear that in their opinion, the signatures to the several papers, are genuine. This has often been held, not only insufficient and unsatisfactory, but inadmissible. The testimony of Moreno will not help them, because he is not a credible man, and because he has told an incredible story and for the still further reason, that his statement, if believed, is in conflict with the whole theory of their case.
There is no record of the title, and on this point the case in every material fact and circumstance, is precisely that of Knight, decided at the last term. The espediente is among those arranged in 1847-8, by Hartnell, who gathered his materials from the custom-house floor and from other places no better. He did not know a true title from a false one-had not the means of knowing but picked up, put away and indexed whatever he got his hands on.
The reasons which induced the Court last year to reject that index, are strengthened a hundred fold by the evidence which comes up with this record. The testimony of Captain Halleck, showing how the papers were got, did indeed prove that they were just as likely to be true as false; but here we have evidence from the lips of Mr. Hopkins, that some of them are known to be false. The fact is established by affirmative proof that this very espediente, No. 571, lies in the centre of five: the two others on each side of it, are plainly fraudulent. That settles the character of the index, if anything can.
But these title papers bear upon their own face sufficient evidence to insure their condemnation.
The informe is dated ten days before the order of reference. It is barely possible to suppose that this might be an innocent blunder. But the Court is certainly bound to presume nothing in favor of a title which presents such an anachronism. The language of the order and the declaration that when the prefect shall report, the Governor will resolve shows that the report did did not exist then; if it was made afterwards it is falsely dated, and if falsely dated it is a fraudulent paper.
The grant is dated three months before the petition. Now this date is either true or false. If it be true, the title is void; for on the principle of Cambuston's case, the Governor had no power to make a grant without a petition. The claimants seeing this difficulty and seeking to avoid it got into another by asserting that the date has been altered. By whom was it altered? By themselves of course, for it never was in any other custody. How was it altered? Fraudulently; for that is the presumption of law, when there is no explanatory evidence. It is in vain to say that the date of a deed is not material. Of such a paper as this it is the most material part. If it was made before the 14th of May, or after the 7th of July, it is a nullity. It is highly important, therefore, to know whether it was or was not executed at some intermediate time. The claimants did not permit the paper to speak for itself, but obliterated the name of the month and wrote another word over it, so that the true reading can never be known. After having themselves falsely and designedly spoiled the evidence, covered up the truth and put it out of your power, to ascertain when it was made they ask you to supply a date suitable to their interests by mere presumption. If all presumptions were in favor of the spoiler, and if Courts could act on the principle that suitors must be encouraged in falsifying their documents, then the reasonings of the claimants' counsel might have a chance of success; but the rule is directly the severse.
There is another manifest and palpable fraud in those papers. The certificate of approval, is either a forgery out and out, or else it was made by Moreno and Pico with a knowledge that it was false. The claimants' counsel will not choose either horn of this dilemma; but they cannot escape. They introduced the certificate in evidence as a genuine paper, called Moreno to prove it, and he swore to its execution as he swore to the other papers. They gave it up only when the truth as proved by the journals became too strong to be faced down. If Moreno and Pico actually signed it, what is the value of other papers signed by them and proved in the same way? If their names are counterfeited, what shall be the moral status of the party that got it done and used it?
Mr. Hopkins' testimony to a fact is not to be disputed. But his opinion is out of place on this record. He has assumed to give judgment in the cause, and that judgment is manifestly erroneous, being unsupported by evidence, and contrary to the well settled law of the land.
The case of West's Heirs is not to the point. There the title was admitted to have been made for one league; but after the conquest, somebody (not the claimants) changed the grant so as to make it read for two leagues; and the question was whether this attempt to enlarge the grant destroyed it altogether. The Court answered in the negative, and that settled a rule of property. But here we are dealing with the law of evidence. The claimants can support their title only by proving that a grant was issued after the date of their petition, and they produce the original which is dated before the petition. To mend this fatal defect they assert that it was altered by themselves. This is certainly the first case on record of a party producing a paper which vested in him the only title he pretends to have, and asking a decree not because the paper is genuine, but because he alleges it to be a forgery.
A diseno or map is a necessary part of every land espediente, and is distinctly required by the regulations of 1828. There are cases in which its absence has been excused; but not cases like this.
Mr. Ashmun, of Massachusetts, and Mr. Hill, of Missouri, for the claimants.
The possession of the grantee is well made out, and sufficient of itself to give his alienees a right to be confirmed in their title. Alviso's case, 23 How., 318; Wilson's case, 1 Black, 267; De Haro's case, 22 How., 293.
The Court is bound to act upon principles of equity, and therefore to confirm the claim according to the possession, although a suspicious criticism may be able to raise a doubt concerning the completeness of the espediente and the grant.
A map was not necessary in this case. The description of the land was perfect without one. The external boundaries could not be made more distinct by a diagram on paper.
Knight's case is not authority against the validity of this espediente or against the truthfulness of Hartnell's index. Knight's espediente had many infirmities and irregularities, which are not found in Padilla's. It had no informe, nor was any original grant produced, and its genuineness was impeached by proof that Knight was not in a condition to receive such a grant.
Nor is it just to deny the integrity of the index because there are in it some espedientes besides that of Knight which are false Hartnell found them, and though they appeared on their faces to be altered, he did not presume to decide upon the legal effect of those alterations. The index is conclusive on the United States as proof that the espedientes all belonged to the Mexican archives, but the value of each one must depend on the special circumstances connected with it. Knight's case justly fell by its own demerits.
The value of Mr. Hopkins' testimony can hardly be over-estimated. He is (and the counsel on the other side acknowledge it) a most faithful public officer of twenty years experience, an upright man, and every way a credible witness. He pronounces this espediente to be genuine. And there is other evidence besides his to prove the handwriting of the several signatures.
The alteration of the grant by changing the date is immaterial; it would be as valid if made in June as in February. The records show that it was actually made in June; the title was vested before the alteration took place, and the alteration could not operate as a forfeiture. It is not known when, how, or by whom the alteration was made, but it is not important since the archives and other evidence aliunde show that a good title existed before the conquest. The case of West's Heirs is directly in point, and its authority is conclusive.
The certificate of approval is said to be a forgery. This cannot defeat the claimants' right. If it were genuine, its production would be unnecessary. That principle is established in Fremont's case (17 Howard), and by the three cases of Cruz Cervantes, Vaca, and Larkin, in 18 Howard. A good title having been proved cannot be divested by proof that another document offered in support of it is forged. Lloyd vs. Panningham, (16 Vesey, 59).
Mr. Justice NELSON.

## Notes

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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