# United States v. Davenport's Heirs

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United States Supreme Court
56 U.S. 1
United States v. Davenport's Heirs
THIS was an appeal from the District Court of the United States for the Eastern District of Louisiana, under the Acts of 1824 and 1844 so often referred to in cases previously reported.
The facts of the case are recited in the opinion of the Court.
It was argued by Mr. Cushing (Attorney-General) on the part of the United States, and by Mr. Baldwin and Mr. Johnson, with whom was Mr. Coxe, on behalf of the appellees.
The points made on the part of the United States were,
I. That the court below had no jurisdiction, and that the decrees are therefore nullities.
These grants were complete titles, requiring nothing more to be done to perfect them; and the cases are full of proof, offered by the claimants, to show that the grants were perfect grants. But the act of 1824 applies only to cases of incomplete titles, to cases protected by the treaty of 1803, 'and which might have been perfected into a complete title, under, and in conformity to, the laws, usages, and customs of the governments under which the same originated, had not the sovereignty of the country been transferred to the United States.' 1 Land Laws, 385. The point, it is conceived, is decided in the case of the United States v. Reynes, 9 Howard, 144, bottom of page, and 145.
II. That there is no sufficient evidence of the execution of the grants by Fernandez and Gaudiana.
III. That, even if their execution is proved, then they are void; because Fernandez and Gaudiana had no authority to make such large grants. Laws for the sale and distribution of lands. 2 White's Rec. p. 48 to 55; Royal Ordinance of 13th October, 1749, Ibid. 67; Royal Ordinance of 1754, Ibid. 62; O'Reilly's and Gayoso's Regulations, Ibid. 229, 231.
IV. That even if their execution is proved, then the grants are void, because no lands were severed from the public domain by surveys, giving a certain location previous to the treaty of 1800 or even 1803, and the descriptions in the grants are so vague, indefinite, and uncertain, that no location of the lands embraced in them can be given. United States v. Miranda, 16 Peters, 156 to 160; 15 Peters, 184, 215, 275, 319; 10 Peters, 331; 3 Howard, 787; 5 Howard, 26; United States v. Boisdore's heirs, 11 Howard, 63; Lecompte v. United States, Ibid. 115.
V. That the claimants are not within the provisions of the act of 1824, and there are not the proper averments in their petitions to show that they are entitled to its benefits.
The counsel for the appellees made the following points:--
1. The territory within which both of these grants were situate was, at their respective dates, within the boundaries of Texas, (the Arroyo Hondo being the eastern boundary,) and subject to the dominion and control of the commandancy at Nacogdoches, so far as related to the granting of lands.
2. The civil and military commandants at that post were, ex officio, lieutenant-governors, and had authority to grant lands within their province or department.
3. These grants were made by them in manner stated in the petitions, and were in conformity with the laws, usages, and customs of Spain, which then existed in the province of Texas and at the post of Nacogdoches.
4. These grants gave to the grantees therein named, and to their legal representatives, a good title to the premises in them respectively described.
5. The plaintiffs, in these suits, have shown themselves, by a regular deduction of title, the owners of the William Burr and Samuel Davenport interests in both tracts; and are, therefore, entitled to recover.
Mr. Johnson, in his argument, said that the United States had not denied the existence of the original grants. As to the allegation that the lands were not severed from the royal domain, if the grant was capable of being located, it need not be actually severed. Glenn v. United States, 13 Howard, 250. This grant can be located. A centre being given, a line must be run from it two leagues to the north and two to the south; then from each end, two east and two west; then close the survey. The record shows that the centre tree existed. The other grant can be surveyed also.
But it has been said that if these titles are good for any thing, they are complete titles, and therefore not within the jurisdiction of the court under the acts of 1824 and 1844.
We are aware that in the case of the United States v. Reynes, 9 Howard, 127, this court has decided that perfect grants, arising under the treaty of 1803, do not fall within, and are not embranced by, the provisions of this law; and to that decision we bow with respectful deference; but we ask the court whether the two grants under consideration are of that description? We submit to your honors whether the fact that these grants were made by the civil or military commandants; whether from the fact that they lay within the neutral territory, a territory which, from its earliest history, was in dispute between the commandants at Natchitoches, in Louisiana, and Nacogdoches, in Texas, and which, by the treaty of 1819, falls within the limits of Louisiana; seeing that the grants originated with the commandant in Texas,-are not considerations which will take these cases out of the operation of that decision. Notwithstanding the proof in these cases to the contrary, we submit, whether, under the laws of Spain and of the Indies, stricti juris, these grants, to make them perfect and complete, did not require the sanction of the Home Department and authority. Such was the construction put upon them by Governor Salcedo himself, the governor of the internal provinces, when 'on his way to San Antonio he collected all the titles he could, in order to have them confirmed.' See Colonel Bloodworth's testimony, Y. and M., O. R. p. 201; N. R. 187. And did not the submission of Davenport & Co. of one of the grants to Governor Salcedo, show that they deemed the sanction of the acts of the military commandant, who made the grant, by a higher authority necessary; and did not the action of that governor show his own acquiescence in these views, and also show that the grant was farther embarrassed, by the fact that it lay within the neutral territory? Y. and M., O. R. p. 140; N. R. 130. This, too, is in accordance with the testimony of Benjamin Fields, who swears that he always supposed such sanction necessary; p. 92 and 93; N. R. 89, 90; and and not these views strengthened by reference to the note of the commissioners, p. 43, 44, and 51? In which last note the commissioners say:--
'It appears to be a historial fact, that the strip of country called the neutral territory was early disputed by the ancient governments of Texas and Louisiana, both alternately assuming and repelling jurisdiction over it; and even after both provinces were united under the dominion of Spain the dispute did not subside, but was kept alive and perpetuated by the local commandants, & c.' These commissioners, in their several reports, after classing these in the first class of claims, recommend them for confirmation; a language which would not have been used in reference to perfect titles, and which, coming from them, is to be regarded as the language of the government itself. 9 Pet.R. 468.
These were the grounds on which the District Attorney, in the court below, insisted that the grants were inchoate and not perfect and absolute; and we with great confidence submit to the court, therefore, whether these combined considerations do not clearly distinguish these cases from that of the United States v. Reynes, before referred to; and if so, whether they are not embraced by the act under which the suits are brought; and in view of the whole case in all its aspects, we, with like confidence, submit whether we are not entitled to recover.
1 Howard, 24; 7 Pet. R. 51; 10 Pet. R. 303; Civil Code, title Prescription, 3421, 3437, 3438, 3465, and 3466; 2 White's Recop. 191; Duff Green's American State Papers, vol. 2, p. 72 to 83; Ib. vol. 4, p. 34-36, 60, 61, 75; Executive Document, 33, 2d session, 27th Congress, p. 81. Doe v. Eslava et al. 9 Pet. R. 449; Doe v. The City of Mobile, Ib. 468.
'The authority given to these officers (the register and receiver) was to be exercised only in cases of imperfect grants, confirmed by the act of Congress, and not cases of perfect titles; in these they had no authority to act.'
Mr. Justice CAMPBELL delivered the opinion of the court.

## 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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