# United States v. Vallejo (66 U.S. 541)

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## Dissenting Opinions

    Grier
    Wayne
United States Supreme Court
66 U.S. 541
United States v. Vallejo
Don Mariano Guadalupe Vallejo petitioned the Land Commission at San Francisco for confirmation of his claim to the tract known by the name of Suscol, bounded on the north by Tulucay, and Suisun on the east, and south by the Straits of Carquines, Mare Island, and Napa Bay. It includes the city of Benicia, the town of Vallejo, the navy-yard of the United States, and the depot of the Pacific Steamship Company, and contains altogether about eighteen square leagues.
The documents introduced to show title in the claimants were: 1. A colonization grant to Vallejo, dated 15th March, 1843, in the usual form, and with the usual conditions, signed by Micheltorena as Governor, and countersigned by Francisco Arce as Secretary ad interim. 2. Another grant, bearing the date of June 19, 1844, reciting that Vallejo had requested the purchase of the tract for the sum of five thousand dollars; that the Governor had sold it to him for that sum, and received payment; and declaring him to be owner of the land without restriction. This paper also purported to be signed and countersigned by Micheltorena and Arce. 3. A certificate dated 26th of December, 1845, signed by Pio Pico as Governor, and attested by Jos e Maria Covarrubias, setting forth that both the grants above mentioned had been approved by the Departmental Assembly on the 26th of September, 1845. These papers were all produced from the private custody of the claimant himself. Neither of the grants is referred to in Jimeno's catalogue, or recorded in the Toma de Razon, nor is any espediente found for either of them among the archives. The journals of the Departmental Assembly show that these grants were not before that body, either on the 26th of September, 1845, as certified by Pico, or on any other day. The following official letter, dated at Angeles, March 16, 1843, addressed to 'Colonel D. Guadalupe Vallejo, military commandant of the line from Santa Juez to Sonoma,' signed Micheltorena, and sealed with the seal of the Departmental Government, was also produced by the claimant, and proved to be authentic by reference to the recorded correspondence of the Governor for the period to which it belonged:
'I transmit to you the title of the place named Suscol, this Government regretting that it cannot accept the first of the offers which you made; because the supreme government of the nation has ordered that all back pay be suspended, which became due before the 1st of October, 1841, which will serve you as a rule with respect to your subordinates; which suspension was made to continue until the public treasury should be released from its embarrassments, and by which even I had to suffer a loss of a considerable amount, of some thousands of dollars; but I do accept the offer of the five thousand dollars in articles of the produce of the country for the troops, on account of the imperious necessity which I have for them, in order to maintain them, for which purpose I send the schooner California, that you may have the goodness to load her with five hundred fanegas of maize, two hundred and fifty of fijoles, two hundred arrobas of dried meat, and five hundred pairs of shoes, or the material for making them, which I am told it will not be difficult for you to send; and surmising also that it will not be very inconvenient for you, I earnestly request that you will send me two thousand dollars in silver, in consideration of the fact that the treasury of the department is short of funds, as it has not received anything since my arrival, there having been no arrivals of vessels; and besides this, the troops of my expedition are daily furnished with cash in hand, as they are subject to a mode of payment, administration, and customs different from the presidial troops, as you know, in the same manner as the rest of the n tional army, and for which sum it will be exceedingly grateful. All of which I communicate to you for your information, assuring you at the same time of my consideration and esteem. God and Liberty!'
J. B. R. Cooper testified that he was captain of the California, a goleta or schooner of eighty-five tons burden, belonging to the department, and used to carry mails, troops, and supplies up and down the coast; that about the year 1842, or 1843, he took a full cargo of supplies, consisting of wheat, corn, barley, beans, peas, blankets, tanned leather, shoes, and deer skins, from Petaluma to San Diego; that these supplies were for Governor Micheltorena, and furnished by Vallejo; that the Governor told him Vallejo had offered $20,000 for Suscol, and the witness understood these supplies were to go in payment.
Four witnesses (but the character of one was impeached) testified that the ranch was occupied by Vallejo for a long time before, as well as after, 1843; they speak of no occupancy by any other person, and say that he had buildings on it, many thousands of horses, cattle, and hogs, with extensive cultivation. It appeared, however, that the ranch was originally used by the mission of San Francisco Solano, and the first improvements on it were made by the padres. In 1839 it was taken by the Government for military purposes, and it was under the supervision of Colonel Vallejo, because he was the commandant of the northern frontier, with his headquarters at Sonoma and his private residence near by, at Petaluma. Three witnesses on the part of the United States testified that they knew the land; that it was called the 'Rancho Nacional;' that it was occupied and cultivated by soldiers of the Mexican army down to the time of the American conquest, when they were driven away; that all the stock upon it was public property, and used as such to supply the soldiers with beef, &c.; and that Vallejo had possession of it for the Government as a military officer; but they never heard of any private claim to it until long after the conquest.
Watson, a witness produced by the United States, swore, that in 1848 he proposed to purchase a part of the land from Vallejo, and Vallejo then told him that he had bought it from the Suscol Indians; but he expected the United States Government would swindle him out of it, and refused, for that reason, to sell with a warranty of title.
The evidence given by the claimant to establish the authenticity of the grants was contained in the deposition of Pablo de la Guerra, who declared on his oath that he knew the handwriting of Micheltorena and Arce, and that their signatures to the two grants were genuine, to the best of his knowledge and belief. Arce, the attesting and official witness, was not called. After the evidence was closed and the cause submitted, a motion was made on the part of the United States to open it for the purpose of calling Arce on their part. This motion was founded on two affidavits expressing the belief of the affiants that Arce would prove the grants to be false. It was resisted, and the court refused to take off the submission.
The claimant took the deposition of I. D. Marks, who testified to conversations with Micheltorena in Mexico after he was Governor of California, in which Micheltorena told him that he had extraordinary powers as Governor, and that his acts had been approved. The same witness was also told by Jos e Fernando Ramirez, Secretary of State of Mexico, that full powers to grant lands in California had been delegated to Micheltorena by Santa Anna, under the Bases of Tacubaya.
The District Court affirmed the decree of the Land Commission, approving the title and confirming the claim for the whole tract described in the petition; whereupon the United States took this appeal to the Supreme Court.
Mr. Black, of Pennsylvania, and Mr. Green, of Missouri, for the United States. Both these grants are destitute of what the court has often held to be indispensable-namely, a record. The grant of 1843 is not on Jimeno's index, and that of 1844 is not on the Toma de Razon. Neither is there an espediente for either of them. These defects are so clearly fatal, that an argument concerning them is useless. The absence of a registry and an espediente, prove that no such grants were ever issued. The journals of the Departmental Assembly show that the certificate of approval is also a sheer fabrication.
The evidence in support of these grants would be wholly insufficient to establish even a private paper. The claimants called Pablo de la Guerra to prove the handwriting of the signatures, and did not call Arce, who was in full life, and within the jurisdiction of the court. Nay, when the claimants closed the evidence without calling the subscribing witness, the United States proposed to call him, but the motion was successfully resisted. This court is bound to presume that the claimants kept away the only witness in the world who knew when, how, and by whom the papers were made, for fear that the truth, if told, would overthrow their case. The law does not allow any other construction to be put on such conduct.
The only genuine paper produced is the letter from Micheltorena to Vallejo. But it is really inconsistent with every part of the case which the claimants have attempted to make out. It refers to a title for the place called Suscol. What title? In whose favor? It is dated the day after the first grant, and more than a year before the other. Would the Governor have made a colonization grant if he intended to sell? And after making a bargain to sell, would he transmit a title reciting a naked grant, without a consideration, before he received the purchase money? Of the two offers, which the Governor says Vallejo has made him, neither is intelligibly He says he cannot accept the first, because back pay is suspended; but he accepts the offer of $5,000 in produce, and he urgently requests that Vallejo will send him $2,000 besides in silver. There is not a word in all this to indicate that the offers had any reference to the land. No doubt Vallejo was in debt to the Government; Micheltorena was dunning him, and Vallejo was offering to set off his back pay or to discharge a part of the claim in produce. The latter proposition the Governor acceded to, but insisted at the same time on having some cash besides. If the other side of the correspondence had been produced-that is, Vallejo's letter containing the offers-the whole could have been understood. Why was it kept out of sight? For the same reason that Arce's testimony was withheld-the truth did not suit the purpose.
Three other grants with which Vallejo was connected are referred to as throwing light on this one: the Petaluma Sobrante, concerning which the evidence is found on this record; the Lup Yumi, (22 How., 392;) and the Yulupi, (22 How., 416;) which have been already investigated in this court. These three grants, together with that for Suscol, are all dated in 1844; all countersigned by Arce; none of them is recorded, and are all falsely certified to have been recorded. Here is a printed copy of all the grants, dated in 1844, on which claims were set up before the Land Commission, (Limantour Exhibits,) and it shows that Jimeno was at his post during the whole of that year, and attested every registered grant except one to himself. It is worthy of notice, too, that Arce was never called as a witness to prove any of the unregistered grants to which his name is appended.
The power of the political chief was limited by the colonization laws of 1824 and 1828, and they give him no power to sell lands; nor had he any authority either to give or sell lands which were not vacant, but occupied and used like this Rancho Nacional, by the Government, for its special and necessary purposes. The effort to change the law by proving the loose conversations of Micheltorena and Ramirez is, of course, unavailing. A book was cited by the judge below entitled Leyes Vigentes, published at Mexico, and page 58 is referred to. Here s Leyes Vigentes, and here is page 58. It contains a decree of the Spanish Cortes made in 1813 on the subject of the crown lands, but not a word affecting this question in the remotest degree. The provisions it does contain are inconsistent with, and therefore repealed by, the law of 1824.
But, assuming that the Governor had a power not given by the colonization law, and conceding that he could sell a public ranch occupied for military purposes, does it follow that he could convey it without making his act a matter of record? On general principles this must be answered in the negative. A grant not recorded is but the private deed of the officer who makes it, says Judge Grier in Luco's case. In every well regulated Government, the deeds of its officers are enrolled, says Judge Campbell in Sutter's case. A private deed made by a public officer for a part of the public domain, upon a consideration paid to the officer himself, is not binding on the public either in law or equity.
The opinion of the judge below is based on a mistaken view of the law, and on erroneous assumptions of fact, to wit: that the title-papers were admitted to be genuine; that there was a money consideration paid for the grant, and that possession was taken as ordinary under Mexican law. This is wholly wrong. There was no such admission; the grant was denounced as false from first to last, and the record shows it. There is no reliable evidence that a penny was ever paid for it; and no possession was ever given or taken according to any law, custom, or usage.
Mr. Reverdy Johnson, of Maryland, and Mr. McCalla, of Kentucky. The genuineness of these title-papers was admitted. The statement of that fact in the written opinion of the court below is not only ample, but conclusive evidence of it. This being settled, the United States will not be permitted here in the appellate court to raise the question again. Besides, the evidence was sufficient without the admission to show that the papers were executed. The non-production of an espediente and the failure to call Arce are not, under the circumstances of this case, any grounds for rejecting the claim here. The want of a registry does not prove that the titles were not issued. As to the certificate of approval by the Departmental Assembly, it makes no difference whether that be true or not, for an approval is not necessary to the validity of the title.
The counsel of the other side rely upon the cases in which the court has decided against claims under colonization grants. This claim is under a sale made by the Government to a citizen for a consideration paid, and is, therefore, not within the principle of those cases. The law of 1824 and the regulations of 1828 do not apply to it.
The power of the Governor to make such a sale is not a thing to be doubted. It existed anterior to the colonization law of 1824, and was not taken away by that law. The testimony of Marks shows that it was claimed and exercised by Micheltorena, and that it was conceded by the official authorities of the Supreme Government.
But even if the Governor had transcended the strict limits of his legal authority, yet, as it was made on a valuable consideration, it constitutes an equitable claim which ought to be confirmed. A title that would have been confirmed by the Mexican Government will be confirmed here; and this court is bound to presume that Mexico would confirm any title which in good conscience ought to be confirmed. With what legard to her faith and honor could Mexico refuse to admit the justice and honesty of a title which was paid for by the grantee, and of which she had the price in her treasury, or applied it to the public service? It would be monstrous to suppose that she could quibble with one who had paid her his money about the technical form in which his contract was made.
The letter of Micheltorena to Vallejo is admitted to be genuine. That letter, taken in connection with Cooper's evidence, shows very onclusively that an honest and fair price-the price demanded by the Government-was paid for the land in question.
General Vallejo was one of the most distinguished men of the Mexican Republic; performed for many years the most important and valuable services, and was highly appreciated by the Supreme as well as the Departmental Government. He is now one of the most respectable citizens of California. His character makes it impossible to suppose that he would assert a claim to land which was not his own. In point of fact, no such suspicion as to this title ever entered the minds of Californians. They knew it was all right, and in that conviction large numbers of persons have bought these lands. Thousands are interested in the confirmation, and there is no opposing interest which deserves the slightest favor.
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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