United States v. Miranda. 16 P. eighth article of the treaty is: "All the grants of land made before the 24th of January, 1818, by his Catholic majesty, or by his lawful authorities in the said territories, ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic majesty. But the owners in possession of such lands, who by reason of the recent circumstances of the Spanish nation, and the revolutions in Europe, have been prevented from fulfilling all the conditions of their grants, shall complete them within the times limited in the same, respectively, from the date of this treaty, in default of which the said grants shall be null and void. All grants made since the 24th of January, 1818, when the first proposal, on the part of his Catholic majesty for the cession of the Floridas was made, are hereby declared and agreed to be null and void." The words in [159] the foregoing extract shall be ratified and confirmed to the persons in possession of the land, have been decided by this court, in Percheman's case, 7 Pet. 51; to mean, "the grants shall remain ratified and confirmed to the persons in possession of them, to the same extent, &c. &c. ;" or, as this court said in Kingsley's case, 12 Pet. 476, "stand ratified and confirmed to the same extent that the same grants would be valid, if Florida had remained under the dominion of Spain." And the words, "in possession of them," have by this court, in Arredondo's case, 6 Pet. 741, and in all other cases upon Florida grants, after it, been determined not to imply occupation or residence only, but a legal seisin. The court said in that case: 66 By grants of land we do not mean the mere grant itself, but the right, title, legal possession, and estate, property, and owner. ship, legally resulting upon a grant of land to the owner." But, in the case before us, from the want of survey, or some point for the beginning of one, there can neither be a seisin in fact nor in law; for identity of premises is as essential for a seisin in law, as it is necessarily implied in a seisin in fact. The grantee, then, can only claim validity for this grant to the same extent that it would have been valid, if the territories had remained under the dominion of his Catholic majesty. And this brings up the questions, how far this grant was valid when the Floridas were ceded to the United States; or whether, in the situation in which this grantee stood when the treaty was made, he had more than a permission to ask for the means of having the lands identified, that he might have a right of possession. The grant was made in 1810. No order of survey was made; nothing was done to withdraw the land from the general mass of United States v. Miranda. 16 P. property, or to show what it was, which was to be withdrawn. It therefore remained in the king of Spain, with the power to consummate that which had been done on Miranda's petition, into a complete title; according as it might be his pleasure to do or not to do so. And when he ceded the Floridas to the United States, the latter were placed in respect to this grantee, exactly in the situation in which his Catholic majesty had stood. This being so, the eighth article of the treaty, on the most liberal interpretation of the intentions which actuated the high contracting parties, imposes upon the United States no obligation to make a title to lands of which the grantee had neither an actual seisin, *nor a seisin [160] in law. Identity is essential for the latter, and has uniformly been, in the contemplation of this court, when it has confirmed Florida grants, inchoate or complete. This court said in Forbes's case, 15 Pet. 182: "The courts of justice can only adjudge what has been granted, and declare that the lands granted by the lawful authorities of Spain, are separated from the public domain." The grant now sought to be confirmed, was not so separated by survey, or by any such distinctive call as will admit of a survey. In Forbes's case, just mentioned, the grant was for land "in the district or bank of the River Nassau;" and the court say, after noticing the uncertainty of the description for the location of the land: "No survey of the land granted was ever made; the duty imposed upon the grantee to produce the plat and demarcations in proper time, was never performed. This was a condition he assumed upon himself; the execution and return of the survey to the proper office, in such case, could only sever the land granted from the public domain." "No particular land having been severed from the public domain by John Forbes, his was the familiar case of one having a claim on a large section of country, unlocated," &c. &c. "In such a case, the government has ever been deemed to hold the fee unaffected by a vested, equitable interest, until the location was made, according to the laws of the particular country." And though, in the decree granting the land to Forbes, the governor says: "It will be the duty of the party to produce the plat and demarcations in the proper time;" it does not vary the principle, but rather serves to establish it, that, "in grants of land with uncertain designations, to be made on a large district of country, they must have been severed from the public domain by survey, or be void for want of identity." Upon mature deliberation, the same doctrine was held in Buyck's case, 15 Pet. 215, which was a grant for lands "at Mosquito," "south and north of said place." Also in O'Hara's case, 15 Pet. 275; again, in Delespine's case, 15 Pet. 319. United States v. Low. 16 P. Indeed, the settled doctrine of this court, in respect to these Florida grants, is, that grants for lands embracing a wide extent of country, or within a large area of natural or artificial boundaries, and which granted lands were not surveyed before the 24th of January, 1818, and which are without such designations as will [161] give a place of beginning for a survey, are not lands withdrawn from the mass of vacant lands, ceded to the United States in the Floridas, and are void, as well on that account, as for being so uncertain that locality cannot be given to them. The decree of the court below is reversed, and the grant declared to be invalid. 3 H. 611, 773; 10 H. 541; 11 H. 115. THE UNITED STATES, Appellants, v. JOHN W. Low et al. Appellees. 16 P. 162. A grant of "ten thousand acres on the northwest side of the head or lagoon of Indian River," made by the local authorities of Spain in East Florida, - Held, under the circumstances, to be sufficiently specific to support a survey, made after the date of the treaty of 1819, between the United States and Spain. APPEAL from the superior court of East Florida. The petition and grant under which the title was claimed, set forth that, "bounding with the petitioner's land, on Bell River, there was a creek known by the name of Doctor's Branch, which was suitable for the estab lishment of a water saw-mill, and, as he could construct, and was. desirous of constructing immediately a saw-mill on said place, if he could obtain the permission of government, and a grant of the accustomed quantity of land for the supply of lumber, and the assurance, in his favor, that the great expenses that were indispensable [*163] to its construction, and the risks to which he would be liable, would be compensated; he, therefore, prayed that the governor would grant him five miles square of land, or its equivalent, permitting him to take 6,000 acres in the vacant lands in the neighborhood of Doctor's Branch, and 10,000 acres on the northwest side of the head or lagoon of Indian River." The governor's decree on this petition states that, "in consideration of the benefit and utility that would result to the province, should it be executed as the petitioner proposed, he grants him the permis sion he asked, likewise the lands at the places he mentioned; with the express condition that, until he erected the said machine, he should not have an absolute right in them," &c. Legaré, (attorney-general,) for the United States. United States v. Low. 16 P. CATRON, J., delivered the opinion of the court. [* 166 ] This was a mill grant of five miles square of land, or 16,000 acres; that is, at Doctor's Branch, where the mill was intended to be erected, 6,000 acres; and 10,000 acres 66 on the north west side of the head or lagoon of Indian River." The concession was made (6th of April, 1816,) on the condition that the mill was built. The mill was erected. The first survey was made at Doctor's Branch, in 1819, and is free from objection. The second, for 10,000 acres, was made February, 1820, by the surveyor-general of East Florida, "northwestwardly of the head of Indian River, and west of the prairies of the stream called North Creek; which empties itself at the head or pond of said river." Such is the description in the certificate of the surveyor-general. The survey had been objected to, but the objection was withdrawn at the hearing below; and it is insisted that a waiver of its legality must be inferred. The objection extended to the competency of the paper as evidence, and not to its effect when heard; so the court held in Breward's case, at this term. The official return of the surveyor-general has accorded to it the force of a deposition. So we held in the cases of Breward and Hanson; to which we refer. The land could only be surveyed at the place granted; if elsewhere, it would have been a new appropriation, when the survey bears date in 1819, contrary to the eighth article of the treaty with Spain; and the question is, was it at the proper place? It was granted "on the northwest side of the head of Indian River, or lagoon." * According to the strict ideas of conforming a survey to [* 167] a location, in the United States, the survey would be located adjoining the natural object called for, there being no other to aid and control the general call; and therefore the head of the lagoon would necessarily have formed one boundary. But it is obvious more latitude was allowed in the province of Florida. The object of the grant was timbered land, fit for the supply of lumber; and if the nearest vacant timbered land to the head of the lagoon was surveyed, the intentions of the government and of the grantee were complied with. This was the construction given by the surveyor-general to the words "northwest side." He permitted the general call to vary so far, and no further, as to secure timbered land, excluding the prairies next the head of the lagoon. The legality of the survey depends on the fact. The description given in the certificate above 1 8 Stats. at Large, 252. Hyde v. Booraem. 16 P. recited, and that set forth by the decree, must be taken together; the lines and boundaries on other lands are given in the decree. The complaint is that the land was surveyed too far west. On the north, it is bounded by the lands of Charles Sibbald; on the south, by those of John M'Intosh; on the west, by royal or vacant lands; and on the east, by the prairies of North Creek, which empties itself at the head of Indian Lagoon. There is no evidence that North Creek is navigable. If there was such evidence, as the survey includes the creek, we would reverse the decree, and order the survey only to front one third part on the creek. The surveyor-general certifies that this ten thousand acres is the tract of land granted to the petitioner on the 6th of April, 1816; and, although no reliance would be placed on the assertion in the certificate, standing alone, still, taking the return that the survey was on the land granted, in connection with all the facts and circumstances appearing in the record, and it tends to confirm the conclusion that the land was laid off on the next land to the head of the lagoon, covered with timber. One other considera tion has weight. If it be untrue that the survey is at the proper place, the United States could have proved the fact to a certainty, with the slightest diligence, and ought to have proved it. This consideration is strengthened by the pleadings and evidence. tition filed in 1829 alleges that the surveys were made for lands granted, and sets out the descriptions, courses, and distances [*168] to which the *attorney of the United States made no answer. The fact was not admitted for this reason, and necessary to be proved by the complainant, 6 Cranch, 51; yet it shows that the claim was not resisted on this ground; and such was clearly the case throughout, as George F. Clarke, the surveyor-general, was twice examined as a witness, on many interrogatories, without hav ing been requested to state the locality of the ten thousand acres sur vey. Upon all these facts and circumstances, taken together, we order the decree to be affirmed. 11 H. 63. The pe HYDE AND GLEISES, AND H. LOCKET, Plaintiffs in Error, v. BOORAEM AND COMPANY, Defendants in Error. 16 P. 169. Under the law of Louisiana, a commutative contract, involving mutual and reciprocal obligations, to be performed at the same time, does not enable one party to put the other in default without an offer of performance of what is to be done by him, according to the contract. He who has performed in part may require the other to pay to the extent of the benefit re |