4. These grants gave to the grantees therein named, and to their legal representatives, a good title to the premises in them respectively described. 3*]

*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 How., 250.) This grant can be located. A center 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. record shows that the center tree existed. other grant can be surveyed also.

The The

But it has been said that if these titles are good for anything, 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 How., 127, this court has decided that perfect grants, arising under the Treaty of 1803, do not fall within, and are not embraced 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 descrip tion? 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 Depart ment 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. & 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 ac4*] tion of that Governor show his own *acquiescence in these views, and also show that the grant was further embarrassed by the fact that it lay within the neutral territory? (Y. & 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 sanc tion necessary (pp. 92 and 93; N. R., 89, 90);

"It appears to be an historical 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., 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 How., 24; 7 Pet., 51; 10 Pet., 303; Civil Code, title Prescription, 3421, 3437, 3438, 3465 and 3466; 2 White's Recop., 191: Duff Green's American State Papers, Vol. III., p. 72 to 83; lb., Vol. IV., pp. 34-36, 60, 61, 75; Executive Document, 33. 2d session, 27th Congress, p. 81; Doe v. Eslava et al., 9 Pet., 449; Doe v. The City of Mobile, Io., 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:

This cause comes before this court by an appeal from a decree of the District Court of the United States for the Eastern District of Louisiana.

The appellees filed their petition in that court to establish their claim to a share in two grants of land, situate on the western border of Louisi ana, in the country known as the *neutral [*5 territory, lying between the Sabine River and the Arroyo Hondo.

One of these grants was issued by the commandant of the Spanish post at Nacogdoches to Edward Murphy, the 1st day of July, 1798. for a tract of land called La Nana, containing 92,160 acres. The grantee, in the month of November following, conveyed it to the trad ing firm of William Barr & Co., of which Murphy and Samuel Davenport, the ancestor of the appellees, were respectively members.

The evidence of the grant consists in copies of the petition of Edward Murphy to the commandant, dated in February, 1798, for a donation of the tract La Nana, situate to the east of the Sabine River, on the road leading from the Town of Natchitoches. The tract asked

for forms a square of four leagues upon that road, the center of which is the prairie adjoining the bayou La Nana. The motive of the application was, that the petitioner might have summer pasturage for his cattle and other animals. The petition was granted by the commandant, and the procurator was ordered to place the grantee in possession. The procurator fulfilled this order the first of August, 1798, by going upon the land with the grantee and in the presence of witnesses, "took him by the right hand, walked with him a number of paces from north to south, and the same from east to west, and he, letting go his hand (the grantee), walked about at pleasure on the said territory of La Nana, pulling up weeds, and made holes in the ground, planted posts, cut down bushes, took up clods of earth and threw them on the ground, and did many other things in token of the possession in which he had been placed in the name of His Majesty, of said land with the boundaries and extension as prayed for."

The act of possession was returned to the commandant, who directed "that it should be placed in the protocol of the post to serve as evidence of the same, and that a certified copy should be given to the person interested." The conveyance of Murphy to his firm bears date in the month of November after; was executed in the presence of the same commandant, and at that time the certified copies offered in evidence, purport to have been made.

The other grant is for a tract of land called Los Ormegas, containing 207,360 acres. It is founded on a petition of Jacinta Mora to the commandant of the same post, in November, 1795, who asked for the concession, that he might establish a stock farm for the raising of mules, horses, horned cattle, &c., and to cultivate the soil. The tract described in the petition contains six leagues square on the River Sabine, the center of the Western line being opposite to the Indian crossing place of that 6*] river. *The prayer of the petition was allowed the same day, and orders given to the procurator to place the petitioner in possession, "with all the usual formalities of style, and that he should report his proceedings for the more effectual confirmation of the property."

This order was executed in December, 1795, with the same ceremonial that was employed about the order upon the La Nana grant, and the act recording the transaction was placed in the protocol of the post.

The paper in evidence is a certified copy made by the commandant of the post in 1806, shortly before the conveyance of the grantee to the firm of William Barr & Co., and in the certificate the copy is declared to have been compared and corrected, and that it is true and genuine.

Besides these papers, the plaintiffs procured certified copies from the officers of the Land Office in Texas, from copies of the protocol made in 1810, which were submitted by the firm of Barr & Co. to the Governor (Salcedo) of one of the internal provinces of New Spain, of which this post was at the time a dependency, appar ently for the purpose of obtaining his sanction, either to the authenticity of the document or to the grant it evinced. This copy of the La Nana papers does not correspond with that of

1798, but that of the Ormegas grant is substantially the same as that made in 1806.

The plaintiffs, further to support their claim, offered evidence satisfactorily explaining why these papers came to be deposited in the archives of Texas and for the fact of their discovery there.

These claims were presented in 1812, to the commissioners appointed to ascertain and adjust claims to lands in the Western District of Louisiana, and have been before the several boards which have been since constituted to effect the same object. The genuineness of the signatures which appear on these copies of the grant; that they have come from a proper depositary; that the parties who now hold them have claimed them since the date of their titles; that the lands are fitted for the objects for which they were sought, and have been used for that purpose; that surveys and possession defined their limits, contemporaneously, or nearly so, with the grants, are facts sufficiently established by the evidence submitted to the District Court. No imputation upon the authenticity of the grants occurs in any of the reports or acts of the government, but in the various reports of the boards of inquiry they have been treated as genuine, resting upon just considerations, and entitled to confirmation from the equity of the government.

The questions now arise, have these grants been legally established? Were they with- [*7 in the competency of the persons making them? Are they binding upon the faith of the government of the United States? Does it lie within the jurisdiction of this court to render a decree favorable to the petitioners?

The copies made by the Spanish commandant from the protocol, and certified by him to be true and genuine, though dated long after the protocol, would be received in evidence in the courts of Spain, as possessing equal claims to credit as the primordial or originals. For the reason that those like these are certified by the same officer whose attestation gives authenticity to the protocol, and who is charged to preserve it. (2 Escriche, Dic. de leg., 185.) And this court for the same reason has uniformly received them, as having the same authority. (United States v. Percheman, 7 Pet., 51; United States v. Delespine, 15 Pet., 319, and cases cited.)

In this case the evidence of the loss or destruction of the protocol is satisfactory, and the copies would be admitted as secondary evidence upon well-settled principles.

The power of the commandants of posts, in the Spanish colonies, to make inchoate titles to lands within their jurisdictions has been repeatedly acknowledged by this court.

Under the laws and regulations of the Spanish Crown, it is a question of some doubt whether grants for the purpose of grazing cattle were anything more than licenses to use the lands, and whether they were designed to operate upon the dominion. This question was presented in the case of The United States v. Huertas, 8 Pet., 475, upon a grant with the precise condition to use the lands for the purpose of raising cattle, without having the faculty to alienate the said land by sale, transfer, control of retrocession, or by any other title in favor of a stranger without the knowledge of

dence of the right of his grantor to convey to him, cannot have a decree in his favor.

A person cannot intervene here who was no party to the suit in the District Court. And even if the practice of this court sanctioned such intervention, there is nothing to show his right to do so in this

case.

HIS was a branch of the preceding case.

same. Patterson claimed under a deed executed on the 21st of November, 1836. by the heirs of William Barr, deceased; but the deed purported to be executed by their attorney in fact, Robert Thompson.

The cause was argued by the same counsel who argued the preceding case, with the addition of Mr. Lawrence, who claimed to intervene on behalf of the heirs of Joseph Piernas. Mr. Lawrence, in support of this claim, alleged that, The petitioners rely upon a conveyance of Jacinto Mora to Barr, Davenport, and Murphey, bearing date the 22d day of July, 1805. This is the only title they set up in their petition to the Ormegas tract.

During the progress of the cause they offered in evidence a conveyance from Jacinto Mora to Joseph Piernas, bearing date the 25th of April, 1796, a paper purporting to be a conveyance from Piernas to Vitor Portia, dated 30th August, 1804, and a conveyance from Portia to Davenport, dated in the year 1818.

All of these instruments of writing are in due form, except the most important one, viz.: that purporting to be from Piernas to Portia, which was not authenticated by a notary or other officer, is not taken from any legal depository, nor recorded in the Land Office, and in which neither the handwriting of the witnesses nor of Piernas is proved, nor the witnesses produced or their absence accounted for. In short, there is no proof at all of the genuineness of the paper, but it is left for the court to judge of the genuineness of the signature of Piernas.

Now, it will be at once perceived that if there were no defect in the chain of title from Piernas to Davenport, this would have been the elder and better title to Davenport, as to the Ormegas tract; and yet, though the conveyance to Davenport of Piernas' interest was in 1818, and this petition was filed in 1845, it is not even alluded to in the petition.

It will be seen, from the extract from Vol. III., American State Papers (Rec., 46), that as 11*] late as 1815-16, Piernas made claim *to this land before the Board of Commissioners, and no claim was made by Vitor Portia.

In 1824, 1825, the same land was recommended for confirmation, but was never actually confirmed by Congress. Piernas had in the mean time died, and his heirs were young children, living in poverty and obscurity. (See letter of Hayward, Rec., 172; also Report to Commissioner, Rec., 213.)

The heirs of Piernas deny that he ever sigued the paper to Portia, and aver that it is entirely fictitious.

Full notice of the claim of Piernas was before the court below, for the petitioners introduced his title themselves. It was, therefore, fully the competency of the court below, if they perceived, from the record, title in Piernas to the Ormegas tract, and had no legal evidence before them of his having parted with that titleto have reserved the rights of Piernas' heirs in

their decree; and it is respectfully submitted. that it is within the power of this court (should the validity of the grant be affirmed) to protect those rights, so far as they appear in the present record.

In the case of Cunningham and Ashley, 14 How., 377, this court interposed meso motu, to is introduced, the Act of Congress says the court is to decide on evidence brought in by any person other than the parties to the suit. If so, it is proper to intervene here. The deed from Piernas to Portia had never been recorded, and the court below had no right to receive it.

Mr. Baldwin, in reply to Mr. Lawrence, made the following points:

1. That the great lapse of time raised a strong presumption against this claim.

From 24th day of April, 1818, when, as appears by the record, Piernas conveyed his interest in that tract to Samuel Davenport, no claim has ever been set up to this land, either by Piernas or his heirs, until now, notwithstanding they reside in New Orleans, where their suit was tried at great length in the court below.

2. That the claimants under Piernas cannot intervene in this court, it being a court of appellate jurisdiction.

3. That the deed from Piernas, being an ancient deed under the laws of Louisiana, proved itself.

4. That it was regularly proved—the testimony of Crusat, as to the signature of Piernas, having been taken without objection in the court below.

5. That this court will not undertake to settle the rights of parties in interest, but leave them to litigate their rights in the court *below, [*12 or in the state tribunals; and that whatever judgment the court might pronounce in this matter, it would not be conclusive between the parties.

Mr. Justice Campbell delivered the opinion of the court:

This appeal was taken from a decree of the District Court of the United States for the Eastern District of Louisiana.

The appellee claimed in the District Court a confirmation of the grants for the La Nana and Los Ormegas tracts of land, in which he asserted an interest as an assignee of the heirs of William Barr, one of the members of the firm of William Barr & Co., in which they had been vested.

The questions of law and fact, arising in this case, are the same as those determined in the case of The United States v. Samuel Davenport's Heirs, in so far as they concern the validity of the grants.

The evidence of the purchase by the plaintiff from the heirs of Barr is not sufficient. No power of attorney appears in the record to Thompson. who made the conveyance to the plaintiff in their name. It is therefore proper that the decree that shall be entered shall be without prejudice to their right, and this opinion is filed in order that this judgment of the court may be understood. The operation of the judgment will be, to perfect the title for the benefit of the legal representatives of William Barr.

In this cause, as well as in that of The United

States v. Samuel Davenport's Heirs, a motion was submitted on behalf of the heirs of Joseph Piernas alleging that a deed from Joseph Pier nas to Victor Portia, dated the 30th August, 1804, being a link in the title to the Ormegas grant, was not sufficiently proven, and suggesting that it was not a genuine deed, and praying for leave to intervene in this suit to sustain their rights to this property.

The court is of opinion that the motion cannot be allowed. The plaintiff commenced his proceedings to assert his own claims against the United States. Those proceedings can neither benefit nor injure the persons interested in this motion, for they are not parties to the cause. The period for the assertion of a claim under the Act of Congress of 17th June, 1844, has expired. Neither in the District Court nor in this court would it be lawful for persons, who failed to avail themselves of the benefit of that Act during its operation, to intervene for the purpose of establishing a right under grants like these, after its expiration, in a suit commenced by other persons.

In looking through the record, we find no fact to authorize the belief that the heirs of Piernas have any title to the lands embraced in 13*] *these grants. If, therefore, it was compatible with the constitution and practice of this court, for a person to intervene here in a litigation, to which he was no party in the court of original jurisdiction, we find nothing to authorize it in the present instance.

The decree will be entered here to conform to that pronounced in the suit of The United States v. Davenport's Heirs, with the direction that the confirmation shall be for the use of the legal representatives of William Barr, deceased.

ORDER.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana, and was argued by counsel; on consideration whereof, it is the opinion of this court that the grants set forth in the record are valid grants, and so much of the decree of the District Court as confirms them, should be affirmed for the use of the legal representatives of William Barr, deceased; but that such of the lands embraced by the said grants as have been sold or otherwise disposed of by the United States, are exempt from the operation of the said grants; and that so much of the decree of the said District Court as authorizes the location of so many acres of the lands embraced in the said grants as have been sold or otherwise disposed of by the United States on any other unappropriated lands of the United States within the State of Louisiana is erroneous, and should be reversed.

Whereupon it is now here ordered, adjudged and decreed, that so much of the decree of the District Court as authorizes the location of so many acres of the land as have been disposed of by the United States on any other unappropriated lands of the United States within the State of Louisiana be, and the same is hereby reversed and annulled; and that the lands so sold or otherwise disposed of by the United States be, and the same are hereby exempted from the operation of the said grants.

And it is now here further ordered, adjudged and decreed, that so much of the decree of the said District Court as declares the said grants to be valid, be, and the same is hereby affirmed for the use of the legal representatives of William Barr, deceased.

Cited-21 How., 182; 19 Wall., 597.

*THE UNITED STATES, Appellants, [*14

v.

JEAN BAPTISTE D'AUTERIEVE, PONPONNE LE BLANC ET AL., Heirs and legal Representatives of JEAN ANTOINE BERNARD D'AUTERIEVE, Deceased.

Western or Mississippi Company grant-not subject of petition-definite location and boundary-jurisdiction.

The heirs of D'Auterieve claimed a tract of land near the River Mississippi, upon two grounds, viz. : 1st. Under a grant to Duvernay by the Western or Mississippi Company in 1717, and a purchase from him by D'Auterieve, the ancestor, accompanied by the possession and occupation of the tract from 1717 to 1780; and 2d. Under an order of survey of Unzaga, Governor of the Province of Louisiana in thereof by the Governor. 1772, an actual survey made, and a confirmation

With respect to the first ground of title, there is no record of the grant to Duvernay, nor any evidence of its extent. It is therefore without boundaries or location; and if free from these objections, it would be a perfect title, and therefore not within the jurisdiction of the District Court, under the Acts of 1824 and 1844.

With respect to the second ground of title, if the proceedings of Unzaga be regarded as a confirmation of the old French grant, then the title would become a complete one, and beyond the jurisdiction of the District Court.

If they are regarded as an incipient step in the derivation of a title under the Spanish government, then the survey did not extend to the back lands cluded the front upon the river, which was surwhich are the property in question, but only inrendered to the Governor in 1780.

Neither the upper or lower side line, nor the field notes, justify the opinion that the survey included the back lands. A letter addressed to Unzaga by the surveyor is so ambiguous that it must be controlled by the field notes and map.

1780 to 1821, and the acts of the Spanish governThe neglect of the parties to set up a claim from ment in granting concessions within the limits now claimed, furnish a presumption of the belief of the parties that the whole property was surrendered in 1780.

THIS was an appeal from the District Court

THIS was an appeal from or the Eastern Dis

trict of Louisiana.

The history of the claim is fully set forth in the opinion of the court.

It was argued by Mr. Cushing (AttorneyGeneral) for the United States, and submitted on a printed argument by Messrs. Janin and Taylor for the appellees.

The points made on the part of the United States were the following:

1. That the claim of the petitioners, founded on the alleged grant by the Western Company, is not open for discussion, the petitioners having taken no appeal from the decree of the court below, confirming their claim to the extent only of the forty-four arpents of front, and excepting even out of this confirmation the forty in depth on the front granted to the Acadians. But if it were, then everything relating