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Statement of the Case.

The bidders at the sale were Bustillo and one Romero. The latter, on behalf of himself and the residents of the presidio of Santa Cruz, became the purchasers for the sum of $1200. Romero was notified of the result, with which he expressed satisfaction, and asked the grant to be made. On January 11, 1822, the intendant ad interim, Ignacio de Bustamente, approved all the proceedings, and ordered Romero to be notified and to pay into the treasury the price of the land and the usual fees, and, as soon as that was done and a voucher for the payment was attached to the expediente, it be sent to the superior board of the treasury in Mexico for such action as it might see fit to take. Romero made the payment, and a certificate was given him for the amount thereof. At this point the proceedings were suspended, and so remained until May 15, 1825, when the recently created commissary general of the State of Sonora, Juan Miguel Riesgo, issued a title to “Don Ramon Romero and the other residents in interest,” for “the four sitios of land for breeding cattle, comprising the place called San Rafael de la Zanja,” under article 81, ordinance of intendants, and the royal instructions of October 15, 1754, at Fuerte, the then capital of the United States of Sonora and Sinaloa.

The following appears at the end of the titulo, viz: “Entry of this title is made at folio 3 of book No. 2 that exists in this commissariat general."

The expediente, which was on file in the archives of the State of Sonora, Mexico, at the city of Hermosillo, the capital, contained, following the certificate of the payments made by Romero, the following recital :

“The title on this expediente was issued on May 15, 1825, in favor of the interested parties, Don Ramon 'Romero and other residents of Santa Cruz. Rubricas E. R. Pa. 7 a. Notification. Vale."

The court found (two members dissenting) that a valid grant had been made, that the evidence established the central point of the original survey, and confirmation was made and decreed “ of the said title of the said Ramon Romero, and of his coowners and of their heirs, successors in interest, and assigns” to four sitios of the tract, measured in a square from the center

Opinion of the Court.

established by the Mexican surveyor, as shown on the map of a certain survey made in 1895, and in evidence in the cause. The claim of plaintiff and of defendants Cameron and Christie to all other land not so confirmed was rejected.

Appeals were prosecuted by the United States and by Cameron and Christie.

Mr. John W. Griggs and Mr. Francis J. Henry for appellants in No. 129, and appellees in No. 109.

Mr. William H. Pope and Mr. Matthew G. Reynolds for the United States. Mr. Solicitor General was on their brief.

Mr. Rochester Ford filed a brief for the United States and for Christie.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

We will first dispose of the questions presented by the appeal of the United States. In substance, it is asserted that the grant should have been rejected in toto, instead of being confirmed to the extent of four sitios, upon the following grounds : 1. That the claim was barred by section 12 of the act establislıing the Court of Private Land Claims, because not asserted until after the expiration of two years from the passage of the act. True, it is said, the claim of Green was presented in time, but as he was not represented at the trial and Cameron and Christie were treated as the sole claimants and they had not by their cross complaints asked for affirmative relief within the statutory limitation, the bar of the statute was operative as to them. 2. The intendant ad interim Bustamente, through whom the sale to Romero and others purported to bave been effected, and the cominissary general of Sonora who ultimately extended the title, did not possess the power in the premises which they assumed to exercise ; 3. The grant in question was not duly located prior to September 25, 1853, as required by article VI of the Gadsden treaty; 4. The grant was not duly recorded in the archives of Mexico prior to September 25, 1853, which was

Opinion of the Court.

а

same.

made a condition precedent to the recognition of an alleged grant, by the article of the treaty just referred to.

As respects the bar of the statute, we think the contention is clearly without merit, even upon the hypothesis that the grant to Romero constituted, at the date of the treaty, but an imperfect title to the extent to wbich the court below confirmed the

The provision of the act establishing the Court of Private Land Claims, relied upon, is as follows:

“SEC. 12. That all claims mentioned in section six of this act which are by the provisions of this act authorized to be prosecuted sball, at the end of two years from the taking effect of this act, if no petition in respect to the same shall have then been filed as herein before provided, be deemed and taken, in all courts and elsewhere, to be abandoned, and shall be forever barred."

By the filing of the petition on behalf of Green the court below was vested with jurisdiction to determine the validity of the grant upon which the proceeding was based and to pass upon the question as to whether or not the lands embraced therein were at the date of the treaty public land of the United States. The terms of the act establishing the Court of Private Land Claims, with reference to a proceeding thus instituted, in our opinion leave no room for doubt that it was the intention of Congress to require that before a decision by the court in the premises, all those asserting claims in the land adverse to the United States, under the grant relied upon, should be made parties and be heard in support of its validity. The provisions of section six of the act, which relate to claims for confirmation of imperfect and incomplete titles, manifestly import that every adverse possessor or claimant should be made a party defendant, and the section probibits the entry of a decree "otherwise than upon full legal proof and hearing.” By section seven, “all proceedings subsequent to the filing of the petition ” are required to " be conducted as near as may be according to the practice of the courts of equity of the United States;” and, in addition, it is provided as follows:

“The said court shall have full power and authority to hear and determine all questions arising in cases before it relative to

Opinion of the Court.

the title to the land the subject of such case, the extent, location and boundaries thereof, and other matters connected therewith fit and proper to be heard and determined, and by a final decree to settle and determine the question of the validity of the title, and the boundaries of the grant or claim presented for adjudication, according to the law of nations, the stipulations of the treaty concluded between the United States and the Republic of Mexico, at the city of Guadalupe Hidalgo, on the second day of February, in the year of our Lord eighteen hundred and forty-eight, or the treaty concluded between the same powers at the city of Mexico on the thirtieth day of December, in the year of our Lord eighteen hundred and fifty-three, and the laws and ordinances of the government from which it is alleged to have been derived, and all other questions properly arising between the claimants or other parties in the case and the United States, which decree shall in all cases refer to the treaty, law or ordinance under which such claim is confirmed or rejected."

The fact also that, by section 8, the United States may, without limitation as to time, voluntarily institute a proceeding for the determination of the validity or invalidity of any claim or title deemed by it “open to question,” affords further support for the construction that Congress intended that in a proceeding brought in due time to settle the validity of an alleged Spanish or Mexican grant, the United States might, at any stage of such pending litigation, apply to the Court of Private Land Claims—as was done by the United States with respect to the defendant Christie -- to have brought into the case adverse claimants who had not been made parties defendant by the petitioner, in order that such parties might be afforded an opportunity to be heard, and the Court of Private Land Claims be aided in reaching a just decision. As further establishing the fact that it was not the purpose of Congress to deprive the Court of Private Land Claims of power to adjudicate upon claims asserted by defendants during the pendency of a lawful proceeding to obtain an adjudication respecting the validity of an alleged Mexican grant, even though such defendants were made parties or filed claims for affirmative relief after the pe

Opinion of the Court.

riod limited for the institution of an original proceeding to obtain confirmation of a claim of title, we excerpt the following proviso to the portion of section 12 heretofore quoted :

Provided, That in any case where it shall come to the knowledge of the court that minors, married women or persons non compos mentis are interested in any land claim or matter brought before the court, it shall be its duty to appoint a guardian ad litem for such persons under disability, and require a petition to be filed in their behalf, as in other cases, and if necessary to appoint counsel for the protection of their rights.”

The second and third grounds relied upon by the Government, as above stated, to defeat the claim in its entirety do not require extended consideration, as they are foreclosed by recent decisions of this court. By the law in force at the time of the sale under consideration a grant initiated in the manner in which the one in question is claimed to have been, could not exceed, in the aggregate, four sitios. The evidence clearly showed that the quantity of land denounced, appraised, paiit for and purported to have been granted was only four sitios. Under these circumstances, the court below properly sustaineil the grant to the extent of four sitios only. As said by the Court of Private Land Claims: “ The cause is founded on a proceeding initiated in 1821 and concluded in 1825. In its essential features it is like Ely's Administrator v. United States, 171 U. S. 220. The proceedings under which the grant was made are precisely like those upon which the grant in that case was inade, and were bad under the same laws, and the two grants were made by the same officer.” The case in the particular stated is, therefore, ruled by Ely v. United States, supra; United States v. Maish, 171 U. S. 277; Perrin v. United States, 171 U. S. 292; and United States v. Camou, and Reloj Cattle Company v. United States, 184 U. S. 624.

As from the evidence the Court of Private Land Claims was able to determine the true boundaries of the tract as limited, the cases just cited are also authority for deciding that the grant was duly located to that extent, and hence that the court rightfully confirmed the grant for the lawful extent thereof.

The remaining ground upon which the United States con

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