Statement of the case. nia, created under the act of March 3d, 1851. The board rejected the claim; but on appeal to the District Court, the decree of rejection was reversed, and the claim was adjudged to be valid, and was confirmed. The United States appealed from this decree of confirmation to the Supreme Court, and by that court the decree was reversed, and the cause remanded for further evidence.* Further evidence having been taken, the case was again brought before the District Court for hearing, and by that court a decree was entered, on the 4th of June, 1862, adjudging the claim to be invalid, and rejecting it. From this decree the present appeal to the Supreme Court is taken. In support of his claim before the District Court, the claimant produced three documents,-the first purporting to be a grant from the Mexican Governor, Pio Pico, dated June 6th, 1846, for the land; the second purporting to be a certificate of the approval of the grant by the Departmental Assembly, on the 15th of June, 1846; and the third purporting to be a communication from the Deputy Secretary of the Assembly to the Secretary of State, informing him that the grant, together with two other grants, had been approved by the Assembly on the 15th of July, 1846. Of the first two documents there was no trace in the archives, except what is furnished by the third document. There was no evidence that any of the proceedings required by the Mexican Colonization Regulations, preliminary to the issue of a grant, were taken, either by the claimant or the Governor. The journals of the Departmental Assembly showed that no proceedings were had on the 15th of June, 1846, relating to the grant in question; and that there was no session of that body on the 15th of July, 1846. The third document was found among the archives, but was on a separate sheet, unconnected with any other papers. There was no evidence in the case that the grantee ever took possession of the land under the alleged grant, or that such * See United States v. Pico, 22 Howard, 406. Opinion of the court. grant was known, or its existence suspected, until long after the United States had occupied the country. Mr. Gillet, for the appellant. Mr. Speed, A. G., and Mr. Wills, for the United States. Mr. Justice FIELD delivered the opinion of the court. The regulations of 1828, which were adopted to carry into effect the colonization law of 1824, prescribed with great particularity the manner in which portions of the public domain of Mexico might be granted to private parties, for the purposes of residence and cultivation. It is unnecessary to state the several proceedings designated, as they have been the subjects of frequent consideration in previous opinions of this court. All of them, from the petition of the colonist or settler to the concession of the Governor, were required to be in writing, and when the concession was made, to be forwarded to the Departmental Assembly for its consideration. The action of that body was entered, with other proceedings, upon its journals, and these records, together with the documents transmitted to it, were preserved among the archives of the Government in the custody of the Secretary of State of the Department. The approval of the Assembly was essential to the definitive validity of the concession, and when obtained, a formal grant was issued by the Governor to the petitioner. The regulations contemplated an approval to precede the issue of the formal grant; so when the grantee received this document the concession should be considered final. For a long time after the adoption of the regulations this course of proceeding was followed; but afterwards, and for some years previous to the conquest, a different practice prevailed, and the formal title-papers were issued without waiting for the action of the Assembly, a clause being inserted to the effect that the grant was subject to the approval of that body. Of the petitions presented and grants issued, whether before or after the approval of the Assembly, a record was required to be kept in suitable books provided for that purpose. Opinion of the court. As will be perceived from this statement, it was an essential part of the system of Mexico, to preserve full record evidence of all grants of the public domain, and of the various proceedings by which they were obtained. When, therefore, a claim to land in California is asserted under an alleged grant from the Mexican Government, reference must, in the first instance, be had to the archives of the country embracing the period when the grant purports to have been made. If they furnish no information on the subject, a strong presumption naturally arises against the validity of the instrument produced, which can only be overcome, if at all, by the clearest proof of, its genuineness, accompanied by open and continued possession of the premises. Tested by this rule, the grant under which the appellant claims was properly rejected as invalid. The archives contain no trace of its existence, with the exception of a communication from the Deputy Secretary of the Assembly, addressed to the Secretary of State, informing the latter that the grant had been approved on the 15th of July, 1846. The certificate of approval produced by the claimant declares the approval to have been made on the 15th of June preceding. The journals of the Assembly destroy all confidence in the statements of both certificate and communication. They show that no session was held on the 15th of July, and that no proceedings with reference to the grant in question were had on the 15th of June. There can be little doubt, therefore, that the communication was introduced among the archives subsequently to the acquisition of the country. Nor was there any evidence produced, either before the Board of Commissioners or the District Court, that the grantee ever entered into possession of the premises alleged to have been granted, or that the existence of the grant was known or suspected until long after the conquest. The decree of the District Court rejecting the claim must, therefore, be affirmed; and it is So ordered. Statement of the case. BRONSON ET AL. v. LA CROSSE AND MILWAUKIE RAILROAD COMPANY ET AL.* 1. Stockholders of a corporation, who have been allowed to put in answers in the name of a corporation, cannot be regarded as answering for the corporation itself. In a special case, however, where there is an allegation that the directors fraudulently refused to attend to the interests of the corporation, a court of equity will, in its discretion, allow a stockholder to become a party defendant, for the purpose of protectingfrom unfounded and illegal claims against the company-his own interest and the interest of such other stockholders as choose to join him in the defence. 2. The filing of a cross-bill on a petition without the leave of the court is an irregularity, and such cross-bill may be properly set aside. 3. Judgments recovered against a corporation in Wisconsin, after the dato of a mortgage by it, are discharged by a foreclosure of the mortgage. 4. Until the filing of his bill of foreclosure and the appointment of a receiver, a mortgagee has no concern or responsibility for or in the dealings of a mortgagor with third parties, such as confessing judgment, and leasing its property subject to the terms of the mortgage. 5. Where a mortgage is made in express terms subject to certain bonds secured by prior mortgage, these bonds being negotiable in form, and having in fact passed into circulation before such former mortgage was given, the junior mortgagees, and all parties claiming under them, are estopped from denying the amount or the validity of such bonds so secured, if in the hands of bonâ fide holders. Parties holding negotiable instruments are presumed to hold them for full value, and whether such instruments are bought at par or below it, they are, generally speaking, to be paid in full, when in the hands of bona fide holders, for value. If meant to be impeached, they must be impeached by specific allegations distinctly proved. 6. A court of equity, where a mortgage authorizes the payment of the expenses of the mortgagee, may pay, out of funds in his hands, the taxed costs, and also such counsel fees in behalf of the complainants as, in the discretion of the court, it may seem right to allow. BRONSON and Souter filed their bill in the Circuit Court for the District of Wisconsin, to foreclose a mortgage made on the 17th August, 1857, by the La Crosse and Milwaukie Railroad Company, a corporation of Wisconsin, covering a portion of a railroad made by the said company in that *This case was decided at the last term. Statement of the case. State, the portion being between Milwaukie and Portage City, about ninety-five miles, and called the Eastern Division.* The mortgage was made to the said Bronson and Souter as trustees, to secure the payment of bonds for one million of dollars issued by the company. These bonds were payable to bearer in New York, with interest at eight per cent., payable semi-annually. They were registered and countersigned by the trustees, and delivered to the company, and in the autumn of 1859 had been negotiated and put into circulation. They were for $1000 each. The bill alleged that default had been made in the payment of interest, and prayed that the La Crosse and Milwaukie Railroad Company, and all other persons claiming under it, might be decreed to deliver to them, B. and S., or to their agents, and to put them into possession of, the railroad, with its appurtenances; and that all the income of the road might be applied to the payment of the moneys due, and to become due, on the mortgage or bonds; and that the road, with its rolling stock and franchises, might be sold, &c.; and that, pending the proceedings, a receiver might be appointed. The bill was filed December 9th, 1859. An order pro confess was entered against the company. Certain other parties, however, besides the La Crosse and Milwaukie Railroad Company, were made parties to this bill. 1. The Milwaukie and Minnesota Railroad Company. This company had been organized upon a sale of the La Crosse and Milwaukie Railroad, just named, under a third mortgage, which had been made to one Barnes, as trustee, by the debtor company, junior to that of the complainants. This Barnes mortgage, with a supplement to it, was made to secure an issue of bonds to the amount of Two millions of dollars. The mortgage and supplement, by its terms, was made subject to certain incumbrances, and, among them, "to the bonds secured by a second mortgage on the Eastern Divi *For an understanding of the position of this road, its Eastern Division, &c., see diagram, infra, p. 610. |