writ of error.

were not before the judge, in this case, by the service of process, or by voluntary appearance, when he granted the executory process. In that aspect of the case, then, the order could not be regarded as a final judgment, within the meaning of the 22d section of the statute. But was the order a final judgment, according to the laws of Louisiana? The fact of its being subject to appeal does not prove that it was, as has already been shown. Nor could it, per se, give to the execution of the process, ordered by the judge, the dignity of a judicial sale. Unless at least three days' previous notice were given to the debtors, the sale would be utterly void. Grant and Olden v. Walden, 5 L. R. 631.

It is obvious that the debtors | teen thousand acres granted before, and, in lieu
thereof, granted to John Forbes, for the object of
cultivating rice, ten thousand acres in the district
or banks of the River Nassau. Surveys of seven
thousand acres of land, at the head of the "River
Little St. Mary's," or "St. Mary," and three thou-
this grant.
sand acres in Cabbage Swamp," were made under
No description of the locality of the
land, other than that in the certificate of the sur-
vey, was given; nor do the surveys prove that the
Nassau.
land surveyed lay in the district of the River
No evidence was given of the situation
of "Cabbage Swamp." Held, that these surveys
Kindelan; and according to the decisions of this
were not made on the land granted by Governor
court. on all occasions, the surveys, to give them
validity, must be in conformity with the grants on
which they are founded; and to make them the
in the grant of the Spanish government.
origin of title, they must be of the land described
The cases of the United States v. Clark, 8 Pet-
ers, 486, The United States v. Huertas, 9 Peters,
171, cited.
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; but where the land is ex-
pressly granted at one place, they have no power,
by a decree, to grant an equivalent at another
place, and thereby sanction an abandonment of
courts of the United States have no authority
the grant made by the Spanish authorities.
to devest the title of the United States in the pub-
lic lands, and vest it in claimants; however just
previous grant of which has failed.
the claim may be to an equivalent for land, the

This proves that some other act was neces172*] sary, on the part of the plaintiffs, to entitle them to the fruits of their judgment by confession. And in that act is involved the merits of the whole case; because, upon that notice, the debtors had a right to come into court and file their petition, which is technically called an opposition, and set up, as matter of defense, everything that could be assigned for error here, and pray for an injunction to stay the executory process till the matter of the petition could be heard and determined. And upon an answer to the petition coming in, the whole merits of the case between the parties, including the necessary

The

The case of the United States v. Arredondo, 6 Peters, 691, cited.

ida which had confirmed the grant to John Forbes, The decree of the Supreme Court of East Florreversed.

questions of jurisdiction, might have been ON appeal from the Superior Court of East

tried, and final judgment rendered. Articles 738, 739, of the Code of Practice. From this view of the case, we think the order granting executory process cannot be regarded as any thing more than a judgment nisi. To such a judgment a writ of error would not lie.

The writ of error, in this case, must there fore be dismissed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court that this writ of error be, and the same is hereby dismissed with costs.

173*] *THE UNITED STATES, Appellants,

V.

THE HEIRS OF JOHN FORBES, Appellees.

Failure of grant of land for want of surveygrantee no title, as against United States, which court can confirm.

John Forbes, by memorial to Governor Kindelan, the Governor of East Florida, set forth that, in 1799, there had been granted to Panton, Leslie & Company, for the purpose of pasturage, fifteen thousand acres of land, which they were obliged to abandon, as being of inferior quality. Forbes, as the successor to these grantees, asked to be permitted to abandon these fifteen thousand acres, and, in lieu, to have granted to him ten thousand acres, as an equivalent, on Nassau River. The petition avers that the object was to establish a rice plantation. The petition was referred to "the comptroller," who gave it as his opinion that the culture of rice should be promoted. Governor Kindelan permitted the abandonment of the af

Florida.

The executor of John Forbes, on the 20th of May, 1829 presented a petition to the Superior Court for the Eastern District of Flori- (*174 da, claiming ten thousand acres of land, seven thousand of which were surveyed on the waters of "Little St. Mary's River," in the then district of Nassau, in East Florida; the other tract, being three thousand acres, was alleged to be situated on "Cabbage Swamp," also in East Florida.

The petition stated that the grant for the land was made by Governor Kindelan, in lieu of fifteen thousand acres which had been surrendered by John Forbes to the King of Spain.

The petition contained the "Memorial for grant," which was presented on the 27th July, 1814, to Governor Kindelan, by John Forbes. It was with the proceedings, and as follows: "His Excellency the Governor:

"I, Don Juan Forbes, partner of the firm of Juan Forbes & Company, successors of Panton, with the greatest respect, appears before your Leslie & Company, merchant of this province, Excellency, and says that the said firm of Panton, Leslie & Company obtained, in the year one thousand seven hundred and ninety-nine, a grant of fifteen thousand acres of vacant lands in the District of St. John, in order to employ their slaves in the agriculture and for graz. ing their cattle, as is seen by the certificate annexed; but after a short time, they were under the necessity to abandon them, as being of an inferior quality, the same thing happened to which, which frequently happens in this province, where the planter does not every time succeed in his choice of land, which he per ceives only when a sorrowful experience shows him his error; and as it has been for many preceding years that the government, in atten

sufficient evidence of title, according to the de- | This is no location in accordance with th cision of this court in the case of The United grant. To establish a title to these tracts, the States v. Wiggins, 14 Peters, 348. In that case, claimant must show that a certificate of surthe secretary certified, on the day of the grant, vey is equivalent to a grant. He has no betthat "the preceding copy is faithfully drawn ter title to them. It is clear, then, that by the from the original, which exists in the secre- Spanish law, the claimant had not perfected tary's office, under my charge;" in the present his title. certificate, there is no date, and no averment either that the particular record is a true copy, or that the original does or ever did exist in the secretary's cílice. In that case, the corroborative testimony, on which the court chiefly relied, was a survey in strict conformity to the grant, and referring to its date; in the present, the two surveys agree with the grant in nothing but the quantity; they differ as to the location, and they make no reference to the date. It is submitted, however, that even if the grant was made by Governor Kindelan, yet Forbes derived no valid title under it which the court below was authorized to confirm. He solicited, in his memorial, a grant of ten thousand acres in the district of Nassau River, of which he was to produce a survey; and it was for the purpose of establishing a rice planta178*] tion. The grant was made "for the objects solicited," and under the duty imposed upon him "to produce the plat and demarcations in the proper time." There is no proof either that the land was surveyed, marked out, and located according to the grant; or that the conditions of cultivation and settlement were complied with.

I. The grant was made by the governor, in general terms, as to the district in which the petitioner was to locate the tract conceded to him. The quantity was prescribed, and the district; the particular locality was to be ascertained by the survey which was to be made "within the proper time;" until that should be done, it was in fact but a made order of survey. The eighth section of the regulations of Governor White, 2 White's New Rec. 278, which were then in existence, establishes the necessity of an immediate and definite survey; the fourth section requires that possession should be taken within six months: of course the survey must have been made and returned within that period. 2 White's New Rec. 286. What the general provisions of the Spanish law thus required, this grant made more imperative, by expressly imposing the same duty. Has it been performed? No evidence of any survey, agreeing in any respect with the grant, has been produced. The only evidence of a survey is the two certificates of Clarke. Of these, it might be sufficient to say that they do not purport to have been made under the authority of this grant, or to have reference thereto. But supposing that they were in tended so to be, they give the claimant no title. They do not accord with the grant. They are not an execution of the order of the governor. In the first place, the grant authorizes the location of a single tract; these surveys call for two distinct tracts, at different places. In the next place, the location is to be "on the bank of Nassau River;" yet one tract is in Cabbage Swamp, about the locality of which there is no testimony whatever; and the other is on Little St. Mary's River, about which there is some slight testimony to the effect that the witness has heard it is near Nassau River."

*But it is argued that under the [*179 eighth article of the treaty, 6 Laws of the United States, 618; 2 White's New Rec. 210, the grant is not void, but may be still perfected by a survey. To this it is replied that the provision referred to does not apply to a grant totally void at the date of the treaty; that such was the case in regard to this grant, because the rules of the Spanish law, by force of which alone this land could be severed from the royal domain, never were complied with. At the date of the treaty there was no valid grant to the claimant in existence. But if there had been, subsequent neglect to comply with the same rules would have made it void. The treaty, if applicable to such a case, could have extended no farther than to authorize the claimant to perfect his title by a survey, within six months after its date; which he never did.

These positions are fully warranted by previous decisions of this court. In the case of The United States v. Clarke, 8 Peters, 468, there was a grant of sixteen thousand acres at a place described therein. One survey of eight thousand acres was made within the bounds of the grant; two others for the residue were made elsewhere. "The grant," say the court, "conveyed the land described in the instrument, and no other." In the case of The United States v. Huertas, 8 Peters, 491, there were similar surveys in different parcels, of the number of acres granted, and this court held "the claim to be valid to the extent, and agreeably to the boundaries as in the surveys," which were conformable to the grant, but invalid as to the rest. In the cases of The United State v. Levy, 8 Peters, 482; and of The United States v. Seton, 10 Peters, 311, the same principle was again affirmed. In the case of The United States v. Sibbald, 10 Peters, 321, the petition contained a clause soliciting permission to locate the quantity asked for, at a different place from that designated, "in the event that this situation will not permit the said form," and the grant accorded to the claimant "the permission he solicited;" on this ground, the objection which was taken that the terms of the grant did not authorize a survey at the place where the party made his location, was not sustained by this court. In the case of The United States v. Arredondo, 13 Peters, 133, this court said that the land must be taken as near as might be to where it was granted; that it could not be taken *elsewhere; and that [*180 the grant gave no right to any equivalent or another location. In that case, too, the court held that where "the description in the petition of the locality of the concession was too indefinite to enable a survey to be made," the claimants could "take nothing under the concession."

II. Supposing, however, that the petition, concession, and surveys, are sufficient to give locality to the grant, was the title perfected by the claimant? It was not. The grant was

said Forbes, to produce the plat and demarcation in proper time.

On the 23d of October, 1816, George F. Clarke, the surveyor, returned that he had, as Surveyor-General of East Florida, surveyed and delineated for Don Juan Forbes, seven thousand acres of land, at the head of the River Little St. Mary's, or St. Mary River; said land being the complement of ten thousand acres, which were granted to him in absolute property, conformably to the annexed plat.

founded on his petition for land, "to estab- | party as a title in form; making it the duty of lish a rice plantation," it was given "for the objects solicited:" they were never accomplished, or attempted. Independent of this condition, in terms, that arising from the Spanish law was equally imperative. This was not an absolute grant in consideration of past or future services; it was conferred for purposes of actual cultivation and settlement: the conditions of occupation and improvement, of which the performance is necessary, in such cases, to make the title complete, have been heretofore fully discussed. The United States v. Wiggins, 14 Peters, 340, and the declaration of Saavedra, formally confirmed by Governor Coppinger, 2 White's New Rec. 284, that concessions made either to foreigners or natives, with certificates from the governor's secretary, were of no value or effect, if the lands granted were abandoned, or not cultivated, has been deliberately recognized by this court. 14 Peters, 351.

Mr. Downing, for the appellees, contended that the grants of seven thousand acres, and three thousand acres, had been made unconditional, by the Spanish government, on the surrender of fifteen thousand acres which had been granted in another place.

The land was surveyed on the 23d of October, 1816. He claimed that by the Florida Treaty, by the laws of Congress, and by the decisions of this court in similar cases, the grants should be confirmed, and the decision of the Superior Court of Florida should be approved by the court.

Mr. Justice Catron delivered the opinion of

the court:

John Forbes, by his memorial to Governor Kindelan (without date), sets forth that in 1799 there had been granted to Panton, Leslie & Co., for the purpose of agriculture, and for 181*] grazing their cattle, fifteen thousand acres of land, in the district of St. Johns, which they were under the necessity of abandoning, as being of an inferior quality; that said John Forbes is one of the firm of John Forbes & Co., successor to Panton, Leslie & Co. And said John Forbes prays to be permitted to abandon the fifteen thousand acres to the king's domain, and in lieu thereof to have granted to him an equivalent in the district of Nassau River, to wit: That ten thousand acres be granted to him in said district of Nassau River, the survey of which he will produce as soon as the tranquillity of the province enables him to execute it.

The petition avers the object was to establish a rice plantation.

The petition was referred to the comptroller, Lopez, for a report therein, to Governor Kindelan: the comptroller reports that records of such grants were not made in his office, and of course he could give no information on the subject; but gives it as his opinion that the culture of rice should be promoted.

On the 28th of July, 1814, Governor Kindelan permitted the abandonment of the fifteen thousand acres granted in 1799, and in lieu thereof granted to John Forbes, for the object of cultivating rice, ten thousand acres, in the district, or bank of the River Nassau, and ordered a certificate to issue in the ordinary form. from the secretary's office, to serve the

Previously, on the 20th of October, 1816, said Clarke had surveyed for Forbes, three thousand acres in part of the ten thousand acres granted to him, conformably to the annexed plot. This survey was in Cabbage Swamp; but no other description of locality appears, either from the certificate or plat, nor is there any evidence appearing on the surveys, or by proof, that the lands surveyed lie in the district of the River Nassau, or on the *bank of said river; on the contrary, the [*182 seven thousand acre survey is on the River Little St. Mary's which a woman, Mrs. Fleming, proves she had heard was near to the Nassau. The situation of Cabbage Swamp does not appear from the record.

The decree of Governor Kindelan contemplated that the tract should be included in one survey, as did the petition of Forbes. Neither of the surveys corresponding with the concession, in regard to the district where the survey could alone be made, and being on lands not granted by the Governor of Florida, the surveys, if confirmed, would be recognized as of themselves appropriations of the lands, independently of the concession on which they profess to be founded; making them the origin of title, and assuming that the survey had the power to grant. This court has on all occasions holden, when the question has been presented, that the survey must be for the land granted by the proper authority. The United States v. Clarke, 8 Peters, 468; The United States v. Huertas, 9 Peters, 171.

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: but where the land is expressly granted at one place, they have no power by a decree to grant an equivalent at another place, and thereby sanction an abandonment of the grant made by the Spanish authorities. All the public domain of Spain was ceded to this government by the treaty of cession, and the title in fee to the same vested in the United States, from the lands thus_acquired, was excepted individual property. First, the paper title to such private property it is our duty to investigate and ascertain, and by our decisions to establish; and second, it is our duty to ascertain, and cause to be surveyed and marked by definite boundaries, the lands granted: and here the duties of the courts end. They have no authority to devest the title of the United States, and vest in a claimant, however just his claim may be to an equivalent. These principles seem to be self-evident; and their assertion not called for, because of their undoubted character: yet the consequences flowing from them will be found to govern a class of cases of large magnitude,

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