land, made by Governor White, the Spanish gov-, may have been granted by order of your Exernor of East Florida, dated July 29, 1802, was re- cellency; and because the first of these persons jected, affirmed. The land had been granted by Governor White, have suffered a long time to elapse without on a petition from the grantee, stating his inten- taking any steps for the pretended cultivation tion to occupy and improve the same with Bozale of said land, which makes it appear that their negroes, and native citizens of the United States; and stating that other grants of the same lands right has, in some degree, become diminished, had been made, on condition of settlement, which and there being others who offer to cultivate conditions had not been performed, and such said land, in accordance with the wishes of the grants were therefore void. The petitioner promIsed to make the settlement within an early period King, who is desirous of having the whole provafter the grant. The governor granted the land. ince settled; and as regards the latter, the referring to the petition: also, with the condition same reasons apply in consequence of their not that the grantee should not cede any part of the land, without the consent of the government. No having complied with what they promised. Improvement or settlement was at any time made Your petitioner promises, positively, to carry on the land by the grantee. Held, that the gov- into effect said settlement between the period ernment of the United States were not bound, under the Florida Treaty, to confirm the grant. embraced from this time and the month of December next; after which period it will remain discretionary with your Excellency to grant the said tract to any other person who may ask for it. The considerable number of settlers whom your petitioner offers to carry to that point will open a vast field toward fulfilling His Majesty's will, and to refrain the savages from committing robberies and hostilities, who have by their incursions, until now, *troubled the plantations situated north [*217 of the capital; and your petitioner, not doubting that such considerations will have their due weight on your Excellency's mind, who is always disposed to do what seems best for the service of the king and of the country, your petitioner respectfully reiterates his prayer for this favour from the accustomed bounty of your Excellency. (Signed) A. Buyck.

The description of the portion of land asked for from the Spanish governor, "lands at Musquito, fifty thousand acres, south and north of said place," is not sufficiently definite and from such a description, no exception could be made from the public lands acquired by the United States under the Florida Treaty. The regulations for granting lands in Florida, by the Spanish authorities, required that grants should be made in a certain place and there were no floating rights of survey out of the place designated in the grant; unless where the land granted could not be got there in Its exact quantity, and an equivalent was provided The laws and ordinances of the government of Spain, in relation to grants of lands by the Spanish government, must be of universal application in the construction of grants. It is essential to the validity of such grants, that the land granted shall be described, so as to be capable of being distinguished from other things of the same kind, or capable of being ascertained by extraneous test!

for.

mony.

The cases of Sibbald, 12 Peters, 313, 348, Arredondo, 6 Peters, 133, Fleming, 478, Huertas, 488, Arredondo, 13 Peters, 133, cited.

APPEAL from the Superior Court of East

On the 23d of May, 1829, Ann Buyck, the appellant, presented a petition to the Superior Court for the Eastern District of Florida, claiming title to a tract of land containing fifty thousand acres, south and north of the Musquito River.

The title on which the claim was founded, 216*] was a Spanish grant from Governor White. The proceedings on which the grant was made, and the grant, were as follows: His Excellency the Governor:

Don Augustin Buyck, a resident of this place, with the greatest respect, appears before your Excellency, and says:

That, having a large number of new negroes (negroes bozales), and there being also some white persons, native citizens of the United States of America, who wish to join him for the settlement and cultivation of the lands at Musquito, he solicits that this government will grant him fifty thousand acres of land south and north of said place, with the privilege of asking for more in proper time, as he may need it; within which lands it is not the intention of your petitioner that the tract which your Excellency granted to Don Ambrosio Hull should be embraced; who, at this time. has abandoned the possession of his settlement, owing to Indian hostilities, but who is determined to return to said settlement, in consequence of the protection that a large number of settlers in that neighborhood may afford: and that the right to the grant I pray for shall not be interrupted by the right that some individuals of this place or foreigners may have, or pretend to have, to whom part of said lands

St. Augustine of Florida, 22d July, 1802.
Order for Report.

St. Augustine, July 22d, 1802. Let the en-
gineer commandant report.
(Signed)

Report of Engineer.

White.

Being informed of the premises, and in compliance with the foregoing decree, I report to your Excellency that the settlement and cultivation of the lands at Musquito presents no obstacle either to the general or particular de fense of the province, and so far as this department is concerned, there may be granted to the petitioner, for the purposes he menlency may deem proper. This is all which I tions, the number of acres which your Excelhave to report to your Excellency, who will act in the matter at your pleasure. (Signed)

Nicholas Barcelo. Grant to Buyck.

St. Augustine, 29th July, 1802. The land which the party solicits is granted to him, in manner as he proposes; and with the condition that he shall not cede any part thereof to any person whatever, without the knowledge and approbation of the government. (Signed)

A certificate was issued.
(Signed)

White.

Pierra.

rect translation of the annexed document, writ*I certify that the foregoing is a cor- [*218 ten in the Spanish language.

John M. Fontane. Translator and Interpreter, S. C. D. E. F. St. Augustine, July 16th, 1838. The decree of the Superior Court of Florida was against the claim of the petitioner, and this appeal was prosecuted by him.

The case was argued by Mr. Downing for the | sand acres, "south and north of lands at Musappellant, and by Mr. Gilpin, Attorney-Gen- quito;" there is no authority, as in the case eral, for the United States.

Mr. Downing contended

1. That the grant was made without conditions precedent, and vested a title in the grantee.

2. The grantee never sold any portion of the land; and the title of the appellant is complete. Mr. Gilpin, Attorney-General, for the United States:

of The United States v. Sibbald, 10 Peters, 321, to make the location at any other place: the inlets or inferior bays which open into the coast of Florida, at Musquito, extend for more than fifty miles; how is it possible to locate a tract by means of a description so indefinite? 3. If there is proof of the grant, and if a sufficient location was made, have the prescribed conditions been complied with, so as to vest a The principles involved in this case are es- valid title in the claimant? The alleged con. sentially the same as those discussed in that cession bears date in 1802, nineteen years beof The United States v. The Heirs of Forbes. fore the surrender of Florida to the United The evidence of the alleged grant is insuf- States. The petitioner does not assert the perficient; the locality of the tract is not ascerformance of any services; the grant is not tained, either by the terms of the concession given to him as a reward. He "promises positself, or by a subsequent survey; and the con-itively to carry into effect his settlement, beditions, express and implied, have not been per- tween the period embraced from the [*220 formed. date of the grant and the month of December following;" he engages "to restrain the sav ages from committing robberies and hostilities, who had by their incursions troubled the plan"Atations;" and he says that he has "a large number of new negroes, and that there are some white persons, native citizens of the United States, who wish to join him in the settlement" he proposed. These are substantial inducements; a large force capable of cultivating the land, and affording protection to the neighborhood, to be placed upon the tract within six months. A grant founded on such induce. ments, and subject to their fulfillment, was altogether in accordance with the regulations of the Spanish land law, as it existed in Florida. 2 White's New Rec. 288. If they were not fulfilled, neither by the intention of the parties, nor by the Spanish law, did any title accrue to the grantee; the tract in question was never separated from the royal domain. In the petition, the claimant himself said, that if the settlement was not carried into effect within the period promised, it would remain discretionary with the governor to "grant the said tract to any other person who might ask for it." "Those who, having obtained a concession of lands, have not cultivated them from the time they were granted," says, Saavedra, confirmed by Governor Coppinger, "can have no right to them;" and he afterwards adds, that "the certificates (issued by the secretary of the government) are of no value nor effect, unless the prescribed conditions have been complied with; otherwise, such papers deserve no regard, nor can the grantees, by means of them, claim any right to the lands granted, which should now be considered vacant." 2 White's New Rec. 283. The alleged concession in this case is a certificate of the kind thus referred to.

1. The evidence of the grant consists of a copy of the memorial and concession thereto annexed, which copy is certified by a person named Pierra, in the following words: certificate issued." This is clearly not within the rule laid down by this court in the case of The United States v. Wiggins, 14 Peters, 348. Not only is there no evidence, even indirect, of the existence of the original concession, or of its being deposited in the archives, or of the truth of the copy, but the presumptive evidence is certainly strongly against the genuineness. There is no petition, order, or certificate of survey produced, or even alleged to have been issued. There is no corroborative evidence to supply this deficiency, or adequate to sustain the alleged grant. The only evidence of this sort is a translation of an alleged assess219*] ment *of thirty dollars, made by Governor White, in 1802, just after the date of the alleged grant, on "Don Augustin Buyck, for himself, and his settlers on the fifty thousand acres of land south;" and an alleged receipt, dated about a year after, of Bernardo Segui, to the attorney of Buyck, for the thirty dollars. From that time to 1823, there is no evidence, even of a claim to any land founded on such a grant. These papers were objected to in the court below, and were supported by no proof whatever of the existence of the original, the signatures of the governor, or Segui, or the correctness of the copy; but had they been duly authenticated in these respects, it is yet clear that they are not such corroborative evidence of the grant as will be required; there is no ground but mere conjecture, to suppose they referred to the lands said to have been granted. Add to this the well known fact that Governor White was remarkable for his uniform refusal to make large grants on slight causes; and it must be admitted that no copy of a concession has ever been adduced which is less entitled to credit in the absence of the original.

Mr. Justice Wayne delivered the opinion of the court:

Appeal from the Superior Court of East Florida.

The land in controversy in this case is claimed by virtue of an alleged concession or grant, for fifty thousand acres, dated July 29th, 1802.

2. But if granted, the tract never was and never can be located according to the grant; "the description in the petition," to use the words of this court in the case of The United States v. Arredondo, 13 Peters, 133, "of the locality of the concession, is too indefinite to enable a survey to be made," and the claim- The evidence offered and read on the trial is: ant therefore can "take nothing under the 1. A memorial from Don Augustin. Buyck, concession." The concession is of fifty thou-' 22d July, 1802, *with an order annexed [*221

In the court below, the claim was adjudged not to be valid.

3. An assessment, by order of Governor White, dated 30th October, 1802, upon Buyck and others, for building a bridge. The assessment upon Buyck being thirty dollars, "for himself and his settlers of the fifty thousand acres of land, south;" attached to which is the return of one Bernardo Segui, of the names of the persons assessed; such of them as had paid, others who had not, with Segui's receipt, dated a year after, for thirty dollars, paid by one Robira, as attorney for Buyck, said to be "his proportion of the tax," in consequence of a grant of fifty thousand acres of land, and others which he possesses in this province.

by Governor White to the engineer command- to carry into effect his settlement by the month ant, to report; and the report of the engineer. of December after the date of his memorial, 2. The decree of Governor White as follows: after which time, if he does not do so, he says The land which the party solicits is granted it will remain discretionary with the governor to him in manner as he proposes; and with the to grant the land to any other person who may condition that he shall not cede any part there- ask for it. The governor replies, the land of, to any person whatever, without the knowl- which the party solicits is granted to him in edge and approbation of the government. manner as he proposes, and restrains his alienation of it, without the consent of government. The undertakings of the memoralist were voluntary, and were the inducement held out by him to obtain the grant. None of them were complied with. The forfeiture, then, of the land results from the conditions not having been performed, which the memorialist himself proposed as the terms upon which he was to hold it, and which were recognized by the governor as the terms upon which he should have what he asked for. The memorial, report of the engineer, and decree, are all parts of the same instrument, each having a distinct reference to the other. If, therefore, for the purpose of determining the quantity of the land intended to be granted, and where it was granted, we must go out of the decree into the memorial, we must do the like to ascertain the conditions annexed to the grant. Besides, the forfeiture is only in accordance with what the memorialist states had been incurred by others, to whom grants had been made, who had neg lected to settle them, and which he says will be his own case if he does not make his settlement within the time stated in his petition. [*223 In this view of the case, then, the grant is without merits; and the judgment of the court below should be affirmed.

The paper purporting to be a grant was received in evidence, without any certificate, that it was the copy of a grant, from an original in the office in which grants are required to be deposited; without proof of the handwriting of the governor, or of Pierra, who says a certificate was issued; indeed without any official attestation of authenticity, or proof of any kind that such a paper was ever issued or on file in the proper office. The same may be said of the other papers. One Fontane certifies that he has translated them correctly from Spanish originals. That is all that is said of them. No proof is given that the originals were to be found in the "office of the archives." It is not alleged that they were lost or destroyed, by any mutilation of the records or other accident. The other proof relied upon to sustain the claim is Segui's receipt, and the papers in connection with it already mentioned. Where that paper came from the record does not show. The authenticity of the governor's order, assessing the tax; the signature of the person, signing himself government notary; the appointment of Segui to collect the tax; all rest upon the receipt of Segui for Buyck's assessment, and upon the paper purporting to be a report to the governor of those who had not paid, and of the sum of money which he had 222] in hand from those who had paid assessments. We do not intend, however, as the attorney for the United States, in the court below, did not object to the memorial and grant as evidence, though he did so as to the papers connected with the assessments, to allow any formal objection to the proof of a grant to weigh with us in this decision; the opinion of the court rests upon grounds connected with the merits.

The memorialist asks for the land, first stating that he has a large number of new negroes, and that some white persons, native citizens of the United States of America, wish to join him in the settlement and cultivation of the lands "at Musquito." He prays that his right to the grant may not be denied by the right which others may claim, or pretend to have on account of former grants to them; because they had suffered a long time to pass without taking any steps to cultivate the lands, and as others are ready to cultivate them; and he promises

But further, supposing proof of the grant to be made, and that it was free from the conditions, which, not having been complied with, has forfeited it; still it could convey no land, from the want of identity or ascertainable locality.

The memoralist says, wishing to make the settlement and cultivation of the lands at Musquito, he solicits a grant of fifty thousand acres south and north of said place.

Musquito is an inlet on the eastern coast of the peninsula made by Halifax River, or lagoon, which extends from Musquito Bar northward more than twenty miles, and by the southern, or what is known as Hillsborough lagoon, which extends from Cape Caraverel to Musquito Inlet, a distance of forty miles. Both lagoons are navigable for about the same distance by vessels of such draught as can cross the bar. Creeks run into the first from the main land, and Smyrna is on the western bank of the south lagoon, four or five miles from Musquito Bar. Where, then, shall the land claimed by the appellant be surveyed? Shall it border on the ocean, north and south of the inlet, twenty-five thousand acres on either side to make up the quantity; or on the inner shore of the lagoon in the same way; or shall it be on the main land, west of the inlet; or on some of the creeks emptying into Halifax River! The description of the grant is, "south and north" of the lands "at Musquito." Musquito is not a designation of a land district fixed and known by the Spanish authorities; nor do we know from any usage the limits of the lands at Musquito. If it be the application of the name of an inlet to lands without and within it: still,

V.

*THE UNITED STATES, Appellants, [*226 HEIRS OF JOSEPH DELESPINE et al., Appellees.

genuineness.

der a grant from Don Jose Coppinger, Spanish A claim for a square of four miles of land, unGovernor of East Florida, situated at the north head of Indian River, confirmed.

how shall boundaries be fixed within which sur-thing granted should be so described as to be veys shall be made without other specific call capable of being distinguished from other than "north and south of lands at Musquito?" things of the same kind, or be capable of being The regulations for granting lands in Florida ascertained by extraneous testimony. by the Spanish authorities, required that grants The decree of the court below is affirmed. should be made in a certain place, and there were no floating rights of survey out of the place designated in the grant, unless the land granted could not be got there in its entire quantity, and an equivalent was provided for; as in Sibbald's case, reported in 10 and 12 THE Peters, 313, 488, one of the surveys of which was at Turnbull's Swamp, at Musquito. 224*] *In all of the decisions of this court Spanish land grant in Florida-evidence of upon grants in Florida, it has gone as far as the most liberal equity can go, in adopting some natural, or artificial point, in the description of the grants, however subordinate or minor they may have been, to give locality to grants. Such was the fact in the leading case upon Florida grants. Arredondo, 6 Peters, 133. So in Percheman's case, 7 Peters, 91. Also in the cases of Fleming and Huertas, 8 Peters, 478, 488. Arredondo's case, in 13 Peters, 133, was upon most indefinite calls. No survey had been made whilst Florida was a province of Spain, nor had the grant been surveyed when the case was brought by appeal to tnis court. The court said, "we do not consider the want of a survey as interfering with the right of the party to the land granted;ity with the grant; but which was made in the exit must be taken near as may be, as it is described in the petition, where it was asked for, and cannot be taken elsewhere." The court then declares, if the points indicated in that case for a survey cannot be found, then, that the description was too indefinite for a survey to be made; and that the claimants could take nothing under the concession. And so in this case, the description "south and north of the lands at Musquito" is too indefinite for a survey to be made; for there is nothing in it which can be aided by relation to something certain. The claimants, then, can take nothing under the concession.

We know from the eighth regulation of Governor White, October 12th, 1803 White's New Rec., 278, that this want of certainty in the description of grants has been productive of disputes and mistakes. When he declared that those, for the future, who ask for lands must indicate a fixed spot, he only re-inforced a neglected law in Florida. Indeed, with few exceptions, grants in Florida, which have been before this court, have been particular, in respect to the object from which the survey was to be made.

tary of the Government and Province, of the copy The certificate of Don Tomas de Agullar, Secreof the grant of the governor, stating the same to be faithfully drawn from the original in the secreof the grant; and was properly admitted as such, tary's office under his charge," was legal evidence in support of the same. The case of The United States v. Wiggins, 14 Peters, and The United States v. Rodman, at this term, deciding the same point, cited. The case of The United States v. Percheman, 7 Peters, 96, cited.

A grant of ten thousand two hundred and forty which recited, among other things, that it was acres of land, by the Spanish Governor of Florida, made under a royal order of the King of Spain, of

29th March, 1815, and which was not in conform

ercise of other powers to grant lands which had been vested in the Governor, was not made invalid by the recital of the royal order as the authority for the grant. The grant recited, also, that it was made in consideration of military services, and was also in consideration of the sursurrender had been accepted by the governor. render of another grant, previously made, which These were sufficient inducements to the grant.

A

PPEAL from the Superior Court of East
Florida.

Joseph Delespine and others presented a petition to the Superior Court of East Florida, claiming ten thousand two hundred and forty acres of land at the north head of Indian River, by virtue of a concession from Governor Coppinger, the Spanish Governor of East Florida, to Pablo Fontane, dated November 10, 1817.

The grant, and circumstances of the case, are fully stated in the opinion of the court.

The Superior Court of East Florida decreed a confirmation of the grant; and the United States prosecuted this appeal.

The case was argued by Mr. Gilpin for the United States. Mr. Downing appeared as counsel for the appellees.

*Mr. Gilpin, for the United States, [*227 relied on the following grounds:

1. That the evidence in the case is insufficient to prove that the alleged grant or concession was ever made.

It is proper for us to remark, that in coming to our conclusion upon this point we have not been influenced by any of the English common law rules, which make grants void for uncertainty. Such as, for instance, if the King 2. That if it be proved or admitted that the grants land in a peat waste, without ascertain alleged grant or concession was ever made, still, ing what part, or the special name of the land, that the same was not in conformity to the roy or how bounded, it is void for uncertainty; foral order of 29th March, 1815, by virtue of there can be no election in that case Bacon which it is declared that the concession was 225*] Vol. IV., tit. Grant, 81; and yet, if an individual so grant, it would be good. We apply to the case, the laws and ordinances of the government under which the claim originated; and that rule which must be of uni versal application in the construction of grants, which is essential to their validity, that the

made.

1. This is an alleged concession of Governor Coppinger. The evidence to support it is a copy of the concession, certified by Tomas de Aguilar, and it is accompanied by an order and certificate of survey. The only point to be considered in regard to this evidence is, whether

or not the facts bring the case within the rule | made, as this purports to be, "in virtue of the established in that of The United States v. Wig- said royal order" be valid? gins, 14 Peters, 348. This court certainly will not extend the scope of that rule, so as to give any weight to these secondary evidences of title which it does not indisputably recognize. It is not denied that the production of the order of survey, and the plat and certificate made in pursuance thereof, go far to bring it within that decision; but it may not be improper to ask the particular consideration of the court to the depositions annexed to the record, which would seem to show that the existence of the original concession was a matter of doubt at a very early period; that in March, 1822, very shortly after the cession of Florida, before the alleged losses of papers are supposed to have occurred, and when the grantee was yet living, and sold part of his interest to Delespine, it ap-grant, cannot cure the defect resulting from the pears not to have been in existence; and that the particular fact of its actual existence at any time is not proved by a single witness.