THIS was an appeal from the District Court of the United States for the northern district of California.
The nature of the title, and evidence in support of it, are stated and commented on on the opinion of the court, and need not be repeated.
It was argued by Mr. Blair for the appellant, and by Mr. Black (Attorney General) for the United States. Mr. Blair also filed a brief by Mr. Crockett, which he adopted as his own.
1. That neither the grant itself nor the law fixed any period within which the grantee was required to take possession.
See Jones's Report, p. 22, and Larkin's case.
2. That the minority of the grantee was, perhaps, the reason why the common requirement as to time was not one of the conditions of the grant, and repels any presumption of an intention to abandon the claim arising from the delay in occupying the land.
3. That no law, regulation, or custom, forbade grants to minors, and the court will not undertake to revise the discretion of the Governor as to the proper persons to receive grants.
4. That as the grant purports to have been recorded in the archives, and it is shown that the book corresponding to the year in which this grant was made was destroyed, the case made comes fully up to the requirements of the Cambuston case.
5. That as the genuineness of this grant was not questioned below, it cannot be impeached here, even on the testimony in the record. So the court held in Larkin's case. A fortiori, the court will not consider the extraneous matter offered by the Attorney General, whether offered as testimony or as historical facts, which, if true, might have been explained, if they had been offered below.
These points were more particularly stated in the brief which Mr. Blair adopted, viz:
1. That the grant is valid, and ought to be confirmed, notwithstanding there was no approval of the Departmental Assembly, and no judicial measurement.
United States v. Fremont, 17 How., 560.
United States v. Reading, 18 How., 8.
United States v. Cruz Cervantes, 18 How., 553.
United States v. Vaca, 18 How., 556.
United States v. Larkin, 18 How., 563.
2. The grant was duly recorded, and on the face of the grant the original is ordered to be delivered to the grantee, who now produces it.
3. The proof shows that it was written and recorded in 1843, when, it is conceded, Governor Micheltorena had full authority to grant lands.
4. The authenticity, date, and recording of the grant, being clearly established, and the grant itself reciting that the grantee had petitioned for the land, and that all 'the necessary steps and the precautionary proofs required by the laws and regulations' had been taken, the law will presume that the Governor had performed his duty in these respects, and had not exceeded his powers.
United States v. Peralta, 19 How., 347.
United States v. Aredondo, 6 Pet., 729.
United States v. Delassus, 9 Pet., 134.
Minter v. Crommelin, 18 How., 88.
Bagnell v. Broderick, 13 Pet., 448.
5. This grant had only the usual conditions; and they were all subsequent conditions, the non-proformance of which would not, ipso facto, avoid the grant.
6. The fact that the grantee was a minor did not invalidate the grant. There is nothing in the act of 1824, or the regulations of 1828, restricting the power of the Governor in this respect. Under the Mexican and civil law, the age of majority was twenty-five; and the policy of the colonization laws was not at variance with a grant of lands to a person under that age. For aught that appears, a minor might be as capable as any other of cultivating and improving his lands. If minors be excluded for want of capacity, the same reasoning would exclude old, infirm, and indigent persons, or females of feeble capacity, and especially married women. The capacity of the grantee, and his fitness to take the grant, and the propriety of making it, under all the circumstances, were precisely the questions submitted to the discretion of the Governor, and these questions cannot be litigated over again.