68 U.S. 721 (1864), Romero v. U.s.

Citation:68 U.S. 721, 17 L.Ed. 627
Case Date:February 29, 1864
Court:United States Supreme Court

Page 721

68 U.S. 721 (1864)

17 L.Ed. 627




United States Supreme Court.

February 29, 1864


THIS was an appeal from the District Court for the Northern District of California; the case being thus:

On the 28th February, 1853, three brothers, Innocencio, José, and Mariano Romero, presented their petition to the Board of Commissioners, established by the act of Congress of March 3d, 1851, for the settlement of private land claims in California, asking a confirmation of a land title. Their petition averred that Governor Micheltorena, in the year 1844 (no day being mentioned), granted them in full property a rancho in the neighborhood of the rancho of the Se)ors Moraga, Pacheco, and Will, being a remainder over and above what belongs to those ranchos--the said land being in

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the County of Contra Costs--and referred for a fuller description of the lands to papers and maps relating to the grant; 'copies of some of said papers being herewith filed, and the originals to be produced and proved.' The petition said nothing specially about the grant. There was no averment of its loss, and no profert of it as an existing paper; nor did it describe the land otherwise than above, nor mention the quantity. The commissioners entered a decree against the petition, declaring that 'it does not appear that any grant was ever issued, . . . and no equitable right appears.' On appeal to the District Court, new evidence being allowed to be introduced there, the decree of the commissioners was affirmed. A motion was then made and granted to open the case, and allow the claimants to produce further evidence. The decree was accordingly stricken out and the additional evidence heard; after which the court (McAllister and Hoffman, JJ.), affirmed the decision of the commissioners, and adjudged the claim invalid, and rejected it. It was from this decree that the case was now here. The title, as disclosed to this court, was partly documentary and partly that of witnesses.

THE FIRST parcel of documentary evidence was thus:

1. A petition by the brothers Romero, claimants, dated January 18th, 1844, soliciting a tract described as a surplus of the ranchos Moraga, Pacheco, and Will.

2. A marginal order of the same date, that the secretary of state report, 'having first taken such steps as he may deem necessary.'

3. A decree of the governor that the first alcalde of San José report, summoning Moraga, Pacheco, and Will, occupants of the adjoining ranchos, as above said.

4. Report, February 11, 1844, by the alcalde, that he had confronted the claimants with the owners of the adjoining lands, and they had no objections to the grant; that the tract was claimed by one Francisco Soto six or seven years before, but that he had not cultivated it in any way to gain a right thereto.

5. An unsigned certificate, February 4th, 1844, that it would seem, according to the report just referred to, 'that there is no

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obstacle to making the grant . . . if your excellency approves of it.'

6. A direction from the governor, without date, but 'filed in office February 28th, 1853,' that 'the judge of the proper district take measurement of the unoccupied land that is claimed, in the presence of the neighbors, and certify the result, so that it be granted to the petitioners.'

7. Petition of Romero and the others to the governor, 21st March, 1854, that the governor grant them the land, either provisionally or as he deems best. [The petition stated that the judge had been unable to execute the order for a measurement, for the reason that the owners of the neighboring lands were absent or engaged, and that they inclose the former petition with report of the secretary of state.]

8. Report from Jimeno, 23d March, 1844, thus: 'I think that your excellency's order should be carried into effect in regard to the measuring of the land that is claimed; and, as soon as this is accomplished with the least practicable delay, Se)or Romero can present himself joined with Se)or Soto, who says that he has a right to the same tract. Your excellency's superior discernment will determine what is best.'

9. Final decree of the governor, 'Let everything be done agreeably to the foregoing report.'

A SECOND parcel of documentary evidence followed; the year of the date to papers in this parcel being three years posterior to the year 1844, in which all those just given were dated, and about a year after the conquest of California.

1. A marginal order, 9th April, 1847, from the American alcalde of San José (Burton), ordering that the 'interested parties will proceed to take possession of the mentioned lands, according to the order of government; and I further order that, in case any bordering land-owner demanding it, a mensuration of his lands be ordered.' [N. B. This order was entered on the margin of an old order by Jimeno, secretary of state, dated 23d March, 1844, which the American alcalde found in the office after the conquest, directing a survey of the land solicited by Romero. This old order was addressed to the former alcalde.]

2. Petition, May 28th, 1847, from Romero to the same alcalde of San José as follows: 'As early as the year 1844 there was

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sent an order from the former government to this justice's court, that there should be made a mensuration of the land called Juntas, which we asked for. I, together with my brother, Innocencio Romero, after a previous summons of the bordering landowners, which up to the present time has not been carried out. What we now beg of you is, that you will please, as first magistrate of this justice's court, to make out a report that we be given a testimonial of the reports which in the year '44 were sent to the government, so that we can be granted said lands.' [N. B. The original of the English words here italicized, 'se nos podra agraciar,' it was testified by an interpreter, did not mean that the land might at that time (1847) be granted, but referred to the past, and meant 'should be granted to us;' so referring to the contents of the papers made by the alcalde in 1844, and being words descriptive of those orders.]

3. Marginal order, same day, that the measurement be proceeded in according to the original direction.

4. Certificate, May 29th, 1847, by the American alcalde, that Pico, the alcalde under the former government, being sworn and questioned on the subject of Romero, regarding the bordering landmarks, declared that Moraga and Pacheco declared that the surplus which does not belong to them might be granted to Romero.

THE PAROL TESTIMONY, which related to a term between the dates--1844 and 1847--of the two classes of documentary evidence (the former date relating to the Mexican rule in California, and the latter that of the United States), consisted, in part, of that of witnesses, who testified to the fact of granting, and in part of others who stated that they had seen the grant: the most important witnesses to this last fact being three professional gentlemen in California.

1. As to the making and delivery of the grant.

Innocencio Romero, now having no interest, as he said, and who was twice examined, swore that he received the original title-papers, including the grant, from the governor.

Arce, another witness and principal clerk under the secretary of the government, who drew up Romero's petition for the grant, swore that the governor ordered the title to be made out; that this was done by one of the two clerks, though

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he did not remember by which; that it was signed by Governor Micheltorena and Secretary Jimeno in 1844; though whether in spring, summer, autumn, or winter of that year he did not remember; that he saw both of them sign it, and that it was then delivered to Innocencio Romero, one of the grantees, and was 'a complete concession in good and legal terms.'

Vincente Gomez, a clerk in the government office at the time, swore that he knew of the application, and though he did not see the grant, he 'knew afterwards that it was issued.' When asked to state the means of his knowledge, he replied, 'Because I used to take a note of the title in the 'Toma de Razon." When asked again, 'Did you take a note of this title?' his reply was, 'I do not remember distinctly, but I ought to have taken it.'

Chavis, that he aided Romero in obtaining the grant, introduced him to Arce, went with him to the government office to urge his application, and after it was obtained, saw and looked over the grant, and told the grantee that it was perfectly good,--that it was an absolute grant of land, under the genuine signatures of Micheltorena and Jimeno.

2. As to the subsequent existence of the title-paper.

Ramon Briones swore that he saw the title in 1845; that it was produced by Romero in order to convince a neighbor that he had a title; that it was read aloud and had to it the genuine signature of Micheltorena.

Innocencio Romero stated that he being unwell and unable to go himself, he sent the papers to Mr. G. B. Tingley, an attorney at law, in San Francisco, for the purpose of having them submitted to the Land Commission. Mr. Tingley was himself examined twice. On the first occasion he said in substance as follows:

'In 1850, there was a suit between Peralta, plaintiff, and I. Romero and Garcia, defendants, and on the trial there was read as evidence on the part of defendants a grant from Governor Micheltorena to the three brothers Romero for a tract of land, &c. The grant was on Spanish paper, and was signed by Micheltorena as governor. The signature was genuine as I believe from having

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seen his signature many times. The last I saw of the titlepapers they were in possession of a...

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