United States v. Theodore Dalcour

• Decision Date: 03 December 1906
• Docket Number: No. 69,69
• Citation: 203 U.S. 408,51 L.Ed. 248,27 S.Ct. 58
• Parties: UNITED STATES, Appt., v. THEODORE DALCOUR et al., Heirs of John Forbes, Deceased, et al
• Court: U.S. Supreme Court

203 U.S. 408

27 S.Ct. 58

51 L.Ed. 248

UNITED STATES, Appt.,

v THEODORE DALCOUR et al., Heirs of John Forbes, Deceased, et al.

No. 69.

Argued October 30 and 31, 1906.

Decided December 3, 1906.

Solicitor General Hoyt and Mr. Robert A. Howard for appellant.

[Argument of Counsel from pages 409-411 intentionally omitted] Messrs. William A. Blount, Henry R. Hatfield, William W. Dewhurst, and A. C. Blount, Jr., for appellees.

[Argument of Counsel from pages 412-420 intentionally omitted]

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Mr. Henry R. Hatfield for heirs of John Forbes, appellees.

Mr. Justice Holmes delivered the opinion of the court:

This is a petition to establish title by a grant of about 1,850,000 acres of land in Florida, brought in the district court under the act of June 22, 1860, chap. 188, § 11 (12 Stat. at L. 85, 87), extended by act of June 10, 1872, chap. 421 (17 Stat. at L. 378), for three years from the last date. The petitioners had a decree in the district court, and the United States appealed to this court under the above mentioned § 11.

As the jurisdiction of this court is denied, we will dispose of that question before going further into the facts. The ground of the denial is that by § 6 of the act of March 3, 1891, chap. 517 [26 Stat. at L. 828, U. S. Comp. Stat. 1901, p. 550], the circuit court of appeals shall exercise appellate jurisdiction to review final decisions in the district courts, etc., in all cases other than those provided for in the preceding section, 'unless otherwise provided by law.' There is no doubt that this enactment was intended to supersede previous general provisions, and to establish in what cases and to what courts appeals might be taken from the district courts. The Paquete Habana, 175 U. S. 677, 686, 44 L. ed. 320, 323, 20 Sup. Ct. Rep. 290. But the statute recognizes, in addition to the exceptions which it enumerates, others

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where it is 'otherwise provided by law.' These words must be taken to refer to existing provisions, and not to be merely a futile permission to future legislatures to make a change. They do not save every existing provision, of course, or the act would fail of its purpose. But they save some. There is no case to which they can apply more clearly than one in which, by reason of its interest, the United States has manifested its will to submit to no judgment not sanctioned by its highest court. The language of § 11 is not the usual permission to appeal, such as existed in the act of March 3, 1851, chap. 41, §§ 9, 10 (9 Stat. at L. 632, 633), referred to in Gwin v. United States, 184 U. S. 669, 46 L. ed. 741, 22 Sup. Ct. Rep. 526. See also act of August 31, 1852, chap. 108, § 12 (10 Stat. at L. 99). It bears the unusual form of a positive requirement. 'If the decree be against the United States, an appeal shall be entered to the Supreme Court of the United States.' This is a provision based on a specific policy with regard to a certain class of claims. It is not a matter of general principle, but a special trust. See also act of May 23, 1828, chap. 70, § 9 (4 Stat. at L. 284, 286); May 26, 1824, chap. 173, § 9 (4 Stat. at L. 55). It stands on the same ground of peculiar importance that is the foundation of the express grant of certain direct appeals in § 5 of the act of 1891. Therefore, without considering whether the case at bar falls within the other exceptions, we are of opinion that the jurisdiction of this court given by § 11 of the act of 1860 remains unchanged.

The petition was filed on March 3, 1875, by the heirs of John Forbes. It alleged a grant to John Forbes by the Captain General of Cuba, on January 10, 1818; that is, a grant made in time to escape the 8th article of the treaty with Spain, of February 22, 1819 [8 Stat. at L. 258], declaring all such grants made after January 24, 1818, void. On the other hand, it invoked the earlier part of the same article, by which all grants made by the King of Spain or by his lawful authorities, in the territories ceded to the United States, before January 24, were to be confirmed to the same extent as if the territories had not been sold. On December 14, 1878, an amendment was allowed,

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by which the grant was alleged to have been made to John Forbes & Company, a partnership consisting of Forbes, James Innerarity, and John Innerarity, and the Innerarity heirs were joined as parties. The rights of the United States, especially under the statute of limitations, were saved, and one question argued is whether this amendment could be allowed, when the time for bringing suit under the act of 1860 had expired. We shall not find it necessary to discuss this question, and shall assume, for the purposes of decision, that the amendment properly was allowed. United States v. Morant, 123 U. S. 335, 343, 31 L. ed. 171, 173, 8 Sup. Ct. Rep. 189. We shall assume that the proceeding is to establish the claim and appropriate the land to it, rather than to determine in detail the present holders of the claim. See Butler v. Goreley, 146 U. S. 308-310, 36 L. ed. 984, 985, 13 Sup. Ct. Rep. 84, 147 Mass. 8, 12, 16 N. E. 734; Pam-to-pee v. United States, 187 U. S. 371, 379, 380, 47 L. ed. 221, 225, 226, 23 Sup. Ct. Rep. 142.

It is unnecessary to trace all the vicissitudes of the case or to explain the delays. It is enough for our purposes to say that the parties reached an issue on May 29, 1903. A master was appointed and testimony was taken. At the hearing before him the United States put in the registro, or instrument of grant, which was in fact the original instrument, although the document of title under Spanish law is a copy delivered to the grantee, while the registro is retained by the government. It appeared upon inspection that this instrument had been altered in the date to January 10, from February 20, 1818, the true date making the grant void under the treaty. Thereupon the petitioners asked leave to amend by adding an allegation that the grant was made on February 20, 1818, but had been altered so that it purported to have been made on January 10. The result of this amendment was that, whereas the ground of recovery previously had been the treaty, now it was that the act of 1860 had given a right to recover in a case which the treaty put an end to in so many words. It abandoned the old ground, and that no longer could be relied upon if the amendment was allowed. The amendment,

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although filed, was not formally allowed before the hearing, and after the hearing the United States filed a suggestion that it had been treated as followed, and that an order should be made nunc pro tunc that the amendment had been allowed. Thereupon the order suggested was made, and an additional answer was filed, setting up the treaty and the limitation in the statutes. We do not perceive that the United States, by its course, lost its right to maintain that the amendment set up a new cause of action, which was barred by the limitation fixed by the statutes on the matter, and it urges that defense. Union P. R. Co. v. Wyler, 158 U. S. 285, 298, 39 L. ed. 983, 991, 15 Sup. Ct. Rep. 877.

It has been decided that a decree upon a bill to have a patent declared void as forfeited under an act of Congress was a bar to a subsequent bill for the same purpose upon the different ground that the land was excepted from the grant as an Indian reservation. United States v. California & O. Land Co. 192 U. S. 355, 48 L. ed. 476, 24 Sup. Ct. Rep. 266. In that case it was intimated that in general a judgment is a bar to a second attempt to reach the same result by a different medium concludendi. But while such a decision might be persuasive on the question whether the cause of action is the same or different for the purposes of amendment, it has been decided that an amendment could not be allowed in a Missouri district, changing the ground of recovery from the common law to the common law as modified by a Kansas statute, which did away with the defense that the negligence complained of was that of a fellow servant, in actions against railroads. Union P. R. Co. v. Wyler, 158 U. S. 285, 39 L. ed. 983, 15 Sup. Ct. Rep. 877. In the present case the change is a change in the allegations of fact, and was most material, because it necessarily was followed by a direct facing about with regard to the law. We shall not dispose of the case on this ground, but we think it proper to say that the difficulties in the way of upholding this amendment under the last-mentioned decision have not been removed from our minds.

The fundamental questions in the case are whether the petitioners are within the act of 1860, and, if they are, whether

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they are not met by an exception to which we shortly shall refer. The former we shall not decide. The statute by § 1 gave a petition to any persons 'who claim any lands lying within the states of Florida, Louisiana, or Missouri, by virtue of grant. * * * emanating from any foreign government, bearing date prior to the cession to the United States of the territory out of which said states were formed, or during the period when any such government claimed sovereignty or had the actual possession of the district or territory in which the lands so claimed are situated.' And somewhat similar language is used in § 11, allowing a proceeding in the district court. There, however, the words apply only in case of a complete grant or concession and separation from the mass of the public domain prior to the cession to the United States, 'or where such title was created and perfected during the period while the foreign governments from which it emanated claimed sovereignty over, or had the actual possession of, such territory.'

The petitioners rely upon the words of the act and upon United States v. Morant, 123 U. S. 335, 31 L. ed. 171, 8 Sup. Ct. Rep. 189. That case involved lands in Florida, lying, like the present, east of the river Perdido, of which the grant was made before January 24, 1818, but the survey was not...