THIS was an appeal from the superior court of the eastern district of Florida.
On the 11th day of November 1828, Fernando de la Maza Arredondo and son, and others, their grantees, filed their petition in the superior court of the eastern district of Florida, against the United States, under the provision of the sixth section of an act of congress passed May 23, 1828, entitled 'an act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida.'
The petition stated, that the petitioners claimed title to an undivided parcel of land, containing two hundred and eighty-nine thousand six hundred and forty-five acres, situated in the county of Alachua, in the eastern district of Florida, about thirty-six miles west of the river St Johns, and about fifty-two miles west of the city of St Augustine; which land extends four leagues to the east point of the compass in a rectilinear figure, taking as the centre thereof a place called Alachua, formerly inhabited by a tribe of Seminole Indians, but subsequently abandoned by them: that the said tract of land was granted by the Spanish government, with all the formalities and solemnities used by it in such cases, to the petitioners, on the 22d day of December 1817, the said grant having been executed at Havana, in the island of Cuba, by Don Alexander Ramirez, intendant of the army, superintendent general, and subdelegate of the royal exchequer of the island of Cuba, and the two Floridas, &c. &c. by an with the advice and approbation of the surveyor general of the two Floridas, and of the minister fiscal, the king of Spain's attorney general. A translation of the grant and other proceedings was annexed to the petition as follows:
Don Alexander Ramirez, intendant of the army, and subdelegate superintendent general of the royal domain of the island of Cuba and the two Floridas, president of the tribunal of accounts and of the board of tithes, superintendent of the department of the crusades, judge particular of vessels putting in port by stress of weather, and protector of the royal lottery, superior chief and inspector of the royal factory of segars, &c.
Whereas Don Fernando de la Maza Arredondo and Son, merchants of this city, have presented a memorial to this intendancy general and subdelegate, of the 12th of November last, in which they pretend to obtain, as a gratuitous grand, a lot of land in East Florida, where they have been established, and where still remains the greater part of their family, and a great deal of their property, offering to form an establishment in the territory known under the name of Alachua, as it is adapted to the growing of cattle and the culture of provisions; said establishment to be composed of two hundred families, which they are to convey at their own costs, proposing other advantages which will result, not only in favour of the other inhabitants already established, and residents of the city of St Augustine, but also in favour of the Creek and Seminole Indians living on the borders of that country, provided they obtain in absolute property the said grant limited to four leagues of land to every point of the compass, fixing as the central point thereof the indicated tract of Alachua. And the said memorial having passed by my decree of the 12th instant, to the captain of infantry, Don Vincente Sebastian Pintado, surveyor general of the two Floridas, for his information, which he gave on the 15th of the same month, with all the necessary information and solid reasons which de constrate and make known the convenience and utility of providing for the increase of population in said province, without expense to the royal treasury, and of accepting the offers of the interested parties, on account of the importance of the undertaking, and of the considerable disbursements which they will have to make to carry the same into effect. In consequence thereof, by a decree of the same day, the subject was communicated to the auditor fiscal of the royal domain, who, in his representations of the 17th, founded on the sovereign disposition concerning the increase of population in those possessions of his majesty, supported the pretensions of Maza Arredondo and Son, gave his consent in order that the land which they solicit be granted to them in the terms they propose. Wherefore, on the day of yesterday, I provided the act which follows: Seen. In virtue of the royal order of the 3d of September, in this year, by which, in appointing me superintendent of the two Floridas, his majesty commands me, in express terms, to provide for the increase of population in those provinces by every means which my prudence and zeal may dictate, with the concurrence of his lordship the fiscal, and with the report of the surveyor general of the said province, the tract called Alachua, in East Florida, is declared to belong to the royal domain. In consequence whereof, and in attention of the notorious integrity and fidelity, to the known capital and other good qualities of Don Fernando de la Maza Arredondo and Son, I grant to them the part which they solicit of the said tract belonging to the royal domain, in conformity to the sovereign dispositions on this matter, and withe the precise condition to which they obligate themselves to establish thereon two hundred families, which ought to be Spanish, with all the requisites which are provided for, and others which will be provided by this superintendency, in virtue of the said royal order; the said establishment to begin to be carried into effect in the term of three years, at farthest, without which this grant will be null and void; said grant is also understood to be made without prejudice to a third party, and especially to the Indians, natives of that land, who may have returned, or may pretend to return, to make there their plantations. Let this expedient pass to the surveyor general above mentioned, in order that he may make the corresponding plot, in conformity to his information, and the granted extent of four leagues to every wind in a rectilineal figure, with all possible perspicuity, to avoid future doubts and litigations; which being done, let the title in form be executed, with the same plot annexed thereto, a copy of which will remain in the expedient, with the provision that the said three years allowed to commence the establishment of families are to run and be counted from this date; and that, on the first families being prepared and disposed, the grantees will give notice of it, together with a list of the individuals, and mention made of the places of which they are natives, of their occupation, in order that the orders and instructions which the government and the susperintendency of the royal domain in East Florida may see fit to give, be issued, and in order that an account of the whole be given in proper time to his majesty.
The figurative plan formed by the surveyor general aforesaid being presented, with the explanation which, in continuation, he gave of the survey and demarcation, it results that the tract of land is situated in East Florida, fifty-two miles, more or less, distant west from the city of St Augustine, and about thirty-six miles west of the western margin of the river St John's; bounded on every side by vacant lands, the place known by the name of Alachua being towards the centre, which place was formerly inhabited by a tribe of the Seminole nation, which abandoned it; and according to the dimensions and form which were given to the tract in said plot, and the report annexed to it, it is specified that, as the leagues used in that province are equal to three English miles, containing each one thousand seven hundred and sixty yards or eighty chains of Gunter, the space granted contains two hundred and eighty-nine thousand six hundred and forty-five English acres, and five-sevenths of an acre, equal to three hundred and forty-two thousand two hundred and fifty arpents, and one-seventh of an arpent, a measure used in West Florida, and counting for an English acre one hundred and sixty perches and sixteen and a half feet, London measure, to a lineal perch as used in the time of the British dominion, and tolerated since by our government. Wherefore, in the exercise of the faculties which have been conferred upon me by the king our lord, whom may God preserve, and in his royal name, I do grant, gratuitously, to the said Don Fernando de la Maza Arredondo and Son, the number of acres of land as above stated, under the limits, courses, and distances, pointed out in the figurative plot, a copy of which will be annexed to this title, in order that they may possess the same as their own property, and enjoy it as the exclusive owners thereof, and in the terms exposed in my decree inserted in it.
In testimony whereof, I have ordered the execution of this title, signed before me, and sealed with the royal seal used in my office, and countersigned by the commissary of war, Don Pedro Carambot, his majesty's secretary of this intendancy and of the subdelegate superintendency general. Given in the Havana, on the 22d of December 1817.
[L. S.] ALEXANDRO RAMIREZ.
An account of the preceding title has been taken and registered in the book prepared for that purpose in the secretary's office under my charge. Havana, date as above.
This grant was alleged to have been authorised by a royal order of the king of Spain, and other proceedings, of which the following translation was annexed to the petition.
Don Juan Nepomuceno de Arrocha, honorary comptroller of the army, and secretary of the intendancy of the public finance of this island, and that of Puerto Rico.
I do hereby certify, that, in compliance with the decree of the 7th of this month, of the superintendent Don Francisco Javier Ambari, made at the petition of Don Fernando de la Maza Arredondo, of the 4th instant, and filed in the secretary's office under my charge, exists the royal order of the following tenor.
His majesty, understanding by the letters of your lordship of the 14th and 18th of August, and 21st of October, of the year last past, No. 18, 28, and 107, of the resolution concluded with the captain general of that island, to regulate all that appertains to the branch of the royal finance, and to attend to the protection and advancement of the two Floridas; and having conformed himself with the advice given by the supreme council of the Indies, in their deliberations held on the 11th of August last, his majesty has been pleased to approve, for the present, all which has been done with respect to the regulations of said branch, as also the supplies administered by the board of royal finance for the payment of the regiment of Louisiana, and other indispensable expenditures for the fortifications and defence of the cities of St Augustine and Pensacola, authorising your lordship, in case of necessity, to aid or supply them. His majesty, likewise, has determined, for the present, the superintendency of the two Floridas in favour of your lordship, as superintendent of the island of Cuba: and, lastly, his majesty has been pleased to command to inform your lordship, as I now do, that you facilitate the increase of the population of those provinces, by all means which your prudence and zeal can dictate, informing, as soon as possible, the motives for the absence of Don Juan Miguel de Losadas and Don Manuel Gonzalez Almirez, from their offices.
All which I communicate to your lordship by royal order, and for your intelligence and compliance thereof. God preserve your lordship many years.
Madrid, 3d September 1817.
To the Intendant of Havana.
Havana, 10th October 1823.
JUAN NEPOMUCENO DE ARROCHA.
From Senor Don Jose Fuertes, intendant pro tem., adving his having delivered the command to Senor Don Alex'o Ramirez, chosen by his majesty.
Habano, 3d July 1816.
The king, our master, having been pleased to confer on Senor Don Alexander Ramirez, by a royal commission of the 5th of October of the year last past, the posts of intendant of the army, superintendent general subdelegate of the royal domain, which I have provisionally exercised by royal order, he has this day taken possession of them, and I advise your excellency of it for your information, and due effects to the service of his majesty. May God preserve your excellency many years.
JOSE DE FUERTES.
His excellency subdelegate of the royal domain.
St Augustine, Florida.
The petition proceeded to state: that as an inducement to the Spanish government to make the said grant to F. M. Arredondo and Son, they had offered and stipulated to establish on the same two hundred families, in the event of the said land being granted to them in full dominion and absolute property; which offer was accepted by the Spanish government, it requiring that the families should be Spanish. The grant was made in absolute property, subject only to the condition that the grantees should begin their establishment in three years from the date of the grant. That though the settlement of the lands was begun in the months of September or November 1820, yet F. M. Arredondo, wyo wast at Havana, ignorant of the fact, and knowing that previous to that time the settlement had been prevented by the disturbed state of East Florida, obtained from Don Ramirez a prolongation of the time of settlement for one year, by a decree dated 2d December 1820. The petition avers a performance of the conditions of the grant, and that certain Spanish families and subjects were settled on the lands before and after the prolongation of the time for the same, and of the time allowed by the eighth article of the treaty between Spain and the United States, of the 22d February 1819, and that the settlements continue, there being on the lands a number of Spanish families and citizens of the United States, cultivating and improving the same.
The petition avers that from the situation of that part of Florida in which the lands are situated, from the beginning of 1818 until July 1821, they were entitled to that part of the provision of the eighth article of the treaty, which grants and secures to the owners of lands in the territories an extension of time for the performance of grants. During a considerable period of time after the grant, the war between the United States and the Indians prevented the full accomplishment of the purposes of the petitioners for the settlement of the land; and the danger from the Indians, which would attend any settlement of land at Alachua, continued until the government of the United States took efficient means to protect the country, by posting troops in the same. The petitioners claimed, that by this state of things, and from these causes, they were exempt from the full performance of the condition of the grant, as to the settlement of the land.
The petition proceeds to state, that the cession of East Florida to the United States has rendered it wholly impracticable for the grantees to introduce and settle two hundred Spanish families on the land, the emigration of the same being prohibited by the laws of Spain. And the petitioners insist: that the original grantees have thus been prevented performing the conditions of the grant; that the original grantees and their assigns are thereby discharged of all obligation to settle families on the lands included in the grant: and that the United States have failed to ratify the grant, as they were bound to do under the treaty with Spain, in consequence of which the grantees could not proceed safely to settle and improve the land.
The petition alleges that the claims of the petitioners have been submitted to the examination of the board of commissioners, under the act of congress of 3d March 1828, entitled 'an act amending and supplementary to the act for ascertaining claims and titles to lands in the territory of Florida, and to provide for the survey and disposal of the public lands in Florida:' and the proceedings of the board of commissioners on the same, are annexed to the petition-that the lands claimed by the petition are within the territory of Florida ceded to the United States by the treaty with Spain, of 22d February 1819; that these claims have not been decided and finally settled under the provisions of the act of congress of 23d May 1828, entitled 'an act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida;' that the respective claims of the petitioners contain a greater quantity of land than the commissioners were by the acts of congress authorised to confirm; and that the said claims of the petitioners for the said lands, have not been reported by the commissioners appointed under any of the aforesaid acts, or any other, or by the register and receiver, acting as such, under the several acts of the congress of the United States in that case made and provided, as antedated or forged.
The petition prays that the title of the petitioners to the land claimed by them may be inquired into by the court, according to the provisions of the act of congress, &c.
To this petition an answer and supplemental answer were filed by the attorney of the United States for the district of East Florida, at May term 1829, and subsequently.
The answer requires that the petitioners shall make due proof that the tract of land claimed by the petitioners was granted by the Spanish government to Fernando de la Maza Arredondo and Son, with all the formalities and solemnities used in such cases; and that the petitioners held by regular and legal conveyances under the said grant; and that the court would require of the said petitioners due proof, according to law and the usages of courts of equity, of the making and execution of the said grant, deeds and conveyances, and of the matters and things therein contained, and in the said bill thereof alleged and set forth.
The answer avers that if the grant was executed, as alleged in the petition, that then Don Alexander Ramirez the intendant, &c. exceeded the powers conferred on him by the crown of Spain; and that no power had been conferred upon the intendant to make grants of land in Florida of the magnitude and description of the one claimed and described in the petition; and if such grant was made by the intendant, it was made contrary to, and in violation of, the laws, ordinances, and royal regulations of the government of Spain, providing for the granting of land in its provinces, and was never approved by the king of Spain; without whose approval it was wholly null and void. And that if it was so made by the Spanish government to the said Fernando de la Maza Arredondo and Son, at the time and in manner and form as the petitioners have alleged, it was made upon the precise obligation, and express condition of their binding themselves to establish there, to wit, on the said tract of land, two hundred Spanish families, with all the requisites which were pointed out to them, and the others which were to be pointed out to them, by the superintendency, &c. to wit, on their beginning their establishment on the said tract of land within three years, at most, from the date of said grant, without which the said grant was to be considered null and void: which condition the said Fernando de la Maza Arredondo and Son accepted, and engaged to perform. That the said Fernando de la Maza Arredondo and Son did not commence their said establishment on the said tract of land within the said three years; and they have not established on the land two hundred Spanish families, according to their engagement, but have wholly failed so to do: and farther, that the said condition and obligation have not been complied with and fulfilled, either by the said Fernando de la Maza Arredondo and Son, or by any other person or persons in their behalf, nor by the said petitioners; so far from it, that the said Fernando do la Maza Arredondo and Son, after the time when the said grant is supposed to have been made as aforesaid, and without having in any manner complied with the condition thereof, removed their family from the province of East Florida to the island of Cuba, then and still one of the dependencies of the crown of Spain; to wit, after the cession and transfer of the said province to the said United States, and did then totally abandon the said tract of land. And that if the said grant was made as is alleged, and upon the condition mentioned, the performance of the said condition was a matter of special trust and confidence reposed by the said Spanish government in the said Fernando de la Maza Arredondo and Son, which could not have been delegated by them to any other person or persons; and that the sale and conveyance of said tract of land, or of parts thereof, to the said petitioners, by the said Fernando de la Maza Arredondo and Son, in manner and form as is in said bill alleged, without having first performed the said condition, was a violation of the special trust and confidence so reposed in them as aforesaid, and rendered the said grant (if any such was ever made), by the laws then in force in East Florida, entirely null and void.
The answer denies that Fernando de la Maza Arredondo and Son were prevented from a compliance with and performance of the condition of the supposed grant, by any such causes, as are in the bill of complaint, by the said petitioners, alleged and set forth, or that such difficulties at any time existed in relation to the making of the settlement as is charged in the petition; and avers that it would have been perfectly practicable, with due and reasonable exertion, to have proceeded with the establishment and location of the two hundred families on the said tract of land, at any time after the period when the grant is alleged to have been made; and that no circumstances have at any time since that period existed, which could have entitled Fernando de la Maza Arredondo and Son, or the petitioners, to the benefit of the eighth article of the treaty in the bill of complaint mentioned; and that, if any of the parties ever were thus entitled, they each and all of them wholly failed to comply with said condition during the extension of time given by said treaty; and, farther, that, if any such grant of further time was given by the intendant, &c. to the said Fernando de la Maza Arredondo and Son, for the performance of the said obligation, as is mentioned in the said petition, such grant was rendered null and void by the latter clause of the said eighth article of the aforementioned treaty: and that if it had not been thus rendered null and void, the said Fernando de la Maza Arredondo and Son, and all persons claiming any interest in the said land through them, entirely failed to avail themselves of the benefit intended to have been conferred thereby. The answer denies that the said petitioners are, by the circumstances by them thereunto alleged, stated, and set forth, or by any other circumstances whatever, absolved from the performance and fulfilment of the said condition and obligation; or that they, or either of them, are entitled to hold the said tract of land, or any part thereof, discharged from the said condition or obligation: and farther avers, that, if the said grant was made to Fernando de la Maza Arredondo and Son in manner and form as is stated in the petition (which is not admitted), it was expressly made, and understood to be, without prejudice to a third person, and especially without prejudice to the native Indians of that soil, who might then have returned, or who might wish to return, to establish themselves there again; and, that after the time when the grant is alleged to have been made as aforesaid, such of the native Indians of that soil as were then absent, or some of them, did return, and, together with others of them, who were already there, wished to and did establish themselves upon the said tract of land.
And the answer avers that the right and title to the said tract of land was, previous to, and at the time when the grant is alleged by the petitioners to have been made, vested in the Florida tribes of Indians, who, previously had, and then did claim title thereto, and occupy the same in their customary manner, as their circumstances required; and that the native Indians formed a part of the Florida tribes: and, farther, that the claim, title, and occupancy of the aforesaid Indians, constituted the only real obstacle (if any existed) to the location and settlement of the two hundred Spanish families on the said tract of land; and that the claim, title, and occupancy of the Indians was a matter of public notoriety, and could not have been unknown to Fernando de la Maza Arredondo and Son, at the time when the grant is alleged to have been made as aforesaid. And the answer farther says, that the said claim and title of the said Indians to the said tract of land was not extinguished until the 18th day of September in the year of our Lord 1823.
The answer submits that by the laws, ordinances, and royal regulations of the government of Spain, which were in force in the province of East Florida at the time when the said grant is alleged to have been made, it was provided that the distribution of lands should be made with equity, and without any distinction or preference of persons, or injury to the Indians; and that it was therein and thereby especially provided and commanded, that the lands which might be granted to Spanish subjects should be without prejudice to the Indians, and that those granted to the injury of the Indians should be restored to their rightful owners.
The answer further avers, that Fernando de la Maza Arredondo and son were, at the time when the grant is alleged to have been made as aforesaid, and still are, Spaniards, and subjects of the government of Spain, and that the grant of the tract of land (if any such was ever made, as is in said petition stated) to Fernando de la Maza Arredondo and son was made to the prejudice and injury of the Florida tribes of Indians.
The answer proceeds to state that the United States claim title to the said tract of land by virtue of the second article of the treaty 'of amity, settlement and limits, between the United States and his catholic majesty, which was made, concluded and signed, between their plenipotentiaries, at the city of Washington, on the twenty-second day of February, in the year of our Lord one thousand eight hundred and nineteen, and which was accepted, ratified and confirmed by the president of the same United States, by and with the advice and consent of the senate thereof, on the twenty-second day of February in the year of our Lord one thousand eight hundred and twenty-one, by which his catholic majesty ceded to the said United States, in full property and sovereignty, all the territories which then belonged to him, situated to the eastward of the Mississippi, known by the name of East and West Florida, in which East Florida the said tract of land is situate; and, also, by virtue of the treaty first above mentioned, which was accepted, ratified and confirmed by the president aforesaid, by and with the advice and consent of the senate aforesaid, on the second day of January, in the year of our Lord one thousand eight hundred and twenty-four.
The supplemental answer avers that if any such grant of further time was given by Don Alexander Ramirez, intendant, &c., as aforesaid, to Fernando de la Maza Arredondo and son, to perform the conditions of the said supposed grant, the grant of further time was equivalent to a new grant for the said lands, and that it was made contrary to, and in violation of, the laws, ordinances and royal regulations, and without any power or authority on the part of the said Don Alexander Ramirez, intendant, &c., as aforesaid, to make it; and that, if the said Don Alexander Ramirez, intendant, &c., as aforesaid, had been invested by the said Spanish government with competent power and authority to make grants of land in Florida of the magnitude and description of the one claimed and described by the petitioners aforesaid, in their said petition or bill of complaint, the said grant of farther time aforesaid was made since the 24th day of January 1818, as appears by the showing of the petitioners themselves, and was and is rendered wholly null and void by the provisions of the latter clause of the eighth article of the treaty. And, that, if any such grant of the said lands was made as aforesaid, the said Fernando de la Maza Arredondo and son wrongfully represented to the said Alexander Ramirez, intendant, &c., as aforesaid, in order to obtain it, that the said lands had been abandoned by the said Indians and were vacant. And that it was in consequence of the said false, fraudulent and wrongful representations of the said Fernando de la Maza Arredondo and son, that he, the said Don Alexander Ramirez, intendant, &c., as aforesaid, declared the said lands to be crown lands, and granted them to the said Fernando de la Maza Arredondo and son; whereas, in truth, and in fact, the said lands were not vacant, nor abandoned by the said Indians, but that on the contrary, the said Indians had constantly been, and still were, possessed of the said lands, at the date of the said supposed grant, and that they had continually occupied the same, and had never left the said lands, unless they were driven off by a superior and lawless force, and then only temporarily: and, therefore, if the said grant was made, as is alleged in the said petition or bill of complaint, and the said Don Alexander Ramirez, intendant, &c., as aforesaid, had been and was invested, by the Spanish government aforesaid, with competent power and authority to make the same, it was fraudulently and surreptitiously obtained, by imposing on the said Don Alexander Ramirez, intendant, &c., as aforesaid, a false representation of facts; and, as it might have been cancelled by the king of Spain on that ground, so it might now be cancelled by the sovereign authority of the United States: and that court of equity cannot, consistently with the principles which govern that tribunal, lend its aid to give effect to a grant obtained by fraud and misrepresentation. And the answer prays that the petitioners may be required to show and prove, on the hearing of the cause, the specific power and authority which had been conferred (if any such power had been conferred) by the Spanish government, upon the said Don Alexander Ramirez, intendant, &c., as aforesaid, at the time when the said supposed grant is alleged to have been made as aforesaid, to make grants of land in East Florida, and, particularly, that they may be required to show and prove the specific power under which he claimed to act in making the said supposed grant of lands, and also the said grant of further time for the performance of the aforesaid conditions; if, indeed, any such grants were ever made by him, which is not admitted.
To the answer and the supplemental answer of the United States, the petitioners put in a general replication: and the case was regularly proceeded in to a hearing.
On the 1st of November 1830 a decree was given in favour of the petitioners; from which decree the United States appealed to this court.
The evidence adduced in the court below, on the part of the petitioners, consisted of the proceedings and the testimony given before the commissioners of the United States, upon the claim presented for their consideration according to the provisions of the act of congress; and of additional documentary and oral evidence. Testimony was also given on the part of the United States to sustain the allegations in the answer, and applicable to the several matters therein contained. The particulars of the matters so exhibited in evidence are not inserted in the report; as the opinion of the court, and the dissenting opinion of Mr Justice Thompson, fully state the facts of the case, which were considered as established by this evidence.