APPEAL from the Spuerior Court of East Florida. 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 50,000 acres, south and north of the Musquito river. The title on which the claim was founded, 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, and 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 may have been granted by order of your excellency; and because the first to these persons have suffered a long time to elapse without taking any steps for the pretended cultivation of said land, which makes it appear that their right has, in some degree, become diminished, and there being others who offer to cultivate said land, in accordance with the wishes of the king, who is desirous of having the whole province settled; and as regards the latter, the same reasons apply in consequence of their not having complied with what they promised. Your petitioner promises, positively, to carry into effect said settlement, between the period 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 towards 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 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 favor from the accustomed bounty of your excellency.
(Signed) A. BUYCK.
St. Augustine of Florida, 22d July 1802.
ORDER FOR REPORT. St. Augustine, July 22d, 1802. Let the engineer-commandant report.
REPORT OF ENGINEER. 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 defence of the province; and so far as this department is concerned, there may be granted to the petitioner, for the purposes he mentions, the number of acres which your excellency may deem proper. This is all which I have 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.
A certificate was issued.
I certify that the foregoing is a correct translation of the annexed document, written 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 Downing, for the appellant; and by Gilpin, Attorney-General, for the United States.
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.
Gilpin, Attorney-General, for the United States.-The principles in volved in this case, are essentially the same as those discussed in that of the United States v. Heirs of Forbes (ante, p. 173). The evidence of the alleged grant is insufficient; the locality of the tract is not ascertained, either by the terms of the concession itself, or by a subsequent survey; and the conditions, express and implied, have not been performed.
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: 'a certificate issued.' This is clearly not within the rule laid down by this court, in the case of the United States v. Wiggins, 14 Pet. 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 its 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 assessment 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 of 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 originals, 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.
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 Pet. 133, 'of the locality of the concession, is too indefinite to enable a survey to be made,' and the claimant, therefore, can 'take nothing under the concession.' The concession is of 50,000 acres, 'south and north of lands at Musquito;' there is no authority, as in the case of the United States v. Sibbald, 10 Pet. 321, to make the location at any other place; the inlets or interior 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 valid title in the claimant? The alleged concession bears date in 1802, nineteen years before the surrender of Florida to the United States. The petitioner does not assert the performance of any services; the grant is not given to him as a reward. He 'promises positively to carry into effect his settlement, between the period embraced from the date of the grant and the month of December following;' he engages 'to restrain the savages from committing robberies and hostilities, who had by their incursions troubled the plantations;' 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 inducements, and subject to their fulfilment, 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 tho 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.
WAYNE, Justice, delivered the opinion of the court.