APPEAL from the Superior Court of East Florida. Joseph Delespine and others presented a petition to the superior court of East Florida, claiming 10,240 acres of land, at the north head of Indian river, by virtue of a concession from Governor Coppinger, the Spanish governor of East Florida, to Pablo Fontane, dated November 10th, 1817. The grant, and circumstances of the case, are full stated in the opinion of the court. The superior court of East Florida decreed a confirmation of the grant; and the United States prosecuted this appeal.
The case was argued by Gilpin, for the United States; Downing appeared as counsel for the appellees.
Gilpin, for the United States, relied on the following grounds:
1. That the evidence in the case is insufficient to prove that the alleged grant or concession was ever made. 2. That if it be proved or admitted, that the alleged grant or concession was ever made, still, that the same was not in conformity to the royal order of 29th March 1815, by virtue of which, it is declared that the concession was made.
I. This is an alleged concession of Governor Coppinger. The evidence to support it is a copy of the concession, certified by Tomas de Aguilar, and it is accompanied by an order and certificate of survey. The only point to be considered in regard to this evidence is, whether or not the facts bring the case within the rule established in that of the United States v. Wiggins, 14 Pet. 348. This court certainly will not extend the scope of that rule, so as to give any weight to these secondary evidences of title which it does not indisputably recognise. It is not denied, that the production of the order of survey, and the plat and certificate made in pursuance thereof, go far to bring it within that decision; but it may not be improper to ask the paticular consideration of the court to the depositions annexed to the record, which would seem to show, that the existence of the original concession was a matter of doubt at a very early period; that in March 1822, very shortly after the cession of Florida, before the alleged losses of papers are supposed to have occurred, and when the grantee was yet living, and sold part of his interest to Delespine, it appears not to have been in existence; and that the particular fact of its actual existence, at any time, is not proved by a single witness.
II. This grant purports to be founded on the royal order of 29th of March 1815. 2 White's New Rec. 279. That order authorizes the governor to grant land to the soldiers in the militia; the quantity being the same 'as established by regulation in the province, agreeably to the number of per sons composing each family;' and it also contemplates special rewards to certain officers mentioned in it. If Fontane, the grantee, was, as it is presumed he was, one of the militia authorized to take under this order, yet he was entitled only to the quantity 'established by regulation,' which was much less than that included in the alleged concession. It may then be said, in the language of this court, in the case of the United States v. Clarke, 8 Pet. 448, that 'if the validity of the grant depends on its being in conformity with the royal order, it cannot be supported.' It is true, that this court, in the case of the United States v. Percheman, 7 Pet. 96, in examining the effect of a recital of the royal order of 29th March 1815, on a grant of a large body of land, declared, 'that the reference to it was to be regarded no further than as showing that the favorable attention of the king had been directed to the petitioner.' If the facts of the present case are similar to those which led the court in that case, so to regard the effect of the royal order, it is admitted, that the grant, if made, was valid. But are they similar? In the first place, Percheman was a distinguished officer of dragoons, who had rendered important military services; and this court said, that the governor made the grant, as a reward for these services, which he had full authority to do, under the laws of the Indies. But, in the second place, it happened, that Percheman was himself one of the officers individually mentioned in the royal order of 1815, as entitled to a special reward; and therefore, the order was naturally and properly recited in the grant. These considerations evidently made a large grant, in that case, perfectly consistent with a reference to the royal order of 1815. But neither of them is applicable to the present case. Neither the petitioner nor the grant refers directly or indirectly to any military services; nor was the grantee, Fontane, one of those specially named in it. How, then, can such a grant, solicited and made, as this purports to be, 'in virtue of the said royal order,' be valid?
III. The grant is for a tract of land 'on a creek which, issuing from the north head of Indian river, westwardly, runs to the northwest.' The certificate of the survey is for a tract 'in the territory of Musquito, north-westwardly of Indian river.' The petition of the claimant is for a tract 'at the north head of the river Ys, or Indian river, on the west side thereof.' This discrepancy is fatal to the validity of the claimant's title. The land surveyed and claimed is not indetical with that granted; the title to the latter has never been perfected, even by a survey; it is too late for this now to be done; and therefore, the decree of the superior court of East Florida, made pursuant to the description in the grant, cannot cure the defect resulting from the negligence of the claimant himself. It falls within the principles which have already been before the court at this term, in the case of the United States v. Heirs of Forbes.
WAYNE, Justice, delivered the opinion of the court.