He made a grant to Clamorgan, who stipulated, upon his part, that he would introduce a colony from Canada, for the purpose of cultivating hemp and making cordage.
This obligation he entirely failed to perform.
By the laws and ordinances of the Spanish colonial government, (which this court is bound, under the act of 1844, to adopt, as one of their rules of decision,) this condition had to be performed before Clamorgan could become possessed of a perfect title.
The difference between this case and that of Arredondo explained.
If the Spanish Governor would have refused to complete the title, this court, acting under the laws of Congress, must also decline to confirm it.
After the cession of the province of Louisiana to the United States, Clamorgan could not legally have taken any steps to fulfil his condition. He was forbidden by law. By the treaty of cession, no particular time was allowed for grantees to complete their imperfect grants. It was left to the political department of the government, and Congress accordingly acted upon the subject.The 3d day of March, 1804, was the time fixed by Congress, and the grant must now be judged of, as it stood upon that day.
THIS was an appeal from the District Court of the United States for the of Arkansas.
Glenn and Thruston, the appellants, filed a petition in the District Court of Arkansas, on the 24th of January, 1846, in virtue of the act of 1824, as revived by the act of 1844, claiming confirmation of a concession of a large tract of country which lies partly in Arkansas and partly in Missouri, consisting of nearly half a million of acres of land and known as the Clamorgan grant.
[p251] The circumstances of this grant are fully set forth in the opinion.
The District Court decided against the claim and the petitioners appealed to this court.
It was argued by Mr. Webster and Mr. Johnson, for the appellants, and Mr. Crittenden, (Attorney-General,) for the United States. The points made by the counsel respectively were the following.
For the appellants:
1st. Because if the concession was upon conditions they were conditions subsequent to the vesting of the estate in the grantee, and could only be taken advantage of by some proceeding for that purpose instituted by Spain, or by France, or by the United States claiming under Spain, and no such proceedings have been instituted. 3 Am. St. Papers, 270; 5 Id. 704.
2d. Because if the concession was upon conditions which should have been complied with in order to vest the estate as against Spain, whilst the conditions were practicable and might have been performed by the grantee, the estate vested without such performance because the province was ceded by Spain before the time for performance had expired, and because of the change of government, manners, &c., consequent on that cession. The United States v. Arredondo et al., 6 Pet. 706; Soulard et al. v. The United States, 4 Pet. 511; Delassus v. The United States, 9 Pet. 117; The United States v. Percheman, 7 Pet. 51; Strother v. Lucas, 12 Pet. 410; The United States v. Forbes, 15 Pet. 173; The United States v. King, 3 How. 773; Chouteau v. Eckhart, 2 How. 344; The United States v. Lawton et al., 5 How. 10; Hughes et al. v. Edwards et al., 9 Wheat. 489; 2 Black. 157; 2 Thomas's Coke, 18.
3d. Because there was a sufficient survey of the grant; and
4th. Because no such survey was necessary, the calls of the grant being sufficiently certain of themselves to separate the land granted from the rest of the royal domain.
5th. That the District Court had jurisdiction over the claim. Act of 26 May, 1824, c. 173, 4 Stat. at Large, 52; act of 9 July, 1832, c. 180, 4 Stat. at Large, 565; act of 17 June, 1844, c. 95, 5 Stat. at Large, 676.
6th. That the decision of the District Court of Missouri was no bar to this suit.
Mr. Crittenden, for the United States.
I. That the claim is barred under both the act of 1824 and 1832. [p252]
II. That Delassus had no authority to make such a concession, and the burden of proof is on the claimants to show that he had such authority.
III. That the concession could not have been perfected into a complete title, from the political considerations mentioned.
IV. That the conditions of the concession were never performed during the sovereignty of Spain over the country, or since, and that Clamorgan must be considered as having abandoned the claim.
V. That the cession of Louisiana to the United States did not make the concession absolute, without the performance of the conditions.
VI. That the survey of 1806 was void for want of authority to make it.
VII. That the concession is void for uncertainty in the description of the land intended to be conceded.
That Clamorgan lost all claim to have the concession perfected into a complete title, even if it had been in all other respects unobjectionable, by his failure to comply with the requisitions of the 23d article of Morales' regulations of 1799, to make known his incomplete title within the six months limited by that article. Read the 23d article in connection with the four preceding articles. 2 White's Recop. 240.
Mr. Justice CATRON delivered the opinion of the court.