Statement of the Case.

vacant land in a condition of mortmain, and might be granted without prejudice to any third party. He stated in his petition that he had for the last thirty years and more been rendering services to the country, both by personal service and property, and without ever having been paid anything in the way of compensation for such services, and in consideration of all of which he asked and prayed the governor for the sake of justice to accede to his prayer. On December 7, 1845, Governor Armijo granted the petition, and placed the following memorandum thereon:

"This government being convinced of the valuable services Don Antonio Sandoval has rendered, and is now rendering the country, as well during the time to which he refers as also during the six years he served administering the prefecture of the second district, with the salary of one thousand five hundred dollars, of which not even a half real has been paid to him, the sum due him amounting to nine thousand dollars, and the statements in this petition being true, I do, in the exercise of the power in me vested by the-laws, and also in consideration of all the premises and as a just title acquired, make to him the grant for the land he solicits, with all the dimensions and pasture land he asks, that he may enjoy the same in the name of the supreme government of the Mexican nation and under my concession, free and exempt from all tax or tribute.

"MANUEL ARMIJO."

Following the memorandum is a written certificate signed by the comptroller of the departmental treasury of New Mexico and acting treasurer of the same, certifying that Antonio Sandoval, during the period of forty years, as appears from the record of the books of the treasury, has been serving the nation as a military and civil officer, and has loaned during that time numerous sums of money to the nation without receiving one half real interest, and that there are now due him large sums as appears from the interest entries in the office and the evidences in possession of the parties interested on account of salaries and loans. Then follows the written certificate of Jose Baca y Ortiz, dated at La Estancia, December 15, 1845, in which

Counsel for Parties.

he certifies that on that day he, accompanied by witnesses, placed Antonio Sandoval, through his agent, Juan Antonio Aragon, in juridical possession of the granted lands.

On July 8, 1848, Sandoval conveyed, by a deed of gift, the above described land to his nephew, Gervacio Nolan. This conveyance was acknowledged before the clerk of the county of Bernalillo, Territory of New Mexico, on July 8, 1848.

After the passage of the act of Congress, July 22, 1854, establishing the office of surveyor general in New Mexico, and on July 12, 1855, Nolan, the grantee of Sandoval, filed in the office of the surveyor general the papers above described, upon which he asked for the approval of that officer, and that he would recommend the grant for confirmation by Congress. Nolan died in 1858, before anything was done in regard to his petition. After his death his widow and children, by guardian, applied to the surveyor general, stating the fact of his death, and asked that the grant of the land should be confirmed to them as the present owners, and that a patent should be issued in their favor. Testimony was taken in 1861, relating to the petition, before the then surveyor general, but no final action was bad in the case until it was submitted to Surveyor General Proudfit, who, on January 4, 1873, reported that in his opinion the title was perfect in the legal representatives of Nolan, deceased, and recommended that it be confirmed by Congress. Congress did not, however, confirm the grant, and under instructions from the Commissioner of the General Land Office the case was reëxamined by Surveyor General Julian, who, in a report to the Commissioner, dated July 21, 1886, recommended the rejection of the claim by Congress for the reasons therein stated by him. This report was concurred in by the Commissioner, and by him transmitted on December 17, 1886, to Mr. Lamar, Secretary of the Interior. No further action seems to have been taken. The appellants herein take title from the widow and children of Nolan by conveyance dated September 23, 1880.

Mr. John H. Knaebel for appellants. Mr. Ernest Knaebel was on his brief.

Opinion of the Court.

Mr. Matthew G. Reynolds for the United States. Mr. Solicitor General was on his brief.

MR. JUSTICE PECKHAM, after making the above statement of facts, delivered the opinion of the court.

The judges of the court below, while rejecting the claim of appellants, differed widely in regard to the grounds upon which such rejection should be placed. Mr. Justice Sluss, in an opinion that was concurred in by Mr. Justice Fuller, said that the case was to be decided under the Mexican colonization law of August 18, 1824, and the regulations of November 21, 1828, which in his judgment had not been totally repealed by the law of April 4, 1837, and the grant, being subject to the first named law and to the regulations above mentioned, could not be valid for a greater quantity than eleven square leagues, nor become a perfect title until the grant had been approved by the departmental assembly.

It appears that eleven square leagues would embrace about 50,000 acres of land, and hence a grant of 415,000 acres would, under the law and regulations, be far beyond the power of the officials to make to any one person.

Mr. Justice Murray, while concurring in the conclusion to reject the claim, was of opinion that the law of 1824 and the regulations of 1828 had been entirely repealed by the law of April 4, 1837, but he did not think that the governor had the power merely as representative of the supreme executive to make the grant, and there was no evidence of any special power having been delegated to him.

Mr. Chief Justice Reed also concurred in the conclusion to reject the claim but did not agree with all that was said in the opinion of Mr. Justice Sluss, being himself of opinion that, while the law of 1824 was repealed by that of 1837, the regulations of 1828 were not thereby wholly repealed. He thought that the grant in this case was made, not under the law of 1824, but under the regulations of 1828; that the law regulated the matter of the disposition of the public lands within the States, and conferred upon the executive the power to make all necessary

Opinion of the Court.

regulations for the disposition of such lands within the Terri tories, of which New Mexico was one, and the question in his judgment was, not whether the law remained in force but whether the regulations continued operative when the grant was made; that it was manifest the law which governed the matter within the States might be repealed without at all affecting the regulations established by the executive governing the same subject within the Territories. Being subject to those regulations, we suppose the quantity of the grant was an insuperable bar to its validity, in the view of the Chief Justice.

Mr. Justice Stone dissented from the decree rejecting the claim, and was of opinion that the making of the grant in question was within the competency of the supreme executive, and that Governor Armijo was his appropriate ministerial agent in its execution.

In reviewing questions arising out of Mexican laws relating to land titles we recognize what an exceedingly difficult matter it is to determine with anything like certainty what laws were in force in Mexico at any particular time prior to the occupation of the country by the American forces in 1846-1848. This difficulty exists because of the frequent political changes which took place in that country from the time the Spanish rule was first thrown off down to the American occupation. Revolutions and counter-revolutions, empires and republics, followed each other with great rapidity and in bewildering confusion, and emperors, presidents, generals and dictators, each for a short period, played the foremost part in a country where revolution seems during that time to have been the natural order of things. Among the first acts of each government was generally one repealing and nullifying all those of its predecessors.

If, however, the validity of this grant were to be decided under the provisions of the colonization law of 1824, and the regulations passed in 1828, it seems to us there would be little difficulty in determining that the appellants had failed to make out their case. The provisions of the act of 1824 were plainly violated in this grant, because it contained more than eleven square leagues. This was prohibited by that law. Reynolds'

Opinion of the Court.

Compilation of Spanish & Mexican Land Laws, pp. 121, 122, sec. 12; Hall's Mexican Law, p. 149, sec. 498.

And also, before the grant in question was made, there had been a previous one, dated November 28, 1845, conveying to Sandoval the land embraced in what was called the Bosque del Apache grant, which also exceeded eleven square leagues in extent, the grant being made by the same governor (Armijo), although juridical possession was not delivered until March 7, 1846. Having obtained a grant of more than eleven square leagues before he made his petition for the grant now in issue, be had acquired all that the law of 1824 permitted him to take, and the subsequent grant was not valid. United States v. Hart

nell, 22 How. 286.

Another objection to the title is that there is no record of its existence in the archives of New Mexico. Although no question is made as to the genuineness of the papers set forth in the foregoing statement of fact, namely, the petition of Sandoval, its allowance by Governor Armijo, the certificate of the comptroller and acting treasurer, and the certificate of the delivery of juridical possession by the justice of the peace, yet none of these came from the archives of the country, and there is no record that the departmental assembly ever concurred in the grant, as is necessary under the law of 1824. Reynolds, p. 142, sec. 5. If the approval of that body could not be obtained, the governor was to report to the supreme government, forwarding the proceedings in the matter for its consideration. Sec. 6. Nothing of this kind appears in the archives or in the records of the assembly. Nor has there been produced even from the hands of the claimants any approval of the grant by the assembly. No matter how formal and complete the written documentary evidence of title may be, yet when coming from private hands it is insufficient to establish a Mexican grant if there is nothing in the public records to show that it ever existed. Peralta v. United States, 3 Wall. 434, 440. Mr. Justice Davis, in delivering the opinion of the court in that case, said:

"The Mexican nation attached a great deal of form to the disposaion of its lands, and required many things to be done before the proceedings could ripen into a grant. But the im