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UNITED STATES, Appellants, v. Heirs of JOHN FORBER

January 1, 1841

UNITED STATES, APPELLANTS,
v.
HEIRS OF JOHN FORBER, APPELLEES.



APPEAL from the Superior Court of East Florida. The executor of John Forbes, on the 20th of May 1829, presented a petition to the superior court for the eastern district of Florida, claiming 10,000 acres of land, 7000 of which were surveyed on the waters of 'Little St. Marys river,' in the then district of Nassau, in East Florida; the other tract, being 3000 acres, was alleged to be situated on 'Cabbage Swamp,' also in East Florida.

The petition stated, that the grant for the land was made by Governor Kindelan, in lieu of 15,000 acres which had been surrendered by John Forbes to the king of Spain. The petition contained the 'memorial for grant,' which was presented, on the 27th July 1814, to Governor Kindelan, by John Forbes. It was, with the proceedings, as follows:

'His Excellency the Governor: I, Don Juan Forbes, partner of the firm of Juan Forbes & Company, successors of Panton, Leslie & Company, merchant, of this province, with the greatest respect, appears before your excellency, and says, that the said firm of Panton, Leslie & Company obtained, in the year 1799, a grant of 15,000 acres of vacant lands in the district of St. John, in order to employ their slaves in the agriculture and for grazing their cattle, as is seen by the certificate annexed; but after a short time, they were under the necessity to abandon them, as being of an inferior quality, the same thing happened to which, which frequently happens in this province, where the planter does not every time succeed in his choice of land, which he perceives only when a sorrowful experience shows him his error; and as it has been, for many preceding years, that the government, in attention to similar misfortunes, and to the expenditures and losses which have been incurred, has had the goodness to permit the taking up other vacant lands, provided the prior grant be abandoned. Finding myself situated in the same case, and wishing to establish a rice plantation, which production we have been, until the present time, under the necessity to import from foreign parts; I, from this moment, abandon the said 15,000 acres of land in behalf of his majesty (whom may God have in his holy keeping!) supplicating him to admit it, and in lieu thereof, to grant me an equivalent in the district of Nassau river. Therefore, I supplicate your excellency, be pleased to order that my former abandonment be received, and, in consequence, that 10,000 acres be granted to me, in said district of Nassau river; the survey of which I will produce, as soon as the tranquillity of the province enables me to execute it. Which favor, &c. JUAN FORBES.'

On the 27th July 1814, Governor Kindelan ordered, on the petition, 'let the comptroller inform on the subject.'

The comptroller reported, on the 28th July 1814, that 'Whereas, in this province, lands are distributed gratis, no record has been entered in the comptroller's office, of lands so given, nor to whom given, for which reason it is not known what lands have been given, and what remain vacant. Therefore, nothing can be said on the subject about which information is required: it appears, however, that it is useful to promote the culture of rice, to which, as the interested party alleges, the lands granted to him the 7th of August, 1799, for the express purpose of pasturage, as appears by the annexed certificate of the then notary of government, Juan de Pierra, are not adapted.'

On the same day, Governor Kindelan made the following 'grant,' by––

'DECREE: St. Augustine, on the 28th, of July 1814. It is permitted to this interested party to give his formal abandonment of the 15,000 acres of land, comprehended in the document annexed to the petition, and in lieu of them the 10,000 are granted to him, without prejudice to a third party, for the objects solicited, in the district or bank of the river Nassau; and in consequence, let the corresponding certificate be issued in his behalf, from the secretary's office, in order that it may serve him as a title in form, and it will be the duty of the party to produce the plat and demarcations in the proper time, and let the expediente be registered in the secretary's office.

KINDELAN.'

On the 23d October 1816, George J. F. Clarke, 'the surveyor-general,' certified that he had made 'a survey' of 7000 acres at the head of the river Little St. Mary's or St. Mary's river, and annexed 'a plat' of the same to his certificate of survey, which, the certificate stated, he 'keeps in the register of surveys under his charge.' On the 20th October 1816, George J. F. Clarke certified, that he had made a survey of 3000 acres 'in Cabbage Swamp, in part of 10,000' granted to John Forbes in absolute property, and annexed 'a plat' of the same to his certificate, as surveyor-general, and stated, 'that he keeps the same in the register of surveys under his charge.'

After evidence had been taken on behalf of the petitioner and of the United States, the court confirmed the claim of the petitioner to the extent for the number of acres, and at the place, as in the memorial of the said John Forbes, and the decree of the governor thereon, is set forth, to wit: 'Ten thousand acres of land in the district or bank of the river Nassau.' The United States prosecuted this appeal.

The case was argued by Gilpin, Attorney-General, for the appellants; and by Downing, for the appellees.

Gilpin, Attorney-General, for the United States.–In this case, the superior court of East Florida made a decree in favor of the defendants in error, declaring their title to 'ten thousand acres of land in the district or bank of Nassau river,' to be valid, under the eighth article of the treaty between Spain and the United States, ratified on the 22d February 1821. That title is founded on an alleged grant to Juan Forbes, by Governor Kindelan, dated 28th July 1814, of 'ten thousand acres in the district or bank of the river Nassau, for the objects solicited' in the memorial of the applicant; it being, says the grant, 'the duty of the party to produce the plat and demarcations in the proper time.' The memorial states the wish of Forbes to be permitted to abandon a previous grant of 15,000 acres of vacant land, in the district of St. John, on account of its bad quality, and to receive, in lieu of it, as he is desirous 'to establish a rice plantation,' 'these 10,000 acres in the district of Nassau river,' the survey of which he promises to produce, as soon as the tranquillity of the province enables him to execute it.' The evidence of the claimants was a certificate of Aguilar, the governor's secretary, that a copy of the 'expediente,' or record of the memorial and grant, had been given to the interested party; a certificate, dated 20th October 1816, by Clarke, the surveyor-general, that he had surveyed 'for Don Juan Forbes, 3000 acres in Cabbage Swamp, in part of 10,000 acres granted to him by the government;' another certificate, dated 23d October 1816, by Clarke, that he had surveyed for him '7000 acres at the head of the river Little St. Mary's being the complement of 10,000 acres granted to him by the government; and a deposition of Sophia Fleming, in which she says, she 'has heard that Nassau river and the Little St. Mary's are near to each other; that she does not know what district was called Nassau; and that she does not know the distance from Nassau river to Little St. Mary's.'

It does not appear, that the district-attorney excepted, in the court below, to the evidence of the grant; but judging from the case as now presented in the record, it may be doubted, whether the certificate of the governor's secretary was such a one, or was sustained by such corroborative testimony, as would make it sufficient evidence of title, according to the decisions of this court, in the case of the United States v. Wiggins, 14 Pet. 348. In that case, the secretary certified, on the day of the grant, that 'the preceding copy is faithfully drawn from the original, which exists in the secretary's office, under my charge;' in the present certificate, there is no date, and no averment either that the particular record is a true copy, or that the original does or ever did exist in the secretary's office. In that case, the corroborative testimony, on which the court chiefly relied, was a survey in strict conformity to the grant, and referring to its date; in the present, the two surveys agree with the grant in nothing but the quantity; they differ as to the location, and they make no reference to the date.

It is submitted, however, that even if the grant was made by Governor Kindelan, yet Forbes derived no valid title under it, which the court below was authorized to confirm. He solicited, in his memorial, a grant of 10,000 acres in the district of Nassau river, of which he was to produce a survey; and it was for the purpose of establishing a rice plantation. The grant was made 'for the objects solicited,' and under the duty imposed upon him 'to produce the plat and demarcations in the proper time.' There is no proof either that the land was surveyed, marked out and located according to the grant; or that the conditions of cultivation and settlement were complied with.

I. The grant was made by the governor, in general terms, as to the district in which the petitioner was to locate the tract conceded to him. The quantity was prescribed, and the district; the particular locality was to be ascertained by the survey, which was to be made 'within the proper time;' until that should be done, it was, in fact, but a mere order of survey. The eighth section of the regulations of Governor White (2 White's New Rec. 278), which were then in existence, establishes the necessity of an immediate and definite survey; the fourth section requires that possession should be taken within six months: of course, the survey must have been made and returned within that period. Ibid. 286. What the general provisions of the Spanish laws thus required, this grant made more imperative, by expressly imposing the same duty. Has it been performed? No evidence of any survey, agreeing in any respect with the grant, has been produced. The only evidence of a survey is the two certificates of Clarke. Of these, it might be sufficient to say, that they do not purport to have been made under the authority of this grant, or to have reference thereto. But supposing that they were intended so to be, they give the claimant no title. They do not accord with the grant. They are not an execution of the order of the governor. In the first place, the grant authorizes the location of a single tract; these surveys call for two distinct tracts, at different places. In the next place, the location is to be 'on the bank of Nassau river,' yet one tract is in Cabbage Swamp, about the locality of which there is no testimony whatever; and the other is on ...


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