James Moore Wayne

“ If minors be excluded for want of capacity, the same reasoning would exclude old, infirm, and indigent persons, or females of feeble capacity, and especially married women. The capacity of the grantee, and his fitness to take the grant, and the propriety of making it, under all the circumstances, were precisely the questions submitted to the discretion of the Governor, and these questions cannot be litigated over again.
7. If it be conceded that the conditions were not fulfilled, this fact can raise no presumption of abandonment in this case. ”

“ The fact that the grantee was a minor did not invalidate the grant. There is nothing in the act of 1824, or the regulations of 1828, restricting the power of the Governor in this respect. Under the Mexican and civil law, the age of majority was twenty-five; and the policy of the colonization laws was not at variance with a grant of lands to a person under that age. For aught that appears, a minor might be as capable as any other of cultivating and improving his lands. ”

“ We do not speak now of such non-performance as a cause sufficient for denying a right claimed under a genuine grant; but only as a fact in this case accounting for the non-performance of the conditions of the grant, and making it probable that Fuentes did not receive this paper until some time after its date from Micheltorena, and not until after the cession of California to the United States. ”

“ In the case at bar, the country was not only in a revolutionary state from the date of the grant, until about the period when the American forces took possession of the country, but the grantee was a minor, and so continued, until the last-named period. We maintain, that no presumption of abandonment will arise against a minor, under either the civil or common law. ”

“ That no reliable proof has been given to connect it with the book of records, which had been committed to the care of the witness, Folsom, and was burned in his office. That it does not appear that any one of the precautionary requirements, before a grant of land could be made by a Governor of California, had been complied with in this case. That there is no proof whatever that such a paper as that in question had been delivered to the claimant at any time before the power of Mexico in California had ceased ”

“ One of them does not prove even so much, but only that the signatures are like those of Micheltorena and Jimeno.
5. But these witnesses, no matter what they swear to, are unworthy of belief. They are professional witnesses. (See table in Limantour documents.) No court in California, where Manuel Castro's achievements as a witness are known, would pronounce a judgment upon his testimony. Abrego was incontestably proved to be guilty of perjury in the Limantour case, and the fact was so announced by the court.
6. The grant is dated at Monterey, on the 12th of June, 1843. ”

“ The land is to be surveyed according to the ordinance; and should there be an overplus, it was to inure to the benefit of the nation.
The title is to be recorded in the proper book, and then to be delivered to the petitioner for the land, for his security. This paper bears date the 12th June, 1843, and has the name of Micheltorena to it, which is denied to be his signature.
The first inquiry, then, concerning it, should be into its genuineness. Was it executed by Governor Micheltorena? Has the party claiming proved it? ”

“ It is not to be taken as a matter of course; nor should slight testimony be allowed to remove the presumption. Both the kind and quantum of evidence must be regarded. We proceed to state what they are in the record.
None can be found to establish with a reasonable probability the genuineness of the paper upon which the claimant relies. The only testimony bearing upon the genuineness of the paper is that of Abrego and Castro. Both speak of the signature of Micheltorena, and no further. Abrego says that he knew the Governor ”

“ In also recites that the Governor had taken all the necessary steps and precautionary proofs which were required by the Mexican laws and regulations for granting lands, and that he had granted the land upon the following conditions to the appellant:
1. That he should enclose it without prejudice to the crossways, roads, and uses; that he shall have the exclusive enjoyment of it, and apply it to such use and culture as may best suit his views. ”