Nathan Clifford

“ Our system has always been administered by intelligent agents, under strict rules of proceeding, and their acts are interpreted by laws abounding in nice distinctions and subtle technicalities. The Mexican system was plain, simple, and well adapted to the habits of the people.
It further appears, that immediately after the 23d of March, 1844, the Romeros, with the authority of the alcalde, entered into possession, and they and their vendees have ever since resided on the land. ”

“ In that case there was not only no grant, or decree of concession, but the expediente was produced by the claimant, and was not found in the archives, nor was there any record or note of it in any book. But being satisfied that the petition, and the permission of the governor for the claimant to occupy the land provisionally, were genuine, and the possession having been uninterrupted for a series of years, the court held that these facts established in the claimant an equitable title. The case at bar has stronger equities. ”

“ Without speaking of the testimony of Innocencio Romero himself, of Gomez, Arce, Chavis, Briones, and others, we refer specially to that of Mr. Tingley, Mr. Strode, and Judge Raymond. The scrutiny with which these title-papers were examined by these gentlemen, and the character of the examiners themselves, forbid the idea of deception, error, or mistake. They are American witnesses. No individuals in California were more familiar with the form, appearance, and legal effect of California grants than the eminent professional persons above mentioned. ”

“ The facts establish an equity in the claimants, which ought to be perfected into a legal title. Their petition was received with favor by the governor. The alcalde reported that the adjoining proprietors, the surplus of whose lands was solicited by the Romeros, not only did not object, but were willing that the grant should be made. The secretary of state concurred in the recommendation, and advised that the lands be measured, in order to ascertain the surplus. ”

“ The governor assented, and ordered the surplus to be ascertained, 'so that it may be granted to the petitioners.' An order was then issued to the alcalde to make the measurement. Up to this point in the proceeding it is evident the governor had acceded to the petition. He was willing they should have the land, and delayed the formal concession. What if there were no grant passed in form. The technical rules which we apply in administering law in States upon the eastern part of this continent, and where the English common law prevails, ought not to govern in regard to Mexican titles. ”

“ Alcalde of San Jos e, for the year 1847, found in his office an additional order of survey, signed by Jimeno, of the same date as the before-mentioned final order of the governo . Mistaking the nature of his authority, and thinking it to be the same as that of the former governor, the alcalde, on the ninth day of April of that year, passed an order authorizing the claimants to take possession of the land in controversy, premising that if any adjacent land-owner demanded it, the tract must be measured. ”

“ At the date of this petition, the American forces were in the military occupation of California. Romero could not have needed the 'testimonial' he solicits, 'so that the land can be granted to us,' as the erroneous translation has it, because the Mexican government was no longer in authority in California, and there was no authority in the America military governor to grant lands. ”

“ Evidence to show that the survey was made is entirely wanting. First-named claimant was examined as a witness, and he testified that the pretensions of the prior claimants were overruled and abandoned; but the explanations given by him, in view of the documents in the case, are not satisfactory.
II. Reliance, however, is more especially placed upon the parol proofs, which will next be considered, because they were introduced to prove the existence of a grant issued under the Mexican authority. ”

“ Chavis, that he aided Romero in obtaining the grant, introduced him to Arce, went with him to the government office to urge his application, and after it was obtained, saw and looked over the grant, and told the grantee that it was perfectly good, that it was an absolute grant of land, under the genuine signatures of Micheltorena and Jimeno. ”

“ It may have happened that other documents pertaining to it were lost or destroyed, during the rough usage to which the archives were exposed at the conquest of California.
2. We do not, however, rest on the expediente alone. The proof establishes, beyond a reasonable doubt, the fact that a final grant was issued. It is true, the archives, as now found in the surveyor-general's office, do not show this fact; and we admit that, in the absence of such proof, nothing short of the most satisfactory and convincing evidence should be deemed sufficient to establish the existence and loss of the paper. ”

“ As to the same Jos e Romero, one of the original grantees, who testifies that 'no grant' issued, and that they only procured the order for the measurement of the land, it is apparent that he is an ignorant and stupid person. He admits that he cannot read or write; that he had no agency whatever in procuring the title; that his brother Innocencio had the sole charge of the business; that he never saw any of the papers, except the order for measurement, and he saw that in the hands of the alcalde ”

“ Suppose it be conceded, however, that the probative force of the parol testimony is not overcome by the contrary tendency of the written evidence, the concession could not benefit the claimants, because the case is one where there is no record evidence of any kind to prove either the existence or authenticity of the grant. ”

“ Such is the present theory of the claimant, but when the party who had possession of the papers was first examined he testified that he sent the papers to the attorney 'for the purpose of having them submitted to the Land Commission,' which would make the transaction bear date at a much later period. Deposition of the attorney was also taken, and his account of the matter sustains the present theory of the claimant. ”

“ United States v. Osio, 23 Id., 280; United States v. Bolton, 23 Id., 341; Luco et al. v. United States, 23 Id., 515; Palmer et al. v. United States, 24 Id., 126; United States v. Castro, 24 Id., 346; United States v. ”