Noah Haynes Swayne

“ In this labyrinth of conflicting statements, one leading fact appears to guide us, and that is, while the one class of witnesses seeks by oral evidence not only to create a valid title, in the absence of archive evidence, but contrary to it, the testimony of the other class, on the contrary, is fortified by archive evidence, and is in harmony with it from beginning to end. ”

“ It has been held by this court, in a long and unbroken line of adjudications, that where there is no archive evidence, and its absence is unaccounted for, and there has been no such possession as raises an equity in behalf of the party, and especially where, in addition, the expediente produced is tainted with suspicions of fraud, the claim must be rejected. We feel no disposition to relax the rule, and it is fatal to the case of the appellant. ”

“ Father Accolti, a priest, testified that he became acquainted with Ortega in 1845 in Oregon [to which place, as mentioned, Ortega went in 1843, remaining there till 1847 or '8] , and at that time Ortega urged him and some other priests and some sisters of Notre Dame to come to California and establish a school, stating that he would give them, together with 'that piece of land, half of his stock of cattle on the land.' He stated that he had the grant to the rancho from the Mexican government. ”

“ The United States are bound, without reference to th change of government and of circumstances, to do now what Mexico would have done. It cannot be questioned that, had Mexico remained the owner, her governor, Alvarado, or any other one, would have completed Ortega's title. That Ortega received permission to occupy the land in question is proved by Vallejo and Rosa. This confers the same rights as are required under incomplete grants by express authority of the Mexican government. [8]
5. A grant cannot be set aside on mere suspicion. ”

“ Having entered under Ortega, the presumption of law, in the absence of clear proof, is that while he continued there, he was a tenant under the owner by whose permission he entered. Hence, the concession or grant and continued occupation are established, and a confirmation must follow.
8. Abandonment of claim to land can only take place where the party in fact intends to and does abandon, which must be manifested by acts of a decided and unequivocal character showing such intention, and which can be in no other manner accounted for. ”

“ The expediente of Ortega is confronted by strong suspicions of its bona fides. There is no trace of it among the proper archives. It does not appear that any paper belonging to it was ever in any public office before the petition in this case was filed by the appellant's intestate. The Mexicans of the Spanish race, like their progenitors, were a formal people, and their officials were usually formal and careful in the administration of their public affairs. Full archive evidence exists in the case of Miranda. ”

“ De la Rosa testified that he wrote Ortega's petition for him, and made the very map now exhibited in the case; that he made it in 1839 or 1840; that he saw the grant, saw it in the house of Ortega on the rancho in question; that Miranda occupied the rancho for Ortega; that Ortega's family ived on it during his absence in Oregon; that Miranda applied for a grant of this land to himself while Ortega was absent in Oregon; he (Rosa) drawing and presenting the petition; that a grant to him was written out in the office of the secretary of state, but was never signed by the governor. ”

“ There are none such on the part of Ortega in this case. He has not in fact abandoned, nor has he said one word looking to abandonment. Leaving a wife, who was an adulteress, is wholly different from abandoning his lands. The case is that of a man who h ving put a tenant into possession, and leaving that tenant in occupancy, took a portion of his stock, and went away, but who, while away, was continually talking of his land and stock, and of his intention to return, and who proposed to transfer a portion of both to the clergy, if they would go home with him, and educate his children. ”

“ My recollection is that he brought with him each time the same papers-that is, the petition; but the first time without any map; the second time the petition and dise no together. He might have come other times, but I only recollect those two times.'
Ortega testified to the same effect as to the dise no.
That both are mistaken upon the subject is shown by the concession. In that instrument, which was given at the second interview between them, Alvarado says: 'He' (Ortega) 'shall make a map as required by law, which he will present opportunely.' There was, then, no map present at that time. ”

“ The alteration of dates is a bad circumstance. The identity in appearance of the two maps, another. Miranda's map cannot have been copied from Ortega's; for the latter, if it had existed, was, according to the case set up, in Alvarado's private custody, and not accessible to Miranda. The oral evidence, considered separately, presents a distressing conflict of testimony. One class of witnesses swear strongly in favor of the genuineness of the Ortega title-papers ”

“ Afterwards he took holy orders, and exercised the office of a priest for about three years. He then entered the Mexican army, and served there for about twenty years, rendering, said Governor Alvarado, 'many meritorious acts for his country.' In 1834-5 he appears to have been 'keeper of the keys' at the mission of Sonoma; 'mayordomo' of the same. [4] In 1838 he married Maria Francisca Miranda, daughter of the Miranda under whose title the appellees claimed; a handsome woman, greatly younger than himself, who soon fell in love with a man named Salvador. ”

“ This possession was given on the rancho, and at the same time the deed from Ortega was delivered to him, as well as the original title-papers of the rancho. He also testified that the title-papers, viz., the expediente and map, are the same which were delivered to him by Ortega, May 1, 1849, on this rancho, in presence of Miller and Theodore Miranda; that before he delivered to Ortega his contract to educate his children, he consulted General M. G. Vallejo as to the validity of Ortega's title, and that Vallejo assured him the title was genuine ”

“ It has been suggested that 1841 was the true and proper date, and that the concession was made after the return of Ortega from Oregon, and that it was antedated in 1840,-the writer not observing that the order of reference was dated in 1841,-and that, upon this fact being discovered, the date of the reference was changed to cure the discrepancy. The alteration is unexplained and unaccounted for. The evidence leaves us in the dark as to the time, the motive, and the circumstances. ”

“ This proposition is fundamental, and, if true, disposes of the whole case. The foundation of it was laid by this court in the case of United States v. Cambuston. [9] The doctrine, in another form, was quite strongly reasserted in the following year, to wit, at December Term, 1857, in United States v. ”