203 U. S.

Argument for the United States.

The Solicitor General, and Mr. Robert A. Howard, Special Assistant Attorney, for the United States:

This court has jurisdiction. The appeal by the United States to this court is special and mandatory under § 11 of the act of 1860; therefore the Circuit Court of Appeals Act does not apply. This principle is recognized respecting original jurisdiction under the act of August 13, 1888. Re Hohorst, 150 U. S. 653, 661. Gwin v. United States, 184 U. S. 669, distinguished.

If the Circuit Court of Appeals Act applies, the construction of the treaty is really and substantially drawn in question in this case. The petitioners adduced testimony for a grant of January 10, 1818, still in reliance upon the treaty, and not until the final amendment did they repudiate the treaty and rely solely on the act of 1860. Mitchell v. Furman, 180 U. S. 402, supports the treaty ground of jurisdiction here. It is doubtful if any other than a direct appeal would lie. American Sugar Refining Co. v. New Orleans, 181 U. S. 277, 281. As to the statute of limitation, the amendments to the original petition made a different cause of action, which was barred by the limitation of the act of 1860 as extended by the act of 1875. The Harrisburg, 199 U. S. 199, 214; Gray v. Trapnall, 23 Arkansas, 510, 512; Lytle v. State, 17 Arkansas, 608, 649; Marstellar v. McClean, 7 Cr. 156; Bennington v. Dinsmore, 2 Gill (Md.), 348; United States v. Martinez, 196 U. S. 459; United States v. Heirs of Innerarity, 19 Wall. 595; United States v. Watkins, 97 U. S. 219, 223; Union Pacific R. R. Co. v. Wyler, 158 U. S. 285.

As to the amendment of 1878 adding the Innerarity heirs as parties, the briefs herein reveal an antagonism between the Forbes and Innerarity interests, which certainly imports. the introduction of a new cause of action. As to the amendment of 1904, the proper time to make it was after the answer of the United States, setting up the treaty bar and the adjudication of 1830. But they chose to speculate with testimony for the regularity of the grant as of January 10, 1818, and then

Argument for the United States.

203 U.S.

faced about squarely with the claim of a grant of February 20. This change came too late. The new declaration is a material and fatal variance. They cannot avail of a document which the United States pleaded and produced for the purpose of showing that a grant of January 10 was impossible, because there was no valid grant at all, in order to maintain the document as a valid grant of February 20.

The claim is barred by the former adjudication under the act of May 23, 1828. The territorial court adjudged this grant in 1830 under laws which discredited claims antedated or forged as well as claims annulled by the treaty (§ 6, act of 1828), and gave the court full power to determine all questions arising (§ 2, act of 1824). That court refused and rejected the claim on grounds going to the validity of the record itself, that is, because the instrument was null and void. In the court's view the grant was not guaranteed by the treaty because it was fundamentally invalid under the law by reason of the alterations. It was not a valid grant before January 24, 1818, because it was not valid at all. The suit of 1830 was in fact a suit ending in a decree between the same parties about the same property, wherein the whole right and all possible rights were litigated. No appeal was taken, and the statute expressly provided that, no appeal being taken, the judgment of the lower court was final and conclusive. The principles. laid down by statutes and decisions of this court which are to guide in these cases require a court adjudicating under § 11 of the act of 1860 to regard the principles of the proviso to §3. A claim previously rejected by an authorized tribunal as fraudulent shall not be confirmed, nor one twice rejected on the merits by previous boards. The commissioners of 1824 disapproved this claim; Congress did not confirm it, which is tantamount to rejection; the territorial court of 1830 rejected it. Judge Brackenridge was a "public officer acting under authority of Congress" within the proviso of § 3 of the act of 1860, which was evidently framed to cover every examination made by any authorized body. The various statutes

203 U.S.

Argument for the United States.

appoint commissioners, registers and receivers, who are frequently called boards of commissioners and courts or judges. of courts. These latter are clothed with judicial powers and are the only officers who do not act in the capacity of commissioners. That they are public officers cannot be disputed.

United States v. Baca, 184 U. S. 653, simply held that grants specially confirmed by acts of Congress were outside the jurisdiction of the Court of Private Land Claims by the terms of the statute. There was no such restriction on the authority of Judge Brackenridge, but he was empowered to adjudicate this case completely, and did. He was right on the merits and as to the Spanish law. Appellees' argument is wholly inconsistent. They say, in effect, that the court ought to accept the unexplained alteration of the registro as regular and official, because in that form only the Spanish authorities. certified the document on several occasions; or that the court ought to say that the alteration is to be wholly ignored, the grant saved under the act of 1860 despite the treaty, and the instrument valid without suspicion of fraud. These alternative propositions are fatally antagonistic. The mere antedating of such foreign grants has always lain under condemnation as contrary to the principles of law, justice and equity by which the adjudications are guided, and the strongest presumptions should run against an alteration which antedates, when the change attempts to place the instrument. ahead of the absolute bar of an intervening date. United States v. Galbraith, 2 Bl. 394, cannot be distinguished, as counsel suggest, because there the whole grant was fabricated. There is no distinction. Here the grant was made when the authorities had no power, and was antedated with the same motive and purpose as in the Galbraith case.

The act of 1860 does not validate the claim. In the McMicken case, 97 U. S. 204, the court said that "claims invalid from intrinsic defects in 1815 or 1825 are not helped by the act of 1860." In the Lynde case, 11 Wall. 632, it was declared that the validating effect of the act of 1860 was "sub

Argument for Appellees.

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ject, of course, to the express exceptions of the treaty of 1819 and the supplementary declaration of the King of Spain finally annexed thereto;" and that "if it should appear that a grant was obtained by fraud or was affected by any other special vice, it would be the duty of the tribunals to reject it." The treaty reservation of the Lynde case cannot refer only to the three specifically annulled grants mentioned in the King of Spain's supplementary declaration appended to the treaty, because the language of the opinion is in the conjunctive. The treaty contained the express exceptions, but no specific annulments. Besides other grants than the three named were meant to be annulled, and they were, therefore, within the express exceptions of the treaty. The three grants were not excluded by name, to save the honor of the King, and also because there were other similar grants; "to have named them might have left room for a presumptive inference in favor of others, the determination was to exclude them all." Arredondo case, 6 Pet. 755.

The opinion in the Morant case, 123 U. S. 335, did not intend to open the door to a grant made after January 24, 1818. It only saves those grants which were initiated before, although not completed by survey until after the treaty limitation. Such a grant as the one in suit, now nearly ninety years old, stale and rejected, antedated and, therefore, forged because it purports to be what it is not, cannot be confirmed as valid by this court under the treaty or under the act or under any principles of law, equity or justice.

Mr. William A. Blount, with whom Mr. William W. Dewhurst and Mr. A. C. Blount, Jr., were on the brief, for appellees:

This court is without jurisdiction. The Paquete Habana, 173 U. S. 685; United States v. Rider, 163 U. S. 132; Muse v. Arlington Hotel Co., 168 U. S. 431; Gwin v. United States, 184 U. S. 669; DeLamar's Nevada v. Nesbitt, 177 U. S. 523; New Orleans v. Louisiana, 105 U. S. 336; Iowa v. Rood, 187 U. S. 92; Sloan v. United States, 193 U. S. 614.

This court will not review the order reëstablishing the lost files and records, and if it reviews, will not reverse. Cook v. Burnley, 11 Wall. 672, 676; Hart's Executor v. Smith, 20 Florida, 63; United States v. Darrington, 146 U. S. 338; Farrar v. United States, 3 Pet. 459; P. W. & B. R. R. Co. v. Howard, 13 How. 307, 332; Morris's Lessee v. Vandreen, 1 Dall. 65; Winn v. Patterson, 9 Pet. 677; Weatherhead's Lessee v. Baskerville, 11 How. 360; Burton v. Driggs, 20 Wall. 125; Renner v. Bank, 9 Wheat. 581; Ruggs v. Tayloe, 9 Wheat. 483; Rich v. Rock Island &c., 97 U. S. 694; Stockbridge v. West Stockbridge, 12 Massachusetts, 400; Mobley v. Walls, 98 N. Car. 284; Pruden v. Alden, 34 Am. Dec. 51; Jackson v. Hammond, 1 Caines Rep. 496; Tomlinson v. Funston, 1 Green (Iowa), 544; Lyons v. Gregory, 3 H. & M. 237; Cook v. Wood, 1 McCord Rep. 139; Green v. Stevens, 2 Duv. (Ky.) 420; Jackson v. Cullum, 2 Blackf. (Ind.) 229; United States v. Britton, 2 Mason, 468; Goetz v. Kochler, 20 Ill. App. 233; Harris v. McRae's Admr., 4 Ired. 81; Keen v. Jordan, 13 Florida, 335; 2 Phil. Ev., 351 (4th Am. ed.), note 376; Comyns Dig., Evidence A, 3; 1 Green, Evi. § 509.

1

This court will not review, and if it reviews will not reverse the order permitting the survivor to prosecute the cause for the benefit of all the heirs. Richmond v. Irons, 121 U. S. 46; Western Ins. Co. v. Eagle Fire Ins. Co., 1 Paige, 284; Verplank v. Caines, 1 John. Ch. 57, and cases cited, p. 59; F. S. Ry. Co. v. Hill, 40 Florida, 1; Seymour v. Freer, 8 Wall. 202; 1 Danl. Ch. Pr., 422 (ed. 1865); Brown v. Story, 2 Paige, 594; Smith v. Swormstedt, 16 How. 302; United States v. Old Settlers, 148 U. S. 480; Osborne v. Wisconsin Cent., 43 Fed. Rep. 824; Tilford v. Henderson, 1 A. K. Marshall, 483; Scrimeger v. Bucchanon, 3 A. K. Marshall, 219; Story's Eq. Pl., 89, 97, 103, 107, 110, 116, 120, 364–367, 831; Hallett v. Hallett, 2 Paige, 15; Cutting v. Gilbert, 5 Blatch. 259, 261; Fed. Cas. No. 3,559; approved in Scott v. Donald, 165 U. S. 116; Seaman v. Slater, 18 Fed. Rep. 485; Penhallow v. Doane's Admr., 3 Dall. 118; West v. Randall, 2 Mason, 181, 189; Gainer v. Gainer, 30 W.