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by the acts of the grantor, the Spanish Government; and certainly immaterial to the United States.23

V. INDEFINITE GRANTS

The third group of land grant cases comprises those of indefinite grants and grants of a specified number of acres which were never located nor surveyed before cession. The fact that the lands have never been located rather than the fact that they have never been surveyed is the significant feature of these cases. Unlocated grants give the claimants no rights under the succeeding government. In O'Hara v. United States, 15 Pet. 274, the court refused to recognize any rights on the part of the claimant on the ground that the original grant, being indefinite in respect to the location and the extent of the grant, was therefore void on account of uncertainty. So in United States v. Miranda, 16 Pet. 153, where no order of survey had been made to identify the claimant's tract, and nothing was done to withdraw the land from the general mass of property, or to show what it was, which was to be withdrawn,” the court refused the plaintiff's claim, holding that the original grant was too indefinite to locate the

23 On p. 744 the court says: The condition of settling 200 families on the land has not been complied with in fact; the question is, has it been complied with in law, or has such matter been presented to the court as dispenses with the performance, and divests the grant of that condition? It is an acknowledged rule of law, that if a grant be made on a condition subsequent, and its performance become impossible by the act of the grantor, the grant becomes single. We are not prepared to say that the condition of settling 200 Spanish families in an American territory has been, or is, possible; the condition was not unreasonable or unjust, at the time it was imposed; its performance would probably have been deemed a very fair and adequate consideration for the grant, had Florida remained a Spanish province. But to exact its performance, after its cession to the United States, would be demanding the summum jus ' indeed, and enforcing a forfeiture on principles which, if not forbidden by the common law, would be utterly inconsistent with its spirit. If the case required it, we might feel ourselves, at all events, justified, if not compelled, to declare, that the performance of this condition had become impossible, by the act of the grantors the transfer of the territory, the change of government, manners, habits, customs, laws, religion, and all the social and political relations of society and of life. . . . Our decree must be in conformity with the principles of justice, which would, in such a case as this, not only forbid a decree of forfeiture, but impel us to give a final decree in favor of the title conferred by the grant.”

by a number of similar "mill grant" cases. In United States o. Wiggins, 14 Pet. 334, a grant which contained no express condition was refused confirmation by the United States Supreme Court because of the nonperformance of a condition (improvement and settlement) implied in the grant under the general regulations covering land grants laid down by the Spanish governor. On the other hand, where the compliance with the condition amounts to nothing more than a mere formality, the courts will frequently allow the performance of the condition after cession.22

The United States Supreme Court has gone so far as to suggest that even where the claimant under a conditional grant has failed to perform the conditions contained in the grant, the receiving state should confirm his title if the reason for nonperformance is due to the acts of the ceding or receiving state itself. In the case of United States 0. Arredondo, 6 Pet. 291, the grant was made upon condition that the grantees should settle and improve the land in three years, upon the failure to perform which the grant should become void, and upon the further condition that they should settle upon it 200 Spanish families; no time was fixed for the performance of the latter condition. The first condition was duly performed within the time set; the second was never performed. Yet the court confirmed title in the grantees, holding that performance of the second condition was excused, because it was rendered probably impossible

22 In United States v. Clarke, 19 Pet. 167, the court confirmed a Spanish grant where the survey, which was necessary in order to confirm the Spanish title, had not been made until after the time of cession, the court affirming that a concession on condition becomes absolute when the condition is performed.” This case, however, should be read in the light of Article VIII of the treaty of 1819 between Spain and the United States (quoted in the preceding note). See to the same effect United States v. Hanson, 16 Pet. 194, where the court allowed the claimant to have a public survey of his land made after the cession, where the grant was specific and definite, and contained no conditions which had not been performed.

One must be careful to distinguish this group of cases, where a perfectly definite tract of land has been granted, but the public surveyor has not yet fixed the boundary marks at the time of the cession, from the group of cases, to be next considered, where the grant conveys a specific number of acres or quantity of land withou defining or fixing the position of the land, and at the time of cession the land he not yet been selected or surveyed.

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lands with certainty. "Identity is essential for the latter (i.e., ownership),” says the court at p. 159, "and has uniformly been, . . . when it has confirmed Florida grants inchoate or complete.” 24 In Dent v. Emmeger, 14 Wall. 308, where the claim of the plaintiff in error was "totally undefined and uncertain as regards its outboundaries," the court refused to recognize the claim because of its unenforceability under the Spanish law, the court holding:

Inchoate rights such as those of Cerre were of imperfect obligation and affected only the conscience of the new sovereign. They were not of such a nature (until that sovereign gave them a vitality and efficacy which they did not before possess) that a court of law or equity could recognize or enforce them.

VI. VOID GRANTS

The last type of land grant cases seems clear.

Where the original grant was void for lack of authority in the grantor or lack of ownership in the lands which the grant purported to convey, or for any other reason, the succeeding government will refuse to recognize any rights on the part of the claimants. In United States 0. Reynes, 9 How. 127, the United States refused to recognize the validity of a grant in Louisiana made by Spain after Spain's cession of Louisiana to France, and before France's cession of the territory to the United States. In United States v. Sutler, 21 How. 170, the United States refused to recognize the validity of a grant of land in California made in 1845, before the Treaty of Guadalupe Hidalgo,

24 The general doctrine of the courts in regard to these indefinite land grants is summed up in United States v. Miranda, 16 Pet. 153, at p. 160 as follows: Indeed, the settled doctrine of this court, in respect to these Florida grants, is, that grants for lands embracing a wide extent of country, or within a large area of natural or artificial boundaries, and which granted lands were not surveyed before the 24th of January 1818, and which are without such designations as will give a place of beginning for a survey, are not lands withdrawn from the mass of vacant lands ceded to the United States in the Floridas; and are void, as well on that account, as for being so uncertain that locality can not be given to them.” Cases to the same effect are United States v. Smith, 10 Pet. 324; United States v. Forbes, 15 Pet. 172; Buyck v. United States, 15 Pet. 214; United States v. Delespine, 15 Pet. 318; Dauterive v. United States, 101 U. S. 700; Ainsa v. United States, 161 U. S. 208; Muse v. Arlington Hotel Co., 68 Fed. 648.

by Micheltorena, who had been driven by a revolt from his capital, was not in the peaceful exercise of his official authority, and was shortly after compelled to abdicate. In United States v. Rose, 23 How. 262, the same facts are again reviewed, and the former decision confirmed. In More v. Steinbach, 127 U. S. 70, the claimant was denied recognition by the United States of his claim for lands in California because the Mexican alcalde who purported to perfect his title by giving him "judicial possession” acted without lawful authority.25 An interesting case involving the Georgia-Florida controversy is presented by Coffee v. Groover, 123 U. S. 1. Here, a grant made by the State of Georgia to land which was situated in a territory claimed by both Georgia and Florida, but which was later determined to belong to Florida, conflicted with a grant to the same land made by the State of Florida. The court held that “where a disputed boundary between two states is adjusted and settled, grants previously made by either state, of lands claimed by it, and over which it exercised political jurisdiction, but which, on the adjustment of the boundary, are found to

25 It should be remembered, however, that grants made by officers of the ceding state, even after cession, may be valid, if the receiving state authorized or later ratified such action. In Ely's Adms. v. United States, 171 U. S. 220, at pp. 231, 232, the United States Supreme Court says:

"It is doubtless true that a change of sovereignty implies a revocation of the authority vested by the prior sovereign in local officers to dispose of the public lands. And yet we think that rule is not controlling in this case, for the new sovereign made an order continuing the functions of the local officers, and one of those local officers making a sale in accordance with the provisions of the prior laws caused the money received therefrom to be paid into the treasury of the new sovereign, and that sovereign never returned the money thus received nor challenged the validity of the sale thus made. This is not a case in which the local officers attempted to dispose of public lands in satisfaction of obligations created by the former sovereign but one in which a sale was made for money, and that money passed into the treasury of the new sovereign.

“It would seem not unwarranted and unreasonable to refer to the familiar rule that where an agent, even without express authority, makes a sale of the property of his principal, and the latter with full knowledge receives the money paid on account thereof, his retention of the purchase price is equivalent to a ratification of the sale. We do not mean, however, to state this as a general proposition controlling all municipal and governmental transactions, but as only one of the circumstances tending to strengthen the conclusion that these acts of the intendant were not mere usurpations of authority, but were in the discharge of duties and the exercise of powers conceded to belong to his office."

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