Faxon v. United States

Three separate petitions were filed in the court of private land claims for the confirmation of what was commonly called and known as the 'Tumac acori, Calabazas, and Huebabi Grant,' situated in the valley of the Santa Cruz river, Pima county, Arizona, the petitioners in each claiming under the original grantee. The causes were consolidated, and tried under the petition of William Faxon, Jr., trustee, and others. The petition alleged that the claimants were the owners in fee of the tract of land in question under and by virtue of a certain instrument in writing dated April 19, 1844, 'made and executed by the treasury department of Sonora in compliance with the law of the Mexican congress of the 10th of February, 1842, providing for the denouncement and sale of abandoned pueblos,' running to Don Francisco Alejo Aguilar, to whom said treasury department sold the tract April 18, 1844, for the sum of $500.

That in the year 1806 the governor of the Indian Pueblo of Tumac acori petitioned Don Alejo Garcia Conde, intendente of the province, etc., to issue to the Indians of the pueblo a grant of lands for the 'fundo legal,' and also for the 'estancia' of the pueblo to replace ancient title papers which had been lost or destroyed; that in accordance with that petition the lands mentioned were ordered to be surveyed, which was done, and the boundary monuments established, by Don Manuel de Leon, commandante of the presidio of Tubac; that on April 2, 1807, the said intendente Conde issued a royal patent or title to the Indians of the pueblo of Tumac acori for the lands, as set forth in the proceedings of the survey thereof and in the copy of the original expediente.

That under the law of the Mexican congress of February 10, 1842, Don Francisco Aguilar, on April 18, 1844, became the owner by purchase, as before mentioned, 'of the four square leagues of agricultural and grazing lands of the 'fundo legal' of the abandoned pueblo of Tumac acori and the sitios of the estancia [stock farm] of Calabazas, and the other places thereunder pertaining.' It was averred that all the steps and proceedings in the matter of the grant and sale were regular, complete, and legal, and vested a complete and valid title in fee in the grantee; and that the grantee at the time went into actual possession, use, and occupation of the grant, and erected the proper monuments thereon, and that he and his legal representatives have continued ever since and until the present time in the actual possession, use, and occupation of the same, and are now possessed and seised in fee thereof.

The United States answered, alleging that the alleged sale to Aguilar was without warrant or authority of law, and void; that, if these lands had been theretofore granted to the pueblo of Tumac acori, they were abandoned about 1820, and by virtue thereof became public lands; that the title to said property, if any passed in 1807, was purely usufructuary, and vested no estate, legal or equitable, in the said pueblo or mission, but that the same and the right of disposition were reserved to and remained in the national government.

The answer denied that Aguilar pecame the owner by purchase or otherwise of any lands included in the alleged grant of 1807 to the pueblo, or of any land of that mission or its dependencies; that the alleged grant was ee r located and recorded as provided by the sixth article of the treaty of Mesilla (Gadsden purchase); that the original grantee or grantees were ever owners of the property as against the republic of Mexico, or are now the owners thereof as against the United Aguilar, in the year 1844, went into actual Aguilar, in the year 1844, went into actual possession and occupation of the grant, and erected monuments thereon, or that he and his representatives have continued ever since in the actual possession, use, and occupation of the same.

The answer averred that the proceedings for sale were never taken under the express order or approval of the general government, and never submitted to said general government for ratification or approval; that the lands claimed far exceeded those contained in the original survey; that the sale was by quantity, and limited; and that the alleged grant was so indefinite and uncertain as to description as to carry no title to any land.

On the hearing the testimonios of the grants of 1807 and of 1844 were put in evidence. Evidence was adduced to the effect that Aguilar, the original grantee, never took or had possession of the lands; that he was the brother-in-law of Manuel Maria Gandara, who was the governor of Sonora in 1842, and in 1845 to 1853, except a few months, to whom Aguilar conveyed in 1856, and, more formally, in 1869; that Gandara was in possession in 1852, 1853, 1854, and 1855, through his herdsmen; and that, as contended by counsel for petitioner, the money for the purchase was furnished by Gandara, and Aguilar took the title as trustee for him. Apparently the expedientes were not in the archives, nor was there any note of the grant in the book of toma de razon for 1844.

A translation of the titulo of 1844 is given in the margin.

The court of private land claims rejected the claim on the ground that the sale in question was void for want of power on the part of the officer attempting to make it.

Francis J. Heney, for appellants.

Matt. G. Reynolds, for appellees.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.