Sampeyreac v. United States

[Decision below, Hempst. 118, affirmed. Opinion of the court by Justice S T.]

Statement of the case
[p223] APPEAL from the Supreme Court of ArkansasSuperior Court for the Territory of Arkansas [sic]. The appellant, Sampeyreac, under the act of congress of the 26th of May 1824, entitled "an act enabling the claimants to lands within the limits of the state of Missouri, and territory of Arkansas, to institute proceedings to try the validity of their claims," exhibited the bill against the United States, which was filed in the clerk's office of the superior court in the territory of Arkansas, in chancery sitting, on the 21st day of November 1827, stating that, being an inhabitant of Louisiana, he did, on the 6th day of October 1789, address a letter to the governor of the then Spanish province of Louisiana, asking for ten arpens of land in front, with the usual depth, on Strawberry river, within the district of Arkansas, to be granted to him in full property; and that the said governor did, on the 11th day of October 1789, make an order of survey upon said petition, which the appellant alleged, was such a claim as might have been perfected into a complete title, under and in conformity to the laws, usages and customs of the government of Spain, under which the same originated, had not the sovereignty of the country been transferred to the United States; and was, therefore, provided for by the treaty between the United States and the French republic, made the 30th April 1803. The bill prayed that this claim might be confirmed, according to the provisions of the act of congress before mentioned. Upon this petition the clerk of the court issued a subpœna against the district-attorney of the United States, which was executed on the 24th of November 1827. To this bill, the district-attorney of the United States filed an answer, at the December term of said court 1827, denying, generally, the facts and allegations in said bill, and alleging that Sampeyreac was a fictitious person, or was a foreigner, and then dead. On the 19th day of December 1827, the district-attorney of the United States moved to postpone the final adjudication of the case until the following term, for the following reasons. 1. The petition and subpœna in this case were served on the United States, within one month of the present term of this court, but more than fifteen days allowed by law; and in consequence of this short notice, the United States attorney has not answered this bill until the present term. [p224]

2. Has not had a sufficient length of time to take counter depositions, if counter evidence does exist.

3. There are many more cases pending in this court on the same principles, and similarly situated in all respects; and the attorney for the United States asks this continuance, for the purpose of procuring such evidence as may exist on the part of the government.

The court proceeded to hear the cause, and, upon the deposition of one John Heberard, entered on that day a decree against the United States, in favour of said Sampeyreac, for four hundred arpens of land.

On the 14th day of February 1828, a deed, purporting to be a decree executed by Sampeyreac, transferring his claim to the clerk's certificate of the existence of this decree, and of all his right, title and interest in said decree, to John J. Bowie, was proved, and admitted to record on the 22d day of October 1828, in the office of the circuit court of Hempstead county, in the territory of Arkansas, and which title was transferred by Bowie to Joseph Stewart, in December 1828, by virtue of which transfer the said Stewart filed with the register of the land office at Little Rock, an application for the N.E. 17, 11 S. 26 W. and E. ½ S.E. 17, 11 S. 26 W and W ½ N.E. 13, 11 S. 27 W and which application was admitted by the register on the 13th of December 1828.

At the April term 1830 of the court, the United States attorney, upon leave granted, filed a bill charging that the decree entered by the court, at the December term 1827, in the case of Sampeyreac, was obtained by fraud and surprise, and alleging that the court erred in proceeding to the trial of said cause, at the said December term, without having set said cause for hearing, and without affording the United States time to prove the injustice of the claim. The bill charged that the original petition to governor Mero, and the order of survey are forgeries; which fact had come to the knowledge of the attorney since the decree was made, that Sampeyreac was a fictitious person, or, if he ever did exist, was dead, that Heberard and the other witnesses committed perjury in this case, and that the petition and order of survey were made since 1789, and that record evidence has been discovered since the [p225] decree, which would be produced upon the hearing to prove the forgery.

Sampeyreac was proceeded against as an absent defendant, after the return of the subpœna, that "he was not to be found in the territory of Arkansas;" and a decree pro confesso was entered, as to him, on the 28th day of October 1830. Before this decree was entered, Joseph Stewart was permitted to file his answer, and was made a defendant in this case, which was excepted to on the part of the United States, and a bill of exceptions was signed by the court on the 28th October 1830.

It was not charged or contended that Stewart purchased with a knowledge of the forgery, either of the original grant, or of the transfer from Sampeyreac to Bowie.

The final decree, reversing and annulling the decree entered in favor of Sampeyreac at December term 1827, was delivered by the court February 7th, 1831.

From this decree, this appeal was taken by Joseph Stewart, for himself and Sampeyreac.

The case was argued by Mr Prentiss and Mr White, for the appellants, and by Mr Fulton and Mr Taney, the attorney-general, for the United States.

Argument for the appellants
For the appellants, the following points were stated for the consideration of the court.

1. That, by the provisions of the act of 1824, and of the act continuing it, the decree of confirmation, rendered in December term 1827, became final, after the lapse of one whole year from its date, without an appeal being taken therefrom.

2. That a bill of review cannot be prosecuted, after the time for allowing an appeal has expired.

3. That if the foregoing proposition is not universally true, it is so as to a bill of review for errors apparent, and as to which the party could have availed himself by an appeal.

4. If a bill of review can be prosecuted for any cause, after the time for an appeal has expired, it cannot be for causes known to the party at the time of rendering the decree complained of.

5. The refusal of the court to continue the cause at Decem- [p226] ber term 1827, was not an error re-examinable on appeal, or, if so, was an error apparent, which could have been corrected on an appeal, if taken within the year allowed for an appeal, and, therefore, not by a bill of review, after the expiration of the time allowed for an appeal.

6. The substantial ground in difference between the United States and Sampeyreac, supposing there was such a person in being, was, that the order of survey was, or was not, a genuine one—was or was not a forgery. This was the whole ground of difference, and both this fact, and the question whether Sampeyreac was a real inhabitant of Louisiana, capable of taking or had assigned his claim, were all put directly in issue on the original trial.

7. After the decree rendered in the first case, a bill of review cannot be maintained, on after discovered testimony, which could have been used under the issue joined, unless such after discovered evidence be evidence of record.

8. Although the bill of review suggests the discovery of such record evidence, none such is produced on the bill of review; the only evidence being that of witnesses, and the title-papers in the other cases then depending, all of which were known, and, if proper evidence, could have been used on the first trial.

9. All that is alleged in the bill of review, concerning the appearance of the papers themselves, and other facts to show they were post dated, appeared on the first trial.

10. The time of discovery of the new evidence is not stated, nor does it appear, and it is contended that, if such be evidence, discovered after trial, as will sustain a bill of review, the bill must, at least, appear to have been filed within one year from the time of such discovery.

11. If the refusal to continue the cause at December term, was a matter which could be alleged on a bill of review, or considered on an appeal, there was no error in that refusal, as the law only required fifteen days between the service and return of the subpœna, whereas twenty-eight days intervened, and required a trial to be had at first term, unless good cause should be shown for a continuance, and it is contended, that, as the cases were all treated a similar, and it was not alleged that there had not been time to file answers, and as [p227] the United States attorney admitted the credibility of the claimant's witness, and stated that he knew of no testimony which could impeach the genuineness of the claim, he showed no cause of continuance, unless he could show it in the improvident provisions of the act of congress under which he was acting.

12. The defendant Stewart is an innocent purchaser, and is entitled to protection, whether the original claim was a forged one or not. That Sampeyreac, after the decree confirming his claim, conveyed his right to Bowie, appears from his recorded deed read in evidence by consent, and, although they insisted that that deed was a forgery, no evidence of any kind was taken to support that objection. That Stewart was an innocent purchaser, in November or December 1828, is admitted in the fullest terms. "A purchaser by deed, and in good faith."

13. It appears that, being such purchaser in good faith, Stewart made entry of the claim on the 13th December 1828, according to the provisions of the act of 1824. The time for taking an appeal, or for prosecuting a bill of review for errors apparent, expired the 19th December 1828, one year after the decree, and it will be insisted that Stewart had, under his entry, and the operation of the act of 1824, an inchoate legal title, nay, more, a legal title in fact, of which an after acquired patent would only operate as the evidence.

14. It was further contended, that when Stewart made his entry, he had done all that he could, or was bound to do. It was the duty of the ministerial officers of government to make out his grant.

Before the counsel for the appellants proceeded to argue the case, they admitted that the grant under which Sampeyreac claimed the land was a forgery, that the deed from him to Bowie was a forgery; and that the witnesses who were examined to support the grant had sworn falsely.

Mr Prentiss, for the appellants, contended, that the act of 1824 did not give the superior court of Arkansas any jurisdiction or authority to entertain a bill of review. This is a conclusion warranted by the object of the law, and a fair construction of its terms.

[p228] The object of that law was to furnish the means of a speedy and final adjudication upon the Spanish and French land claims in Arkansas and Missouri. To accomplish this, a special jurisdiction was given to the superior court, limited to the particular cases which were to be adjudicated by it, and limited as to the time in which it was to act upon them. The court, having been created by the act, had no other powers than those it derived from its provisions. 6 Peters, 487. Its special jurisdiction does not mingle with, nor was it in any manner increased by, the general chancery jurisdiction which it possesses.

The power therefore to entertain a bill of review in the case before the court, cannot be deduced from the general powers of the court, as a court of chancery; but if it exists at all, it is to be sought for only in the act, and the act no where expressly gives it. The court had authority to try titles simply, to direct issues of fact, all of which were useless if it had general chancery jurisdiction. It was, by the fifth section, to decide on claims exhibited within two years; and its decision was to be given in three years. The allowance of an appeal was intended as a substitute for a bill of review, and an appeal is the only mode by which the sentences of the court could be re-examined.

Another argument against the power of the court to entertain a bill of review, may be drawn from the provision which exempts the district attorney from the obligation to make oath to the answer he may file to the petition of a land claimant. If a bill of review was intended to be allowed, would not a similar provision have been made in reference to it? A bill of review, according to chancery rules, must be sworn to.

The proceeding in this case was not under the act of 1830. The bill was filed in April 1830, and the act did not pass until the 10th of May following.

But the act could not operate retrospectively, as it would be unconstitutional. Could it so operate, it would divest private rights acquired in good faith, and under the sanction of a solemn and final decree of the superior court of Arkansas, in a matter fully within its cognizance. By such an operation the law was not remedial, but was an extinguishment of a right. This is contrary to the fifth amendment of the constitution, by which [p229] private property is protected. The private property of Stewart was, by this act, taken away and given to the United States.

The act of May 1830, was the exercise of a judicial power, and it is no answer to this objection, that the execution of its provisions is given to a court. The legislature of the union cannot use such a power. The law violated the contract between the United States and the claimant, a contract entered into under the prior law, and consummated by the decision of the court, and it was equally in opposition to the principles of natural justice as it is to the constitutional declaration. Cited, 1 Aiken, 315; 2 Aiken, 284; 3 Greenleaf, 326; 2 Greenleaf, 287, 11 Mass. 386, 394, 399; 2 Peters, 657, 6 Cranch 87, 2 Cond. Rep. 308, 7 John. 477.

The proceedings on the part of the United States are not correct, according to the chancery practice, if the court had the power to entertain them.

A bill of review can be maintained in only two cases: 1. Where error is apparent on the record. 2. Where there is some new matter, which has become known subsequently to the decree, which is to be brought into re-examination.

The only error, if any, in the record, was refusing a continuance. This is not the subject of revision. The limitation of a bill of review is the same as a limitation of an appeal, which in this case, under the law of 1824, was one year.

There was no new matter to authorize the bill of review. The rule is, that the new matter must be unknown, and could not, with ordinary diligence, have been known, and the same must be set out in the bill. Hinde's Pract. 56, 57, 60, Freeman's Ch. Rep. 30, 177, 16 Vesey, 350; 2 John. Chan. 488, 3 John. Chan. 124, Hardin's Reports, 342, 1 Hopk. Ch. Rep. 102.

The only new matter coming at all within the rule was the forgery of the grant and order of survey, but the bill of review alleges that all these facts appear in the original bill, and so, of course, were not new. The general allegation that there is new evidence, is not sufficient: the evidence should have been stated. The forgery of these papers was put in issue in the original bill and answer, and the question upon them was judicially closed by the original decree.

[p230] Joseph Stewart is an innocent purchaser. He holds the land under the decree of confirmation, and not under a patent. His purchase was made in good faith, and he should not be disturbed, however fraudulent the acts of those who presented the claim for confirmation. He could know nothing but the recorded acts of the court of Arkansas, proceeding under and according to the provisions of the laws of congress in a matter specially entrusted to that court. As the United States ought not to seek from him the restoration of the property taken from them by the frauds of those to whom he as well as the government was a stranger; so this court should not sanction such a claim.

Argument for the United States
Mr Fulton, for the United States.

The superior court of Arkansas had jurisdiction of the case under the act of 1824, that act having given to the court chancery as well as common law powers. It proceeded in this case according to the rules of a court of chancery.

By the treaty with France of 1803, the United States were bound to protect and confirm private land claims; and for this purpose full powers were given to the court in Arkansas. The titles of the claimants were in a language foreign to the judges of the court: the witnesses to sustain them were unknown to the tribunal, and the whole effort of able counsel was given to establish them. If, in such cases, the courts and the land officers of the government were imposed upon, it was not extraordinary.

An examination of the law of 1828, with reference to the act of 1824, will result in the conviction, that no limitation upon the powers of the court was intended, other than as to the time of filing new claims and petitions. Having general chancery powers in all the cases which came before the court, it could proceed at any time in those cases, according to the principles and practice of courts of chancery.

But if any doubt can be raised upon the act of 1828, the provisions of the act of 1830 relieve the case from every embarrassment. By that act full powers are expressly given to proceed, as was done in the case before the court, and the only question to be decided, in order to maintain the decree of the [p231] court below is, whether the act was constitutional. To show the constitutionality of the law, Calder v. Bull, 3 Dall. 386, was cited, and upon the powers of congress over the territories of the United States, 1 Kent's Com. 360, was referred to.

There are errors on the face of the decree, in the original proceedings.

The decree was entered only twenty-five days after the bill was filed, and against the strong resistence of the district attorney, who asked for time to obtain testimony by which the alleged frauds and forgeries might been discovered. This furnished a sufficient ground for a continuance, and its refusal violated the rules of proceeding established by the court.

There were one hundred and thirty cases of the same description, and which were adjudged at the same time; and in none of them are the laws or ordinances of Spain, upon which the title rested, set out in the decree of the court.

Fraud is laid as the ground of the bill of review, and this is a sufficient ground for the proceeding. When the court has been grossly and evidently imposed upon, it must necessarily have a power to revise its decree, and correct the errors into which it has been drawn by the deceit and falsehood of a party who has abused its powers to obtain the benefit of his artifices and forgeries.

Nor can the appellant, Stewart, claim anything under the decree in the original proceeding as an innocent purchaser. The act of congress did not authorize the transfer of any right acquired under the decree. He appears claiming only an equitable title, as he can have no legal title.

Those who claim under a void grant, can acquire no right. Stewart having been altogether unconnected with the decree, can claim it no more than Sampeyreac, and Sampeyreac could not get a patent for the land. Cited, 1 Harrison's Chan. 452, 140, 146, 3 Wilson, 111, 2 Mad. Chan. 409; 1 Mad. Chan. 237, 1 Johns. Chan. 482, 1 Peters, 517, 542.

The attorney-general contended, that the case was not within the treaty with France, and was not within the cognisance of the court of Arkansas. There was no claim exist- [p232] ing under a grant, no title whatever was in the possession of the party to the proceeding; all the papers were forged, and all the witnesses who swore to the verity of the papers were perjured. These facts are admitted.

Thus the act of congress, having given to the court authority to confirm grants which had issued, and to proceed in the investigation of titles set up under such grants, whatever may have been done by the court under mistake, or from the frauds of those for whom the law was not made, could give no title to any land against the right of the United States. The court had no jurisdiction in such a case. Stewart claimed under Bowie, and it is admitted that Bowie's title was a forgery. If Sampeyreac was a real person, the title is yet in him.

It is said, the first decree is final and conclusive; that the powers of the court of Arkansas had expired, and no bill of review would lie there; and that congress could not pass a law authorizing a bill of review.

The act of 1828 continues the court as it was before, and also enlarges the time for filing claims. This act could not be considered as creating a new special jurisdiction. It was intended to continue the court, will all its powers; and it could of course entertain a bill of review, under the general powers of a court of chancery.

But if the court, under the act of 1824, had no such power, yet, as the United States had a right to the land, which could not be taken away by admitted forgeries, and congress could give a remedy for the injury sustained for such frauds, the act of 1830 is without objection. That a government has such powers, has been decided at this term in the case of Livingston's Lessee v. Moore et al. The case before the court, in this view of it, is, that there was an admitted forgery, and the act of 1830 established a court for the trial of that question.

The next inquiry is, whether the court pursued the remedy the law authorized.

The act of 1830 gives the review generally, and without restricting it to the technical rules of a bill of review in chancery. Congress might prescribe any form of remedy. The review is given on the suggestion of forgery. The review is [p233] given, not technically, but as a rehearing or revision by a proceeding in the nature of a bill of review. The act declares it to be for revising the former decrees of the court.

A bill of review may be filed without leave of the court, and without an affidavit. 2 Atk. 532. The want of an affidavit, and the fact that the bill was filed without the previous consent of the court, cannot be taken advantage of on appeal. If the party appears and answers, it is a waiver of the affidavit.

But in point of fact, the bill was filed with the leave of the court. The decree being taken pro confesso against Sampeyreac, he admits the allegations in the bill, and of course whatever the affidavit could state. But if Sampeyreac could set up and avail himself of these objections, Stewart cannot do so. Stewart, who brings the case here, has no interest in the lands. He cannot have such an interest through a forgery. The whole proceeding in the name of Sampeyreac was null and void, and could establish no right to be held or enjoyed by any one under the same.

Reply argument for the appellants
Mr White, for the appellants, in reply.

The questions in this case are, whether the fraud, which is admitted, can be reached by this court, and whether all remedy is not lost to the United States by the lapse of time. There is a different between the treaty with France of 1803, and that with Spain of 1819. The former does not confirm the grants of land within the ceded territory, the latter confirms them proprio vigore. An examination of the act of 1824 will fully satisfy the court, that unless an appeal has been taken from the decree of a court acting under that law, within one year, the title which has been confirmed by the decree of the court, becomes fixed and completed.

It is denied that the refusal of the court to grant a continuance, as required by the district attorney of the United States, was error. There was no cause shown for the continuance; no direct allegation that evidence could be obtained, and the court were bound by the act of congress to proceed promptly. But the refusal of an inferior court to grant a continuance, is not to be assigned as error in a court of appeals. This is the [p234] exercise of a discretion which cannot afterwards be inquired into.

The certificate given by the court in favor of the party whose title has been confirmed by the court is assignable, and the purchaser may take a patent for the land in his own name. An innocent purchaser has only to look at the decree of confirmation. The steps to procure that, however false or fraudulent, cannot affect him. The universal practice of the government has been to give the patent to the assignee of the certificate.

The bill of review in this case was filed before the act of 1830 passed, and can only be sustained on the law of 1824, and this could not be:

1. Because it was not sworn to. The only privilege given to the United States is, that the answer need not be sworn to.

2. Because it was not filed by leave of the court. The original decree must be executed before a bill of review will be allowed, and there must be new matter, not in issue in the original case, for the foundation of such a bill. Here there was none, as the question of forged titles was in issue in the original case.

A bill of review is the exercise of judicial power; and no power exists in congress to give a bill of review to divest a right vested before the enactment of the law. 1 Cond. Rep. 179; Fletcher v. Peck, 6 Cranch.

As to purchasers without notice, cited, 1 Johns. Ch. Cases, 219. As to forged warrants, cited, 5 Wheat. 309.

That Stewart was a necessary party in the case, cited, 10 Wheat. 181, 8 Wheat. 451, 7 Wheat. 522.