United States v. Delespine's Heirs Lazarus

APPEAL from the superior court of East Florida.

The heirs of Joseph Delespine, and others, purchasers from Joseph Delespine, filed a petition to the supreme court of East Florida, praying confirmation of a grant to Joseph Delespine, made by Don Jose Coppinger, on the 9th day of April, 1817; he being then the Spanish governor of East Florida. The grant was for forty-three thousand acres, under which surveys were made by George J. F. Clarke, then surveyor of the province, according to the terms of the grant.

The petitioners exhibited, in support of their claim, the original translation, certified by Francis I. Facio, of the certified copy by Thomas de Arguilar, the government secretary of the province, which was brought into court by the keeper of the public archives of East Florida. Evidence was given, that the original grant by governor Coppinger had not been found among the archives, or any where. It was also in evidence, that a copy of the memorial of Joseph Delespine, and of the concession thereupon, for the forth-three thousand acres of land, purporting to have been certified by Thomas de Arguilar, as secretary of the government, was exhibited to the board of land claims of East Florida, which was, before the board, proved to have been in the handwriting of the government secretary, and signed by him. This document had been mislaid or lost.

The superior court of East Florida gave a decree in favour of the petitioners; and the United States prosecuted this appeal.

Mr. BUTLER, the attorney general of the United States, informed the Court, that on an examination of the record, he found nothing in the case to distinguish it from those which had been already decided in favour of claimants under Spanish grants; unless the Court should consider the circumstance of the original grant by governor Coppinger not having been found in the archives of Florida, as rendering the evidence of the grant insufficient.

The grant should have been found filed with similar papers in the proper office, but there it was not. It is admitted that the papers of the office are in disorder; and evidence was given in the superior court of Florida, which showed that negligence in the preservation of the papers frequently prevailed there. But the certified copy of the grant was not produced, it also had been lost; and the only evidence exhibited to the court, was a certified translation of a copy of the grant.

It is admitted that when a grant of land is made, the original is retained, and a copy only is furnished to the grantee; but the original is filed in the proper office. There no original can be found. The case must stand before the court as if the certified copy of the grant had been produced, for its loss is accounted for; but the question which this Court have to decide, is whether the grantees ought not to prove the original to be in existence. Cited Mitchell v. The United States, 9 Peters, 731; Owens v. Hull, 9 Peters, 621.

Mr. Justice WAYNE delivered the opinion of the Court: