United States v. Samperyac

by the U.S. Superior Court for the Arkansas Territory

U.S. Superior Court for the Arkansas Territory

Hempst. 118

The United States, complainants  v.  Bernardo Samperyac and Joseph Stewart, defendants.

Bill of Review in Chancery

1. It rests in the sound discretion of the chancellor, to award a feigned issue, or not; and it is done, to enable him to obtain additional facts, and to arrive at a satisfactory conclusion on the facts of the case.
2. The verdict of the jury, on a feigned issue, is not conclusive, for the chancellor may have it tried again and again, and may even decree against a verdict.
3. Where there is sufficient proof to enable the chancellor to decide, the parties should not be subjected to the delay and expense of a trial at law.
4. The act of May 26, 1824, (4 Stat. 52) confers on this court the powers of a court of chancery, for the purpose of trying the validity of claims mentioned in that act, and a bill of review may be maintained therein.
5. A bill of review lies either for error in law, appearing on the face of the decree, or for new material matter, that has come to light afterwards, and which could not have been used at the time the decree was made.
6. The bill must be founded on new matter to prove what was before in issue, for a party cannot be entitled to a bill of review on new matter, to prove a title which was not in issue.
7. Where a fraudulent claim was set up, and sustained by false testimony, the decree may be reversed and annulled, on a bill of review, and no rights can be acquired under such former decree.
8. When the allegations of a bill are distinct and positive, they are taken as true, without proof, after a decree pro confesso; which, in its effect, is like a judgment by nil dicit at law.
9. But where the allegations are so defective or vague, that a precise decree cannot be rendered upon them, proof must necessarily be adduced before a decree can be made.
10. A refusal to deny, where a party is legally bound to speak, is equivalent to an admission of the charges against him. Vhat is admitted need not be proved.
11. The general denial of allegations, by one uninformed as to their truth, will not be sufficient to dissolve an injunction.
12. A bill of review will be barred by the lapse of a reasonable time, after discovery of the new matter; but what shall be considered reasonable time, depends upon the sound discretion of the chancellor, under all the circumstances of the case.
13. Fraud, deduced from circumstances, may be sufiicient to outweigh positive proof to the contrary.
14. Startling frauds and forgeries proved and commented on.
15. Judgments and decrees are not assignable at law, so as to vest the legal title in the assignee, and the latter takes only an equitable interest; which is subject to every equity and charge which attached to them in the hands of the assignor.
16. A purchaser for a valuable consideration without notice, must be clothed with the legal title, and not a mere equity, in order to protect himself.
17. No one can occupy the attitude of an innocent purchaser, under a forged claim and conveyance.
18. Construction of the act of Congress of the 8th May, 1830, 4 Stat. 399; and held not to require the observance of all the technical rules in the ordinary course of chancery practice on a bill of review, under that act.
19. Almost every law providing a new remedy, affects causes of action existing at the time the law is passed; but such a law is not for that reason invalid.
20. It is incontestable, that a grantee can convey no better title than he possesses, and hence, those who come in under a void grant acquire nothing.

February, 1831.—Bill of review in chancery, determined before Benjamin Johnson, Thomas P. Eskridge, James Woodson Bates, and Edward Cross, judges of the Superior Court of theUnited States for the Territory of Arkansas.

Bernardo Samperyac, under the act of Congress of the 26th of May, 1824, (7 Laws U. S. 300) 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," by R. C. Oden, his solicitor, filed his bill against the United States, in the office of the clerk of the superior court of the Territory of Arkansas, on the 21st of November, 1827; stating that he, an inhabitant of the Province of Louisiana, on the 6th of October, 1789, addressed a petition to the governor of the said province and its dependencies, asking a grant of land in full property, on Strawberry River in Arkansas district, containing ten arpens in front by the usual depth; that on the 11th of October, 1789, Miro, the governor of the Province of Louisiana, made the grant as requested, and at the same time issued an order of survey to the surveyor-general of the province, to the end that the boundaries of the grant might be defined for the purpose of making a title in form; that this grant was secured by the treaty between the United States and France of the 30th of April, 1803, and would have been perfected into a perfect title under the government under which it originated, had there been no change of sovereignty; and the bill prayed the court to confirm the said grant, according to the provisions of the act of Congress before mentioned, and that process be issued against the attorney of the United States for the Territory of Arkansas, to appear and answer the bill.

The petition of Samperyac, and the order of survey, in the Spanish language, attached to the bill as exhibits, translated by James H. Lucas, the sworn interpreter and translator of the court, were as follows, namely:—

PETITION.

To the Governor of the Province of Louisiana and its dependencies, &c., &c.

Bernardo Samperyac, wishing to establish himself on Strawberry River in the Arkansas district, prays that you will do him the favor to grant him ten arpens of land in front by the usual depth, being the lands of his Catholic Majesty, and not causing any prejudice; a favor your petitioner hopes to receive from your bounty; and he will ever pray to God for your health.

BERNARDO SAMPERYAC.

New Orleans, 6th Oct., 1789.

ORDER OF SURVEY.

New Orleans, 11th Oct., 1789.

The surveyor of this province, Don Charles Trudeau, will establish this tract, on the ten arpens of land requested, by the usual depth, and will mention the bounds, in order that they may appear at the time that the boundaries have to be defined, for the purpose of making a title in form.MIRO.

Process having been executed on Samuel C. Roane, district attorney, on the 24th of November, 1827, he filed an answer in behalf of the United States, denying the facts and allegations in the bill, and alleging that grants could only be made legally to persons actually residing in the Province of Louisiana; that Samperyac, in whose name the bill was filed, was a fictitious person without actual existence; or that if he ever existed he was a foreigner, or then dead, and made no transfer, or assignment, of the claim in his lifetime; that he had no legal representative in existence; that there was no one now living, who was authorized to file this bill or prosecute this suit, and prayed that the bill might be dismissed. On the 19th of December, 1827, the district attorney moved to continue the cause until the next term, principally on the ground that there were many cases pending in the court, similar in all respects, and involving the same principles, and with regard to which the United States desired to procure evidence if any existed. The court denied the motion, and the district attorney excepted, and the court signed and sealed his bill of exceptions.

The testimony in behalf of the complainants was the exhibits to the bill already referred to, and the deposition of John Hebrard, of the parish of Ouchita and State of Louisiana, taken in open court on the 19th of December, 1827. He testified that he was about seventy-one years old; that he was alcalde in the Province of Louisiana, under the Spanish government, from 1789 to 1791, under the appointment of Miro, governor of said province; that he was commandant in Catahoola from 1797, under the appointment of Manuel Gayoso de Lemos, governor of said province, until the country was transferred to the United States; that he was often in the executive ofiices of those governors during their administration; had often seen them write, and from his official situation had occasion for a continued correspondence with each of them during the times they were respectively governors of said province, and that he was well acquainted with their handwriting; that he had examined the signature to the grant in this case, and found it to be in the proper handwriting of Miro, governor of said province at that time. He further testified, that the grant in this case was in the most usual form and mode of granting lands by the said governors, and would have been perfected into a title in form under the Spanish government; that lands thus granted were considered and treated by the government and the grantee as established titles, and were to be surveyed or not as the grantee chose; that a concession or order of survey, calling for lands fronting on watercourses, were to be run off, when surveyed, as follows: commencing from forty to sixty feet back from the highest high land, after passing all overflowed land if any in front, and the grantees were authorized to locate the grant on entirely good, arable land, so as neither to include inundated nor barren land, unless they chose to do so. He further testified, that the command of Arkansas commenced on the Mississippi River, at a place called Little Prairie, about forty miles below New Madrid, and fronted on the Mississippi down to Grand Point Coupee, now called Lake Providence, in Ouchita parish, State of Louisiana, and extended back west so as to include all the waters which emptied into the Mississippi from the west, between those points. He stated, on cross-examination, that he knew Bernardo Samperyac; that he resided in the Province of Louisiana at the date of the order of survey, 11th October, 1789, and was then living on Red River in Natchitoches parish, Louisiana; that in granting lands to individuals, the consideration frequently was for services rendered the government, but more frequently to induce population; that any man from any quarter could and generally did obtain concessions and orders of survey; that the Spanish governors kept records of grants, but that the destruction of the offices at New Orleans by fire, in 1792 or 1793, destroyed the greater part of the records, and that a great many more were said to have been purloined and taken off, about the change of government, by officers who had been attached to the Spanish executive off1ces; that, as to granting lands, the governors-general of Louisiana were limited as to jurisdiction and quantity. They were authorized and empowered by the laws, usages, and customs of the Spanish government to grant lands not exceeding one league square, in the Province of Louisiana, which commenced at the mouth of the Mississippi River, and extended back so as to include all Upper and Lower Louisiana.

On the same day, the 19th December, 1827, the superior court, held by Benjamin Johnson and William Trimble, judges, on the foregoing testimony, decreed the confirmation of the said grant to Bernardo Samperyac, as for four hundred arpens of land, and the decree was recorded, and no appeal taken from it by the United States within one year.

One hundred and thirty other cases before the same court, against the United States, in the names of different claimants, were confirmed for four hundred arpens of land each, on the same testimony, and decrees entered and recorded, and from which no appeals were taken.

On the 14th of February, 1828, Samperyac transferred his claim by deed to John J. Borrie; and in December, 1828, Joseph Stewart, it was admitted on the part of the United States, purchased the claim from John J. Borrie by deed, for a valuable consideration, and in good faith; by virtue of which purchase, Stewart entered at the Little Rock land-office, on the 13th of December, 1828, the north-east quarter of seventeen, the east half of south-east quarter of seventeen, and the west half of north-east quarter of thirteen; all in township eleven, south of range twenty-six west, containing 320 acres, relinquishing the overplus of twenty acres; and obtained the certificate of entry of Bernard Smith, the register thereof.

On the 10th of April, 1830, the United States, by Samuel C. Roane, their attorney for the Territory of Arkansas, filed in the superior court, by leave thereof, their bill of review against Bernardo Samperyac, setting out the proceedings in the foregoing case, and alleging that the original decree was obtained by fraud and surprise; that the petition and order of survey were forged; that Hebrard, the witness in the cause, committed the crime of perjury; that the order of survey was never signed by Miro, governor of Louisiana, as it purported to have been, and that this fact had come to the knowledge of the said district attorney since the decree was entered; that Samperyac was a fictitious person, and never had existence; that the district attorney had discovered new and important record evidence, of the existence of which he was not aware, and which was not within his control at the hearing of the cause, and which could be procured, if a rehearing was allowed; and praying that said decree and proceedings might be reviewed and reversed and annulled.

Bills of review were filed in each of the other cases, at the same time setting forth the same facts.

On the 8th of May, 1830, congress passed an act entitled "An Act for further extending the powers of the judges of the superior court of the Territory of Arkansas, under the act of the 26th day of May, 1824, and for other purposes," continuing in force that act so far as it related to claims within the Territory of Arkansas until the 1st of July, 1831, "for the purpose of enabling the court in Arkansas having cognizance of claims under the said act to proceed by bills of review filed, or to be filed, in the said court on the part of the United States, for the purpose of revising all or any of the decrees of the said court in cases wherein it shall appear to the said court, or be alleged in such bills of review, that the jurisdiction of the same was assumed in any case on any forged warrant, concession, grant, order of survey, or other evidence of title; and in every case wherein it shall appear to the said court, on the prosecution of any such bill of review, that such warrant, concession, grant, order of survey, or other evidence of title, is a forgery, it shall be lawful, and the said court is hereby authorized to proceed, by further order and decree, to reverse and annul any prior decree or adjudication upon such claim; and thereupon such prior decree or adjudication shall be deemed and held in all places whatever to be null and void, to all intents and purposes. And the said court shall proceed on such bills of review by such rules of practice and regulations as they may adopt for the execution of the powers vested or confirmed in them by this act." 8 Laws U. S. 297, 298.

Samperyac was proceeded against as an absent defendant, after the return of the process that "he was not to be found in the Territory of Arkansas."

On the 28th of October, 1830, Joseph Stewart was permitted to file his answer, and become a defendant, which was excepted to on the part of the United States, and a bill of exceptions signed and sealed by the court. On the same day, a decree pro confesso was entered against Bernardo Samperyac, he having failed to appear and answer the bill.

The answer of Stewart denied the frauds and forgeries alleged in the bill, and averred that if there was any fraud, corruption, or forgery, he was ignorant of it, and that he bonâ fide purchased the claim, for a valuable consideration, from John J. Borrie, by deed, and had entered the same at the Little Rock land-office, and ought not to be divested of the land so entered; and that the said decree, being for less than five hundred acres, and not having been appealed from within one year, was final and conclusive, and could not be annulled or set aside. The cause was set down for final hearing at the next term; and, on motion of the district attorney, it was ordered that he have leave to withdraw from the record files of the court the original Spanish paper in this case, for the purpose of taking depositions, the Hon. James Woodson Bates, one of the judges, dissenting. The clerk was required to retain a copy of the paper.

On the 26th of January, 1831, the cause came on for final hearing, on bill, answers, exhibits, and testimony; and was argued by counsel until the 1st of February, 1831, and was then submitted, and by the court taken under advisement.

On the 4th of February, 1831, the defendants filed their written motion that the court submit the question of forgery vel non, of the order of survey, to the decision of a jury; and this motion was taken under advisement.

The testimony adduced under the bill of review is sufficiently referred to in the opinion of the majority of the court, and need not here be recapitulated.

On the 7th of February, 1831, the above motion was overruled by the following opinion of the court:—

Per Curiam.—We are of opinion that the motion to award a feigned issue in this case should be overruled, for the following reasons:—

1. Because it rests in the sound discretion of the chancellor to award a feigned issue or not; and where the truth of the facts can be satisfactorily ascertained by the chancellor, without the aid of a jury, it is his duty to decide as to the facts, and not subject the parties to the expense and delay of a trial at law. Dale v. Roosevelt, 6 Johns. Ch. Rep. 255.

2. Because the chancellor, when he directs such issue, does it upon the ground that the evidence produced before him in the record is not sufficient to enable him to arrive at a satisfactory conclusion; he, therefore, directs the facts to be tried by a jury, for the purpose of collecting additional evidence; which additional evidence, when so collected, the chancellor considers in connection with that already existing in the records of the chancery court. Bootle v. Blundell, 19 Vesey, jr. 500; 1 Archbold's Practice, 347, 348, 349.

3. Because the verdict of the jury upon such feigned issue, is not conclusive upon the chancellor; he may have it tried again and again, if these verdicts are not agreeable to his sense of justice; or he may even decree contrary to a verdict, if he thinks proper. Moris v. Davis, 14 Sergt. & Lob. 380.

4. Because the bill in this case has been taken for confessed, and every distinct and positive allegation in it must be taken as true. Williams v. Corwin, 1 Hopkins, 471.

Motion overruled.

On the 7th of February, 1831, the court decreed that the former decree in favor of Bernardo Samperyac against the United States, for four hundred arpens of land, pronounced and recorded at the December term of this court in 1827, be reversed, annulled, and held for nought; and that Stewart pay his own costs. Decrees of reversal were pronounced in the other cases.

Samuel C. Roane, district attorney, and William S. Fulton, for the United States.

Chester Ashley, Robert Crittenden, William Trimble, and William Kelly, for defendants.

[Opinion of the court by Judge BENJAMIN JOHNSON. Dissenting opinion by Judge JAMES WOODSON BATES.]