
66 U.S. 298 (____)
1 Black 298
THE UNITED STATES
vs.
ROBERT B. NELEIGH.
Supreme Court of United States.

*299 Mr. Shunk, of Pennsylvania, for the United States.
Mr. Reverdy Johnson, of Maryland, and Mr. Gillet, of Washington, for the appellee.
Mr. Black, of Pennsylvania.
*305 Mr. Justice GRIER.
Neleigh filed his claim before the board of Land Commissioners on the 3d of September, 1852. It was for six leagues of land in Mariposa county, being part of eleven leagues said to have been granted to Lieut. Col. José Castro by Pio Pico, late Governor, on the 4th of April, 1846. The deed from Castro, dated 8th of June, 1849, purported to convey to Bernard McKenzie and Robert Neleigh six of the eleven leagues, "to be taken where the grantees might select." McKenzie's interest was, afterwards, vested in his co-tenant by a conveyance from his administratrix. The commissioners confirmed the claim. But as the grant to Castro had never been surveyed or located, and, like that to Fremont was vague and uncertain as to its boundary, it might be located on either or both sides of the San Joaquin river. Their decree, therefore, did not ascertain what land was confirmed, but ordered that it be "selected by the said petitioner from the said eleven leagues when the same shall be located by the proper authority." This decision of the board was affirmed by the District Court in October, 1859.
In the meantime, José Castro, in March, 1853, filed his claim for the eleven leagues, "for the benefit of himself and those claiming under him." That case came before this court at last term, and may be found reported in 24 Howard, 347. It was rejected by this court, for the reason there given, and which need not be repeated. Nor need we inquire of what use the affirmation of the decree of the District Court would be to Neleigh of a right to select six leagues out of eleven, which, by judgment of this court, never can be surveyed or located. For the purposes of the present case, also, we will assume, that as Neleigh was not a party on record in the former case, he is not concluded by the judgment given in it, and inquire whether he has furnished any new evidence, which, if it had been found in the record of the Castro case, would have led us to a different conclusion. Now, it must be kept in remembrance that the grant to Castro was not rejected, because *306 it was not signed by the persons whose names are affixed to it. It is a historical fact, and proved by satisfactory evidence, more than once, that, after that country passed into the possession of the United States, the late Governor was very liberal in executing grants to any person who desired them, and for any quantity of land. It was easy to prove his signatures, and Pio Pico himself, when called as a witness, could never recollect anything about the date, which was the only material question in the inquiry as to its validity. Of the last two secretaries who attested these grants, one has been found capable, not only of writing false grants, but of supporting them by his oath. Of the other, we have been compelled to say, that he was following in the footsteps of his predecessor.
It is well known that espedientes and records of the grants made in Pico's time were carefully put away by him in boxes, which came into the possession of Col. Fremont, and were delivered to the public officers. These espedientes are all found safe among the records, but the "toma de razon," or short record of them, has disappeared. Hence, when a grant is produced for the first time from the pocket of the claimant, and is attempted to be established by proof of the signatures of the Governor and Secretary, the want of an espediente or archive evidence is expected to be excused by the proof that some papers were lost and torn when they were carried away on mules by Col. Fremont, or used "as cartridge paper," according to Pio Pico's theory. The enormous frauds which have been attempted to be perpetrated, depending on this theory of the destruction of records, have compelled us to reject it altogether as fabulous. These archives have been collected, and are found in a very tolerable state of preservation. Hence, the propositions laid down in the Castro case, and others preceding it, were an absolute necessity to save the Government from utter spoliation of its territory.
It would be superfluous to repeat the principles laid down in the Castro case. It is sufficient to say, that the additional testimony in this case does not relieve it from its deficiencies there stated. The testimony of Colonel Fremont of having seen some paper concerning a grant to Castro, does not prove *307 the existence of this grant, which was not the only property claimed by Castro in California. The testimony of the late Governor adds nothing to the evidence. He, as usual, acknowledges the genuineness of his signature, which was not disputed; but as to the important question, whether it was made before or after his expulsion by the Americans, he is entirely silent. He could not remember historical facts connected with his administration; that at the date of this grant he was at bitter feud with Castro, who had seized upon the custom-house at Monterey, and set the Governor at defiance, and that the Governor was preparing troops, at this time, to compel his submission. The declaration of the witness, that he should nevertheless as soon make a grant to Castro as to any other, is no doubt true, if it refers to the true date of the transaction, after they had both been superseded and deposed by the Americans. Nor does it add anything to the value of this testimony, that the witness explains that, by want of recollection, he means his unwillingness to state the truth.
Moreno, who is always a more willing witness, and who labors under no want of memory or imagination, is brought to supply this want of record proof, and accounts for his signature to the grant being dated when he was not Secretary. He swears that he signed it after its date, in the beginning of May, but whether it was May, 1846, 1847, or 1848, he does not state directly, but leaves it to inference that he meant 1846.
But if we were in any doubt as to the credibility of the testimony of this witness, there are other facts established which demonstrate, that if he had stated explicitly that he signed this grant, and recorded it in May, 1846, the assertion would have been untrue.
On the 4th of April, 1846, the date of this grant, it is a fact not only that Moreno was not Secretary, but that Pio Pico was not Governor. He first presented his appointment as Governor, to the Assembly, on the 15th of April, 1846, and was inaugurated on the 18th. The first grant made by him, in which he is styled Governor, is that to Pedro Sansevaine, dated the 21st of April. In all his previous grants he is styled "First Vocal and Governor ad interim." This deed was evidently written *308 so long after, that this fact had escaped the recollection of the parties signing it. In the beginning of May, 1846, it was becoming apparent to all concerned that the power of the Governor and the Assembly would soon pass away. Pio Pico, therefore, prudently gathered up the grants of land which had not been previously laid before the Departmental Assembly for their approval. He accordingly, on the 3d of June, 1846, sent in to them no less than forty-five espedientes. One of these was made in 1839. The others were all dated in 1845 and 1846; the last three on the 2d and 3d of May, 1846. Fortunately, we have the minutes of the Assembly, by which it appears that these forty-five espedientes were reported and confirmed on the 8th of June, 1846. This grant to Castro does not appear among them, and is left to the uncertain testimony of Moreno to establish its existence; and we are asked to presume that it alone was kept back from the Assembly, and that while all the other genuine grants confirmed by them are found among the archives in good order, this alone was converted into "cartridge paper." All these presumptions must be made on the faith of these witnesses, whose testimony we have heretofore declared could not be received to contradict or supply record evidence.
In the former case, this grant to Castro was rejected for the negative reason that there was not the evidence required to prove it genuine. The testimony in the present case has proved it positively spurious.
Let the decree of the District Court be reversed.
