44 U.S. 611

3 How. 611

11 L.Ed. 749


January Term, 1845


THIS was an appeal from the Superior Court of East Florida, and a sequel to the case reported in 10 Peters, 308.


The appellants filed in the court below the following petition:


‘To the Honorable Isaac H. Bronson, judge of the Superior Court in and for the eastern district of Florida.


‘The petition of Joseph Chaires, of the said territory, executor of the last will and testament of Benjamin Chaires, late of the same territory, but now deceased, Peter Miranda, and Gad Humphreys, respectfully showeth:


‘That the said Benjamin Chaires, Peter Miranda, and Gad Humphreys, heretofore, to wit, on the 11th day of May, which was in the year of our Lord one thousand eight hundred and twenty-nine, filed their petition in the office of the clerk of this honorable court in terms of an act of Congress of the United States, entitled an act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida, approved on the 23d of May, in the year one thousand eight hundred and twenty-eight, praying for the confirmation of certain claims to lands therein specified, and founded on a title made and granted by his excellency Don Jos e Coppinger, lieutenant-colonel of the royal armies of Spain, eivil and military governor of the territory of Florida, then subject and belonging to his Catholic Majesty, the King of Spain, and chief of the royal exchequer of the city of St. Augustine, Florida, to Jos e de la Maza Arredondo.


‘That the attorney of the United States in and for said district, duly appeared, and answered the said petition; and thereupon such proceedings were had in the said court, that afterwards, on the 24th day of November, in the year of our Lord one thousand eight hundred and thirty-four, a decree was rendered therein in favor of the petitioners; and the said court did thereupon order, adjudge, and decree, that the claim of the said petitioner was valid, and that, in accordance with the laws and customs of Spain, and under and by virtue of the treaty of amity, settlement, and limits, between the United States and Spain, ratified by the President of the United States on the 22d day of February, one thousand eight hundred and twenty-one, and under and by virtue of the laws of nations and of the United States, the said claim was thereby confirmed, adjudged, and decreed, unto the said claimant, to the extent, for the number of acres, and at the place specified in the grant for the said land, to Jos e de la Maza Arredondo; and as in the certificate and plat of the same, made by Andres Burgevin, dated the 14th of September, in the year of our Lord one thousand eight hundred and nineteen, and fully in the said cause is set forth, that is to say ?


‘A piece of land, which contains twenty thousand acres, situated on both margins of a creek, known as Alligator creek, said land commencing a little above the head of said creek, and embracing an Indian town, distant about eighty miles from the port of Buena Vista, and about forty miles to the north-west of Payne’s Town?its first line running north twenty degrees west, three hundred and fifty-seven chains, begins at a pine marked X, and ends at another marked A; the second line running south seventy degrees west, five hundred and sixty chains, and ending at a stake; the third line running south twenty degrees east, three hundred and fifty-seven chains, and ending at a pine marked II; and the fourth line running north seventy degrees east, five hundred and sixty chains.


‘That an appeal was taken from the decree, so rendered in this honorable court, to the Supreme Court of the United States, by the attorney of the said United States, in and for the said territory, and such proceedings were thereupon had in the said Supreme Court, that afterwards, on the ___ day of _____, in the year of our Lord one thousand eight hundred and thirty-six, the decree of this honorable court was affirmed; and thereupon the mandate of the said Supreme Court was awarded, directing the same to be carried into effect.


‘And your petitioner further shows to your honor, that upon application to the proper officer of the United States, to carry the said decree into effect, by admeasuring to your petitioner the lands specified in the grant, it appears that there is error in rendering the said decree, and that the same requires to be reformed, in this


‘That in and by the decree of this honorable court, hereinbefore alleged and affirmed, in manner hereinbefore set forth by the Supreme Court, your petitioner’s claim was confirmed, adjudged, and decreed to be valid ‘to the extent, for the number of acres, and at the place as in the grant to the said land to Jos e de la Maza Arredondo,’ but it is added in the said decree, ‘and as in the certificate and plat of survey of the same, made by Don Andres Burgevin, and dated the 14th September, one thousand eight hundred and nineteen, and filed herein, is set forth, to wit,’ &c., &c.; and the said decree thereafter proceeds to recite the metes and bounds as specified and set forth in the survey made by the said Don Andres Burgevin.


‘That the land granted to Jos e de la Maza Arredondo, and, in the decree before referred to, confirmed and adjudged to your petitioner, is described in the royal grant or title to property, also before herein referred to, consist of ‘twenty thousand acres of land, with title of absolute property, of those known as Alachua, about eighty miles distant from this city (of St. Augustine) at a place known as ‘Big Hammock,’ about twenty miles from the river Lawanee westward, about sixty miles from St. Johns.’ While the land specified in the survey of Don Andres Burgevin is described as follows: ‘twenty thousand acres of land, situated on both margins of a creek known as Alligator creek. Said land commences a little above the head of said creek, and embraces an Indian town, distant about eighty miles from the post at Buena Vista, and about forty to the north-west of Payne’s Town,’ &c., &c.


‘That the land specified in the said survey does not conform to, or correspond with, the land described in the said grant, and that the surveyor-general of the United States has therefore been unable to execute the decree of this honorable court, affirmed as aforesaid by the Supreme Court of the United States, and to admeasure to your petitioner the land adjudged to him by the said decree.


‘That forasmuch as the land specified in the said grant to Jos e de la Maza Arredondo is, by the decree aforesaid, adjudged to your petitioner, ‘to the extent, for the number of acres, and at the place, as in the grant for said land,’ your petitioner is entitled to have the same admeasured to him according to the terms of the said grant, and the description therein contained; and that if the said survey of Don Andres Burgevin conflicts with the said grant, the said survey must yield to, and be controlled by, the terms of the grant.


‘Your petitioner further shows to your honor, that the said land was duly surveyed and admeasured, and a plat thereof made and returned to this honorable court, and given in evidence in said cause, by Joshua A. Coffee, a competent and qualified surveyor, but that the same was omitted in the transcript of the record sent to the Supreme Court of the United States, although the fact of its having been given in evidence appears in the said transcript, a copy of which said survey is hereunto annexed.


‘Your petitioner further shows to your honor, that the surveyor-general of the United States hath refused to execute the said decree by admeasuring for your petitioner the land thereby confirmed and adjudged to him, and that, upon application to the commissioner of the General Land-office, he hath in like manner refused so to do, until the said decree shall have been reformed by the competent authority.


‘Wherefore, your petitioner prays this honorable court, the premises aforesaid being considered, and due proof thereof being made, that the said decree may be reformed, and to that end, that a rehearing of the said cause in this behalf may be granted; that the title of your petitioner to the twenty thousand acres of land, specified in the grant to Jos e de la Maza Arredondo may be adjudged to your petitioner according to the terms and specifications of the said grant, and the survey of the said Joshua A. Coffee, a copy whereof is hereunto filed; or according to a survey to be made under the order of this court, by the surveyor-general of the territory of Florida, in comformity to the description of the said land in the said grant specified and set forth, to be returned into the registry of this honorable court; and that he may have such other and further relief, as in the wisdom of this honorable court shall seem meet and right in the premises; and your petitioner, &c., &c., &c.’


In June, 1844, the court, after hearing an argument, decided that the petition for rehearing could not be entertained, and ordered it to be dismissed.


From this decree the petitioners appealed to this court.


Berrien, for the appellants.


Nelson, (attorney-general,) for the United States.


Berrien, after stating the case, said: This petition was dismissed by the District Court, on the ground that it had not been filed in time.


The relief sought by the petitioner is therefore resisted solely on the ground that too much time has elapsed since the decree was rendered, to entitle them to it.


They have the decree of this court affirming their title to twenty thousand acres of land, specified in their grant, and at the place therein specified.


The ministerial officer of the government refuses to admeasure the land so awarded to them, according to the terms of the grant, because the decree also refers to an inconsistent description contained in the survey of Burgevin.


And an application to have the decree reformed, according to the clear and manifest intent of the court, is resisted on the ground of time.


This objection is sustained by a reference to the rules established in the English courts of chancery, and recognised here in cases to which they apply, in relation to applications for a rehearing, and bills of revivor.


And to the argument from analogy, drawn from the limitation of time in our statute, within which appeals may be entered, and writs of error sued out.


As to the first objection: it is submitted that the rules which regulate the proceedings of courts of chancery, in the exercise of their general jurisdiction over cases, between individual parties, are not applicable to this proceeding.


This case was brought before the court below, and subsequently transferred to this court, not by an appeal to the general chancery jurisdiction of either, but under the special authority given to these courts by the act of 1828, providing for the settlement and confirmation of private land claims in Florida, and those other acts to which it refers.


The proceeding was by petition; which was required to be conducted according to the rules of a court of equity; and certain limitations of time were prescribed, within which petitions were to be filed, and appeals to be entered.


But the court was required to settle and determine the validity of the title, by a final decree, and the successful claimant was entitled to a copy of the decree, and the admeasurement by the surveyor-general of the land awarded, with a certificate of such admeasurement, for the purpose of obtaining a patent from the commissioner of the General Land-office.


No time is specified within which the duties of these officers are to be respectively performed.


But in the case of a successful claimant, their acts constitute part of the res gesta. They are part of the proceeding; and the District Court must, in such case, retain possession of the cause, until the mandate of this court is carried into execution.


Its intervention may, in various ways, be necessary to direct, or speed the action of the ministerial officers of the United States.


Neither the enrolment of the decree in this court, nor of the mandate in the court below, can conclude the cause, and fix a period from which the time for filing a petition for a rehearing, or bill of revivor, is to run.


The case remains open, always liable to be acted on by the court below, until the mandate is executed.


No time is prescribed by the act, within which the duties of the surveyor-general are to be performed. The nature of these duties forbade it. It was to survey wild lands in trackless forests.


In point of fact, the decision of the surveyor-general, and of the commissioner of the General Land-office, that this decree, in its present form, could not be executed, was only obtained immediately before the application to the court below.


If they erred in that decision, had not the District Court power, in the exercise of its authority, to carry the mandate of this court into execution to correct that error, and to require the survey to be made according to its interpretation of the decree? That was one of the prayers of the petitioners.


No application could be made here. The case had passed from this court with its mandate.


It remained with the court below to superintend the execution of the mandate; and must therefore have remained open in that court.


That which is here contended is, that neither the time at which the decree is pronounced, in this court, nor that when the mandate is filed in the court below, can be considered as the starting point, from which the limitation applicable to petitions for rehearing, and bills of revivor, is to be computed.


This seems to result inevitably from the mode of proceeding.


The decree of this court is spoken of. But the proceeding here is but an affirmance of the decree of the court below.


The mandate is the certificate of that affirmance, and the case is remanded to the District Court for ‘such further proceedings,’ as according to right and justice, and the laws of the United States, ought to be had. It is then necessarily open in that court.


It may do whatever ‘right and justice,’ and ‘the laws of the United States,’ require to be done.


Here it is obvious that this application is founded on such matter.


The impossibility of reconciling the different parts of this decree, so as to give it effect, could only be ascertained (from the vagueness of this, as of all other Spanish grants,) by the experimental surveys of the United States officer.


This suggestion withdraws the case at bar from the authority of that of Thomas and Brockenborough, and of the rules of the English chancery.


Repeated experimental surveys were necessary, for the purpose of ascertaining whether the lines of surveys lying in the supposed vicinity of those specified in this grant would correspond with those of the survey referred to in the decree. It was only when this had been done, that the impossibility of carrying this decree into effect, without abandoning the lines of the survey of Burgevin, and resorting to those in the grant, and the survey of Coffee, could be ascertained.


No laches can be imputed to the petitioners, because the time which has since elapsed is not within any legal or equitable limitation.


The ground upon which, however, it is apprehended that this case ought to be put is, that this case was still open in the court below for the purpose of this petition.


The petitioners had a final decree in their favor, as ascertaining their title to twenty thousand acres.


As they were required to do, they applied to the surveyor to admeasure their land to them.


This, after repeated efforts, in a wild country, he failed to do, alleging certain errors in the decree.


When this was ascertained, application was made to the court below, so to reform the decree as to give the petitioners the benefit of it in some form.


This was refused, solely on the ground that such petition could not now be received.


If, therefore, this cause is open for any purpose, in the District Court, as we apprehend all such cases must be, while the surveyor is engaged in making the survey, in obedience to the mandate; if that court could have granted relief in any form, upon petition, to the appellants, then we suppose that its judgment must be reversed, as the petition contains a prayer for general relief.

Nelson’s argument was this:


This is an appeal from the decision of the Superior Court of the district of East Florida, rendered on a petition exhibited in said court by the appellants, praying for certain relief, and which was dismissed by said court. The error alleged is, that the decree of dismissal was improvidently passed.


The petition is spread upon the record, and need not be repeated here.


It is sufficient to state, that it seeks to reform a decree of the court to which it was presented, passed on the 24th day of November, 1834, and which was, at the January term, 1836, of this court, upon an appeal prosecuted by the United States, affirmed. 10 Pet., 308.


The object sought to be effectuated is to make the decree available for other lands than those covered by it, under an allegation that the recitals in said decree are erroneous, and this it is proposed to do by the instrumentality of the petition set out in the record.


The appellee maintains that the court below, in dismissing the petition, committed no error, and that the same ought not to have been entertained by it, because of the lapse of time from the rendition of the decree proposed to be reformed, to the exhibition of the petition in this case.


The proceedings in the court of Florida were had in pursuance of the provisions of the act of Congress of the 23d of May, 1828, entitled ‘An act supplementary to the several acts providing for the settlement and confirmation of private land-claims in Florida,’ the 6th section of which provides that ‘all claims, &c., shall be received and adjudicated by the judge of the Superior Court in which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, conditions, restrictions, and limitations, prescribed to the district judge, and claimants in the state of Missouri, by act of Congress, approved May 26th, 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.”


The 2d section of the act last referred to declares, ‘that every petition, which shall be presented, under the provisions of this act, shall be conducted according to the rules of a court of equity.’


The question then to be decided is, in the view entertained by the appellees, whether, according to those rules, the petition for a rehearing, filed in this case, was in time to justify the court below in opening the original decree?


This was passed on the 24th day of November, 1834, and was affirmed in this court in January, 1836, and the present petition was filed on the 21st day of May, 1844.


A rehearing will not be granted, if once the decree has been enrolled, even if only one of several defendants has caused the enrolment. 1 Sch. & L., 234.


Whatever may be the capacity of a bill of revivor or review, to open a decree thus enrolled, a petition for a rehearing is incompetent to such an end. Bennett v. Werter, 2 Johns. (N. Y.) Ch., 305, 3 Ch. Rep., 94.


But in this case, the lapse of time, in analogy to the principles of law applicable to limitations, is a bar to any relief under this petition, if not, indeed, under any form of proceeding. 10 Wheat., 146; 8 Pet., 123.


The 22d section of the Judiciary Act of September 24, 1789, limits writs of error and appeal to five years. 1 Story Laws, 60; 2 Id., 905, 906, ? 5; McClung v. Silliman, Wheat., 598.


Appeals in cases arising under the act of 1828, are governed by the 7th and 9th sections thereof.


Any the 12th section provides, that claims not brought or prosecuted to final decision within two years shall be barred.


Besides, in this case, a mandate had been sent down from the Supreme Court to the Superior Court of Florida; and after a mandate, no rehearing will be granted. Sibbald v. The United States, 12 Pet., 492.


It is a mistake to suppose, that the object of this petition was to operate upon a ministerial officer, the surveyor-general, in the execution of the decree of the court; its purpose was to reform the decree itself, and to assert, substantially, a new claim. This, it is respectfully insisted, it is not competent for the appellants to do in the form they have adopted.


Mr Justice CATRON delivered the opinion of the court.


On the facts presented, one consideration is whether the petition was dismissed for a proper reason. The petition was moved on by the claimant’s counsel?and resisted on the ground that it had not been filed within the time allowed by law, and the rules of the court: and it is insisted it was dismissed for this reason, which is insufficient; as the bar of five years cannot be interposed under the circumstances. If this had been the reason given, it would be immaterial, if the order was proper for other reasons. The 32d section of the Judiciary Act prescribes the duty of this court in such cases, and directs it to proceed and give judgment according to the right of the cause, and matter in law, without regard to any imperfections in the judgment.


But we do not apprehend any imperfection to exist; the court says?’It is considered that a petition for a rehearing cannot now be entertained by this court, in this cause.’ And why not? In 1829, a proceeding was instituted in the Superior Court of East Florida by the claimants for the confirmation of a claim for twenty thousand acres of land granted to Arredondo: In 1830 that court declared the title valid, on the face of the title-papers; this fact existing, the next presented for ascertainment was the sufficiency of the description as to the general locality of the land granted. But the duties of the court did not end here; by the 2d section of the act of 1824 it was not only given full power and authority to hear and determine all questions arising in the cause relative to the validity of the title, and the descriptive identity of location on the face of the title; but thirdly to settle the precise boundaries of the land on the ground; founding its decree on an existing survey, if a proper one was produced, and if not, to let the party proceed according to the 6th section of the act. On the face of the title no material difficulty seems to have arisen; but to identify the land called for was most difficult, and probably impossible: If the grant had been unaided by a survey, it cannot well be perceived how it could have escaped from the principles on which were rejected the claims of Forbes, Buyck, and Joseph Delespine, (found in 15 Pet.,) and of Miranda, (in 16 Pet.) To avoid doing so, the land was decreed by metes and line-marks, founded on a survey (purporting to have been made for the land granted) by Don Andres Burgevin on the 14th of September, 1819.


This survey, it is contended, is for land lying in a different locality from that referred to in the grant, and being so, it is urged, that according to the rulings of this court, no survey could be made for any other land than that granted after the 24th of January, 1818; as this would in effect be a new grant, which the treaty prohibited after that date, according to the cases of Clarke and Huertas, in 8 and 9 Pet., and that of Forbes, 15 Id., 182; and there being no equivalent provided in the grant to except the case from these principles, the survey could not legally be the basis of a decree.


This may have been true, and the decree for the land contained in Burgevin’s survey erroneous; but the question is, whether the court below had any power to correct it? If it had not, then no petition for such purpose could be heard, either on the part of the United States, or the claimants in that court.


From the decree made in 1830, an appeal was prosecuted by the United States to this court; the claimants rested content, and prosecuted no cross appeal. 10 Pet., 308. On a hearing, the decree below was affirmed for the specific land, and the cause remanded for further proceedings, to the end that a patent might issue, pursuant to the 6th section of the act of 1824, which declares it shall be for the land ‘specified in the decree;’ and prohibits a survey for any other land, unless that decreed has been disposed of, when a change is authorized by the 11th section; but as no other appropriation of the land set forth in the decree is alleged to exist, this circumstance is out of the present case.


The claimants not being willing to take the land in Burgevin’s survey, assumed the right to have a re-survey made, or to have adopted that made by Joshua A. Coffee, on their behalf, in 1834, which they allege is at the place called for in the grant; and this on the ground that the decree of 1830 is inconsistent, it being in confirmation of the land granted, and also of Burgevin’s survey?the places not being the same. This change was refused at the land-office here, for the reason that the decree excluded such a change until it was altered by the proper judicial authority. For this purpose the petition for a re-hearing was filed, seeking to have the decree of 1830 reformed, and that part of it establishing locality and boundaries set aside or disregarded, and the land located elsewhere. This the Superior Court of East Florida had no power to do, on the facts set forth by the petition, because the decree of this court, made in affirmance of that made below, is conclusive on the inferior court; and it has no authority to disturb it by the mode proposed, but can only execute our mandate, and settle so much as remains to be done. For the principle, governing in like cases, we refer to the ex parte application of Sibbald, and the rules there laid down, (12 Pet., 489, 490,) to which nothing need be added; as they are altogether adverse to the present proceeding, and show that the petition was properly dismissed.