G.R. No. 1244. April 22, 1904

The object of the complaint is the recovery of possession of certain parcels
of land in the possession of the defendants and the ejectment of the latter,
together with the sum of 9,000 pesos as damages and the costs of suit. In
support of the complaint documentary evidence and oral testimony have been
introduced.

That the parcels of land sued for are within the perimeter of the hacienda of
San Luis y La Concepcion is one of the findings of fact included by the judge in
his decision and against which we have not found in the course of our revision
of the evidence anything to show the same erroneous. On the contrary, the
correctness of this finding must have been recognized by the defendants, as
their defense could not be taken into consideration except upon this assumption.
The evidence introduced by the defendants in support of the alleged ownership
attributed to Joaquin Guzman is adverse to their contention, because it shows
that the area of that property is much less than that of the parcels of land
sued for. With respect to the property alleged to belong to Manuel Dalanidao,
all the documents offered have failed to show either the situation or area. This
contention was made solely in opposition to the ownership alleged by the
complaint, the defendants not having opposed the ownership alleged in the
complaint by any right inherent in themselves. If they were merely tenants of
the lands in question, holding under some other person whom they supposed to be
the owner, they were not proper parties defendant, and this was a defense which
they should have made at the trial.

The defendants did not present any title deeds, nor did they prove an adverse
possession on their own behalf sufficient to overcome the recorded title deeds
which the plaintiff presented in support of the complaint.

After the inscription of title deeds in the register of property, the only
owner of the recorded property is the one who appears as such on the books of
the register until the record is canceled by a final judgment There is no reason
for ordering the cancellation of the inscription unless this relief is prayed
for and proof is made of a better right on the part of some other person who
claims to be the lawful owner or possessor. In this case there has been no
demand for the cancellation of the inscription in the registry of the hacienda
of San Luis y La Concepcion in favor of the Compania General de Tabacos. It has
been alleged that the inscription is defective, but no person entitled to
maintain an action for the purpose has instituted proceedings for the
cancellation of that inscription.

As long as the inscription subsists it must produce all its effects.

To allege the nullity of the original title deeds executed by the Spanish
Government in favor of the original grantees of the lands in question] is to
allege the nullity of the contract entered into between the Spanish Government
as grantor and them as vendees, for the titles are simply evidenciary of the
sale for a certain consideration of a specific thing. Under the provisions of
article 1302 of the Civil Code, the action for the annulment of contracts can
only be maintained by those who are bound, either principally or subsidiarily,
by virtue thereof. The defendants not being persons bound either principally or
subsidiarily by virtue of that contract of sale between the Spanish Government
and those original grantees they can not maintain the action of nullity of which
they seek to avail themselves as a defense in this suit. And it is logical that
it should be so. The nullity of an obligation being declared, the contracting
parties must reciprocally restore the things which have been the object of the
contract. (Art. 1303.) If the nullity of the title deeds referred to should be
declared in conformity with the contention of the defendants, the lands should
be restored to the Spanish Government and the price paid for them should be
restored by that Government to the original
grantees or their successors. It
would follow that the lands in question could not remain in the possession of
the defendants, because they would have to be restored to the vendor, nor could
the latter be compelled to restore the price, not having had an opportunity to
be heard in this suit

We therefore affirm the judgment appealed, with the costs of this instance to
the appellants. So ordered.

Torres and Mapa, JJ., concur.

---

JOHNSON, J.:

I conform in the opinion written by Chief Justice Arellano, but because it
has been contended that his opinion is contrary to the weight of authority in
the United States I desire to add to this opinion ‘a citation of American
authorities upon the question presented here.

This was an action to recover possession of certain real estate by the
plaintiff, located in the Province of Isabela, on the Island of Luzon, in the
Philippine Archipelago.

The action was brought on the 20th day of October, 1902, and the trial was
commenced on the 11th day of December and was terminated on the 24th day of
December, 1902.

The cause was tried in the Court of First Instance of the Province of
Isabela. After hearing the evidence, the court found that the plaintiff was
entitled to the possession of the property, and issued an order directing that
it be put in possession of the same.

The record discloses that on the 20th day of October, 1882, Doroteo Faustino
and fifty-nine others denounced sixty separate parcels of land in the Province
of Isabela, on the Island of Luzon, P.XL, and each were granted a right to the
several pieces of land, varying, to some extent, in dimensions only, the
language of each grant being the same as that contained in the following
documents:

“Joaquin Chinchilla y Diez de Onate, general intendent of the treasury
department of these Islands;

“Whereas Doroteo Faustino has denounced the piece of public land situated at
Mabantad, within the town of Cauayan, Province of Isabela de Luzon, the
superficial area of which is 90 hectares 97 ares and 80 centares, or 32
quifiones 5 balitas and 5 loanes, bounded on the north by the Rio Grande de
Cagayan, on the east by public lands denounced by Santiago Garcia, on the south
by public lands denounced by Ponciano Hernandez, and on the west by the forest
of the rancho Mabantad; and

“Whereas, by decree of this office of July 6 last, the applicant was awarded
the ownership of the land referred to, upon payment of its value, the fees of
‘media anata, and other proper fees required by the law in force, and having
paid me the sum of 191.95 pesos for the total value of the land, and the sum of
8.63 5/8 pesos for the fees of ‘media anata/ and dispensation of the royal
confirmation, Issue this title so that by virtue thereof the said Doroteo
Faustino may be declared the lawful owner of the said land. This title shall be
entered in the Central Administration of Government Monopolies and subsequently
presented to the politico-military government of Isabela de Luzon, under pain of
nullity if the contrary is done, so that it may be entered in that government,
and possession may be given in the usual legal form.

“Done in Manila, the 20th of October, in the year one thousand eight hundred
and eighty-two.

“JOAQUIN
CHINCHILLA,

“Central Administrator of Government Monopolies.^[1]

“FRANCISCO CALVO
MUNOZ.

“Signature fees, 5 pesos.”

To which document was attached a seal which reads:

“General Office of the Public Treasury of the Philippines.”

Continuing, the document reads:

“Title deed to a piece of public land situated at Mabantad, within the town
of Cauayan, in the Province of Isabela de Luzon, issued in favor of Doroteo
Faustino, by decree of the General Office of the Treasury of the 11th instant,
in which it is directed that the present title deed to a piece of land in
Isabela de Luzon be issued on common paper, the Department undertaking to pay
its value when the whereabouts of the document and the seals which the
petitioner delivered to the suboffice of the Treasury Department in the province
referred to, are discovered, with the corresponding effects themselves so
recorded, in compliance with the said decree.

“Dated Manila, October 20, 1882.

“CALVO.”

A seal was attached to this document reading:

“Central Administration of Government Monopolies, Philippine Islands.

“Recorded in the Central Administration of Government Monopolies, Manila, the
26th of October, one thousand eight hundred and eighty-two.

“CALVO.”

A seal was attached reading:

“Central Administration of Government Monopolies, Philippine Islands.

” No. 745. In Manila, the 5th of December, one thousand eight hundred and
eighty-two, before me, Miguel Torres, licentiate of law and notary public of
this city, and the witnesses hereinafter named, personally appeared Doroteo
Faustino, of age, a resident of the town of Malibay, this province, a farmer by
occupation, and personally known to me, and after having stated that he has the
necessary legal capacity for the executiotfi of this public instrument of sale,
which I believe to be true} nothing to the contrary being known by me, deposed
and said;

” (1) Property.—That he is the owner of the piece of public land
situated at Mabantad, Cauayan, Province of Isabela de Luzon, the area of which
is 90 hectares 97 ares and 80 centares, or 32 quiiiones 5 balitas and 5 loanes,
bounded on the north by the Rio Grande de Cagayan, on the east by public lands
denounced by Santiago Garcia, on the south by public lands denounced by Ponciano
Hernandez, and on the west by the forest of the rancho Mabantad.

” (2) Title.—That the said land was purchased by the deponent from
the royal treasury, for the sum of 191.95 pesos for the total value of the land,
and 8.63 5/8 pesos for the fees of ‘media anata’ and the dispensation of the
royal confirmation, which total sum of 200.58 5/8 pesos was paid by him as shown
by the deed issued in his favor by his excellency the intendent Joaquin
Chinchilla, on the 20th of October last, which was exhibited to me and to which
I refer, as does the deponent; and

” (3) Sale.—That he has agreed upon the sale of the said described
land to Antonio Pascual Casal, of this vicinity, for the sum of 201 pesos and
now carries the agreement into effect, and declares that he sells and absolutely
conveys the land in question, with all its appurtenances, rights, uses, and
easements to Antonio Pascual Casal, for the sum of 201 pesos, the receipt of
which he acknowledges hereby, in current coin, to his entire satisfaction ; as
to which receipt, the same being true, and not having been made in my presence,
he waives the acceptation of the money not paid in cash, and the two years which
the law prescribes for the exercise of such action. In consequence he grants and
conveys to Sr. Casal the ownership, rights, and actions which he has or may have
to the said land, authorizing him to take possession thereof, and disposing of
it at his will, as of a thing lawfully acquired, to which end he now delivers
him the title deeds, undertaking to do the same with respect to the transcript
of this present instrument as soon as the same is copied, thus effecting the
symbolic delivery of the said land, which he declares to be free of all
encumbrance, binding himself to warrant and defend the same at all times.

“Acceptance.—The purchaser, Antonio Pascual Casal, of age, a
proprietor and a resident of this vicinity, personally known to me, to which I
certify, and, I being present, said:

That he accepts the sale made to him by this instrument, in the precise terms
in which the same is expressed, and undertakes to perform faithfully all matters
incumbent upon him by law by reason of this acceptance.

“Finally, both parties declare that no fraud or deceit of any kind has been
present in this contract; that the 201 pesos which are the consideration of this
sale are a just consideration, and that if the lands should be worth more, the
excess, whether little or great, is made a matter of mutual donation, perfect
and irrevocable, with an express waiver of the law with respect to contract in
which there may be damage in more or less than one-half of the just price, and
that the four years fixed by the law for the exercise of the action is likewise
waived, it being the will of the parties that from this moment this contract
shall be recorded as completed and consummated upon the guaranty of all their
property, present and future.

“So declared and executed in the presence of the witnesses Ambrosio Aquino
and Mariano Palacio, both residents of this town, of age, personally known to
me; and all having been informed of their right to read this document for
themselves, of which all the parties hereto have availed themselves; after which
all sign and ratify the foregoing, to which I certify.

“D0R0TE0 FAUSTINO,
“ANTONIO P. CASAL,
“AMBROSIO
AQUINO,
“MARIANO PALACIO.

” In the presence of Licenciate Miguel Torres.

” Copy of the original, which appears on pages 2576 to 2579 of my public
protocol for the present year, to which I refer. At the request of the parties I
issue this first copy for delivery to the purchaser. Signed and sealed by me in
Manila, the date of its execution; to which I refer,

“[SEAL.] ” LICENCIATE MIGUEL TORRES.”

It will be noted that the foregoing quotation contains two deeds.

First. That of the Government to Doroteo Faustino. issued on the 21st day of
October, 1882; and

Second. By Doroteo Faustino to Antonio Pascual Casal, dated the 5th of
December, 1882.

On the same 5th day of December, 1882, and on other days of the same month
each of the other fifty-nine persons also conveyed their respective parcels of
land to Antonio Pascual Casal.

This action relates only to the possession of seven of said parcels of land,
numbered respectively from one to seven, inclusive.

The foregoing documents, as well as those covering parcels two to seven,
inclusive, were recorded in volume 1 of Cauayan, eleventh archive, folio 118,
estate No. 75, and provincial volume 2 of Angadanan, archive 1, folio 7,
property No. 182, both first inscriptions. Ilagan, September 17, 1898.

Antonio Pascual Casal, on a later date—to wit, on the 1st day of August,
1882—entered into a contract to sell all of the said parcels.of land to the
plaintiff in this cause, but before the contract was finally executed he died.
By his will Jose Clavet was appointed as his executor. On the 29th of August,
1884, Jose Clavet duly qualified as said executor.

On the 31st day of October, 1887, by proper deeds of conveyance, the executor
of the estate of Antonio Pascual Casal, Jose Clavet, conveyed to the plaintiff
the lands involved in this litigation—to wit, parcels one to
seven,inclusive.

On the 9th day of March, 1895, the plaintiff presented its title to the
register of property of the Province of Isabela, to be registered by him. The
registrar of property refused to register the title of the plaintiff, because
the title of the plaintiff was defective on account of the want of personality
of the corporation.

However, on a later date, to wit, the 17th day of September, 1898, the title
deeds of the plaintiff, and also certain documents relating to its
incorporation, were duly registered in the ” Registry of Property of La
Isabela.”

On the 19th day of April, 1901, the title deeds and documents relating to
the. title of the plaintiff to the lands in question were also recorded in book
1, No. 92, of the registry, in the Forestry Bureau of the Philippine
Islands.

The evidence shows that the plaintiff went into possession of the lands in
question in 1883, and has continued in possession with more or less molestation
since that date. It is assumed, without deciding it, there being no evidence to
the contrary, that the plaintiff went into possession of the land by virtue of
the contract of sale dated August 1, 1882, between Antonio Pascual Casal and the
plaintiff, a portion of the contract price having been then and there paid.

Prior to the sale by the executor of the estate of Antonio Pascual Casal to
the plaintiff, a survey of the land had been made. The evidence shows that at
the time the deed of conveyance was delivered by the executor to the plaintiff a
map or plan of the lands was also delivered to the plaintiff.

The evidence further shows that the plaintiff exercised ownership over the
lands, by establishing boundary lines. The plaintiff, in 1888, had the lands
surveyed by expert surveyors called Basa and Baldomero Guillen. In 1894 another
survey was made by Enrique T. cte Andrade and Manuel Rodriguez on behalf of the
plaintiff. In 1901 still another survey was made by Gregorio Soriano. In all of
these different surveys of the land no opposition was met with on the part of
the defendants, or of any other third persons.

The plaintiff exercised further acts of possession andownership over the
lands by cultivating parts of the same and by cutting timber on the same, and
without opposition on the part of any of the defendants or on the part of the
Government.

The evidence further shows that some of the defendants acknowledged the right
of ownership on the part of the plaintiff, as early as the year 1896, by
entering into a contract for the cultivation of a part of the lands in
question.

It is contended on the part of the defendants that the original deed from the
Government to the original denouncers had never been complied with, and that
therefore the title never passed out of the Government, the condition being a
condition precedent.

The condition in the original grant is as follows:

“This title shall be entered in the Central Administration of Government
Monopolies and subsequently presented to the politico-military government of
Isabela de Luzon, under pain of nullity if the contrary is done, so that it may
be entered in that government and possession may be given in the usual legal
form.”

It has been asserted that under the doctrine of the decisions of the Supreme
Court of the United States this condition is a condition precedent, and
therefore the title to the lands in question never passed from the Government,
and that the plaintiff, therefore, has no title.

A question similar to the one presented here, which has arisen under various
Spanish land grants in territory acquired by the United States Government from
Spain, has been presented to the Supreme Court of the United States on many
occasions.

Among the first cases presented to the Supreme Court of the United States
involving substantially this same question was that of the United States
vs. Arredondo, decided at the January term, 1832, and reported in 6
Peters, 691. In this case Arredondo & Sons petitioned the authorities of the
Spanish Government, located at Havana, in the Island of Cuba, to grant to them
an undivided parcel of land containing 289,645 acres, situated in the county of
Alachua in the Eastern District of Florida, about 36 miles west of the St. Johns
River and about 52 miles west of the city of St. Augustine. Later the said tract
of land was granted to the said petitioners by the Spanish Government, with all
the formalities and solemnities used by it in such cases, on the 22d day of
December, 1817. The grant contained the following statements and conditions:

“And with the precise condition, to which they obligate themselves, to
establish thereon two hundred families; the said establishment to begin to be
carried into effect in the term of three years, at farthest, without which this
grant will be null and void. Let this expediente pass to the surveyor-general,
above mentioned, in order that he may make the corresponding plat in Conformity
to his information, to avoid future doubts and litigations; which being done,
let the title in form be executed, with the same plat annexed thereto, a copy of
which will remain in the expediente, with the provision that the said three
years allowed to commence the establishment of families, are to run and be
counted from this date; and that on the first families being prepared and
disposed, the grantees will give notice of it, together with a list of the
individuals, and mention made of the places of which they are natives, of their
occupations, in order that the orders and instructions which the Government and
the superintendency of the royal domain in East Florida may see fit to give, be
issued, in order that an account of the whole be given in proper time to His
Majesty.”

It will be noticed that this grant contained three principal conditions:

(1) That the grantee was to establish upon said land two hundred
families;
(2) That the said establishment should begin to be carried into
effect within the term of three years, at farthest ; and
(3) In case these
conditions were not complied with, that the grant should be null and void.

The lands claimed by the petitioner Arredondo were within the territory of
Florida ceded to the United States by the treaty with Spain dated the 22d of
February, 1819.

On the 11th of November, 1828, Arredondo & Sons and others, their
grantees, filed their petition in the Superior Court of the Eastern District of
Florida, against the United States, setting up the grant from the Spanish
Government, and prayed that their title be confirmed, under the provisions of
section 6 of an act of Congress passed May 23, 1828, entitled “An act
supplemental to the several acts providing for the settlement and confirmation
of private land claims in Florida.”

To this petition the Attorney-General of the United States for the District
of Forida filed an answer at the May term, 1829, and, among other things, stated
in the answer that if it (the grant) was so made by the Spanish Government to
the said Arredondo & Sons, it was made upon the precise obligation and
express condition of their binding themselves to establish there, to wit, on the
said tract of land, 200 Spanish families, with all the requisites which were
pointed out to them by the superintendency, etc., to wit, on their beginning
their establishment on the said tract of land within three years at most from
the date of said grant, without which the said grant was to be considered null
and void; which condition the said Arredondo & Sons accepted and engaged to
perform; that the said Arredondo & Sons did not commence their said
establishment on the said tract of land within the said three years; and they
had not established on the lands two hundred families, according to their
engagement, and had wholly failed so to do; and further that the said condition
and obligation had not been complied with and fulfilled, either by the said
Arredondo & Sons or by any other person or persons in their behalf, nor by
the said petitioners, so far from it, that the said Arredondo & Sons, after
the time when the said grant was supposed to have been made as aforesaid, and
without having in any manner complied with the condition thereof, removed their
families from the province of East Florida to the Island of Cuba, then and still
one of the dependencies of the Crown of Spain, and did then totally abandon the
said tract of land, and that if the said grant was made as was alleged, and upon
the condition mentioned, the performance of the said condition was a matter of
special trust and confidence reposed by the said Spanish Government in the said
Arredondo & Sons, which could not have been delegated by them to any other
person or persons j and that the sale and conveyance of said tract of land, or
of parts thereof, in manner and form as is in said bill alleged, without having
first performed the said condition, was a violation of the special trust and
confidence ho reposed in them as aforesaid, and rendered the said grant (if any
such was ever made) by the laws then in force in East Florida entirely null and
void.

The answer of the United States Government further stated:

“That the United States claimed title to the said tract of land, by virtue of
the second article of the treaty of amity, settlement, and limits between the
United States and His Catholic Majesty, which was made, concluded,, and signed
between their respective representatives at the city of Washington on the 22d
day of February, in the year of our Lord 1819, and which was accepted, ratified,
and confirmed by the President of the United States, by and with the advice and
consent of the Senate thereof, on the 22d day of February, in the year of our
Lord 1821, by which His Catholic Majesty ceded to the United States, in full
property and sovereignty, all the territories which then belonged to him
situated to the eastward of the Mississippi, known by the name of East Florida,
in which East Florida the said tract of land was situated.”

The supplemental answer of the United States Government contains the further
allegation :

“That if any such grant of further time was given by the Spanish Government
to Arredondo & Sons to perform the conditions of the said supposed grant,
the grant of further time was equivalent to a new grant for the said lands, and
that it was made contrary to and in violation of the laws, ordinances, and royal
regulations, and without any power or authority on the part of the said Spanish
Government.”

And further:

“That if the said extension of time was made, that it was made after the 24th
day of January, 1818, and was rendered wholly null and void by the provisions of
the latter clauses of the eighth article of the treaty.”

To the answer of the United States Government, the petitioner filed a general
replication, and the case was regularly proceeded in to a hearing. On the 1st
day of November, 1830, a decree was given in favor of the petitioners, from
which decree the United States appealed to the Supreme Court.

The court, in considering the condition upon which the grant was made to
Arredondo & Sons, through Justice

Baldwin, said :

“We now consider the conditions on which the grants were made. According to
the rules and the law by which we are directed to decide this case, there can be
no doubt that they are subsequent, the grantee is in full property, in fee and
interest vested on its execution, which could only be divested by the breach or
nonperformance of the conditions, which were that the grantees should establish
on the lands two hundred Spanish families.”

After a very extended argument of the facts and the law governing such cases,
the Supreme Court of the United States affirmed the judgment of the court below
and gave to Arredondo & Sons title to the lands.

The cause of the United States, as appellant, vs. John Percheman, appellee {7
Peters, 51), came before the Supreme Court of the United States in 1833 on
appeal from the superior court for the eastern district of Florida.

On the 8th day of December, 1815, the appellee petitioned his excellency the
governor to grant to him (the petitioner) 2,000 acres of land in the place
called Ockliwaha, situated along the St. Johns River in East Florida.

On the 12th day of December, 1815, Estrada, then governor of East Florida,
granted to the petitioner the 2,000 acres of land which he solicited.

On the 31st day of December, 1815, Percheman petitioned the governor to order
a survey of the said land. On the same day the governor granted the petition. In
pursuance of said petition, Robert McHardy was appointed to survey the
lands.

On the 20th day of August, 1819, Me Hardy filed his report with the governor,
stating that he had surveyed the said lands and had prepared a plat of the
same.

On the 17th of September, 1830, John Percheman filed in the clerk’s office of
the superior court for the eastern district of Florida a petition, setting forth
his claim to a tract of land containing 2,000 acres within the district of East
Florida, .situated at a place called Ockliwaha, on the St. Johns River.

The petitioner stated that he derived his title to the said tract of land
under a grant made to him on the 12th day of December, 1815, by Governor
Estrada, then Spanish governor of East Florida, and while East Florida belonged
to Spain.

On the 2d day of October, 1830, the attorney of the United States for the
district of East Florida filed an answer to the petition of Percheman, in which
it was stated that on the 28th day of November, 1823, Percheman sold,
transferred, and conveyed to one Francis P. Sanchez all his rights, title, and
interest in the tract of land claimed by him.

The answer further alleges that if Governor Estrada did make the grant or
concession set forth by the petitioner at the time “and in the manner alleged in
the said petition or complaint, he made it contrary to the laws, ordinances, and
royal regulations of the Government of Spain, which were then in force in East
Florida, on the subject of granting lands, and without any power or authority to
do so, and that the said grant was and is therefore null and void.”

This being the issue, the court proceeded to trial, and adjudged that the
grant was valid * * * and was confirmed, from which judgment the United States
appealed to the Supreme Court of the United States.

Chief Justice Marshall delivered the opinion of the court, and the court was
unanimous in confirming the judgment of the lower court.

The cause of the United States, appellant, vs. Clark, appellee (8
Peters, 434), came before the Supreme Court of the United States in 1834.

On the 4th day of April, 1829, Clark filed a petition in the superior court
for the eastern district of Florida, praying that court to decree a confirmation
of his title to 16,000 acres of land granted to him on the 6th day of April,
1816, by Jose Coppinger, then acting governor of the Province of East Florida,
to which petition was annexed the following documents:

(1) His petition to Governor Coppinger, to be granted 16,000 acres of land on
the west side of St. Johns River, near and at Black Creek, and at a place called
White Spring, and a copy of the grant by his excellency Governor Coppinger,
dated on the same day.

(2) A supplemental petition to Governor Coppinger, dated the 25th day of
January, 1819, praying to be allowed to survey 8,000 acres of said grant on
other vacant lands, and a copy of the grant made by Governor Coppinger to said
supplemental petition, dated the same day.

(3) Three reports of a survey, dated respectively the 24th of February, 1819,
10th of March, 1819, and the 12th of March, 1819, showing the survey of three
tracts of land for Mr. Clark.

An examination of these differing surveys shows that but 8,000 acres of land,
petitioned for by the plaintiff, was surveyed in the place designated in the
original petition. To which petition the United States filed an answer, in which it was denied
that “by and under the usages, customs, laws, and ordinances of the Kingdom of
Spain, the petitioner is entitled to and vested with a full and complete title
in fee simple, or any other title whatever to the said land, and that the
supposed grant to the said petitioner is entirely null and void.”

The answer further denies that Governor Coppinger had any power or authority
whatever to make such a grant; and that if such a grant was ever made to the
petitioner, it was made in violation of the laws, ordinances, and royal
regulations of the Spanish Government.

The United States Government further contended that if Governor Coppinger
possessed the power of making said grant on the 6th day of April, 1816, the
eighth article of the treaty having barred all grants made subsequent to the
24th day of January, 1819, he had no power on the 25th of January, 1819, to
substitute other lands at a remote distance for those which were granted to the
petitioner on the 6th day of April, 1816. And further, that the change of
location on the 25th day of January, 1819, was equivalent to the making of a new
grant, and the act is void under the provisions of the treaty. The lands claimed
by the petitioner, and embraced in the second and third surveys were vacant
lands on the 24th of January, 1819, and were, by the second article of the
treaty of 1819, transferred to the United States. The superior court of the
eastern district of Florida, by decree, affirmed the title of Clark, and the
United States appealed to the Supreme Court of the United States.

Chief Justice Marshall delivered the opinion of the court, and, in a most
instructive opinion, affirmed the title of Clark to the lands in the original
grant, and denied his
title to the lands surveyed on the 10th and 12th of
March, 1819, respectively.

The case of the United States, as appellant, vs. Chas. F. Sibbald, appellee
(10th Peters, 313), came before the Supreme Court of the United States in 1836.
It was an appeal from the eastern district of Florida. This was a claim to land
in East Florida presented to the superior court of East Florida, by the
appellee, founded on the petition for 16,000 acres of land, made by Jose
Coppinger, governor of the Province of East Florida, to Charles F. Sibbald, the
claimant, on the 2d day of August, 1816.

On the 16th day of July, 1816, Sibbald presented his petition to Governor
Coppinger, setting forth that he was desirous of erecting machinery for sawing
timber on Little Trout Creek, on the north side of the St. Johns and Nassau
Rivers. He further petitioned, with corresponding surety, for the grant of a
tract of land 5 miles square, or its equivalent, in the event that the situation
would not permit the said form, which land will insure the continuous supply of
timber.

On the 2d day of August, 1816, the governor granted “the permission
solicited, without injury to third persons, under the express condition, that
until the establishment of the mill, the grant of the land which will be a
square of 5 miles, in order that he may use the timber, shall be of no effect,
etc.”

Pursuant to this grant, a survey was made on the 2d day of May, 1819, of
10,000 acres, at the place named in the petition. In February, 1820, 4,000 acres
more were surveyed in another place called Turnbull Swamp, at the distance of 30
miles from the first survey; and afterwards a residue of 2,000 acres was
surveyed at a place called Bow Legs Hammock, at the distance of 20 or 30
miles.

In answer to the petition of Sibbald in the court below, the attorney for the
United States denied the power of Governor Coppinger to make the grant, and
insisted that the grantee, Sibbald, had not complied with the condition of the
concession. There was some evidence to show that Sibbald had expended in the
year 1819 several thousand dollars in the erection of a water sawmill, which was
nearly completed, but that owing to various difficulties and the disturbed
conditions in said province the mill did not go into operation. This was three
years after the date of the grant.

By the decree of the superior court the claim of the petitioner was confirmed
as to the 10,000-acre survey on Trout Creek, and rejected as to the two
remaining surveys of 4,000 and 2,000 acres, respectively, from which decree both
parties appealed.

In the Supreme Court of the United States the attorney for the United States
contended that the condition in the grant was a condition precedent, and which
was not begun to be performed until the grant became positive by the order of
the governor made the 29th of October, 1819, declaring all grants made in
consideration of mechanical improvements to be made to be void, if the
conditions were not performed in six months.

The decision of the court was written by Justice Baldwin and concurred in by
all the judges. In the opinion Justice Baldwin said:

“The evidence in this and the other cases which have been decided is very
full and clear that no grant has ever been annulled or revoked by the Spanish
authorities for any cause; and that there is no instance of a governor having
granted land which had been before granted on condition; and it may well be
doubted whether it would have been reannexed to the royal domain had the
province remained under the dominion of the King of Spain; nor is there any
provision of any law of Congress which specially requires the court to inquire
into the performance of conditions on which grants were
made.”

The court continues :

“We are of opinion that the title of the petitioner to the whole quantity of
land specified in the grant is valid, by the law of nations, of Spain, the
United States, and the stipulations of the treaty between Spain and the United
States for the cession of the Floridas to the latter; and ought to be confirmed
to him according to the several surveys made, as returned with the record. We do
therefore order, adjudge, and decree that the decree of the court below,
confirming the title of the petitioner to the 10,000 acres on Trout Creek, be,
and the same is hereby, confirmed, and this court doth further order, adjudge,
and decree that the decree of the court below rejecting the claim of the
petitioners to the land embraced in the surveys of 4,000 acres and of 2,000
acres, as returned with the record, be, and the same is hereby, reversed and
annulled.”

(See also the causes of the United States vs. Levi, 8 Peters, 479; United
States vs. Bernardo Segui, J.0 Peters, 306; United States vs. Benjamin Chaires,
10 Feters, 308, and United States vs. Charles Seton, 10 Peters, 309, decided at
the same term of court with that of the United States vs. Sibbald.)

The case of the United States vs. Boisdore et al. (11 How., 63), decided in
1850, is sometimes cited as contrary authority for the proposition contended for
here. In that case Boisdore had obtained authority; or a concession, to a
certain tract of land, on which he relied, in the year 1783, from the Spanish
Government, as it was then constituted in the Louisiana territory. He had never
caused a survey to be made during the existence of the Spanish Government,
although twenty years had elapsed before its cession to the United States. Nor
was any step taken by him to obtain title from the United States, nor any claim
legally brought forward for seventeen years after the territory had been ceded
to the United States. And nothing like any serious attempt had been made by him
to fulfill the conditions upon which he had obtained the concession. This case
was decided by a divided court. Justice Wayne, dissenting from the opinion of
the majority of the court, said:

“In my opinion, the opinion of the court is a departure from all heretofore
adjudged by the court in respect to the right of property secured by our
treaties with Prance and Spain to the inhabitants of Louisiana and
Florida.”

The case of Glenn et al. vs. the United States (13 How., 250),
decided in 1851, might also be cited by those who maintain a contrary doctrine.
In that case the grant was obtained in 1796, and no possession was taken and no
survey had, nor had any of the conditions into which he had entered been
complied with while the Spanish Government lasted. Nor, indeed, was any claim
made to it for several years after the cession to the United States; nor until
the country in which it was situated was filling up with an industrial
population and the land becoming of great value.

So also might those who
maintain a contrary doctrine cite the case of Vilemont vs. the United
States (13 How., 266), decided in 1851. In this case the grant was made by the
governor-general of Louisiana in 1795, upon condition that a road and clearing
should be made within one year and an establishment made upon the land within
three years; neither of these conditions was complied with, nor was possession
taken under the grant until after the cession of the country to the United
States. He did nothing during the continuance of the Spanish Government,
although it lasted eight years afterwards; and the excuse of Indian hostility
could hardly avail him, because no difficulty of that kind is suggested in his
petition to have his title confirmed; and from the character of the improvements
he promised to make it would seem that one of the objects of this large grant of
several thousand acres of land was to form an establishment which would be
useful in repelling Indian hostilities from the neighboring Spanish
settlements.

The court denied his petition to have his title confirmed for the reason that
he made no attempt to comply with the conditions of his grant. He had not even
taken possession of the land.

The next case of importance which came
before the Supreme Court of the United States, that of Fremont vs. the
United States (17 How., 542-576), was decided in 1854. Chief Justice Taney
delivered the opinion of the court. Chief Justice Taney was especially well
qualified to discuss the rights, titles, and interests involved in the Spanish
land grants, he having been Attorney-General of the United States and
represented the United States Government in much of the litigation which had
gone before involving the interpretation and application of these grants. This
case was originally tried in the district court of the United States for the
northern district of California.

On February 23, 1844, Juan B. Alvarado made his petition in writing to the
then governor of California, Manuel Micheltorrena, for a grant of ten square
leagues of land described in said petition.

On the 29th of February, 1844, the governor, Manuel Micheltorrena granted the
petition of Alvarado, in the following language and with the following
condition, among others:

“I declare Don Juan B. Alvarado the owner in fee of the tract of land known
by the name of ‘Mariposas’ within the boundaries of the Snow Mountains, the
rivers called Chonchillas, Merced, and San Joaquin * * *. I have granted to him
the aforesaid tract of land, declaring the
same by these presents, his
property in fee, subject to the approbation of the most excellent, the
department assembly, and to the following conditions:

“(1) He shall not sell, alienate, nor mortgage the same, nor subject it to
taxes, entail, or any other incumbrance.

“(3) He shall solicit from the proper magistrate, judicial possession of the
same, by virtue of this patent, by which the boundaries shall be marked out, on
the limits of which he (the grantee) shall place proper landmarks.

“(4) The tract of land granted is ten square leagues, as aforementioned. The
magistrate who may give him possession shall cause the same to be surveyed,
according to the ordinances, the surplus remaining to the nation for the proper
purposes.

“(5) Should he violate these conditions, he will lose his right to the land,
and it will be subject to be denounced by another.”

In the month of February, 1847, while California was occupied by the American
forces, Alvarado conveyed the lands contained in the grant to Colonel Fremont,
an American citizen.

On the 27th day of December, 1852, the board of commissioners provided for,
and, acting under an act of Congress of 1851, signed their final decree
confirming the grant.

On the 7th day of December, 1853, the district court for the northern
district of California decreed that the decision of the commissioners be
reversed and that the claim be held invalid and rejected, whereupon the claimant
appealed to the Supreme Court of the United States.

Upon reading conditions three and five above noted, it will be seen that
they, read together, are much like the conditions imposed in the case at
bar.

Chief Justice Taney, in considering these conditions, said:

“There can be no question as to the power of the governor of California to
make the grant. And it appears to have been made according to the regular forms
and usages of the Mexican law. It has conditions attached to it; but these are
conditions subsequent. And the first point to be decided is, whether the grant
vested in Alvarado any present and immediate interest. And if it did, then,
second, whether anything done or omitted to be done by him, during the existence
of the Mexican Government in California forfeited the interest he had acquired
and revested it in the Government. For if, at the time the sovereignty of the
country passed to the United States, any interest, legal or equitable, remained
vested in Alvarado or his assigns, the United States are bound in good faith to
up hold and protect it. * * *

“It is argued that the description is so vague and uncertain that nothing
passed by the grant; and that he had no vested interest until the land was
surveyed, and the part intended to be granted severed by lines or known
boundaries from the public domain. But this objection can not be maintained * *
* as between him (Alvarado) and the Government, who had a vested interest in the
quantity of land mentioned in the grant. The right to so much land, to be
afterwards laid off by official authority, in the territory described, passed
from the Government to him by the execution of the instrument granting it. * *
*

“The principles decided in this case appear to the court to be conclusive as
to the legal effect of the grant to Alvarado. It recognizes as a general
principle of justice and municipal law, that such a grant, for a certain
quantity of land, by the Government, to be afterwards surveyed and laid off,
within a certain territory, vests in the grantee a present and immediate
interest.”

Chief Justice Taney, discussing the effects of the conditions contained in
the original grant, said:

“Regarding the grant to Alvarado, therefore, as having given him a vested
interest in the quantity of land therein specified, we proceed to inquire
whether there was any breach of the conditions annexed to it, during the
continuance of the Mexican authority, which forfeited his right and revested the
title in the Government.

“The main objection on this ground is the omission to take possession, to
have the land surveyed, and to build a house on it within the time limited in
the conditions. It is a sufficient answer to this objection to say that
negligence in respect to these conditions and others annexed to the grant does
not, of itself, always forfeit his right. * * *

“The omission or inability of the public authorities to perform their duty
can not, upon any sound principle of law or equity, forfeit the property of the
individual to the State. It undoubtedly disabled him from obtaining what is
called a definitive title, showing that all the conditions had been performed;
but it could not divest him of the right of property he had already acquired by
the original grant, and revest it in the State. * * *

“The only question before this court is the validity of the title. * * *

“Upon the whole, it is the opinion of the court that the claim of the
petitioner is valid and ought to be confirmed. The decree of the district court
must, therefore, be reversed and the case remanded, with directions to the
district court to enter a decree conformable to this opinion.”

The question in the case of Pacheco et al. m’The United States (68 U. S.,
282) (17 Law Edition, p. 594), decided in 1863, was not a question whether or
not the conditions contained in the original grant had been performed, but
whether or not the original grant had not been fraudulently altered, increasing
the amount of land included in the original grant. Upon that question the court
held that there had been no alteration, and confirmed the title of the original
grantee.

In the case of Bouldin et al. vs. Phelps (30 Fed. Rep., 547),
decided in 1887, the question was not whether the conditions contained in the
original grant by the Spanish Government had been performed, but whether any
grant at all had been made. Upon that question the court held that the Spanish
Government had never made a valid grant of the lands in question, and therefore
those who succeeded to the interest of the original alleged grantee had no
interest. (See also Carpenter vs. Montgomery, 13 Wallace, 480.)

In the case of More vs. Steinbach (127 U. S., 70), decided in 1887,
the question presented for determination related to the effect of proceedings
taken under the act of March 3, 1851, of the Congress of the United States, to
ascertain and settle private land claims in California, upon the claims of
parties holding concessions of land in that State under the Spanish or the
Mexican Governments. By this act a board of commissioners was created, to which
all persons claiming land by virtue of any right or title derived from the
Mexican or Spanish Governments could present their claims and have them examined
and their validity determined; and the claimants could appear by counsel and
produce documentary evidence and witnesses in support of their claims. The act
required all persons thus claiming lands in California to present their claims
to the board within two years from its date, and declared in substance that if,
upon examination, they were found by the board, and by the courts of the United
States, to which an appeal was allowed, to be valid, the claims should be
affirmed and surveyed and patents issued therefor to the claimants. The act also
declared that all lands, the claims to which were not presented to the board
within that period, should be considered as part of the public domain of the
United States.

Under these provisions the Mexican grantee applied to the commission to have
his title affirmed, which the commission did. However, the title affirmed by the
commission, for some reason or other, did not cover all of the lands included
within the original grant by the Mexican Government. Subsequently patents were
issued to other parties to the lands included in the original grant, but outside
of the land to which he had his title affirmed by the commission. Later an
action was brought to eject these latter parties from the land. The court
refused to eject them.

The following cases also contain discussions by the courts of the United
States of the rights of grantees under Spanish land grants: Malarin vs.
United States, 1 Wallace, 290; United States vs. Workman, 1
Wallace, 761; Graham vs. United States, 4 Wallace, 261; Beard
vs. Federy, 3 Wallace, 490; Hornsby vs. United States, 10
Wallace, 238; United States vs. Cambuston, 20 Howard, 61; United States
vs. Halleek, 1 Wallace, 455; United States vs. Billing, 2
Wallace, 448; Higueras vs. United States, 5 Wallace, 827; St. Louis
Smelting Company vs. Kemp, 104 U. S., 641; Steel vs. St. Louis
Smelting Company, 106 U. S., 454; United States vs. Sepulveda, 1
Wallace, 104.

It is maintained in the case at bar that the lands surveyed and occupied by
the plaintiffs do not conform to the original grant on the part of the Spanish
Government in the Philippine Islands. This question is not a judicial question.
That question must be settled by the executive branch of the Government and not
by the court. (U. S. vs. Flint, 4 Sawyer, 61; Beard vs.
Federy, 3 Wallace, 492;U. S. vs. Sepulveda, 1 Wallace, 108.)

In the present case the grant was made by the proper authorities of the
Spanish Government in the Philippine Islands. The Government received full
compensation for the land, and delivered to the plaintiffs a grant as evidence
of their title, under which grant the plaintiffs, through conveyances from the
original grantees, went into possession of the land, and had the land surveyed
and properly segregated from the public domain. If it be true that the
plaintiffs were occupying more land than was originally granted by the
Government, or are not occupying the same lands so granted, that is a question
for the executive branch of the Government.

The condition in the original. grant of the Government is a condition
subsequent, and the grantee, by a failure to comply with the said condition,
does not lose his right to the land ipso facto. The lands do not revert per se
to the Government. The Government must take the necessary steps to forfeit the
grant. (Bybee vs. Oregon Railway Company, 139 U. S., 663.)

No one but the grantor can raise the question of the performance of a
condition subsequent. (U. S. vs. So. Pac. Ry. Co., 146 U. S., 570.)

If the grantor makes no effort to enforce the forfeiture of the property by
reason of the nonperformance of the condition, the property remains wholly in
the grantee.

No case has been found, and it is believed that there are none, where the
Spanish Government or the Mexican Government has forfeited a title under a
grant, where the Government has received a consideration, and where the party
has actually gone into possession, whether the party has gone into possession in
the regular way provided for by the condition named in the deed, or whether he
has taken possession on his own account.

It has been contended here that no authority was shown giving the Spanish
officials in these Islands power to make the original grant. In the absence of
proof to the contrary this fact will be presumed.

We believe that the condition of the grant in this case is a condition
subsequent. An estate on a condition expressed in the grant itself is where an
estate is granted, either in fee simple or otherwise, with an express
qualification annexed, whereby the estate granted shall either commence, be
enlarged, or be defeated, on the performance or breach of such qualification or
condition. These conditions are either precedent or subsequent. A condition
precedent is a condition which must happen or be performed before the estate can
vest or be enlarged. A condition subsequent is a condition by the failure or
nonperformance of which an estate already vested may be defeated. For example:
If an estate for life be granted to A, upon condition that he marry B, the
marriage is a precedent condition, and until that condition happens no estate is
vested in A; but, if a man grants to estate in fee simple, reserving to himself
a certain rent or annuity, if such rent be not paid at the times limited, it
shall be lawful for him and his heirs’ to reenter and avoid the estate. It is an
estate upon condition subsequent, which is defeasible if the condition is not
strictly performed. (Schulenberg vs. Harriman, 21 Wall., 44; Holden vs.
Joy, 17 Wall., 211; Ruch vs. Rock Island, 97 U. S., 693; Van Wyke
vs. Knevals, 106 U. S., 360; Northern Pac. Ry. Co. vs. Majors,
5 Montana, 111; Railroad Land Co. vs. Courtwright, 21 Wall., 316; U. S.
vs. C. P. Ry. Co., 118 U. S., 238; St. Louis Ry. Co. vs.
McGee, 115 U. S., 473; Pac. Ry. Co. vs. U. S., 124 U. S., 129.)

There are no technical words to distinguish conditions precedent from
conditions subsequent; whether they be one or the other is a matter of
construction and depends upon the intention of the party creating the estate.
Justice Marshall, in the cause of Pinlay vs. King (3 Peters, 345) in discussing
the distinction between a condition precedent and a condition subsequent,
said:

” There are no technical, appropriate words which always determine whether a
condition be a condition precedent or subsequent. The same words have been
determined differently, and the question is always one of intention. If the
language of the particular clause, or of the whole document, shows that the act
on which the estate depends must be performed before the estate can vest, the
condition is, of course, precedent; and unless it be performed, the grantee or
devisee can take nothing. If, on the contrary, the act does not necessarily
precede the vesting of the state, but may accompany or follow it, and this is to
be collected from the whole document, the condition is
subsequent”

By referring to the grant in this case by the Government, we find the
following language, after a description of the property granted:

” And whereas, by decree of this office of July 6th last (1882) the applicant
was awarded the ownership of the land referred to upon payment of its
value.”

This language clearly indicates that the Government had parted with its title
to the land, and the only thing remaining to be done on the part of the
Government was to point out the lands to the grantee, and have them properly
segregated from the public domain. If the grantee knew the lands and was able to
go into the possession of them without the aid of governmental agencies, and
there has been no mistake, then certainly the Government has no grounds upon
which to base an avoidance of the title; and if the Government, then, can not
avoid the title, certainly private persons may not.

Many cases haven been decided by the Supreme Court of the United States
involving the same question, arising in cases of grants made in Florida,
Louisiana, and California. There is, however, no case which I have seen or which
has been called to my attention where the grant has been rejected for the
nonperformance of the conditions, except when a time has been limited in the
grant for the performance, of the Condition and it had never been performed. (U.
S. vs. Mills’ Heirs, 12 Peters, 215; U. S. vs. Kingley, 12
Peters, 476; U. S. vs. Drummond, 13 Peters, 84; U. S. vs.
Buregevin, 13 Peters, 85; U. S. vs. Wiggins, 14 Peters, 334.)

The Supreme Court of the United States has confirmed these grants, even in
the face of the fact that the grant contained no description of the land, no
boundaries, and even no designated point for the commencement of the survey.

The case of Wherry vs. United States (10 Peters, 338) was a grant
for 1,600 arpents of land near the Eivers Bardennes and Mississippi, in the
vacant lands of the Kingdom.

The case of John Smith vs. The United States was a case of 10,000
arpents, with permission to locate in separate places, anywhere that was
suitable to the grantee.

The case of Buyck vs. The United States (15 Peters, 215) was for
lands at Mosquito, south and north of said place. The case of O’Hara
vs. The United States (15 Peters, 275) was a grant for land in the
district of Nassau.

The case of The United States vs. Delespine (15 Peters, 319) was a
grant for land at New River.

The case of the United States vs. Miranda (16 Peters, 153) was a
grant for “eight leagues square on the waters of Hillsborough and Tampa
Bays.”

The grants were equally uncertain and indefinite in the cases of the United
States vs. Boisdore (11 Peters, 63^[1]), United States vs. Lawton (5 How.,
10), and Lecompte vs. United States (11 How., 115).

In all of these cases and in many others no land is pointed out by the grant
as subject to individual ownership, and there was, in fact, no separation of any
portion from the public lands.

In the Arredondo case it was held that want of survey did not interfere with
the title of the grantee.

If the grantee neglected any of the directions or conditions imposed by the
terms of the grant, there is no doubt that the land might have been denounced
and granted to another, and probably by some other proceedings forfeited to the
Government, But as long as there was no denouncement by another, and no
forfeiture by the Government as long as the Government did not complain of his
inaction or neglect, or limit the performance of the condition within any given
time, so long did his right to the whole grant remain perfect and complete
against the whole world. No third person had the right to come in and determine
that his possession contained more than the quantity granted nor that he had not
complied with the conditions imposed in his grant.

As confirmatory of the doctrine laid down by the court in this case we cite
the following decisions: Vanderslice vs. Julian Hanks, 3 Cal., 27
(1852); Ferris vs. Coover, 10 Cal., 589 (1858) (this is a very
instructive case); Estrada vs. Murphy, 19 Cal., 249 (1861) ; Rico
vs. Spence, 21 Cal., 504 (1863); Banks vs. Moreno, 39 CaL, 233
(1870); Steinbach vs. More, 30 Cal., 498 (1866) (this same case is
found in 127 U. &, 70); Hartley vs. Brown, 46 Cal., 201 (1873); see
same case 51 Cal., 465 (1876); Hancock vs. McKinney, 7 Tex., 384
(1851), and cases cited; Rivers vs. Foote, 11 Tex., 662 (1854); Johnson
vs. Smith, 21 Tex., 722 (1858).

This is an action of ejectment. The doctrine is well established that in an
action of ejectment, the plaintiff seeking to recover possession of land
occupied by another, must recover upon the strength of his own title rather than
upon the weakness of the title of the defendant, and the burden of showing his
title rests upon him who asserts it. Ordinarily, the plaintiff may prove his
title by showing grants direct from the Government, or by a connected chain of
title back to the Government, or to some grantor in possession.

In the present case the plaintiff proved a direct grant from the Commonwealth
through his grantors. He thereby acquired a prima facie title to the
land which can not be defeated by a defendant entering upon the land without”
title or claim, or color of title. (Holloran vs. Meisel, 87
Va.,398.)

Neither can the defendant defeat the title of the plaintiff who holds his
title through a chain of title from the Government by showing a prescriptive
title. Inhabitants of the Philippine Islands can not obtain a prescriptive title
against the Government, and therefore can not impose such a title against those
holding grants from the Government, providing the grantees from the Government
have maintained possession or quasi possession of the land. (Valenton
et al. vs. Murciano, decided by the Supreme Court in March, 1904.^[1])

From the evidence in this case we are justified in the following
conclusions:

(1) That the plaintiff holds a grant, through other grantees, directly from
the Government.

(2) That the condition found in the original grant from the Government is a
condition subsequent.

(3) That grants to land by the Government containing conditions subsequent
can only be forfeited by the Government in an action brought for that
purpose.

(4) That the Government in this case received a consideration for the
land.

(5) That the plaintiff and his grantors-(the grantees from the Government)
went into possession of the land contained in the original grant and have
maintained actual or quasi possession of the land.

(6) That the defendants have no title or color of title, either by
prescription or otherwise, against the plaintiff.

(7) That the plaintiff has shown sufficient title to maintain an action of
ejectment against the defendants.

Therefore the judgment of the court below should be affirmed.

---

^[1] Rentas Estancadas

^[1] Howard, 63

^[1] 3 Phil. Rep., 357

---

McDONOUGH, J., with whom concurs COOPER, J., dissenting:

The plaintiff claimed to be the owner of the lands in question, which it
purchased in 1883; that the defendants were illegally in possession thereof; and
prays that the defendants be evicted from said lands that plaintiff may be
placed in possession thereof and that damages be adjudged to be paid to
plaintiff.

The answer controverts the boundaries, as set forth in the complaint, and
denies the ownership of the plaintiff in and to the lands in controversy.

The plaintiff claims title to this land in dispute, being included in grants
numbered one to seven, inclusive, through conveyances from those who purchased
the same as public lands from the royal treasury in the year 1882.

Each of these deeds from the Government contains the following provision:

“I issue this title, so that by virtue thereof the (grantee) may be declared
the lawful owner of the said land. This title shall be entered in the Central
Administration of Government Monopolies and subsequently presented to the
politico-military government of Isabela de Luzon, under pain of nullity
if the contrary is done, so that it may be entered in the official records and
possession may be given in the usual legal form.”

No survey of the lands was made by the Government; the grantees were not
placed in possession in the usual legal form; and the grants were not presented
to the politico-military government of Isabela for entry.

At the trial the defendants made objection to the receiving of these grants
in evidence on the ground that they were null for the reason that they were
never presented to the politico-military government of Isabela de Luzon, that
they were not entered in the official records, and that possession was not given
to the grantees in the usual legal form.

Other questions are in dispute, particularly the question of boundaries,
which need not now be considered, inasmuch as if this point of the defendants,
that the grants are null, be well taken, that disposes of the case.

It is of course primary doctrine that in a possessory action of this nature,
the plaintiff must rely on the strength of his own title, not on the weakness of
that of the defendants, and so he must show here that he has a valid title as
against the defendants, and, to show that fact, it was necessary to prove that
the Government grants, made to the grantors of the plaintiff, were valid. And
the validity of these grants from the Government, for the purpose of this
action, depends upon whether the conditions requiring them, under pain of
nullity, to be presented to the government of Isabela, to be entered therein and
legal possession given in the usual legal form, are conditions precedent or are
conditions subsequent. If they be conditions precedent, the grantees from the
Government did not acquire a valid title, and could not until the conditions
were complied with. And, inasmuch as in each grant it is provided that it shall
be null if the requirements are not complied with, I am of opinion that the
grantees did not acquire a valid title.

It can not be reasonably said that these requirements were not of importance
to the Government as well as to the grantee.

In order that the government of Isabela might know what land was granted in
that province, it was necessary to have a record of it entered therein, and in
order to prevent disputes and litigation regarding boundaries, such as has
happened in this case, it was the wise practice to have the grantee placed in
possession in a legal form.

The laws relating to and authorizing the sale of these public lands are not
contained in the briefs, nor have they been presented to this court. On account
of their absence, I may assume that the practice here was similar to that under
which grants were made in other Spanish colonies, and which grants contained
similar conditions.

The Supreme Court of the United States has had occasion to pass upon the
validity of many such grants made in California and other territory when under
the jurisdiction of Mexico.

The importance of the proceedings relative to the delivery of possession in
the “usual legal form” are described by Justice Field in the case of
Pacheco^[1] et al. vs. The United
States (68 U. S., 282) as follows:

“When the grant to Pacheco was issued there still remained another proceeding
to be taken for the investiture of the title. Under the civil, as at the common
law, a formal transfer or livery of seisin of the property was necessary.

“As a preliminary to this proceeding the boundaries of the quantity granted
had to be established when there was any uncertainty in the description of the
premises. Measurements and segregation in such cases, therefore,
preceded the final delivery of possession.

“By the Mexican law various regulations were prescribed for the guidance, in
these matters, of the magistrates of the vicinage.

“The conditions annexed to the grant in the case at bar required the grantee
to solicit legal possession from the proper judge.

“In compliance with this requirement, within four months after the issuance
of the grant, he presented the instrument to the judge of the district and
requested him to designate a day for delivering the possession. The judge
designated a day, and directed that the adjoining proprietors be cited, and that
surveyors and counters be appointed.

“On the day designated the proprietors appeared, and two surveyors and two
counters were appointed and sworn for the faithful discharge of their
duties.

“A line provided for the measurement was produced, and its precise length
ascertained. The surveyors then proceeded to measure off the land, the judge and
the proprietors accompanying them.

“The measurement being effected, the parties went to the center of the land,
and there the judge directed the grantee to enter into the possession, which he
did, and gave evidence of the fact ‘by pulling up grass and making
demonstrations as owner of the land.’

“Of the various steps thus taken * * * a complete record was kept by the
judge in the ‘book of possessions.’ * * *

“The ownership, extent, and general location of the land were matters thus
brought within the knowledge of the neighborhood, and were no doubt afterwards
the subjects of frequent reference among the adjoining
proprietors.”

It has been held in several reported cases that after execution of grants in
terms similar to those in this case, that the entry of the grant and the
delivery of formal possession of the land granted was essential for the
investiture of title.

In the case of Bouldin vs. Phelps (30 Fed. Rep., 547, 548, the court
said:

“There was no record made of the grant as required by law; the public record
thereof, and not the document delivered to the party, was the effective grant.
There was no legal possession. The title, therefore, did not become definitely
vested. A grant can not perfect or complete the title where anything remains to
be done to perfect it.”

This question was considered in the case of More vs. Steinbach (127
U. S., 70), and it was there held that the grant vested no title until the
grantee was placed in possession according to law. That was a suit in equity to
determine the adverse claims to certain lands in California.

The plaintiffs claimed to be owners in fee under a patent from the United
States. The defendants claimect an estate in a part of the property, adverse to
plaintiffs, under a Mexican grant.

In the decision, it was said by the court, in discussing the defendants’
grant:

“Upon the cession of the country there remained a further proceeding to be
had with respect to the grant before any indefeasible title could vest in the
grantee. A formal transfer of the property to the grantee by officers of the
Government was necessary.

“The proceeding was termed a judicial delivery of possession. Until it was
had the grant was an imperfect one.

“As preliminary to, or as part of, the official delivery, the boundaries of
the land were to be established after summoning the neighboring proprietors as
witnesses to the proceedings.”

So such official delivery of possession was had under the former Government
to the grantee Jimeno, though the grant to him contained these conditions:

(1) He shall petition the proper judge to put him in legal possession, the
boundaries to be first marked out, and on the limits shall be placed land
marks.

(2) The judge shall have it measured.

And consequently the court held:

“That the grant under which they claimed to have acquired a perfect title
conferred none. The grantees were not invested with such title and could not be
without an official delivery of possession under the Mexican Government; and
such delivery was not had and could not be had after the cession of the country
except by the American authorities acting under a law of
Congress.”

This case was cited with approval in the case of Ainsa vs. United
States (161 U. S., 208).

It has been suggested that the Supreme Court in the case of Fremont vs. The
United States (58 U. S., 542) held that conditions of the nature discussed here
were conditions subsequent and that, therefore, title vested in the grantees.
The answer to this is that if that case be in conflict with the More case,
supra, it is by implication repealed by this later decision. But an examination
of the Fremont case shows that it turned on other questions involving the
construction of an act of Congress and the waiver of certain conditions by the
Mexican authorities.

It appears in that case that a Mexican grant was made of a tract of ten
square leagues of land known as “Mariposas” to Col. Juan B. Alvarado for
patriotic services. Grant made in 1844, and land situate in California.

The grant recited that “the necessary requirements according to the laws and
regulations having been previously complied with,” the grant is made. Alvarado
transferred his interest to Fremont.

The grant was made on the conditions:

First. That the grantee was not to sell, alienate, nor mortgage the same.

Second. That he was to enclose it and to build a house on it within one
year.

Third. That he was to solicit from the proper magistrate judicial possession
of the same by virtue of this patent, by which the boundaries shall be marked
out.

Fourth. That the magistrate who may give possession shall cause same to be
surveyed, and

Fifth. That should the conditions be violated he was to lose his right to the
land and it was to be subject to be denounced (petitioned for) by another.

The board of commissioners, acting under the act of Congress of the year
1851, confirmed the claim as described in the grant and map filed in the office
of the surveyor general.

The conclusion of the commissioners was confirmed.

In reaching this result the court laid stress on the fact that this grant was
confirmed pursuant to the act of Congress of 1851, which was intended to place
the titles to land in California upon a stable foundation, and embraced not only
inchoate or equitable titles, but legal titles also, and in this respect
differed from the Mexican act of 1824, under which the claims in Louisiana and
Florida were decided.

These grants it was said were almost always made upon condition of
settlement, or some other improvement by which the interest of the colony, it
was supposed, would be promoted.

“But,” said the court, “until the survey was made, no interest, legal or
equitable passed in the land. The original concession granted a naked
authority or permission and nothing more. * * * The examination of the surveyor,
the actual survey, and the return of the plot were conditions precedent, and he
had no equity against the Government and no just claim to a grant until they
were performed.”

The court, however, held that in this Alvarado grant the condition requiring
a survey was not made by the grant a condition precedent.

“According to the regulations for the granting of lands,” said the court, “it
was necessary that a plan or sketch of its lines and boundaries should be
presented with the petition, but in the construction of these regulations, the
governors appear to have exercised a discretionary power to dispense with it
under certain circumstances. It was not required in the present instance. The
reason assigned for it in the petition was the difficulty of preparing it, the
land lying in a wilderness bordering upon the Indian country. This reason was
deemed by the governor sufficient, and the grant issued without
it.”

In view of these decisions I am of opinion that the grantees in this case did
not acquire a legal title; that they could grant no better title than they had;
that through their conveyances the plaintiff acquired no legal title; and that
therefore the judgment of the Court of First Instance should be reversed.

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^[1] Malarin vs. U. S.