Faxon v. United States
Three separate petitions were filed in the court of private land claims for the confirmation of what was commonly called and known as the 'Tumac acori, Calabazas, and Huebabi Grant,' situated in the valley of the Santa Cruz river, Pima county, Arizona, the petitioners in each claiming under the original grantee. The causes were consolidated, and tried under the petition of William Faxon, Jr., trustee, and others. The petition alleged that the claimants were the owners in fee of the tract of land in question under and by virtue of a certain instrument in writing dated April 19, 1844, 'made and executed by the treasury department of Sonora in compliance with the law of the Mexican congress of the 10th of February, 1842, providing for the denouncement and sale of abandoned pueblos,' running to Don Francisco Alejo Aguilar, to whom said treasury department sold the tract April 18, 1844, for the sum of $500.

That in the year 1806 the governor of the Indian Pueblo of Tumac acori petitioned Don Alejo Garcia Conde, intendente of the province, etc., to issue to the Indians of the pueblo a grant of lands for the 'fundo legal,' and also for the 'estancia' of the pueblo to replace ancient title papers which had been lost or destroyed; that in accordance with that petition the lands mentioned were ordered to be surveyed, which was done, and the boundary monuments established, by Don Manuel de Leon, commandante of the presidio of Tubac; that on April 2, 1807, the said intendente Conde issued a royal patent or title to the Indians of the pueblo of Tumac acori for the lands, as set forth in the proceedings of the survey thereof and in the copy of the original expediente.

That under the law of the Mexican congress of February 10, 1842, Don Francisco Aguilar, on April 18, 1844, became the owner by purchase, as before mentioned, 'of the four square leagues of agricultural and grazing lands of the 'fundo legal' of the abandoned pueblo of Tumac acori and the sitios of the estancia [stock farm] of Calabazas, and the other places thereunder pertaining.' It was averred that all the steps and proceedings in the matter of the grant and sale were regular, complete, and legal, and vested a complete and valid title in fee in the grantee; and that the grantee at the time went into actual possession, use, and occupation of the grant, and erected the proper monuments thereon, and that he and his legal representatives have continued ever since and until the present time in the actual possession, use, and occupation of the same, and are now possessed and seised in fee thereof.

The United States answered, alleging that the alleged sale to Aguilar was without warrant or authority of law, and void; that, if these lands had been theretofore granted to the pueblo of Tumac acori, they were abandoned about 1820, and by virtue thereof became public lands; that the title to said property, if any passed in 1807, was purely usufructuary, and vested no estate, legal or equitable, in the said pueblo or mission, but that the same and the right of disposition were reserved to and remained in the national government.

The answer denied that Aguilar pecame the owner by purchase or otherwise of any lands included in the alleged grant of 1807 to the pueblo, or of any land of that mission or its dependencies; that the alleged grant was ee r located and recorded as provided by the sixth article of the treaty of Mesilla (Gadsden purchase); that the original grantee or grantees were ever owners of the property as against the republic of Mexico, or are now the owners thereof as against the United Aguilar, in the year 1844, went into actual Aguilar, in the year 1844, went into actual possession and occupation of the grant, and erected monuments thereon, or that he and his representatives have continued ever since in the actual possession, use, and occupation of the same.

The answer averred that the proceedings for sale were never taken under the express order or approval of the general government, and never submitted to said general government for ratification or approval; that the lands claimed far exceeded those contained in the original survey; that the sale was by quantity, and limited; and that the alleged grant was so indefinite and uncertain as to description as to carry no title to any land.

On the hearing the testimonios of the grants of 1807 and of 1844 were put in evidence. Evidence was adduced to the effect that Aguilar, the original grantee, never took or had possession of the lands; that he was the brother-in-law of Manuel Maria Gandara, who was the governor of Sonora in 1842, and in 1845 to 1853, except a few months, to whom Aguilar conveyed in 1856, and, more formally, in 1869; that Gandara was in possession in 1852, 1853, 1854, and 1855, through his herdsmen; and that, as contended by counsel for petitioner, the money for the purchase was furnished by Gandara, and Aguilar took the title as trustee for him. Apparently the expedientes were not in the archives, nor was there any note of the grant in the book of toma de razon for 1844.

A translation of the titulo of 1844 is given in the margin. 

The court of private land claims rejected the claim on the ground that the sale in question was void for want of power on the part of the officer attempting to make it.

Francis J. Heney, for appellants.

Matt. G. Reynolds, for appellees.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes

Title of sale, transfer, and adjudication of agricultural lands which include the four leagues of the fundo legal of the deserted pueblo of Tumac acori and the two sitios of its estancia [stock ranch] of Calabazas and the other places thereto annexed, the same being situated in the jurisdiction

of the district of San Ignacio, issued by the said departmental treasury in compliance with the supreme decree of the 10th of February, 1842, in favor of Don Francisco Alejandro Aguilar, a resident of the port and village of San Fernando de Guaymas.

Second Seal. Seal. Four Dollars.

Eighteen hundred and forty-four and eighteen hundred and forty-five.

Ignacio Lopez, captain of cavalry, retired to the infantry, honorary intendant of the army and treasurer of the department of Sonora.

Whereas, the supreme decree of February 10th, 1842, provides for the sale, on account of the critical condition of the public treasury, of the properties pertaining to the department of temporalities, of which class are the farming lands and the lands for breeding cattle and horses, respectively, of the four leagues of the townsite of the depopulated town of Tumac acori, and the two sitios of the stock farm of the same at the points of Huebabi, Potrero, Cerror de San Cayetano and Calabazas, whose areas, boundaries, monuments, and co-terminous tracts are stated in the corresponding proceedings of survey executed in the year 1807 by the commissioned surveyor, Don Manuel de Leon, veteran ensign and late commandant of the presidio of Tubac, according to the information obtained in relation thereto at the instance of this department treasury, said temporal farming and grazing lands being valued in the sum of five hundred dollars, as provided in article 2d of the aforesaid supreme decree of February 10th, 1842, and complying punctually therewith, I have ordered the formation of the corresponding expediente by the court of first instance and of the treasury of the disr ict of San Ignacio, during which proclamations [pregones] no bidder appeared: Therefore, and in compliance with article 7o of the law of April 17th, 1837, as the sale in question on account of the national treasury does not exceed five hundred dollars, this said treasury proceeded to the public sale of the aforementioned lands of the depopulated Tumac acori and the lands of its stock farm, Calabazas, and other annexed points, all belonging to the department of temporalities, on the 16th, 17th, and 18th of the current month of April, in solicitation of bidders, without there being any other than Don Francisco Alejandro Aguilar, a merchant and resident of this port and village of San Fernando de Guaymas, for said sum of five hundred dollars, the appraised value at which said temporalities have been sold, as appears from the third and last offer, which literally is as follows:

'Third Seal. One Dollar. Years 1844 and 1845.

'In the port and village of San Fernando de Guaymas, on the eighteenth of April, eighteen hundred and forty-four, I, the undersigned, departmental Treasurer, being in the office of this Treasury under my charge, with my attendant witnesses, Don Jos e Maria Mendoza and Don Vicente Irigoyen, in the absence of a Notary of the Treasury and of a Notary Public, in compli-

ance with the provisions of Article 73 of the law of April 17th, 1837, since the price or value of the temporalities to which these proceedings relate do not exceed five hundred dollars, ordered final sale of the temporal lands of Tumac acori and Calabazas referred to in this expediente and and Calabazas referred to in this expendiente and that to that end a proclamation be made to the public at the sound of the drum, as, in effect, the public crier, Florentino Baldizan, made in a high and clear voice, saying: The Treasury of the Department is going to sell, on account of the national Treasury and in accordance with the supreme decree of February 10th, 1842, the agricultural lands and lands for raising cattle and horses which comprise the four leagues of the townsite of the depopulated town of Tumac acori and the two sitios of the depopulated stock farm of the same at the points of Huebabi, Potrero, Cerro de San Cayetano and Calabazas, situated in the District of San Ignacio, the areas, monuments, boundaries and coterminous tracts of which are stated in the corresponding proceedings of survey executed in the year 1807 by the commissioned surveyor, Don Manuel de Leon, veteran Ensign and late Commandant of the presidio of Tubac, as appears from the information obtained at the instance of said departmental Treasury, from which it also appears that the original titles of grant and confirmation of said temporalities still exist, which temporalities have now been valued at five hundred dollars in accordance with Article 2d of said supreme decree of February 10th, 1842.

'Whoever desires to make a bid come forward and make it to this departmental Treasury, where it will be received in conformity with the laws, with the understanding that the final sale is to be made now to whomever should be the highest bidder.'

In which act Don Francisco Alejandro Aguilar, a merchant and resident of this port, appeared, and made the bid of five hundred dollars, at which said temporalities are appraised; and no other bidder having appeared, and the hour for midday prayer of this day having already struck, the public crier finally said: 'Once, twice, three times; sold, sold, sold; may it do good, good, good to Don Francisco Alejandro Aguilar.'

In these terms this act was concluded, the aforesaid farming lands and lands for raising cattle and horses of the depopulated town site and stock farm of the temporalities of Tumac acori and Calabazas being publicly and solemnly sold to Don Francisco Alejandro Aguilar, a merchant and resident of this port, for the sum of five hundred dollars.

And in due witness thereof, and for the usual purposes, these proceedings were closed and entered, and I signed them, together with the party in interest and my undersigneda ttendant witnesses.

Ignacio Lopez.

Francisco A. Aguilar.

Witness: Jos e Maria Mendoza.

Witness: Vicente Irigoyen.

In which legal terms was concluded the sale of the farming lands and lands ofr raising cattle and horses, which comprise the four leagues of the depopulated town site of Tumac acori and the two sitios of its stock farm, Calabazas, and other annexed points, all temporalities, situated in the jurisdiction of the district of San Ignacio, the original expediente remaining deposited in the archives of this treasury as perpetual evidence, with the understanding that, when the original titles of Tumac acori and Calabazas are obtained, they shall be aggregated to the present one.

Whereas, the agricultural lands and lands for raising cattle and horses, which comprise the four leagues of the depopulated town of Tumac acori and the two sitios of its stock farm of Calabazas and other annexed points, all temporalities, in the jurisdiction of the district of San Ignacio, have been sold to Don Francisco Alejandro Aguilar, a resident and merchant of this port, for the sum of five hundred dollars, which sum, together with the others pertaining to the treasury, he has paid into this departmental treasury, I therefore, in use of the powers of the laws on the matter, as also the supreme decree of the 10th of February, 1842, conceded to me by the present title, and in the name of the Mexican nation and of the supreme government, formally cede, sell, give, and adjudicate the said farming lands and lands for raising cattle and horses, which comprise the four leagues of the depopulated town site of Tumac acori and the two sitios of its stock farm of Calabazas and other annexed points already mentioned to the said purchaser, Don Francisco Alejandro Aguilar, by way of sale, and with all the qualities, solemnities, firmness, and subsistence the law establishes, for himself, his heirs, children, and successors, with all their entrances, exits, lands, timber, groves shrubs, pastures, centers, circumferences, waters, springs, watering places, uses, customs, servitudes, and other things pertaining to said possessions, with their inclosures, metes and bounds, for the sum of five hundred dollars, at which they have been sold to said Francisco Alejandro Aguilar; with the precise condition that the said buyer, and his successors in their case, are to maintain the above-mentioned agricultural lands and lands for raising cattle and horses that comprise the four leagues of the depopulated town site of Tumac acori and the two sitios of its stock farm of Calabazas populated, possessed, cultivated, and protected, without passing beyond their metes and bounds, and without their being totally abandoned; with the understanding that, if the said abandonment and depopulation of said farming and grazing lands should take place for the space of three consecutive years by the neglect or fault of their owners or possessors, and there should be any person who denounces them, in such event, after verification of the fact, they shall be declared public lands

and shall be sold at public sale, on account of the national treasury, to whomever should be the highest bidder, excepting, as is just, those cases where the abandonment, depopulation, or lack of protection are on account of the notorious invasion or hostilities of enemies or epidemics or other like causes, and only for the period or periods of such occurrences, cautioning, as the aforesaid Don Francisco Alejandro Aguilar and his successors are strictly cautioned, that they are to restrict themselves to the belongings, metes and bounds of the aforesaid agricultural and grazing lands of the town site of Tumac acori and its stock farm of Calabazas, constructing and maintaining on said possessions the necessary monuments of stone and mortar under the penalties established by the laws in case of neglect.

And with the powers which they and the divers superior provisions that govern the matter concede and confer on me, I order and require respectively of the judges, justices, and local auto rities that at present are and shall hereafter be in the district of San Ignacio that, for the sake of the good and prompt administration of justice, and in observance of the aforesaid legal provisions, they do not permit the said Francisco Alejandro Aguilar nor his successors to be in any manner disturbed, annoyed, or molested in the free use, exercise, property, dominion, and possession of the said agricultural lands and lands for raising cattle and horses of the town site of Tumac acori and stock farm of Calabazas, but rather shall watch and see with the greatest efficacy that they are always protected and maintained in the quiet and peaceable possession to which they are entitled by legitimate right, so that, in this manner, they may freely have the benefit of, enjoy, possess, sell, exchange, barter, donate, transfer, devise, cede, and alienate the aforesaid agricultural lands and lands for raising cattle and horses of the four leagues of the town site of Tumac acori and its stock farm, Calabazas, and other annexed points, at their free arbitrament and election, as absolute owners and proprietors of said possessions, with the understanding also that, just as soon as the original titles of said agricultural and grazing lands are obtained, they shall be aggregated to the present ones, and the transmittal and delivery of said original documents are considered as made and verified from this moment in favor of said party in interest, Don Francisco Alejandro Aguilar.

In which terms I have issued this title of formal sale, transfer, and adjudication to said Mr. Aguilar, his heirs and successors, delivering it to the former for his security and other convenient uses, after entry thereof in the proper place.

Given in the port and village of San Fernando de Guaymas, on the nineteenth day of the month of April, eighteen hundred and forty-four, authenticated and signed by me, the treasurer of the department, sealed with the

seal which this treasury uses, before my undersigned attendant witnesses, in the absence of a notary of the treasury or a notary public, there being none, according to law.

Ignacio Lopes.

Witness: Jos e Diego Labandera.

Witness: Jos e Maria Mendoza.
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