Statement of the Case. not bound to take the risk of losing his money because of the invalidity of the assessment and the want of authority in the officer to sell, an officer not acting for him but for the District, and no adequate reason is perceived for cutting him off from reclaiming his certificates and recovering thereon, in view of this total failure of consideration without fault on his part. Judgment affirmed. AINSA v. UNITED STATES. APPEAL FROM THE COURT OF PRIVATE LAND CLAIMS. No. 429. Argued October 25, 28, 1895. - Decided March 2, 1896. In order to the confirmation of a Mexican grant by the Court of Private Land Claims, it must appear not only that the title was lawfully and regularly derived, but that, if the grant were not complete and perfect, the claimant could, by right and not by grace, have demanded that it should be made perfect by the former government, had the territory not been acquired by the United States; and by the treaty no grant could be considered obligatory which had not been theretofore located. The grant under which the plaintiff in error claims was a grant of a specific quantity of land, to wit: seven and a half sitios and two scant caballerios within exterior boundaries, and not a grant of the entire eighteen leagues contained within those exterior boundaries; and as location was a prerequisite to any action by the Court of Private Land Claims, and as the grant had not been located at the date of the Gadsden treaty, it cannot be confirmed. THIS was a proceeding on behalf of the United States, instituted by direction of the Attorney General, in the Court of Private Land Claims, under the third clause of section eight of the act of March 3, 1891, c. 539, 26 Stat. 854. The petition alleged that defendants were asserting a claim to the premises in dispute under an alleged Mexican land grant by virtue of the treaty of December 30, 1853, known as the "Gadsden Purchase," and that the title of defendants and each of them. was open to question in several particulars set out in the petition. And it was prayed that the defendants be notified to Statement of the Case. show cause why the alleged grant should not be declared null and void, and that the title to said land might be quieted and forever settled, and for general relief. Separate answers were filed by Santiago Ainsa, administrator of Frank Ely, and by Juan Pedro Camou and George H. Howard. Defendants admitted that they claimed the land as tenants in common, and each set up and pleaded his title and asked confirmation of his claim. The New Mexico and Arizona Railroad Company claimed its right of way under them. The answer of Camou and Howard stated among other things: "That, as appears and is shown from and in the said official survey, the minutes whereof are contained in the aforesaid testimonio, the form of the same was nearly square, the northern and southern boundaries conforming, of necessity, angularly with those of the Casita Rancho and the Tumacacori and Calabasas tracts; that within the bounds, natural objects, and monuments set forth and established by the said official survey, there is an excess of about, more or less, some 4631 hectaras, 21 aras, and 47 centiaras, or about-of such said excess, surplus, or demasias, being in that portion of grant lying and being in the State of Sonora, all of which is set forth and shown in the resurvey of the grant and plot thereof had and made A. D. 1886, by the Mexican government upon the petition of your petitioner, Camou, to purchase the said demasias that lay within the Republic of Mexico; which said resurvey and plot thereof and the proceedings thereon, as well as the final sale and grants by the said Republic of Mexicopetitioner Camou of the said demasias within the said republic, and a final recognition, expressly considered and given, of the aforesaid original grant of, made A. D. 1843 by the treasurer general of the department of Sonora, are contained, shown, and set forth in the duly authenticated original testimonio, which was made and delivered unto the said Camou by the said republic as complete and final evidence of title, a copy of which is filed herein and herewith, marked as 'Exhibit B.'" Camou also filed an amended answer, which alleged that VOL CLXI-14 Statement of the Case. the tract in question had been duly located and recorded in the archives of Mexico, prior to the twenty-fifth of September, referred to in article VI of the Gadsden treaty, and that his grantors and predecessors in interest, who were the owners of the grant at the time of the adoption of the treaty of Guadaloupe Hidalgo and of the Gadsden treaty, were Mexicans and citizens of the Republic of Mexico, and further alleged that the validity of the grant was examined into by the United States surveyor general for Arizona, who made a report thereon, a certified copy whereof, dated February 25, 1881, was made part of his answer. This report states that the grant was "for the exact quantity of seven and one half square leagues and two short caballerias, notwithstanding the petition was for the vacant land lying between the northern boundary of Casita and the western boundary of rancho Tumacacori;" that the survey "fixed the quantity at exactly seven and one half square leagues and two short caballerias; and that “after survey every act in the proceedings up to and including the formal execution of the grant was upon the basis of the exact quantity ascertained by survey." The surveyor general called attention to the importance attached by the Mexican government to the quantity or area of grants of land as shown by the action of the procurator fiscal, hereinafter referred to, in correcting the error of the appraisers in omitting to value the two short caballerias, which, being done, "the grant was executed for the definite quantity heretofore stated." In his opinion, as the petition showed that the petitioner wanted the vacant land bounded on the south by the Casita and northerly by the Calabazas without special reference to other boundaries, the claim should be made to bind those ranchos with the easterly and westerly lines so established as to include exactly seven and one half square leagues and two caballerias, and he recommended confirmation of so much of the claim as should be found in Arizona on a survey made as thus indicated. Upon the trial the court ruled that the object of the proceeding by the government was simply to bring in the parties in order that the claimants' title might be confirmed if it were Statement of the Case. found that their grant was valid; that, moreover, the defendants had prayed for such confirmation; and that the burden. of proof was upon the defendants. They thereupon offered in evidence a titulo of the land in question, entitled "Title to seven and one half sitios and two short caballerias of land for raising cattle and horses, contained in the vacant public lands between the north boundary of the ranch of Casita and the west boundary of the mission of Tumacacori and Calabazas, in the upper Pima country, issued to Don José Elias and his parents, Don Francisco Gonzales and Doña Balvanera Redondo, residents of the town of Imuris." From this it appeared, although the petition is not in the record, that May 6, 1841, Don José Elias and his parents applied "for the resurvey of the lands of the ranch of Casita, of which they are the owners and possessors, and which are situated in the jurisdiction of the town of Imuris, and also for the survey, appraisement, and publication of the vacant public lands which they say they need." This part of the application is also described in the proceedings as being “for the survey, appraisement and publication, offer and sale of seven and one half sitios and two short caballerias of land for raising cattle and horses, which comprise the vacant public lands situated between the north boundary of the ranch of Casita and the west boundary of the mission of Tumacacori and Calabazas, in the upper Pima country, in the district of San Ignacio." The application was granted by the superior board of the treasury of the department of Sonora, May 22, 1841, and a resurvey of the ranch Casita was ordered, as also a survey of the public lands sought to be purchased, and the order directed that separate expedientes should be made of both operations. This action of the board was certified to the superior chief of the treasury, May 26, 1841, who on that day commissioned Don Francisco Navamuel to make the surveys. He was directed to resurvey for Don José Elias and his parents the lands of Casita, "giving them the area or number of sitios that legally belong to them, with due separation of the sitio or sitios that result in excess within the lawful boundaries of said lands of Casita. And at the same time said com Statement of the Case. missioner shall execute, in separate expedientes, the proper survey, appraisement, and publication of the vacant public lands the parties in interest apply for, after the indispensable judicial information which said commissioner, under his own strictest responsibility, shall cause to be taken before a competent judge and shall aggregate to the original proceedings, and which shall be that of three impartial, capable and upright witnesses of practical intelligence, by which it is legally and sufficiently proved that the parties in interest need such vacant public lands and have an abundance of stock to stock them with." The commissioner was required to act in strict compliance with the laws of Sonora of May 20, 1825, and July 11, 1834, and to adjust the sitio or sitios contained in the lands of Casita; their overplus, if any; and the vacant public lands, strictly by the regulations, giving to each sitio the area of twenty-five million square varas, and he was cautioned as soon as the operations as to the excess or overplus resulting within the lawful boundaries of Casita were completed, that that excess should not be published, but appraised in accordance with article 2 of decree No. 51 of May 12, 1835. The commissioner procured evidence that Gonzales and his wife had four thousand head of cattle more or less, and proceeded to resurvey the ranch of Casita, and then to survey the vacant public lands. As to this survey he reported that he started at the north cross monument of Casita and directed himself "along the public road that goes toward the north to the presidio of Tubac," 340 cords, (17,000 varas,) "which ended on the high road, in a flat, where a wide canyon that comes down from the slope of the Pajarito mountains terminates," where he ordered a monument placed, "that of Calabazas being about a thousand steps further on on a high hillock which slopes down on the other side of said canyon." "Having asked the party how he wanted the land squared, he replied that he wanted twenty cords to the east; and thereupon they were measured for him twenty-two (22) cords from the monument which is in the high road, in a straight line guided by the compass, to a hillock that has many oak trees on its slope, and on the summit a pile of stones was placed as |