Opinion of the Court.

White, Jr., were made without adequate consideration, and with intent to hinder, delay and defraud the appellee. Upon these grounds it gave him a prior right in the distribution of the property. We are not able to assent to this determination of the rights of the parties; for the mother, sisters and brother of Alexander White, Jr., were his creditors, and, so far as the record discloses, they only sought to obtain a preference over other creditors. But their attempt to obtain such illegal preference ought not to have the effect of depriving them of their interest, under the statute, in the proceeds of the property in question, or justify a decree giving a prior right to the appellee. It was not intended, by the statute, to give priority of right to the creditors who are not preferred. All that the appellee can claim is to participate in such procceds upon terms of equality with other creditors.

It results that the decrce below is erroneous, so far as it directs the property, rights and interests therein described to be sold in satisfaction primarily of the sums found by the decree to be due from Alexander White, Jr., to the appellee. The case should go to a master to ascertain the amount of all the debts owing by Alexander White, Jr., at the date of said conveyances, bill of sale and transfers. In respect to the amounts due from him to his mother, sisters and brother, respectively, it is not necessary, at this time, to express any opinion, further than that the accounting in the Probate Court between them is not conclusive against the appellee. It will be for the court below to determine, under all evidence, what amounts are justly due from Alexander White, Jr., to his mother, sisters and brother, taking into consideration all the circumstances attending his management of the property, formerly owned by his father, whether real or personal.

To the extent we have indicated, the decree is reversed, each side paying one-half the costs in this court; and the cause. is remanded, with a direction for further proceedings not inconsistent with this opinion.

The CHIEF JUSTICE did not sit in this case or participate ini its decision.

Opinion of the Court.

PINKERTON v. LEDOUX.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

No. 114. Argued December 7, 1888. Decided February 4, 1889.

The report upon a Spanish or Mexican grant by the surveyor general of New Mexico under the act of July 22, 1854, § 8, 10 Stat. 308, which required such report to be "laid before Congress for such action thereon as may be deemed just and proper, with a view to confirm bonâ fide grants," is no evidence of title or right to possession.

In ejectment, the question whether the tract in dispute is within the boundaries of a grant of public land, is to be determined by the jury on the evidence, as explained by the court.

When the description in the petition and grant of a Mexican grant differs from the description in the act of possession the former must prevail. If, from the description and words in the petition and writ of possession of a Mexican grant the jury cannot definitely locate the boundaries of the grant, they must find for the defendant.

Whether the Nolan title has any validity without confirmation by Congress,

quære.

Whether the proviso in the act of July 1, 1870, 16 Stat. 646, that when the grants to Nolan to which it related are so confirmed, surveyed and patented, they shall be held and taken to be in full satisfaction of all further claims or demands against the United States," was not intended to affect the entire claim of Nolan for any grant of lands in New Mexico, quære.

EJECTMENT. Judgment for defendant.

Plaintiff sued out

this writ of error.. The case is stated in the opinion.

Mr. F. W. Clancy for plaintiff in error.

Mr. Henry E. Davis for defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is an action of ejectment brought by Pinkerton, the plaintiff in error, to recover from the defendants, Julian Ledoux and Epifanio Ledoux, the possession of a quarter section of land claimed to be within the tract known as the Nolan grant in Colfax and Mora counties in New Mexico, under

Opinion of the Court.

which grant the plaintiff claims title; and the main question in the case is, whether the Nolan grant extends far enough westerly and northerly to embrace the lot in question. The action was commenced in July, 1881, in Colfax County, and was afterwards removed to Mora County. The property claimed is described in the declaration as follows, to wit: "that certain tract and parcel of land lying and being situated in the county of Colfax, in the Territory of New Mexico, and being a portion of that larger tract of land commonly known as and called the 'Nolan grant,' (and which said grant was, on or about the eighteenth day of November, A.D. 1845, made by Manuel Armijo, then Governor of the Territory of New Mexico, to Gervacio Nolan and two others,) being the same one hundred and sixty acres of land upon which the said defendants now reside and occupy, and upon which they have a dwelling-house wherein the said defendants or one of them reside, situated on the northwest third of the above-mentioned grant and bounded upon all sides by lands of the plaintiff."

The defendants pleaded not guilty and three special pleas. First, title in themselves by virtue of an entry and a grant from the United States, under which they have erected and placed upon the premises certain valuable improvements, consisting of dwelling-houses, barns, fences, ditches, etc., of tho value of $5000, which value they give notice that they will prove at the trial, if the plaintiff shall maintain his title. Secondly, that they built the valuable improvements on the land before the commencement of the action, and that the plaintiff cannot deprive them of possession until such improvements are paid for. Third, not guilty within ten years.

The plaintiff took issue on those pleas, and entered a nolle prosequi as to Julian Ledoux. On the trial of the cause the plaintiff gave in evidence, 1st, the original Nolan grant, consisting of the petition for a concession, dated November 15, 1845; the grant upon the same, indorsed thereon and dated Santa Fé, November 18, 1845; and the act of juridical possession, dated November 30, 1845. The petition was made by Gervacio Nolan, Juan Antonio Aragon, and Antonio Maria Lucero, soliciting a grant for a piece of land in the little cañon of Red

Opinion of the Court.

river, bounded "on the north by the possession of Messrs. Miranda and Beaubien; on the south one league in a direct line, including the Sapello river, according to its current; on the west another league from Red river and its current; and on the southeast the little hills of Santa Clara with their range to the little cañon of the Ocate." The grant was made as desired, with the boundaries and limits asked for. The act of juridical possession describes the boundaries as follows: "They are, on the north, the lands of Don Gaudalupe Miranda and Don Carlos Beaubien; on the south, one league south of the Sapello river, following the same range; on the east, one league east of the Red river, with the same range of the river; and on the west, the little cañon of Ocate and five hundred varas west of the little hills of Santa Clara in a direct line." No plat or desiño was shown to have been annexed to the act of juridical possession. If there had been one, it was not given in evidence.

It must be acknowledged that these descriptions are somewhat vague. It would seem that, from the northern boundary, adjoining Miranda and Beaubien, (or the Maxwell grant,) to the southern boundary along the Sapello river, the distance is about forty miles; and if the grant extends westerly from the Red river far enough to embrace the land in question, as claimed by the plaintiff, the general width is from twenty-one to twenty-five miles; the whole tract thus embracing an area of nearly one thousand square miles; whilst, if it is confined to one league west of the Red river, as would seem to be the meaning of the original petition and grant, the quantity would still be over one hundred square miles.

The plaintiff then gave in evidence, without objection on the part of the defendant, the opinion of the Surveyor General, dated July 10, 1860, reporting on the grant in question, and stating that he believed the documents of title to be genuine, and the grant to be good and valid, and that the land embraced within the boundaries set forth in the petition and juridical possession were severed from the public domain, and that the title therefor was vested in the heirs and legal representatives of Gervacio Nolan; he therefore approved said title,

Opinion of the Court.

and transmitted it for the action of Congress, in accordance with the 8th section of the act of July 22, 1854, entitled "An act to establish the offices of Surveyor General of New Mexico, etc." 10 Stat. 308, c. 103. The act says, "which report shall be laid before Congress for such action thereon as may be deemed just and proper, with a view to confirm bona fide grants, and give full effect to the treaty of 1848, between the United States and Mexico." It does not appear that this title was ever approved or confirmed by Congress. The plaintiff then offered in evidence (but the court rejected) the petition of the claimants of the grant, addressed to the Surveyor General, in order to show what boundaries they claimed on that occasion. It is unnecessary to recite the contents of this petition, as we think the court rightly rejected it. The Surveyor General, when referring in his report to the boundaries set forth in the petition and juridical possession, evidently referred to the boundaries contained in the original petition of Nolan and his associates for the grant, and not to the petition addressed to himself.

The plaintiff then introduced in evidence a map from the Surveyor General's office, which was not admitted as evidence of the boundaries of the grant in question, nor to show any survey thereof, but only to inform the jury as to the location and position of natural objects and course of streams referred to in other documents. The material part of the map was as follows, to wit: