The United States v. King et al.

After a trial, which occupied several days, the Circuit Court found and decreed the grant of the 20th of June, 1797, to be a valid instrument, and adjudged the title under it of the defendant King, and Coxe, his warrantor, to be legal and good to the tract mentioned in the answer of the former, and in Schedule A annexed to that of the latter. This, under the law and practice of Louisiana, was a complete and definite finding by the court of the facts at issue,-equivalent to the verdict of a jury.

No opinion was delivered by the court at the time this decree was given, but one was subsequently prepared and filed, and is annexed to the record. It presents in a cogent and succinct manner, but more in detail, the matters of fact, of which the decree gives the summary result; and shows that they were founded on very full evidence, oral as well as documentary, and especially that the testimony derived from Girod's pamphlet, was, in the opinion of the court, conclusively disposed of by that of "persons who had equal, if not better, opportunities of acquiring a knowledge of the facts set forth."

No exception was taken on the behalf of the United States to any portion of this opinion, although the agreement gave full power to counsel to do so at any stage of the legal proceedings.

In the progress of the trial, however, five bills of exceptions were taken by the counsel of the United States to the rulings of the court, and three by the defendants. Upon the latter it is unnecessary to express an opinion, as the judgment was in favor of the defendants, further than to remark, that, if it had been otherwise, they might have afforded a sufficient ground for its reversal.

The bills of exceptions on the part of the United States did not embrace any error in the opinion of the court, or in its decision of any legal point arising out of the validity of the grant, or its construction, or the Spanish law or practice in relation to such instruments, but were confined exclusively to the rejection and admission by the court of certain documentary evidence. To each bill of exceptions was annexed, separately and distinctly, the testimony connected with it and necessary to a decision upon it.

A writ of error was issued in behalf of the United States, returnable to this court at December term, 1843. With this writ of error were returned not only the five bills of *exceptions taken by the counsel of the United States, [*863 with the evidence embraced therein, but also the three bills of exceptions taken by the defendant. This, however, formed

The United States v. King et al.

but a small part of the errors of the clerk of the Circuit Court in making up and returning the record. To these bills of exceptions he annexed a great mass of documentary testimony, a large part of which consisted of printed pamphlets, and among them the pamphlet of Girod, with its appendix: but whether all even of the documentary testimony which had been exhibited at the trial was embraced, did not appear; and it is certain that no portion whatever of the parol evidence had been reduced to writing, or was embraced in the record, although the judge had expressly relied upon it as contradicting the allegations in the documentary evidence. It also contained evidence on the part of the defendant, to prove that the grant in question was a valid grant, according to the Spanish laws and practice in regard to such official acts.

On this singular record, the case was argued before this court on the 24th of February, 1845. The opinion of the court (3 How., 773) was against the validity of the grant, the judgment of the Circuit Court was reversed, and the cause was remanded to it "for further proceedings to be had thereon in conformity with the opinion of the court."

In the argument of the case, reference was largely had to the documentary evidence improperly introduced into the record; and the plaintiffs' bills of exceptions, which alone were properly before the court, were scarcely adverted to.

The opinion of the court was put upon the fact, which it considered established by the testimony, that the certificate of Trudeau, or the plano figurativo, annexed to the grant, was antedated and fraudulent; and that therefore, if the grant itself was a genuine instrument, it had not "the aid of an authentic survey to ascertain and fix the limits of the land, and to determine its location." This opinion in regard to the genuineness of the certificate of Trudeau was thus expressed :-"After an attentive scrutiny and collation of the whole testimony, we think it is perfectly clear that this certificate of Trudeau is antedated and fraudulent; and we refer to the evidence of Filhiol, McLaughlin, and Pommier, as establishing conclusively that the actual survey, upon which this certificate was made out, did not take place until December, 1802, and January, 1803; and that the one referred to by the governor in the paper of 1797 (the alleged grant) was for land in a different place, and higher up the Washita River. We are entirely convinced that the survey now produced was not made in the lifetime of the Marquis of Maison Rouge. who died in 1799, but after his death, and at the instance of Louis Bouligny, who, *according to the laws of Louisiana, was what is there termed the forced heir of the

*864]

The United States v. King et al.

Marquis; and that it was made in anticipation and expectation of the cession of the country to the United States, the negotiations upon that subject being then actually pending, and the treaty of cession signed on the 30th of April, 1803. We see no reason to doubt the truth of the witnesses to whom we have referred. On the contrary, they are supported by the testimony of other witnesses, and by various circumstances detailed in the record.”

It will be seen from this opinion, that the judgment of the reversal of this court was not founded upon any error of law presented in the bills of exceptions in the record, nor even upon any facts stated in those bills of exceptions; but that it was purely a judgment on the facts of the case, different from that which was found by the Circuit Court of Louisiana, sitting without a jury, and found mainly upon the old depositions of three witnesses, which are in the appendix to Girod's printed pamphlet. Neither in the judgment, nor in the opinion of the court, did I concur at that time.

Upon the return of the record, with this opinion, to the Circuit Court of Louisiana, on the 9th of May, 1845, the attorney of the United States moved that the case should be taken up for final decision. The attorney of the defendant, on the other hand, moved for a new trial, and prayed for a jury; and in an affidavit, it was sternly urged upon the court, that, in the previous trial, the case had been prepared and conducted under the belief of the law being well settled, that, in a petitory action, in which neither party called for a jury, the finding of the facts by the court would be considered by the Supreme Court as equivalent to a special verdict, and would not be reversed, except so far as they might be brought up by bills of exceptions. The affidavit then went on to show, not only that several witnesses, whose testimony was not reduced to writing, had proved the genuineness of the certificate of Trudeau, and his unimpeachable official and private character, but that the very depositions of Filhiol, McLaughlin, and Pommier, from which the Supreme Court took the facts on which it mainly relied, discarding from them the finding of the Circuit Court, were ex parte, and had been taken without notice to, or the knowledge of, the claimants under the Marquis of Maison Rouge. The affidavit then alleged that the defendants could again prove before the jury, and corroborate with additional evidence, the facts which had been found by the court upon the former trial.

The Circuit Court overruled the application, and ordered a final judgment to be entered for the United States, and

The United States v. King et al.

*865] against the defendant, regarding the judgment and opinion of the Supreme Court as a final one against the validity of the grant, and being commanded by its decree to "proceed according to that judgment and opinion." To this judgment a general exception was taken, and the case came again before this court on a writ of error, and was argued at the last term, December 15th, 1847. This argument has not been reported, probably because no formal decree of reversal or affirmance was made. It embraced, however, an elaborate view of the whole course of proceeding which had occurred, and made it apparent, that, in the statement of the merits of the case in the previous opinion of the Supreme Court, great error had been committed in the assertion of facts; and that, in rejecting the finding of the Circuit Court as conclusive evidence of the facts, and in permitting an inquiry into errors of law not made the subject of bills of exceptions, there had been a deviation equally great from the well-settled decisions of this court.

The suit was not, as this court admitted in its decision, “a controversy in a court of equity, but in a court of law; the petitory action brought by the United States in the Circuit Court of Louisiana being in the nature of an action of ejectment." 3 How., 787.

No point has been more repeatedly and authoritatively settled, than that this court will not, upon a writ of error, revise or give judgment as to the facts, but takes them as found by the court below, and as they are exhibited by the record. Penhallow v. Doane, 3 Dall., 102; Wiscart v. Dauchy, 3 Dall., 327; Jennings v. Thomas, 3 Dall., 336; Talbot v. Seaman, 1 Cranch, 38; Faw v. Roberdeau, 3 Cranch, 177; Dunlop v. Munroe, 7 Cranch, 270; United States v. Casks of Wine, 1 Pet., 550.

The case of Parsons v. Bedford, 3 Pet., 434, was, like the present, a petitory action, instituted in the District Court of Louisiana, and brought for review to this court, on a writ of error and bill of exceptions. It differed in one respect,-the facts were found by a jury. The parol evidence, however, had not been written or entered upon the record, although requested by the plaintiff. That refusal was made the ground of an exception. This court decided that it was no error, not merely because the refusal was not matter of error, but because, "if the evidence were before the court, it would not be competent for them to reverse the judgment for any error in the verdict of the jury."

By the Code of Practice of Louisiana (Art. 494, 495), which, under the act of 24th of May, 1824 (4 Stat. at L., 63),

The United States v. King et al.

is also the law by which the courts of the United States are governed, the decree of the Circuit Court upon the facts *was in all respects equivalent to the verdict of a [*866 jury; and the principle thus established by this court would be equally applicable to it. It was so held in Parsons v. Armor, 3 Pet., 425, where the parties had waived the trial by jury, and the case was brought up by writ of error, the court saying it was certainly not an attribute of that writ, according to the common law doctrine, to submit the testimony, as well as the law of the case, to the revision of the court.

In the year 1842, the effect which was to be given to the judgment of the court in Louisiana, asserting a conclusion of facts where a jury had been waived, was deliberately considered in the case of Hyde v. Booraem, 16 Pet., 176. It was then conclusively settled by this court, that it had no authority, on a writ of error, to revise the evidence which the Circuit Court had before it, or the interpretation they placed upon it, or the conclusions they drew from it. This court then said, "That is the province of the judge himself, if the trial by jury is waived, and it is submitted to his personal decision. If either party in the court below is dissatisfied with the ruling of the judge on a matter of law, that ruling should be brought before this court by an appropriate exception, in the nature of a bill of exceptions, and should not be mixed up with his supposed conclusions on matters of fact." In the subsequent case of Phillips v. Preston, 5 How., 290, the point was treated as conclusively settled.

It should, then, have been taken in this case as established, that every thing which was matter of fact in this controversy had been fixed beyond question in this court by the judg ment of the Circuit Court of Louisiana; and that no portion of the proceedings of that court remained open for revision here, but "such rulings on matters of law as were brought before us by an appropriate exception, in the nature of a bill of exceptions."

No final opinion to this effect was written by this court for publication in our reports after the argument at the last term. But such opinion was expressed unanimously by us in our consultation. And, in accordance with it, this court ordered, that "the judgment rendered in this case at December term, 1844, (3 How., 788,) and all the proceedings thereon and subsequent thereto, should be set aside and vacated, and the case, as it stood at the term aforesaid previous to the said judgment, reinstated." Under this last order, the case has been before us at the present term.