44 U.S.

611
3 How. 611
11 L.Ed. 749

JOSEPH CHAIRES, EX'R OF BENJAMIN CHAIRES,

DECEASED, AND
PETER MIRANDA AND GAD HUMPHREYS,
APPELLANTS,
v.
THE UNITED STATES.
January Term, 1845
1

THIS was an appeal from the Superior Court of East Florida, and a sequel to
the case reported in 10 Peters, 308.

The appellants filed in the court below the following petition:

'To the Honorable Isaac H. Bronson, judge of the Superior Court in and for the
eastern district of Florida.

'The petition of Joseph Chaires, of the said territory, executor of the last will
and testament of Benjamin Chaires, late of the same territory, but now
deceased, Peter Miranda, and Gad Humphreys, respectfully showeth:

'That the said Benjamin Chaires, Peter Miranda, and Gad Humphreys,
heretofore, to wit, on the 11th day of May, which was in the year of our Lord
one thousand eight hundred and twenty-nine, filed their petition in the office of
the clerk of this honorable court in terms of an act of Congress of the United
States, entitled an act supplementary to the several acts providing for the
settlement and confirmation of private land claims in Florida, approved on the
23d of May, in the year one thousand eight hundred and twenty-eight, praying
for the confirmation of certain claims to lands therein specified, and founded on
a title made and granted by his excellency Don Jos e Coppinger, lieutenantcolonel of the royal armies of Spain, eivil and military governor of the territory
of Florida, then subject and belonging to his Catholic Majesty, the King of
Spain, and chief of the royal exchequer of the city of St. Augustine, Florida, to
Jos e de la Maza Arredondo.

'That the attorney of the United States in and for said district, duly appeared,
and answered the said petition; and thereupon such proceedings were had in the
said court, that afterwards, on the 24th day of November, in the year of our
Lord one thousand eight hundred and thirty-four, a decree was rendered therein
in favor of the petitioners; and the said court did thereupon order, adjudge, and
decree, that the claim of the said petitioner was valid, and that, in accordance
with the laws and customs of Spain, and under and by virtue of the treaty of
amity, settlement, and limits, between the United States and Spain, ratified by
the President of the United States on the 22d day of February, one thousand
eight hundred and twenty-one, and under and by virtue of the laws of nations
and of the United States, the said claim was thereby confirmed, adjudged, and
decreed, unto the said claimant, to the extent, for the number of acres, and at
the place specified in the grant for the said land, to Jos e de la Maza
Arredondo; and as in the certificate and plat of the same, made by Andres
Burgevin, dated the 14th of September, in the year of our Lord one thousand
eight hundred and nineteen, and fully in the said cause is set forth, that is to say

'A piece of land, which contains twenty thousand acres, situated on both
margins of a creek, known as Alligator creek, said land commencing a little
above the head of said creek, and embracing an Indian town, distant about
eighty miles from the port of Buena Vista, and about forty miles to the northwest of Payne's Townits first line running north twenty degrees west, three
hundred and fifty-seven chains, begins at a pine marked X, and ends at another
marked A; the second line running south seventy degrees west, five hundred
and sixty chains, and ending at a stake; the third line running south twenty
degrees east, three hundred and fifty-seven chains, and ending at a pine marked
II; and the fourth line running north seventy degrees east, five hundred and
sixty chains.

'That an appeal was taken from the decree, so rendered in this honorable court,
to the Supreme Court of the United States, by the attorney of the said United
States, in and for the said territory, and such proceedings were thereupon had in
the said Supreme Court, that afterwards, on the ___ day of _____, in the year of
our Lord one thousand eight hundred and thirty-six, the decree of this
honorable court was affirmed; and thereupon the mandate of the said Supreme
Court was awarded, directing the same to be carried into effect.

'And your petitioner further shows to your honor, that upon application to the
proper officer of the United States, to carry the said decree into effect, by
admeasuring to your petitioner the lands specified in the grant, it appears that

there is error in rendering the said decree, and that the same requires to be
reformed, in this
10

'That in and by the decree of this honorable court, hereinbefore alleged and
affirmed, in manner hereinbefore set forth by the Supreme Court, your
petitioner's claim was confirmed, adjudged, and decreed to be valid 'to the
extent, for the number of acres, and at the place as in the grant to the said land
to Jos e de la Maza Arredondo,' but it is added in the said decree, 'and as in the
certificate and plat of survey of the same, made by Don Andres Burgevin, and
dated the 14th September, one thousand eight hundred and nineteen, and filed
herein, is set forth, to wit,' &c., &c.; and the said decree thereafter proceeds to
recite the metes and bounds as specified and set forth in the survey made by the
said Don Andres Burgevin.

11

'That the land granted to Jos e de la Maza Arredondo, and, in the decree before
referred to, confirmed and adjudged to your petitioner, is described in the royal
grant or title to property, also before herein referred to, consist of 'twenty
thousand acres of land, with title of absolute property, of those known as
Alachua, about eighty miles distant from this city (of St. Augustine) at a place
known as 'Big Hammock,' about twenty miles from the river Lawanee
westward, about sixty miles from St. Johns.' While the land specified in the
survey of Don Andres Burgevin is described as follows: 'twenty thousand acres
of land, situated on both margins of a creek known as Alligator creek. Said land
commences a little above the head of said creek, and embraces an Indian town,
distant about eighty miles from the post at Buena Vista, and about forty to the
north-west of Payne's Town,' &c., &c.

12

'That the land specified in the said survey does not conform to, or correspond
with, the land described in the said grant, and that the surveyor-general of the
United States has therefore been unable to execute the decree of this honorable
court, affirmed as aforesaid by the Supreme Court of the United States, and to
admeasure to your petitioner the land adjudged to him by the said decree.

13

'That forasmuch as the land specified in the said grant to Jos e de la Maza
Arredondo is, by the decree aforesaid, adjudged to your petitioner, 'to the
extent, for the number of acres, and at the place, as in the grant for said land,'
your petitioner is entitled to have the same admeasured to him according to the
terms of the said grant, and the description therein contained; and that if the
said survey of Don Andres Burgevin conflicts with the said grant, the said
survey must yield to, and be controlled by, the terms of the grant.

14

'Your petitioner further shows to your honor, that the said land was duly

14

'Your petitioner further shows to your honor, that the said land was duly
surveyed and admeasured, and a plat thereof made and returned to this
honorable court, and given in evidence in said cause, by Joshua A. Coffee, a
competent and qualified surveyor, but that the same was omitted in the
transcript of the record sent to the Supreme Court of the United States, although
the fact of its having been given in evidence appears in the said transcript, a
copy of which said survey is hereunto annexed.

15

'Your petitioner further shows to your honor, that the surveyor-general of the
United States hath refused to execute the said decree by admeasuring for your
petitioner the land thereby confirmed and adjudged to him, and that, upon
application to the commissioner of the General Land-office, he hath in like
manner refused so to do, until the said decree shall have been reformed by the
competent authority.

16

'Wherefore, your petitioner prays this honorable court, the premises aforesaid
being considered, and due proof thereof being made, that the said decree may
be reformed, and to that end, that a rehearing of the said cause in this behalf
may be granted; that the title of your petitioner to the twenty thousand acres of
land, specified in the grant to Jos e de la Maza Arredondo may be adjudged to
your petitioner according to the terms and specifications of the said grant, and
the survey of the said Joshua A. Coffee, a copy whereof is hereunto filed; or
according to a survey to be made under the order of this court, by the surveyorgeneral of the territory of Florida, in comformity to the description of the said
land in the said grant specified and set forth, to be returned into the registry of
this honorable court; and that he may have such other and further relief, as in
the wisdom of this honorable court shall seem meet and right in the premises;
and your petitioner, &c., &c., &c.'

17

In June, 1844, the court, after hearing an argument, decided that the petition for
rehearing could not be entertained, and ordered it to be dismissed.

18

From this decree the petitioners appealed to this court.

19

Berrien, for the appellants.

20

Nelson, (attorney-general,) for the United States.

21

Berrien, after stating the case, said: This petition was dismissed by the District
Court, on the ground that it had not been filed in time.

22

The relief sought by the petitioner is therefore resisted solely on the ground that

22

The relief sought by the petitioner is therefore resisted solely on the ground that
too much time has elapsed since the decree was rendered, to entitle them to it.

23

They have the decree of this court affirming their title to twenty thousand acres
of land, specified in their grant, and at the place therein specified.

24

The ministerial officer of the government refuses to admeasure the land so

awarded to them, according to the terms of the grant, because the decree also
refers to an inconsistent description contained in the survey of Burgevin.

25

And an application to have the decree reformed, according to the clear and
manifest intent of the court, is resisted on the ground of time.

26

This objection is sustained by a reference to the rules established in the English

courts of chancery, and recognised here in cases to which they apply, in relation
to applications for a rehearing, and bills of revivor.

27

And to the argument from analogy, drawn from the limitation of time in our
statute, within which appeals may be entered, and writs of error sued out.

28

As to the first objection: it is submitted that the rules which regulate the
proceedings of courts of chancery, in the exercise of their general jurisdiction
over cases, between individual parties, are not applicable to this proceeding.

29

This case was brought before the court below, and subsequently transferred to
this court, not by an appeal to the general chancery jurisdiction of either, but
under the special authority given to these courts by the act of 1828, providing
for the settlement and confirmation of private land claims in Florida, and those
other acts to which it refers.

30

The proceeding was by petition; which was required to be conducted according

to the rules of a court of equity; and certain limitations of time were prescribed,
within which petitions were to be filed, and appeals to be entered.

31

But the court was required to settle and determine the validity of the title, by a
final decree, and the successful claimant was entitled to a copy of the decree,
and the admeasurement by the surveyor-general of the land awarded, with a
certificate of such admeasurement, for the purpose of obtaining a patent from
the commissioner of the General Land-office.

32

No time is specified within which the duties of these officers are to be

respectively performed.
33

But in the case of a successful claimant, their acts constitute part of the res
gesta. They are part of the proceeding; and the District Court must, in such
case, retain possession of the cause, until the mandate of this court is carried
into execution.

34

Its intervention may, in various ways, be necessary to direct, or speed the action
of the ministerial officers of the United States.

35

Neither the enrolment of the decree in this court, nor of the mandate in the
court below, can conclude the cause, and fix a period from which the time for
filing a petition for a rehearing, or bill of revivor, is to run.

36

The case remains open, always liable to be acted on by the court below, until
the mandate is executed.

37

No time is prescribed by the act, within which the duties of the surveyorgeneral are to be performed. The nature of these duties forbade it. It was to
survey wild lands in trackless forests.

38

In point of fact, the decision of the surveyor-general, and of the commissioner

of the General Land-office, that this decree, in its present form, could not be
executed, was only obtained immediately before the application to the court
below.

39

If they erred in that decision, had not the District Court power, in the exercise
of its authority, to carry the mandate of this court into execution to correct that
error, and to require the survey to be made according to its interpretation of the
decree? That was one of the prayers of the petitioners.

40

No application could be made here. The case had passed from this court with
its mandate.

41

It remained with the court below to superintend the execution of the mandate;
and must therefore have remained open in that court.

42

That which is here contended is, that neither the time at which the decree is
pronounced, in this court, nor that when the mandate is filed in the court below,
can be considered as the starting point, from which the limitation applicable to

petitions for rehearing, and bills of revivor, is to be computed.

43

This seems to result inevitably from the mode of proceeding.

44

The decree of this court is spoken of. But the proceeding here is but an
affirmance of the decree of the court below.

45

The mandate is the certificate of that affirmance, and the case is remanded to
the District Court for 'such further proceedings,' as according to right and
justice, and the laws of the United States, ought to be had. It is then necessarily
open in that court.

46

It may do whatever 'right and justice,' and 'the laws of the United States,'
require to be done.

47

Here it is obvious that this application is founded on such matter.

48

The impossibility of reconciling the different parts of this decree, so as to give

it effect, could only be ascertained (from the vagueness of this, as of all other
Spanish grants,) by the experimental surveys of the United States officer.

49

This suggestion withdraws the case at bar from the authority of that of Thomas
and Brockenborough, and of the rules of the English chancery.

50

Repeated experimental surveys were necessary, for the purpose of ascertaining

whether the lines of surveys lying in the supposed vicinity of those specified in
this grant would correspond with those of the survey referred to in the decree. It
was only when this had been done, that the impossibility of carrying this decree
into effect, without abandoning the lines of the survey of Burgevin, and
resorting to those in the grant, and the survey of Coffee, could be ascertained.

51

No laches can be imputed to the petitioners, because the time which has since
elapsed is not within any legal or equitable limitation.

52

The ground upon which, however, it is apprehended that this case ought to be
put is, that this case was still open in the court below for the purpose of this
petition.

53

The petitioners had a final decree in their favor, as ascertaining their title to
twenty thousand acres.

54

As they were required to do, they applied to the surveyor to admeasure their
land to them.

55

This, after repeated efforts, in a wild country, he failed to do, alleging certain
errors in the decree.

56

When this was ascertained, application was made to the court below, so to
reform the decree as to give the petitioners the benefit of it in some form.

57

This was refused, solely on the ground that such petition could not now be
received.

58

If, therefore, this cause is open for any purpose, in the District Court, as we
apprehend all such cases must be, while the surveyor is engaged in making the
survey, in obedience to the mandate; if that court could have granted relief in
any form, upon petition, to the appellants, then we suppose that its judgment
must be reversed, as the petition contains a prayer for general relief.
Nelson's argument was this:

59

This is an appeal from the decision of the Superior Court of the district of East
Florida, rendered on a petition exhibited in said court by the appellants, praying
for certain relief, and which was dismissed by said court. The error alleged is,
that the decree of dismissal was improvidently passed.

60

The petition is spread upon the record, and need not be repeated here.

61

It is sufficient to state, that it seeks to reform a decree of the court to which it

was presented, passed on the 24th day of November, 1834, and which was, at
the January term, 1836, of this court, upon an appeal prosecuted by the United
States, affirmed. 10 Pet., 308.

62

The object sought to be effectuated is to make the decree available for other
lands than those covered by it, under an allegation that the recitals in said
decree are erroneous, and this it is proposed to do by the instrumentality of the
petition set out in the record.

63

The appellee maintains that the court below, in dismissing the petition,
committed no error, and that the same ought not to have been entertained by it,
because of the lapse of time from the rendition of the decree proposed to be

reformed, to the exhibition of the petition in this case.

64

The proceedings in the court of Florida were had in pursuance of the provisions
of the act of Congress of the 23d of May, 1828, entitled 'An act supplementary
to the several acts providing for the settlement and confirmation of private
land-claims in Florida,' the 6th section of which provides that 'all claims, &c.,
shall be received and adjudicated by the judge of the Superior Court in which
the land lies, upon the petition of the claimant, according to the forms, rules,
regulations, conditions, restrictions, and limitations, prescribed to the district
judge, and claimants in the state of Missouri, by act of Congress, approved May
26th, 1824, entitled 'An act enabling the claimants to lands, within the limits of
the state of Missouri and territory of Arkansas, to institute proceedings to try
the validity of their claims."

65

The 2d section of the act last referred to declares, 'that every petition, which
shall be presented, under the provisions of this act, shall be conducted
according to the rules of a court of equity.'

66

The question then to be decided is, in the view entertained by the appellees,
whether, according to those rules, the petition for a rehearing, filed in this case,
was in time to justify the court below in opening the original decree?

67

This was passed on the 24th day of November, 1834, and was affirmed in this
court in January, 1836, and the present petition was filed on the 21st day of
May, 1844.

68

A rehearing will not be granted, if once the decree has been enrolled, even if
only one of several defendants has caused the enrolment. 1 Sch. & L., 234.

69

Whatever may be the capacity of a bill of revivor or review, to open a decree

thus enrolled, a petition for a rehearing is incompetent to such an end. Bennett
v. Werter, 2 Johns. (N. Y.) Ch., 305, 3 Ch. Rep., 94.

70

But in this case, the lapse of time, in analogy to the principles of law applicable
to limitations, is a bar to any relief under this petition, if not, indeed, under any
form of proceeding. 10 Wheat., 146; 8 Pet., 123.

71

The 22d section of the Judiciary Act of September 24, 1789, limits writs of
error and appeal to five years. 1 Story Laws, 60; 2 Id., 905, 906, 5; McClung
v. Silliman, Wheat., 598.

72

Appeals in cases arising under the act of 1828, are governed by the 7th and 9th
sections thereof.

73

Any the 12th section provides, that claims not brought or prosecuted to final
decision within two years shall be barred.

74

Besides, in this case, a mandate had been sent down from the Supreme Court to
the Superior Court of Florida; and after a mandate, no rehearing will be granted.
Sibbald v. The United States, 12 Pet., 492.

75

It is a mistake to suppose, that the object of this petition was to operate upon a
ministerial officer, the surveyor-general, in the execution of the decree of the
court; its purpose was to reform the decree itself, and to assert, substantially, a
new claim. This, it is respectfully insisted, it is not competent for the appellants
to do in the form they have adopted.

76

Mr Justice CATRON delivered the opinion of the court.

77

On the facts presented, one consideration is whether the petition was dismissed
for a proper reason. The petition was moved on by the claimant's counseland
resisted on the ground that it had not been filed within the time allowed by law,
and the rules of the court: and it is insisted it was dismissed for this reason,
which is insufficient; as the bar of five years cannot be interposed under the
circumstances. If this had been the reason given, it would be immaterial, if the
order was proper for other reasons. The 32d section of the Judiciary Act
prescribes the duty of this court in such cases, and directs it to proceed and give
judgment according to the right of the cause, and matter in law, without regard
to any imperfections in the judgment.

78

But we do not apprehend any imperfection to exist; the court says'It is

considered that a petition for a rehearing cannot now be entertained by this
court, in this cause.' And why not? In 1829, a proceeding was instituted in the
Superior Court of East Florida by the claimants for the confirmation of a claim
for twenty thousand acres of land granted to Arredondo: In 1830 that court
declared the title valid, on the face of the title-papers; this fact existing, the
next presented for ascertainment was the sufficiency of the description as to the
general locality of the land granted. But the duties of the court did not end here;
by the 2d section of the act of 1824 it was not only given full power and
authority to hear and determine all questions arising in the cause relative to the
validity of the title, and the descriptive identity of location on the face of the
title; but thirdly to settle the precise boundaries of the land on the ground;

founding its decree on an existing survey, if a proper one was produced, and if
not, to let the party proceed according to the 6th section of the act. On the face
of the title no material difficulty seems to have arisen; but to identify the land
called for was most difficult, and probably impossible: If the grant had been
unaided by a survey, it cannot well be perceived how it could have escaped
from the principles on which were rejected the claims of Forbes, Buyck, and
Joseph Delespine, (found in 15 Pet.,) and of Miranda, (in 16 Pet.) To avoid
doing so, the land was decreed by metes and line-marks, founded on a survey
(purporting to have been made for the land granted) by Don Andres Burgevin
on the 14th of September, 1819.
79

This survey, it is contended, is for land lying in a different locality from that
referred to in the grant, and being so, it is urged, that according to the rulings of
this court, no survey could be made for any other land than that granted after
the 24th of January, 1818; as this would in effect be a new grant, which the
treaty prohibited after that date, according to the cases of Clarke and Huertas,
in 8 and 9 Pet., and that of Forbes, 15 Id., 182; and there being no equivalent
provided in the grant to except the case from these principles, the survey could
not legally be the basis of a decree.

80

This may have been true, and the decree for the land contained in Burgevin's
survey erroneous; but the question is, whether the court below had any power
to correct it? If it had not, then no petition for such purpose could be heard,
either on the part of the United States, or the claimants in that court.

81

From the decree made in 1830, an appeal was prosecuted by the United States
to this court; the claimants rested content, and prosecuted no cross appeal. 10
Pet., 308. On a hearing, the decree below was affirmed for the specific land,
and the cause remanded for further proceedings, to the end that a patent might
issue, pursuant to the 6th section of the act of 1824, which declares it shall be
for the land 'specified in the decree;' and prohibits a survey for any other land,
unless that decreed has been disposed of, when a change is authorized by the
11th section; but as no other appropriation of the land set forth in the decree is
alleged to exist, this circumstance is out of the present case.

82

The claimants not being willing to take the land in Burgevin's survey, assumed
the right to have a re-survey made, or to have adopted that made by Joshua A.
Coffee, on their behalf, in 1834, which they allege is at the place called for in
the grant; and this on the ground that the decree of 1830 is inconsistent, it being
in confirmation of the land granted, and also of Burgevin's surveythe places
not being the same. This change was refused at the land-office here, for the
reason that the decree excluded such a change until it was altered by the proper

judicial authority. For this purpose the petition for a re-hearing was filed,
seeking to have the decree of 1830 reformed, and that part of it establishing
locality and boundaries set aside or disregarded, and the land located
elsewhere. This the Superior Court of East Florida had no power to do, on the
facts set forth by the petition, because the decree of this court, made in
affirmance of that made below, is conclusive on the inferior court; and it has no
authority to disturb it by the mode proposed, but can only execute our mandate,
and settle so much as remains to be done. For the principle, governing in like
cases, we refer to the ex parte application of Sibbald, and the rules there laid
down, (12 Pet., 489, 490,) to which nothing need be added; as they are
altogether adverse to the present proceeding, and show that the petition was
properly dismissed.