Sullivan v. Richardson (33 Fla. 1, 1894)

Raeñtey, C. J.,

(after stating the facts):

1. The first point urged in behalf of appellants, defendants below, refers to the action of the Circuit Court in permitting the paper offered in evidence by the plaintiff as an original grant from Ramirez to Pintado to be read to the jury. This point goes to the authenticity of the paper and includes the action of the court in admitting other papers offered with it. It is to be borne in mind that of the several objections made on the trial to the introduction of this instrument, the second, third, fourth, fifth, sixth and eighth concern rather the legal effect of the terms of the grant than the question of the genuineness or authenticity of the paper presented as a grant. The same may also be said of the seventh objection, which is that the grant is not one that the treaty between the United States and Spain recognized or validated; and as these several objections may be more properly dealt with in connection with the question of the nature and effect of the grant purported to be made, and its validity, as an authoritative act, their consideration will be deferred till that feature of the case shall be reached. This course leaves but two of the objections, the first and ninth, made to the introduction of the paper to be considered now; the former of these being that it purports to be a copy, and is not duly certified, and the latter that it is not a duly certified copy made by the lawful custodian of the original. As to the first of these two objections it is sufficient to say that the paper does not purport to be a copy. It and other originals introduced in evidence are before us, they having been transmitted under an order of the Circuit Judge, and there is nothing about it that suggests that it is a copy or other than an original. The intimation, to be found in one of the- briefs, that leaves containing the consular and notarial certificates which appear on the certified copy introduced in evidence may have been •detached from this alleged original, finds no support in the appearance of the jmper, or otherwise. The certificate of registry by Carambot at the conclusion of the paper is not consistent with the idea that it is •other than an original, and the signatures of Pintado, Ramirez and Carambot have the appearance of originals, as does the seal; and there is nothing on the face •of the paper that tends to create a suspicion that it has been changed or mutilated in any way. The only fair construction that can be placed on Mr. Knowles’ testimony is that the paper when he offered it in evidence was in the same condition that he found it in when he ■obtained the trunk in 1859 from Mr. de la Rua. Admitting, in this connection, that this original was never before the Commissioners appointed under the act of Congress to ascertain claims and titles to lands in the district of West Florida, and conceding that the copy of which a record was made in the book of the clerk’s office at Pensacola, was before them, we still do not think it can be inferred from these facts that the paper before us does not purport to be or is not an original, or has been in any wise mutilated. If it -Jbe that the Spanish law did not permit Pintado to have the original, then the absence of a presentation of it to the Commissioners, was a circumstance to indicate either that this paper was not then in existence, or that it, if valid, was in the archives at Havana, where it purports to have been executed, and would, if the law was as assumed, naturally have been, unless it had been removed by the Spanish government to Florida. Of such removal by the government there is no evidence; and however all this may be it does not seem to us that either any or all of these considerations have any appreciable weight in establishing the conclusion that the paper before us purports to be a copy.

The remaining objection, that it is not a duly certified copy made by the lawful custodian of the original, involves more than the one just disposed of. It implies that such copy is the only legal evidence of title or due proof of the existence of the original, and the contention is that according to the Spanish law, the' original belonged to the official archives, and the grantee’s sole evidence of his title was a duly certified copy by the official custodian of such archives. If this be so, then the natural and proper custody of this original would have been the office of the archives at Havana, where it purports to have been executed, at least until a transmissal of it, for convenience, to a similar office at Pensacola, in the then Province of West Florida, had been made by the Spanish authorities; and, according to the theory of the objection, a duly certified copy from such office would have been the proper evidence to adduce before the Circuit Court on this trial. It is true that by the second article of the treaty by which the United States acquired Florida, entered into at Washington on October 22nd, 1819, between the representatives of Spain and the United States, which treaty was ratified by Ferdinand 7th, October 24th, 1820, and by the United States in February, 1821, the “archives and documents, which relate directly to the property and sovereignty of said provinces, are included” in the cession, and the same article provides that “the said archives and documents shall be left in possession of the commissaries or officers of the United States duly authorized to receive them.” Had this original been in the archives at Pensacola and been “left” there according to the treaty, the mode of proof would have been clear; but, as is quite evident, there is no room for assuming that it ever was there, nor is the inference that it was ever deposited for retention in a similar repository at Havana, consistent with the record before us. If, then, it be that the Spanish law required such deposit and that a duly certified copy was the sole legal evidence of a grant to Pintado, the action of the trial judge in overruling the objection was errroneous.

What was the law of Spain on this subject? The authorities relied on by counsel for appellants in support of their objection are: United States vs. Percheman, 7 Peters, 51, 85; United States vs. Delespine, 12 Peters, 654; United States vs. Delespine, 15 Peters, 226; United States vs. Wiggins, 14 Peters, 334; United States vs. Rodman, 15 Peters, 130; United States vs. Acosta, 1 How., 24. In the first of these cases, all of them being appeals from judgments of the Superior Court of the Eastern District of the Territory of Florida, it was decided that a paper writing making a grant by a royal officer of Spain in Florida, addressed to a public officer whose duty it was to keep the original and issue a copy, need not be produced, and that the copy issued by the proper officer is an original. The original decree or grant made by Governor Estrada, December 12th, 1815, and to which Percheman’s petition for the same was attached, reads, after certain recitals, as follows: “I do grant him the 2,000 acres of land which he solicits, in absolute property, in the indicated place, to which effect let a certified copy of this petiton and decree be issued to him from the secretary’s office, in order that it may be to him in all events an equivalent of a title in form.” Afterwards there was a petition to the governor for an order of survey, and a certificate of the surveyor that the survey had been made. On the trial in the Superior Court the petitioner offered in evidence a copy, from the office of the keeper of public archives, of the original grant, and to its introduction the United States objected on the ground that the original grant itself should be procured, and its execution proved, but the objection was overruled; and it was said by the Supreme Court, in sustaining the ruling, that it appeared from the words of the grant that the original was not in the possession of the grantee; that the decree, which constituted the title, appeared to be addressed to the officer of the government whose duty it was to keep the originals and to issue a copy; that its language, after granting in absolute property, is: “for the attainment of which let a certified, copy of this petition and decree be issued to him from the secretary’s office, in order that it may be to him in all events an equivalent of a title in form;” and it is then observed that “this copy is, in contemplation, of law, an original.” It is unquestionable-that this decision of the Supreme Court of the United States recognizes the mode of procedure adopted by Governor Estrada to to be consonant with Spanish law, and valid, but the court does not decide, nor does the opinion intimate, or the judgment, viewed with reference to the facts of the case, imply that the Spanish law did not recognize any other procedure in making grants of land. It does not decide what would be the custody of a title in form if it had been contemplated that one should issue. The opinion intimates that the original might, as suggested by the Superior Court Judge, have been brought into court upon subpoena duces tecum, if such course had been necessary to either of the parties; and it was also held that on general principles of law, and independent of legislation to that end, a copy given by a public officer whose duty it is to keep the «original ought to be received in evidence. In the second, or Delespine case, a translated copy, made by the secretary of the Board of Land Commissioners, of a •copy in Spanishfof an original Spanish grant, was received in evidence, the copy in Spanish having been lost, and it being shown that the original had been mutilated, and could not be found. Of the first copy it is said by the court that it ‘ ‘was made from the original filed in the proper office, from which the original could not be removed “for any purpose.” The other Delespine case isat least of no broader effect than the Wiggins case, now to be noticed. In the fourth, or Wiggins case the evidence received, against objection, in the lower court was a copy of the original petition for land, and of the decree or concession by the governor, such copy being duly certified by the government secretary at St. Augustine on August 6th, 1815, as being “faithfully drawn from the originals which exist in the secretary’s office under my charge.” Evidence was also received to prove the practice in the government secretary’s office; and by the testimony of witnesses, including one who had been a clerk in it from 1807 till the change of government in 1821, it was “established beyond controversy” that persons wishing .grants of land from the Spanish government presented •a memorial to the governor, and that he decreed on the memorial in the form pursued in this case, and that the decree was filed in the secretary’s office, “and constantly retained there unless in cases where a royal title was ordered to be issued, when the decree was transferred to the escribano’s office.” The papers in the former class, to which that of Mrs. Wiggins belonged, were not recorded in books, but kept in files vor bundles. It is said in the opinion that the evidence of title given to the grantee was a certified copy of the-decree, or of the memorial and decree, by the government secretary, and that it was one of the ordinary duties of the secretary to make such copies for the use of the parties, and generally the decree directed the copy to be made for his use, and such copies were received as evidence in the Spanish courts of justice, they being made immediately after the decree, and delivered to the party when he called for them; no seal being affixed to the secretary’s certificate, which was evidence of the facts to which it certified in a case like this. And the conclusion of the court was that ‘ ‘in this case, as in all others where the originals are confined to a public office and copies are introduced, the copy is. competent evidence by authority of the certificate of the proper officer, and that it proves, prima facie, the-original to be of file in the office when the copy was made.” In Rodman’s case certified copies were offered, the decree concluding with a similar direction to-the secretary’s office for a certified copy, “which in all events will serve to him as a title in form,” and it was held that the official certificate of the secretary was evidence of the title papers, the originals of which were, as. indicated, kept in the public archives; and in the last, or Acosta case where it does not appear that there was the usual direction in the decree for the delivery of a copy, and where the originals could not be found in the archives, a copy of the petition and decree with the usual certificate from the secretary, dated June-24th, 1816, was received in evidence in the lower court-after hearing testimony as to the manner in which muniments of title were kept in the archives at St. Augustine; and this action was affirmed on the authority of the Wiggins case. What we have said above of the Percheman decision is also true of the subsequently mentioned cases; yet that of Wiggins expressly indicates that there was another class of cases, namely, where a royal title was ordered to be issued; and that in such class the decree was transferred to the escribano’s office. What was done with the decree in the escribano’s office is not stated, yet the only reasonable inference, in the absence of further light on the subject, is that it remained there, as it certainly can not be inferred that they were not to remain there.

Bat these decisions do not throw any light upon the nature or disposition of the “Royal title” which, it must be assumed, followed, when issued, the decree or cession and survey thereunder. We are referred by counsel for appellee to authorities which will now be considered. The first is a report made by the same Pintado as Surveyor-General at Havana on September 9th, 1822, as to evidence to be found there of donations of lands in West Florida, he having been Surveyor-General of that province from about the year 1805, and previously deputy in the same since May, 1796, (2 Cal. L. L., 888 et seq.); which report seems to have been required by the Spanish authorities to the end of the “acknowledgment by the United States” of such donations. Of such donations it is here said, inter alia, that Ramirez, (who as Intendant from 1798, up to September, 1812, saving a period of about one year in 1504 and 1805, had the exclusive power to dispose of land in West Florida), declared on November 17th, 1817, after certain interruptions of this power, that he only had power to grant lands in the Floridas, and that “the records of the lands conceded, and of those asked for, were sent him from the reception of said advice and declaration, for the knowledge and approbation of said authority, and are probably to be found in the secretary, except those which may have been returned to the parties with the decrees they had petitioned for. The books in which were registered the formal titles, which had been dispatched by order of the same superintendent, and the original records which took place in order to obtain them of the concessions which his lordship made directly in both Floridas, and of these which he confirmed and ratified in the years 1817 and 1818, until he was apprised of the negotiations, about the cession of said province, are likewise to be' found in said ofiice, and of all of them I have taken note in my ofiice. ’ ’ Ramirez was the ‘ ‘superintendent’ ’ and ‘ ‘lordship’ ’ referred to. Again in the report of the Land Commissioners for West Florida, to the Secretary of the Treasury, dated November 12th, 1824, it is said: ‘Tt was the practice where a grant was made, to deposit, the original in the ofiice of finances, to be recorded; and the claimant was given a certified copy. These records were not permitted to remain in this province, but were-all removed to Havana several years since. Others were destroyed by the pirates, as is in proof before us, on their passage to that place. Some obtained possession of the originals, but others did not; and, the above causes combined, are alleged • by the claimants-as a reason to account for the absence of original title-papers. Where the ofiice of alcade has contained any important document connected with the claims, we have had it submitted to our inspection, or obtained certified extracts therefrom; but, except as to the mesne conveyances, we regret to say that we have been enabled to procure very little information from that quarter, as it was not the ofiice in which originals were recorded.” 4 Am. State Papers, 104. And besides, ten or more special cases in which it is claimed that the record of the proceedings of these Commissioners shows the originals to have been presented to the Commissioners, are cited by appellee. One of these is the Maria Garzón grant, claimed by Joseph Bonifay. 4 Am. State Papers, 99. The report says that this claim was founded on “a copy of a plat and certificate of survey by Pintado, Surveyor-General, dated Havana, May 7th, 1818, stating” that the former had petitioned in February, 1817, for the land described, and the proceedings taken thereon; also “an original grant or title in form made to Maria Garzón by the intendant, Alexander Ramirez, countersigned by' Pedro Carambot, Secretary of War, dated 16th of May, 1818, stating * * with the annexed authenticated copy of the proceedings instituted before Governor Masot in the year 1817 * * ;” also a copy of a mesne conveyance from Maria Garzón to Bonifay; and that in addition to the foregoing papers Bonifay proved by parol testimony “the signatures of the Spanish officers annexed to the grant.” The report of the Commissioners, which submits the claim to' the judgment of Congress, states that the former were “somewhat at a loss for an opinion,” and also uses this language: ‘ ‘The certified copy of a plat and certificate of the former Surveyor-General of West Florida, as well as the the grant of the intendant upon which this claim depends, are dated subsequent to 24th January, 1818. These officers in regard to Florida no longer existed.; Pintado and Ramirez were irresponsible persons; and the former presents us with a copy when we are entitled to the original under the solemn stipulations of the treaty between Spain and the United States. How far such documents are admissible must be decided by Congress.” Others of these claims, as shown by the report, are: Bonal’s, where an original grant or title inform by Masot,Governor and Sub-delegate,dated October 1st, 1817, under the seal of office and countersigned by two “assistant witnesses,” and an original grant or title in form by Ramirez, Intendant-General, and countersigned by Pedro Carambot, Secretary of War, dated May 2nd, 1818, Pablo Palmes proving the “signature of the intendant, escribano and subscribing witnesses;” Mesa’s concession, Grandpre’s and Sierra’s claims being, the first and original decree of concession by Morales, Intendant-General, countersigned by two witnesses, and dated May 21st, 1812, the authenticity of the title papers being-proved by parol testimony, and the second, Grandpre’s claim, including an original grant or title in form to him by Morales, countersigned by F. G. Arroyo, and dated March 24th, 1812, the signatures of the officers annexed to the grant being proved by parol testimony, and that of Sierra including an original grant by Morales to Cadet of March 24th, 1812, the signatures of the Spanish officers being likewise proved. An original grant to Orsino Bouligny, made May 2nd, 1811, by Morales, and countersigned by Arroyo, an original decree of concession of April 16th, 1804, by Governor Folch to Martin de Madrid, an original grant or title in form. December 6th, 1817, to Hinard by Governor Masot, countersigned by two witnesses, an original grant of May 9th, 1810, by Morales to Aleck, and countersigned by Arroyo, Secretary, and an original grant or title in form of April 14th, 1810, from same source to De Vegas, and the original grant of November 26th, 1811, from the same source, are shown in the other cases referred to here have been presented to the Commissioners, and the signatures of the Spanish officers proved by parol. 4 Am. State Papers, pp. 123, 124. 126, 129, 132. Appellee also refers to Mr. White’s California Land Laws, vol. 2, pp. 353, 354, where the decree of concession of January 10th, 1818, to Jno. Forbes &Co. uses the expression: “And the Commandant of the said city of Pensacola, in virtue of this resolution shall put them in quiet and peaceable possession of the aforesaid land; for which object his excellency orders to give to the said house of Forbes all- the ■documents necessary—-registering the original in the archives,” and where it also appears that Forbes & Co. having in July, 1819, at Havana, requested that Pintado, the surveyor, should draw a plat of the land, he, Pintado, on October 31st, 1823, at Havana, under an order of July, 1819, so directing, certified or reported that having accepted to form a topograghical plan of the land according to the data which he had, and not by actual measure, he accomphished it on the 15th of September of the said year, “annexing the ■graphic description or plat which I return in original to the person as it has been asked and ordered. After having taken due notice of it I despatched the plat under No. 1869, and I registered it with the same number which belonged to it in the series on the 17th of the •said September * *.” The case of United States vs. Arredondo, 6 Peters, 691, is also referred to in this ■connection. There the original title was held and offered in evidence by the grantee apd was received without objection as to its authenticity, or custody, or ■on the score of a certified copy being the proper evidence of title. There, as here, the title recites the concession and the order for survey and the presentation ■of the figurative plans by the Surveyor-General, and finally there follow the final words of the grant, stating that a copy of the plat or figu rative plan would be annexed to the title; Arredendo’s title being signed by Ramirez and countersigned by Peter Oarambot, the secretary, the execution of it taking place at Havana, December 22nd, 1817, and also being endorsed on the same day by Carambot as follows: “An account of the preceding title has been taken, and registered in the book prepared for that purpose in the secretary’s office under my charge.” We also find in the above mentioned report of the West. Florida Land Commissioners, -4 Am. State Papers, 84, the statement that “grants for land sold and those made gratuitously were required to be recorded in the-office of finances.” Again, in the general regulations for conceding lands in the provinces of Louisiana and West Florida, issued by the intendant, Morales, July 17th, 1799, to whose office the exclusive power of granting lands had been granted by royal decree made at Santa Lorenzo, October 22nd, 1798, the procedure to. be followed in granting lands had been prescribed, the 15th, 16th and 17th articles providing in effect as follows: All concessions were to be in the name of the King, by the Gfeneral Intendant of the Province, who should also order the Surveyor-Gfeneral or one named by him, to make the survey of the land asked for; the-survey to be done in the presence of the commandant, or syndic of the district and of two neighbors, and “these four shall sign the, proces verbal which shall be drawn up by the surveyor,” which proces verbal, with a certified copy of the same were to be “sent” to the intendant by the Surveyor to the end that on the original there be delivered, by the consent of the King’s, attorney, the necessary title paper, to which title paper such certified copy was to be annexed. The original proces verbal was to be deposited in the office of the Secretary of the Treasury, and care was to be taken to make annually a book of all which have been ‘ ‘sent’ ’ with an alphabetical list, to the end that at all times and against all accidents, the documents which should be wanted might be found. The surveyor was to have another book, mentioned, in which the procesverbal should be recorded; and both on the original deposited and on the copy annexed to the title he was. to note the folio of the book in which he “had registered the figurative plat of the survey.” In the office of the finances there was also to be kept books in which the titles of concession were to be recorded, and in these books also, mention was to be made of the-folio of the book in which they, the titles, “are transcribed;” or, in other words, as we understand, these-books were to be indexed. There was also to be taken-in the chamber of accounts of the army and finances,, note of such titles, “under the penalty of being void,” a which was to have a like book, and at the time of taking the note was to cite the folio of the book where the title was recorded. The 18th article states, in effect, that a great number of persons erroneously thought themselves to be owners of land, or invested with the title, by the mere order for survey and possession, or by such order and survey, and had neglected to apply for the title, and that the continuation of like abuses for a longer time would augment the-confusion and disorder necessarily to result; and then declares that those who have obtained such decrees, can not, notwithstanding that in virtue of them the-survey has taken place, and they have been put in possession, be regarded as owners of land until their “real titles are delivered completed with all the formalities before recited.” White’s Spanish Law (called also White’s Compilation), 208 et seq.; 2 California Land Laws, 234-44.

Notwithstanding the above statement of the Land Commisioners that it was ‘ ‘the practice where a grant was made to deposit the original in the office of finance-to be recorded, and the claimant was given a certified ■copy,” we do not think it can be said that an original title in form in possession of the grantee or a claimant was not legal evidence of title. Their report shows the fact to be that in numerous cases the original had not been kept in such office, nor did they make the presence of such original in the hands of the grantee •or claimant a ground for rejecting the claim. There is much in the quotations and citations we have given to suggest, and sustain the idea, that when a title inform was made that it was, after being registered and recorded, delivered to the grantee. Granting that the practice of making the decree or order making the grant—or, as it was technically called, the concession —and the survey, the means of investing title, a certified copy thereof proof of the same, was never prohibited in East Florida, as it was in West Florida at least for a time under the Intendancy of Morales, still there is evidence that the other practice of using a title in form was in vogue there; and when we see, as we do in Arredondo’s case, that such a formal title held by the original grantee is presented in a cause of immense moment for those days, and is received in evidence without •objection based on the fact of such possession, and further see that there were many cases of similar possession in West Florida, and find no specific regulation or law which interdicted such possession, we are not justified in presuming that the possession of - titles in form was unlawful. Again it cannot be denied that the mode of procedure in making title to land was in fact the subject of regulation by the Intendant, Morales, and there is no law presented that indicates that the power was not incident to the office; and in the absence of such law we may presume in favor of the power. There is, moreover, in view of the evidence of the possession by grantees of such original royal titles to lands in West Florida, not sufficient evidence to justify us in concluding that the regulations, of Morales were ever entirely superseded in that, province, or that Ramirez was not acting on them in executing this title to Pintado, nor do we feel justified to say that he as Intendant was without authority to use the form adopted, in the absence of formal regulations to that end. The language of such titles seems, to us to imply that it was intended that they should, be delivered to the grantees, and the presumption is. that the act of the officers in delivering was lawful and regular. Winn vs. Cole’s Heirs, Walker’s (Miss.) Reports, 119; Arredondo vs. United States, 6 Peters, 691; United States vs. Clarke, 8 Peters, 436; United States vs. Peralta, 19 Howard, 343; Trenier vs. Stewart, 55 Fla., 458; s. c., 101 U. S. 797. Vide Menard vs Massey, 8 Howard, 293, 314 et seq., for form of title under Regulations of Morales. That this is the presumption, will more fully appear hereafter in another part of this, opinion.

II. The next point to be discussed arises on the objection to the several ancient papers described in the statement, and found by Knowles in the same old trunk in which he found the formal title. The objection urged to the introduction of each is its irrelevancy, or not referring to or having any relation to the property described in the grant. This objection is untenable in so far as it relates to four of the petitions to the Land Commissioners for confirmation, or (2) to the letters of August 18th, 1821, June 28th, 1822, and March 9th, 1822, from Pintado to Mr. John de la Rua, or (3) to the open account of the Secretary of the Commissioners, for recording claims, or to the printed notice of the foreclosure suit, or to that signed alone by the same marshal and apparently relating to sales •of lands under a ft. fa. in favor of Henry Michelet. The petitions to the Commissioners, except that relating to the grant of November 8th, 1816, and that as to the six lots, relate obviously to lands covered by this grant and hence to the grant as an' evidence of title. ‘This fact and the reference in the first of the three letters to the 19 arpents on the Aguada, as well as other features of the communication, including that of the promise of the wharf site at the foot of a street in Pen•sacola; the reference in the second letter to Pintado’s original titles and to the payment of the costs of proceedings before the Land Commissioners,'and in the third to Pintado’s original titles; the item as to Pintado’s claims in the open account of the Secretary of such Commissioners for recording claims, which claims must, from the nature of the office of the Commissioners, be held to be claims for lands; the mention, in the notice of the Michelet foreclosure suit, of properties included in the title offered; the mention in the paper signed “William Sebree, Marshal,” and dated January 4th, 1827, of property which is evidently the same as ■ some of that described in the title papers offered, naturally, if not necessarily, produce the conviction that these several papers refer to more or less of the land ■covered by the title offered in evidence, and in view of the fact that the purpose for which they are offered is ■auxilliary to the admission of such title, they must be held to relate not merely “to property described in the grant,” but to that document as evidence of the grant of the water front, and in our judgment there was, as against the objection presented, no error in the ruling. Whether there was error in admitting the rest of such papers in evidence, we do not decide. It is rendered •at least unnecessary to do so by the conclusion we will -be found to reach as to the validity of the grant.

III. A careful consideration of the grounds of the ■objections made to the introduction of the title, as well as those made to the admission of the alleged ancient papers, will lead to the conclusion that the authenticity of the alleged title is not questioned by such objections. The record does not disclose that proof of the signatures of the officers who signed and countersigned it was called for by the defendants. The same ■also is true as to the signatures borne by other of the papers referred to above. It is true that the plaintiff ■seems to have assumed on the trial that the title from Ramirez was an ancient document, and entered upon the task of showing by parol proof the custody from which it was obtained. There are two witnesses on this point, Peter Knowles and P. E. de la Rua. The substance of the testimony of Mr. Knowles is that he found it in an old round top trunk whose top was broken in, which he obtained in the year 1859 or 1860 from P. E. de la Rua, on applying to him for his father’s papers, John de la Rua being such father, and quite a number of other papers being in the trunk with the grant, some of which being those considered above; and Knowles having had the custody of the papers ever since obtaining the trunk. Knowles was interested in the property described in the grant, when he obtained the trunk and at the time of testifying. The substance of Mr. de la Rua’s testimony is. that his father, John de la Rua, died in 1832; his wife, witness’ mother,, becoming his executor, and she died in 1843, and witness and another became her executors; and the father’s papers, on his death, came into the mother’s hands, and after her death, into the hands of witness and his co-executor. That the papers in the trunk were a lot of old papers belonging his father’s estate. Witness never examined them very particularly, and could not tell what the trunk contained, except papers belonging to his father’s estate, and papers and title grants belonging to the estates of others, for many of whom his father was agent in his lifetime. Witness did not at the time of testifying have the-trunk, and did not know whether he would recognize any of the papers in the trunk, but knows they were-his father’s papers, yet not that all of his father’s papers were there. Witness was quite young “at the-time,” and did not consider the papers of any value. That he had no positive recollection of giving the trunk to Knowles. Knowles applied to him for the trunk, before the war, but he could not recollect giving it to him, but said he must have, as otherwise Knowles, could not have got it. He did not recollect that any one applied to him for the Pintado grant, or for anything connected with it. He did not know Pintado,, who, though, witness was an old man, was before his time. However deficient this testimony might be, in the face of an objection that it was not sufficient to do-away with the necessity of proof of execution, and that therefore the title, its execution not having been, proved, should not be read in evidence, it was in fact-treated by the defendants as sufficient to the end indicated, or its insufficiency was waived by urging objections to another character of the title paper. In the-absence of proper objections in the lower court, the point can not be entertained here, and for the patent reason that had it been made in that court and sustained, the plaintiff might have cured the defect by other testimony. Coker and Scheiffer vs. Hayes, 16 Fla., 368; Willingham vs. State, 21 Fla., 760; Tuten vs. Gazen, 18 Fla., 751; Jenkins vs. Merritt, 17 Fla., 304; Logan vs. Slade & Etheredge, 28 Fla., 699, 10 South. Rep., 25; Summer vs. Mitchell, 29 Fla., 179, 10 South. Rep., 562; McSwain vs. Howell, 29 Fla., 248, 10 South. Rep., 588. The failure to object to the introduction of the title on the ground stated, was a waiver of any insufficiency in the testimony to excuse proof of its execution; and likewise the restriction of the objection to the other papers to irrelevancy was a waiver of all. other possible objections to their being admitted.

There having been no ruling upon the separate objections shown, by the bill of exceptions and preceding statement, to have been made to the admission in evidence of the power of attorney from Pintado to John, de la Rua, and the translation thereof, and the record failing to show that a ruling was insisted on, or a refusal to rule, the objections must be deemed to have been abandoned. Jenkins vs. Merritt, 17 Fla., 304; Ortiz vs. State, 30 Fla., 256, 11 South. Rep., 611.

The result of what has been said in this and the preceding subdivision of the opinion is that the alleged title from Ramirez to Pintado is before us for consideration. The effect upon the verdict and judgment of the error pointed out above in admitting certain of the ancient papers will be considered hereafter.

IY. It is urged by counsel for appellants that neither Ramirez, acting in the capacities indicated by the title-paper, nor even the King of Spain, had the right, to make the grant. The solution of this proposition; involves the necessity of ascertaining the meaning and purpose of the grant, for until we determine what was intended to be done, or was the effect of the paper, assuming it to be authoritative, we cannot decide upon the question of the power of the officer to do what-it imports. In the Report of the West Florida Land Commissioners, of January 20th, 1835 (4 Am. State-Papers, 119), it is said that the space described “in-■eludes almost the whole of the shoal water, etc., in the • hay immediately contiguous to the city of Pensacola,. ; and extending, about two miles, from the mouth of .Bayou Chico to that of Bayou Texar.” The map s shows that the space covered not only the entire front < of the city, but also reached beyond, east and west, to • the months of the .bayous named, and extended out- ■ ward southerly from the shore, 95 perches of Paris at 'the former bayou, and 100 at the latter; the exterior ¡•or south boundary, being of rectilinear lines conforming to the general trend of the shore, but not pretending to respond to all of its curves. A perch of Paris .islSfeet. Webster’s Dictionary ((xoodrich’s Edition): .'Ae.pe.nt. It is apparent that the grant in question, •unlike that of the other five grants included within ■the title, is not an ordinary grant of land including .private waters. The Civil law of Spain after dividing things into those of divine right, and those of human right, subdivides the former into things sacred and religious, and the Latter, or things human, into things common, things public, things of a corporation or a university,, and things private. Sacred things were those established for the service of Grod, and, as the consequence of such establishment, the dominion of them was not in man, and they could not be counted property. Burial places were religions. Religion was deemed to occupy churches and cemeteries upon their consecration, and could not be separated from them at any time. Turning to things human, we find things common to have been those which belonged to birds, beasts -and to all living creatures, as being able to make use of them, as well as to men; such were the air, the water from heaven, the sea and its shore. By the shore of the ■ sea was understood the part of it covered by water, whether in Winter or Summer. Any one might navigate -on the sea, and on its shore, where also he might build a cottage or house for shelter. Things public are those which belong only to mankind. Rivers, ports, harbors and highroads were among things public. Not ■only might the natives or inhabitants,, of a place make use of things public, but also strangers could do so. .No new mill, nor any other thing could be built on the part of the river by which its navigation might be impeded; and any old building obstructing the common use of things public could be destroyed or pulled •down; neither could any building or thing be erected by which the common use of high roads, squares or market places, threshing grounds for ■ corn, churches, •etc., would be obstructed. Things belonging to a corporation or a university were those belonging exclusively to the inhabitants of any city, town or castle, or ■any other place where men reside; and of these things some might be used by any inhabitant of that city, town or place; and others were for the particular use of the corporation, it being its duty to apply the fruits, produce or rents to the common benefit of the city or town. Fountains or springs, places for holding markets and fairs, and places for the meetings of the cor- ■ poration, sandy beaches or grounds on the banks of rivers, and commons or pasture ground belonged to the former class, and were for the use of any inhabitant; and flocks, fields and vineyards, also plant ations and lands producing fruit and rent were of the latter class. White’s Spanish Law, 61-68; California Land Laws (by White), Vol. 1, pp. 70-72; Partidas, Part III, Title 28, Law 1-10; Domat’s Civil Law, Title III, Section I, Articles 1, 2; Gould on Waters, Sections 3, 30, 168 note. Private things were those which belonged in particular to every individual, and of which he might acquire or lose the dominion. 1 Cal. L. L., 84. Things were divided into those which were corporeal and those which were incorporeal; the former being those which may be seen and touched, and they being either movable or immovable; and movables being those which can move naturally by themselves, or be-moved by man, and immovables being those which can neither move naturally themselves, nor be moved by men. Incorporeal things are those which can neither be seen nor touched, and of this kind are all species of rights of which the Spanish jurisprudence taught. A right was either in the thing or to the thing; a right in the thing was that which belonged to one over anything without respect to another person; a right to a thing was that which belongs to any one as against another person to oblige him to-give or to do something. Of the first kind are rights of dominion, of inheritance, services, and pledge and mortgage; possession as it is a momentaneous ’ right, and is lost by the loss of the-thing is not a right in the thing. Of the second kind were all species of obligations which arise from contract. Ibid. Again it is said in Domat’s Civil Law, Section 3, Article 1, that the heaven, the stars, the-light, the air and the sea, are all of them things belonging so much in common to the whole society of mankind that no one person can make himself master of them, nor deprive others of thé use of them; and the next article is to the effect that rivers, the banks of rivers, and highways are things public, the use of which is common to all particular persons, according-to the respective laws of countries, and these kinds of things do not appertain to any particular person, nor-do they enter into commerce; but it is the sovereign that regulates the use of them. The same author, in the next article, reckons among the number of public things and of such as are out of commerce those which. "belong in common to the inhabitants of a town or other place, and to which particular persons can have no right of property, instancing the walls and ditches of •a town, townhouses and public market places. In Angelí on Tidewaters, 18-20, after quoting from Justinian, to the effect that by natural right the air, running water and the sea, and hence the shores of the sea, are common to all, and nobody is therefore prohibited to come to the seashore, and that all rivers and ports are public, so that the right of fishing in a port and in rivers is common to all, and that by the law of nature the use of shore is also public, and in the same manner ■as the sea itself, it is said that it clearly appears from this passage of the civil law, that the waters of the sea and the shores of the same are subject to be used in common by people generally, every person being equally entitled to the benefits to be derived from fishing, drawing and drying nets and navigation; and it is also said: They were expressly denominated by the Roman jurists, res communes, and considered as res ■omnium, in respect to their use and benefit, but in respect to property as res nullius. * * By the ■common law, the waters of the sea and the shores of the same are as much subject to public use as they are by the civil law, but the essential difference between the two is in the above stated doctrine of the civilians, that such waters are the property of no one; but the policy of the common law, on the contrary, was to assign to everything capable of occupancy and susceptible of ■ownership a legal and certain proprietor, and accordingly it makes those things which from their nature can not be exclusively occupied and enjoyed, the property of the sovereign.

We of course take judicial notice of the laws which •obtained in or were applicable to the province of West Florida before we acquired it. United States vs. Turner, 11 How., 668; United States vs. Perot, 98 U. S., 430; Farmer vs. Eslava, 11 Ala., 1041; 22 Am. & Eng. Enc. of Law, 843, note 4, and 874-5.

Assuming, for the present, that Ramirez had the-power to grant whatever estate the terms of the waterfront grant can be construed to create or convey, it is. entirely certain that it does not relate to a thing that it was the policy of the civil law, so long as that thing should remain in its natural state, should be held in severalty by any one person or set of persons. It is a kind of thing, or, assuming that the King, or Ramirez as his representative, had the power to grant to an individual a separate and exclusive interest in it,, it is a subject of property, as to which all citizens,, if not also strangers, had very material interests. There are in the nature of the thing special.reasons why the ordinary rule, of strict construction of government grants, shordd be applied to any grant of it. State vs. Black River Phosphate Co., 32 Fla., 82, 13, South. Rep., 640; Commonwealth vs. City of Roxbury, 9 Gray, 465. The rule of strict construction against the grantee is applicable to Spanish grants. 22 Am. & Eng. Enc. of Law, 843, citing Joseph vs. United States, 1 Ct. of Cl., 197. The most liberal construction that could be placed on this grant would be that it vested Pintado, and his heirs, or assigns, with full and absolute ownership of the land from the high-water mark on the shore between the two bayous out into the bay for the distance indicated in the title, and explained above, and with the water which might at any or all times cover the same; the depth to which the grant of the soil was intended to extend being, however, only ten feet from the bottom of the water; the superficial contents of the water surface being. 718£ arpents. The words: “Marea alfa en tempo sereno,” appearing along the shore-tracing of the survey, indicate that the grant was intended to extend to ordinary high water mark. This construction would also secure to the owner the absolute control of the land and water with power to exclude at all times any and all persons from the same, and to use it for all such purposes as might be agreeable to the owner. To. our minds such a construction is altogether untenable:,. It cannot be assumed that even a known willingness,, desire or purpose of the Spanish sovereign to dispose' of the province to our government made the King, or-his representatives, regardless of the welfare of his. western subjects. It is true that there had b°en for some years prior to February 22nd, 1819, the date of. the treaty, a manifestation at Madrid of a wish on our • part to acquire the Floridas (Curry’s Constitutional* Grovernment of Spain, Appendix D.), and it is further • true that the reason why all grants made on or after • January 24th, 1818, by the Spanish authorities were-declared null and void by the treaty, was that it was. on that day that the first proposal was made by Spain, to the United States for the cession; and subsequent-grants might justly have been regarded with suspicion,, particularly in view of the extensive donations, including almost all unceded lands, made to the Duke of Allegon, the Count of Punonrestro, and to Don Pedrode Vargas, the first and second having been made on February 6th, 1818, and the other on April 9th of the-same year; which date of January 24th, 1818, the-King in his ratification of the treaty on October 24th,. 1820, expressly declared was fixed in the positive understanding that the three grants were annulled by the-' tenor of the treaty. The fact, however, that the treaty-fixed a time terminating the power of the Spanish-authorities to make valid grants, is a recognition of a prima facie validity of all prior grants, which recognition concedes pro tanto the good purposes of that government as to the welfare of the inhabitants of the province. Construing the grant as vesting in the grantee the extensive rights indicated above, the result would have been that the population of Pensacola, and •of the lands east and west to the bayous, would have ■been deprived of the right of using for any purpose, ■or even entering upon the water within the described limits of the grant; they would have been entirely cut off from access to the sea over or through the stated space without the consent of Pintado and those who might hold under him. The commercial future of .Pensacola, and all the interests of the province and of the parent government dependent upon or incidental to the maintenance and development of that town’s maritime commerce would have been dependent upon the will of Pintado and his successors in title, in so far ■ as access from the sea to Pensacola, or to the territory ■between the two bayous was concerned. Surely a construction entailing such consequences will never be :given to a public grant in the absence of conclusive .proof of an intention that they shall result; such proof must be manifest by terms expressly stating or neces- ■ sarily implying the intention. In the absence of such manifestation the proof must be held not to exist. 'The purposes of any grant are to be ascertained from •the terms used, considering them with reference to the • subject-matter of the grant. The subject-matter of this grant can not be regarded as merely so much land •and water, as in the case of a part of the public domain belonging to the King, and held for the purposes ■of sale in severalty; but it must be considered as land ¿and water subject to the public uses which the law obtaining at the time of the grant attached to the same. These uses were as material elements of the subject of the grant as were the soil and water—in fact much more so—and to separate the land and water from the uses with which they were charged, is to change entirely the nature of the subject as to Avhich the grant speaks, and the official authority was acting. It must not be forgotten either that the Spanish authorities were fully apprised of such law and uses, or that they acted with reference to them when making the same. Moreover, no further encroachment upon the rights of the public in the land and water, and their ordinary use of the same can be held to have been intended by the government than the words of the grant, considered with reference to its subject-matter, expressly make or necessarily imply. Keeping in mind the fact that the uses of the shore between high and low water mark and of the water and of the ground under water in so far as the ground was necessary to the, use of the water, we can not reasonably impute to the Spanish authorities a purpose to impair those uses, or in any wise injure the public in their rights, unless such purpose is clearly shown by the words of the grant; on the contrary, in the absence of such showing made in express words or by clear intendment, we must hold that the purpose of the government was to promote the public interests and render the property more available to the uses and ends for which it was intended and held by the public. It is unquestionable that the interests of the people of Pensacola, and of the province of West Florida, and of the entire Spanish government, and even of the strangers of any and all friendly nations who might come to Pensacola, were that the water front covered by this grant, should he maintained in that condition which would best contribute to the maritime commerce of the port. Grand, and beneficent as is the gift which Providence has bestowed upon Florida in this noble harbor where the-, freighted navies of the world now come and go, deep as is its. channel, and ample and secure as is its haven, still there was need for human effort to render it more adaptable to commerce; the land sloped from its bordoers gradually to its channel, and the pages of the appeal transcript now before us, describe, in the language of aged citizens, the time in the early days of the present century when merchandise of other ports was transferred from the ship, whose draft constrained her to the channel, to the flat or small craft, and brought by the latter to the shore, or at least so near that drays- or other vehicles could be driven in the water and receive and convey the goods and wares to their consignees in the town. The necessity for the removal of this obstacle to commerce, one usually incident to harbors in their natural state, must have suggested itself to every intelligent citizen who was appreciative of the needs of the community. Wharves are now, as they were in the year 1817 when this grant was made, the ordinary means of overcoming the obstacle to navigation and commerce presented by the shoaler waters intervening between the shore and the channel of navigable waters. Their construction is for the benefit of the chief interest of the public in navigable waters. Their effect is the advancement of the public welfare in so far as that welfare is dependent upon the right of the public to use navigable waters. In construing-this grant we must ascertain whether it is one which shows simply an intention to authorize the doing of' only that which would naturally promote the public welfare and was necessary to the best uses of the-waters of the bay, or whether there is also in the grant evidence of an intention to give to Pintado rights which were a serious infringement of those of the public, and would entitle him to impair materially the interests and privileges of the citizen, and even the friendly stranger. In our judgment a fair consideration of the grant restrains us beyond doubt to the former conclusion, and excludes the latter.

It is apparent from the title that on December 7th, 1817, prior to the date of the first of the papers constituting this title, there had been a' concession of six lots of which the numbers are given, and of another lot of 204 feet and two inches front on the plaza called Seville, all in Pensacola, such concession directing "the immediate delivery of the titles for the same, which titles it seems were “dispatched” to Pintado on the 10th of the month; and that at the time the grant was made of the city property aforesaid there was a concession of 10,000 arpents of the royal lands of whieh plans were to be presented by Pintado, or, • in other words, a simple grant in quantity, the titles for the latter to be made immediately upon Pintado’s presenting the plans of the lands he should select to constitute the 10,000 arpents with a description of the same, which he was to do under his responsibility in that respect as Surveyor-General of the province. There is no evidence that there was any previous description or identification of the land which was to constitute the ten thousand arpents. The six' plans accompanying the stated first paper, of which plans copies were subsequently annexed to the title, represent the outlines of the locations made by Pintado of the stated concession in quantity; and after stating that the “aforesaid 10,000 arpents superficial are contained in six different tracts of land and water conforming t® the six plans which in duplicate accompany the sa mq whose situations, lines, boundaries natural and artificial, extensions .and area of each terminus are as follows,” that paper describes the several tracts represented by the plans A and B, and reaching the plan C, speaks of that which it represents as “an extension or space of the Bay of Pensacola, whose superfices of water is equal to an area of 718£ arpents superficial between” the 95-perch western boundary line at Bayou Chico and the 100-perch eastern boundary line at Bayou Texar, each of such lines running into the water in a southeast direction,, the plan representing the figure which the said lands forms in the water and the limits within the bay of Pensacola, “being those of the part of land and shore which makes between the said two points of the mouths of the two mentioned creeks, the curve which makes the edge of the water of the sea at the highest tide in calm weather, and with the depth from the surface of the water of the sea as far as ten feet English below the actual bottom, or toward the centre of the earth, in the whole, the space which the figure represented in said plan C embraces, considering it as a solid, since it has the three dimensions of longitude, latitude and depth.” It can not be reasonably claimed for this that it is anything more than a designation of the land and water included between the east and west boundaries and the adjoining-high tide line as a northerly boundary, and the southerly boundary line drawn, in the manner indicated by the plan, from the southern extremities of the eastern and western boundaries, such description including, however, no land below the depth of ten feet from the bottom or line of contact of water and earth. From this space there is then excepted that part of it then occupied by the wharf of Forbes & Co., which it says Jshey have been in possession of many years, and also the lot referred to above as fronting on the Plaza, and further described as having “a depth as far as the sea and prolongation within the bay as far as the extreme of the place or bank of sand.” The paper departing from the course pursued by it in its description of what is represented by the other five plans, does not stop with this mere description by boundaries and quantity, but continuing it says: “The whole in full property and for the purpose of constructing wharves and houses for bathing, reserving and saving not only the right of His Majesty, but also that of the public whenever it becomes convenient and it be designed to construct wharves with whatever funds, municipal or common, intending the exclusion only with respect to particular individuals.” That this paper of December 12th, 1817, was presented to Ramirez, and that the title of December 17th, 1817, whieh with the former and the plans constitute the entire document now before us, was executed by him with reference to it, is apparent from the statement of the paper of the latter date that “with the date of the 12th instant he,” meaning Pintado, “presented in duplicate the figurative plans of the 10,000 arpents superficial of land and water designated in six different portions, whose situations, lines, boundaries and confines natural and artificial extensions, and area of each explain themselves after the manner follow- > ing.” Reaching the property in question it says: “The lands designated by the letter C are an extension or tract of the Bay of Pensacola whose superficies of water is equal to an area of 718£ arpents superficial,” and then follows a description, the same in substance as that in the paper transmitting thé six plans, with the stated exceptions as to the Plaza lot and the Forbes & Company wharf, both of which excepted portions are stated in both, papers to be represented, as they in fact are, on the said plan 0, and afterwards are the words: “The whole in full property,” etc., the only difference between their appearance here and the other paper being that here they are introduced as a distinct sentence, instead of as a part of another sentence, and have the words “at all times” between the words “public” and “whenever.” Having