[United States v. Kingsley.]

the dam and sills aforesaid; that the said timber was mostly destroyed by fire. And by the record we are left to conclude that these works were made by Kingsley, without any, even probable proof that he had at any time taken possession of the land. We cannot do so; and if we could, it would be deemed by us no compliance with the condition contained in the governor's decree or concession in his favour, as the work was discontinued for an insufficient cause, that was, the disturbed and dangerous condition of the country. All the witnesses concur in stating there was no more danger after the appellee petitioned for the land, than there had been before and at the time of his application. The appellee then cannot be permitted to urge as an excuse, in fact or in law, for not complying with his undertaking, a danger which applies as forcibly to repudiate the sincerity of his intention to build a mill when he petitioned for land for that purpose, as it does to his inability from such danger to execute it afterwards. Under the treaty, it is true, that grants of land made before the 24th January, 1818, by his catholic majesty, or by his lawful authorities, stand ratified and confirmed, to the same extent that the same grants would be valid, if Florida had remained under the dominion of Spain; and the owners of conditional grants, who have been prevented, by the circumstances of the Spanish nation, from fulfilling all the conditions of their grants, have time by the treaty extended to them to complete such conditions. That time, it was determined by this Court, in Arredondo's case, 6 Peters, 748, 749, began to run, in regard to individual rights, from the ratification of the treaty; and the treaty declares, if the conditions are not complied with within the terms limited in the grants, that the grants shall be null and void. It is admitted, that in the construction of this article of the treaty the United States succeeds to all those equitable obligations which we are to suppose would have influenced his catholic majesty to secure to his subjects their property; and which would have been applied by him in the construction of a conditional grant to make it absolute. And further, in the construction of this article of the treaty, it must be conceded that the United States must maintain the rights of property under it, by applying the laws and customs by which those rights were secured before Florida was ceded or by which an inchoate right of property would, by laws and customs, have been adjudicated by Spanish authority, ta have become a perfect right; by applying, in the first instance, in such cases, as was said in Arredondo's case, the principles of justice

[United States v. Kingsley.]

according to the rules of equity; and in the second, all those laws and customs decisive of a right of property, whilst the party claiming the right was a subject of Spain. Test then the case before us by the most liberal equity, and it will appear that the claim of the appellee cannot be sustained by any effort by him to perform the condition of the governor's grant; either before the ratification of the. treaty, or since. Indeed, in the last amendment of his petition, in 1835, he states he was prevented from proceeding to the further performance of the condition of said grant, by the great uncertainty in which his right and title to the land was involved by the cession. These Florida grants, or concessions of land upon condition, have been repeatedly confirmed by this Court; and it will apply the principles of its adjudications to all cases of a like kind. It will, as it has done, liberally construe a performance of conditions precedent or subsequent, in such grants. It has not, nor will it apply in the construction of such conditions in such cases, the rules of the common law. But this Court cannot say a condition wholly unperformed, without strong proof of sufficient cause to prevent it, does not defeat all right of property in land, under such a decree as the appellee in this case makes the foundation of his claim.

Arredondo's grant, confirmed by this Court, 6 Peters, was a clear case of a grant in fee for past services and commendable loyalty to his sovereign, with a condition subsequent, of a nature the performance of which must have been a matter of indifference as well to the king of Spain as to the United States, after a cession of Florida was made. The condition was, that the grantees should establish on the land two hundred Spanish families, and that they were to begin to carry into effect the establishment within three years from the date of the grant: and there was no time limited for its completion. This Court said, in that case, 6 Peters, 745: "From the evidence returned with the record, we are abundantly satisfied that the establishment was commenced within the time required, (which appears to have been extended for one year beyond that limited in the grant;) and in a manner which, considering the state of that country, as appears by the evidence, we must consider as a performance of that part of the condition."

The case of Segui, 10 Peters, 306, was a grant in consideration of services to the Spanish government, and for erecting machinery for the purpose of sawing timber. That grant was confirmed by this Court, upon the ground that the governor considered the services

[United States v. Kingsley.]

of Segui a sufficient consideration, and made the grant absolute. Seton's case, 9 Peters, 311, was a decree or permission of the governor, in all particulars like that now before us; and Seton's right to the survey which has been made, and to the equivalent quantity to make up the extent of the original concession, was confirmed by this Court; upon the positive proof that Seton had built his mill in a year after the date of the decree upon which he claimed. Sibbald's case, 9 Peters, 313, another like Seton's and that before the Court, were confirmed by this Court, upon the ground that Sibbald had performed the condition according to the rules of equity which govern these cases. Sibbald, in good faith, and within a reasonable time. after the decree in his favour, began to build his mill; expended five thousand dollars towards it; had his horses and negroes stolen while the mill was building; his mill-dam carried away by a freshet, in the absence of his millwright, who was in pursuit of the stolen property; rebuilt his mill in 1827, which was destroyed by fire the same year; and the year after, built again another mill of twenty horse power, which could saw twenty thousand feet of lumber a day..

It remains only for us to say a word concerning the laws and customs of Spain, supposed by the learned judge in the court below, applicable to the confirmation of this claim under the treaty. The fact that no instance is known of land so decreed having reverted to the class of public lands, for the non-performance of the condition, does not prove a custom; unless a current of cases can be shown in which claimants have held the land without performance. Besides, the existence of any such custom is disproved by the decree for the land itself; by the subsequent decrees of the Spanish governor, declaring lands granted upon condition would be null and void within. a certain time, if the conditions were not performed; and by the treaty itself, which stipulates for the performance of conditions within terms after the treaty was made, contained in the grants, and which is recognised by this Court by its decision, that the time given only begins to run against individual rights, from the date of the ratification. As to the laws of Spain, supposed to aid the case, we remark, it being conceded that the governor had authority to make grants and concessions, and to give permission to persons to enter upon lands upon conditions; nothing less than a law dispensing with the performance of them, or a release of the performance of them by the governor, sanctioned by the general royal authority under which he acted; or a release by royal authority, after grants were made ge

[United States v. Kingsley.]

neral in its application, or applicable to some particular case or class of cases, can be admitted, proprio vigore, as a release of the obligations upon. grantees to perform the conditions of these grants. It is not pretended that any such law or release exists.

Mr. Justice BALDWIN dissented.

This cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida; and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the petitioner having failed to fulfil the condition of the grant, that the said grant or concession is null and void; and that the said petitioner has no right or title to the land. Whereupon, it is now here decreed and ordered by this Court, that the decree of the said superior court in this causé be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said superior court, with directions to enter a decree in conformity to the opinion of this Court.

EX PARTE CHARLES F. SIBBALD, APPELLEE V. The United STATES, APPELlants.

On an appeal from the superior court of East Florida by the United States, the decree of the court of East Florida was in part affirmed; the title of Sibbald, the appellee, to whom the grant of land had been made by the Spanish governor, before the cession of Florida, having been deemed valid by the Supreme Court. The decree of the Supreme Court directed the surveyor of public lands in East Florida to do all things enjoined on him by law, in relation to the lands in the surveys made for the grantee. The case was remanded to the superior court of East Florida, for the execution of this decree. The mandate of the Supreme Court for the execution of the decree of the Supreme Court, was directed to the superior court of East Florida; and the surveyor of public lands would not make the surveys of the lands in the grant, according to the decision of the Court, the mandate not having been issued to him. A petition was presented to the Court by Sibbald, stating these facts, and asking the Court to order that a mandate be made out, directing the surveyor of public lands to do all required of him in relation to the surveys of the lands of the grantee, in conformity with the decree of the Court: and also to the superior court of East Florida, directing the court to cause further to be done therein what of right and according to law and justice, and in conformity to the decree of the Court, ought to be done. By the Court-Had it appeared, that a mandate more special than the one which was sent would have been necesit would have been ordered. The Court is bound to grant a mandate which will suit the case. The mandate which is annexed to the petition, was issued by the clerk, directed only to the court below, and no direction is given to the surveyor. It is, therefore, no execution of the final decree of the Supreme Court; and as it remains unexecuted, it is not too late to have it done; and requires no new order or decree in any way modifying that which has been rendered. The clerk was ordered to make out a certificate of the final decree of the Court before rendered; and also a mandate according to such final decree, the opinion of the Court in the case, and on the petition.

sary,

Appellate power is exercised over the proceedings of inferior courts, not on those of the appellate courts. The superior court have no power to review their decisions, whether in a case at law or equity. A final decree in chancery is as conclusive as a judgment at law. Both are conclusive on the rights of the parties thereby adjudicated. No principle is better settled, or of more universal application, that no court can reverse or annul its own final decrees or judgments for errors of fact or law after the term in which they have been rendered, unless for clerical mistakes; or to reinstate a cause, dismissed by mistake: from which it follows, that no change or modification can be made which may substantially vary or affect it, in any material thing. Bills of review in cases of equity, and writs of error, coram vobis, at law, are exceptions.

When the Supreme Court have executed their power in a case before them, and their final decree or judgment requires some further act to be done, it cannot issue an execution, but will send a special mandate to the court below to award it. Whatever was before the Court and is disposed of, is considered finally settled.