OPINION OP
The claimants have produced in evidence a grant purporting to have been made by Pio Pico, on the 'thirtieth of June, 1846, conveying the orchard of Santa Clara to Castañeda, Arenas and Dias, in consideration of $1200 paid by them to the government. Also, a memorandum or account, purporting to have been signed by Pico, of the articles furnished to the government by the Señores Castañeda, Arena's and Dias, in payment of the purchase money of the gardens of Santa Clara and San José. This receipt or account is dated Los Angeles, July 2d, 1846. The grant purports to be signed by Pío Pico, as governor, and by José Matias Moreno, as secretary. Appended to it is the usual certificate, signed by Moreno, stating that “a note of this superior decree has been taken in the corresponding book.” No expediente from the archives has been produced, nor do those records contain any trace whatever of the execution of this grant. No corresponding book has been exhibited, nor is any such found among the archives. No possession of the land was taken by the grantees during the existence of the former government It is stated by Jas. Alexander Porbes that the orchard remained in the possession of the missionary priests up to the year 1849 or 1850. About that time, one Osio obtained the possession, but by what right or title does not appear. The claim thus rests entirely on the alleged grant produced by the parties, with the usual proof of signatures, and on the parol testimony offered by them.
It is contended on the part of the United States that the grant was made subsequently to the conquest of the country, and is antedated. The grant, as we have seen, purports to have been made at Los Angeles, on the thirtieth of June, 1846. It was proved before the board that at that date Pio Pico was not at Los Angeles, but at Santa Barbara, with his secretary and suite. The claimants
Bearing these facts in mind, we proceed to consider the testimony of Dias with respect to the execution of the grant. This witness swears that the grant was executed in Los Angeles about the first of August; that he saw Castañeda write it, and that on the sanie day he brought it back to the house of Luis Arenas with the governor’s signature attached to it; that the receipt for money and articles furnished was written a few days after, but that he (the witness) never paid anything on account of purchase. If this testimony be true, there is an end of the case. The fact that the grant is in the handwriting of Cas-tañeda, would seem of itself such a corroboration of Dias’ testimony as to exclude much doubt as to its truth. Arenas himself does not pretend to have heard of the grant, or the agreement for the sale of the orchard, until after Castañeda’s arrival in Los Angeles; and this notwithstanding that, if the receipt be genuine, he, Castañeda, and Dias, had on the second of July, furnished to the governor cash and various supplies to the amount of $3200. He further states that he gave the governor two hundred head of cattle, that he received back three hundred dollars in change, and that he delivered to Pico a writing which showed that he made his part of the payment with the two hundred head of cattle, which were then on Pio Pico's rancho. He adds that Pio Pico has these same cattle to this day. Benito Dias states that he knows of the payment for the orchard of Santa Clara only from what Castaneda told him, viz., that he-(Castañeda) had given a note to Pico, payable when the Mexican authority should be reestablished, but that he, Dias, never paid any part of it. The fact that the grant is in the-handwriting of Castañeda might, perhaps, be accounted for, consistently with the good faith of the transaction, on the hypothesis, which however would be purely conjectural, that Castañeda had written it out and sent it to the governor. But in such ease he must have written it before it was signed, and how can we explain the circumstance that the date (June 30th, 1846) is in the same handwriting and evidently written at the same time with the rest of the document? But supposing this difficulty surmounted, the receipt is evidently antedated, or a fabrication. Arenas could not have assigned the cattle spoken of by him, and the receipt for which is acknowledged on the second of July, at Los Angeles. He did not arrive until a few days before Castañeda; and his son, the only important witness for the claimants, states that he arrived some days after the fourth of July. Castañeda could not have paid the cash, or delivered the other articles mentioned in the receipt, on the second of July, for at that time he was at the headquarters of General Castro, at a distance of several hundred miles; and yet the receipt is in his handwriting.
There are other circumstances which tend still further to corroborate the statements of *Dias. The alleged motive of making this sale was the exigency of public affairs, which compelled the government to avail itself of all the resources at its disposal. It was dated within a few days of the capture of Monterey. The payment and support of the army must have been of the first necessity, and the use to which the money and other articles would most probably have been applied; yet Castro, the commanding general, states that he never received any money arising from the sale of the orchards for the expenses of the war, and that if money from that source had been so appropriated, he would certainly have known it. On his cross-examination he repeats that, though Pio Pico might have applied money or property arising from this sale to public uses without his (witness’) knowledge, yet he could not have applied it to the use! of the army. But Luis Arenas negatives the idea that the cattle at least were applied to public uses, for he states (perhaps unguardedly) that the two hundred head given by him to Pico are still on Pico's rancho. This fact alone would be sufficient to raise a suspicion that the governor did not, in a crisis of public affairs, in good faith, attempt to obtain supplies by a sale of public domain; but rather that he has been induced at a subsequent day, for his individual advantage, to sign an antedated title. But even if there were less force in all these circumstances, one consideration seems to me decisive. Neither Pio Pico nor Moreno have been examined in the case. The governor, in the absence of all evidence from the archives, was the person who of all others could have explained when and why he made the grant; why it was dated at Los Angeles; from whom he received it for signature; to whom he sent it; to what uses he aplied the property, and how it happened that he signed a receipt for it at Los Angeles, on the second of July, as received from Castañeda, Arenas and Dias, when no one of them was at that place. Moreno might have explained how it happened that the grant was in this case written by Castañeda, when the latter was at its date, and for some weeks subsequently, at a distance of several hundred miles. If the grant was written by Castañeda and transmitted to the governor for signature, Moreno might perhaps have told us how it happened that Castañeda guessed so prophetically the day on which the governor would sign it, and was able by anticipation to fill in the date at the time he drew the instrument. For that the date was written at the same time and in the same hand with the rest of the document is obvious on inspection.
In a case like this, surrounded by circumstances so suspicious, and depending, on the part of the claimants, upon the testimony of Cayetano Arenas alone, the depositions of the governor and his secretary ought not to have been withheld. If the decision of this cause depended upon weighing the unsupported testimony of Arenas against testimony equally unsupported of Dias, the duty of determining which had sworn falsely would be difficult as well as painful. But the testimony of Dias is corroborated by every fact in the case, while that of Arenas, if not inconsistent with them, is wholly unsupported, and explanation from the best if not the only source from which it could be furnished, is withheld. I think it clearly my duty to reject the claim.
Having reached this conclusion, it is unnecessary to discuss the question whether the governor had authority to sell the lands of the missions, or at least the orchards, vineyards and cultivated portions, which, under
After the above opinion was read, it was ■suggested to the court, by the counsel for the ■claimants, that the deposition of José Matías Moreno, which was on file in the case of Larkin v. U. S. [Case No. 8,091], had been, by consent, admitted as evidence in this. The ■claim in the case of Larkin v. U. S. is founded on the same grant as that exhibited in this case, and is for a part of the orchard.
In the opinion delivered in that case, the testimony of Moreno is adverted to, as follows:
“Moreno testifies that the signatures of himself and Pico are genuine, and affixed at the time the documents bear date, and that Pico signed them in his presence. He also swears that the documents are in the handwriting of Castañeda, that he saw him write them, and that they were written under his (witness') directions, as lie was much occupied with official duties. It is enough to say with respect to this statement, that it is abundantly proved by the testimony of General Castro, Benito Dias, Luis Arenas and Cayetano Arenas, that Castañeda could not have been at Santa Barbara on either the thirtieth of June or second of July, the days on which the documents are dated. The statement of Cayetano Arenas, the chief witness for the claimants, is wholly incompatible with the idea that Castañeda could have been at Santa Barbara, and written the grant by Moreno’s directions. Arenas states that the governor sent the grant to him, ‘with instructions to retain it until Castañeda came from the upper country.’ It cannot surely be pretended that at that time Castañeda was with the governor, writing out the grant and receipt, and delivering the articles mentioned in the latter.”
The testimony of Moreno, therefore, entirely fails to afford that satisfactory explanation of the circumstances which the court entitled to expect. It has only served to confirm me in the opinion already expressed as to the merits of the claim.