Mr. Justice Wayne
delivered the opinion of the Court.
The decree of the Court below confirms the title of the appellees to a square of five miles of land, situated in the place known under the denomination of Apprecile Spring, opposite the old store of the house of Messrs. Panton and Leslie, called Hamlet.
The clair -is fouhdéd'upon a concession to Robert M'Hardy, dated the 8th November, 1814. The memorial for the grant, and the grant are as follows:
His Excellency the Governor:
Don Roberto M'Hardy, an inhabitant of this province, with due respect represents to your excellency, that since the month of July, 1803, when he came Jo it and was admitted under the protection of his Catholic Majesty, (whom may God preserve,) he flatters himself wjth having the'honour of having been selected and preferred to others of his class for holding commissions of the government, the truth of which is well known to your excellency; and moreover, for the same reason of his fidelity in the year 1812, when said province was invaded by some rebellious inhabitants thereof, your petitioner was arrestéd by them and detained prisoner for the space of twenty-nine days, in consequence of which violence, he suffered the loss of all his crop, and other damages and losses to a great amount, which he does not mention, a? they-are well known to your excellency. In consideration of which, and your petitioner wishing to repair in some measure his said losses, he intends to invest his means' in the erection of a water saw-mill, in consideration of the great scarcity of lumber in this province, both in regard to the home consumption and to the purposes of commerce; and as it is necessary for that purpose to obtain a suitable position, as is the place known under the denomination of Apprecile Spring, opposite the old store of the house of Messrs. Panton and Leslie, called Hamlet, therefore your petitioner supplicates your excellency be pleased, in consideration of the merits he has obtained, and of other circumstances in his favour, to grant him in absolute property a square of five miles in the location designated, and which is vacant; which favour he hopes to receive from the justice of your excellency.
St. Augustine, of Florida, on the eighth, day of November, one thousand eight hundred and fourteen.
Robert' M'Hardy.
DECREE.
St. Augustine, of Florida, eighth of November, one thousand eight hundred and fourteen.
Whereas, the merits, services, and other circumstances which the interested party exposes in this representation, are well known to me, in consideration .of the advantages which will result in favour of the home and foreign trade of this province, and also in conformity to the provisions of the royal order, of the. twenty-ninth of October, one thousand eight hundred and ninety, communicated to this government by the Captain General of the Island of Cuba, and of the two Floridas, in relation to the distribution of lands to the new inhabitants, I have come to the determination of granting to the petitioner, in absolute property, 'the square of five miles of land in the designated place, without prejudice to a better owner, and for the attainment of which, let the secretary's office issue to him a certified copy of this expedient and decree, which in'all events will serve to him as a title in form. ' Kindelan.
It is contended, on the part of the United States, that the decree should be reversed upon three grounds:
1. That the evidence in the case is insufficent to prove that the alleged grant or concession was ever made.
The .evidence is a certificate from Aguilar, Secretary of the government of East Florida, the same ás that to be found in United States v. Wiggins, 14 Peters, 345, which the Court held to be sufficient proof of the grant.
The second objection is, that if it be proved of admitted that the grant was made, still it is void; because it is not-in conformity to the royal order of the 29th October, 1790, by virtue of which, it declared the concession was made. That royal order will be found in 2 White's New Rec. 365. It is contended that, under the order, grants can only be made' to foreigners, and that the number of acres granted must be in proportion to workers. The argument is, professing to be made under the . royal order, if the grant is not in accordance with it, it is void; and the United States v. Clarke, 8 Peters, 448, is cited to' sustain the objection. 'f'he authority has been mistaken. The .Court do say in that case, "if the validity of the grant depends upon its being in conformity with the royal order of 1790, it cannot be supported." But it immediately proceeds to show, though, the royal order is recited in the grant, that it was in fact founded upon a meritorious consideration of the petitioner having constructed a machine of great value, for sawing lumber. The Court say: "We cannot think that the recital of a fact, entirely immaterial, on which fact the grant does not profess to be founded, can release an instrument making other'considéra tions on which it does profess to be mounded, if the matter, as recited, be sufficient to authorize it. Without attempting to assign motives for the recital of that order, we are of opinion, that in this case the recital 'is quite immaterial, and does not affect the instrument. The real question is, whether Governor Coppenger had power to make itand so it must be said that the. recital of the royal order in this case is quite immaterial. The petitioner for the grant, asks for it, reciting services and fidelity to the government in time of a rebellion; his imprisonment and loss of property to a great amount, in consequence of it; "all of which," he says, " are well known to your excellency." In consideration of which, he further states, that, to repair his losses; he intends to invest his means in the erection of a water saw-mill; and then asks his excellency, in consideration of his merits, and other circumstances, in his 'favour, to grant him, in absolute property, a square of five miles, in the place designated in his petition.
The Governor's decree, upon that petition, first recites the merits and services of the petitioner, which he says are well known to him; and then says, in conformity with the royal order of October, 1790, he grants him, in absolute property, the square of five miles. Now, if it be the fact that the Governor had the power to make a larger grant than the quantity recited in the royal order, which was applicable to a particular class of persons, foreigners; it will not be contended, because he says " in conformity to the royal order," that these words shall control a larger grant, made to one who was not a foreigner, but a subject of his Catholic majesty: particularly when it is stated, the considerations of the grant, are the merits and losses of the grantee.. That the Governor had the power to make the larger grant, cannot be denied. It is to be found in the laws of the Indies, in the various regulations under which they granted lands in Florida, for more than forty years; sanctioned by the king of Spain, and thé authorities representing him in Cuba, the Floridas, and Louisiana. The power of the Governor, in this respect, has been frequently affirmed by the decisions of this Court, in cases growing out of claims to land under the eighth article of the treaty with Spain.
The third objection against affirming the decree is that the grant was made upon condition that the grantee should build a water saw-mill on the land granted, which condition has never been complied with; and that it was incumbent on the claimants to assign reasons why this condition was not performed.
A careful perusal of the memorial, will show it certainly was 'not the intention of the memorialist to make the building a mill the inducement to the grant, but his merits, services, imprisonment, and loss of property. When too, the Governor, in the grant, precedes his declaration of the advantages which will result in favour of the home and foreign trade, by an acknowledgment of the petitioner's merits and services; it certainly cannot be inferred from the first, that it was the sole consideration which induced the Goyernor to make if.. If it be not so, then it cannot be said that the grant would only be perfect upon the performance of a condition precedent; because another consideration or inducement for making it is given, requiring nothing to be done by the petitioner.; • Indeed, from these expressions of the Governor in the grant, no condition can be inferred. They are a mere recital; and if a condition could be implied, it would be so inconsistent with an absolute grant in terms, that it could not for a moment haye any weight against it. But the objection is not new in this Court. The point has been directly decided in The United States v. Segui, 10 Peters, 306. The claim in that case was founded upon a grant of sixteen thousand acres, in consideration of services to the Spanish government, and for erecting machinery for sáwing timber. The Court say, " It has been suggested by the Attorney General, that though there was no express condition in the grant, one was implied from the consideration in part being the erection of a saw-mill. But we cannot attach any condition to a grant of absolute property, in the whole quantity. It was exclusively for the Governor to judge of the conditions to be imposed on his grant. He appears to have considered the services of the appellee a sufficient consideration, and made the grant absolute."
The decree of the Court below is affirmed. But as the;Court rejected the survey giv.en in evidence in this case, as it should have done; this Court will direct a survey to be made at the place designated in the decree, for the number of acres decreed, without prejudice to the rights of third parties.
This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel. On consideration whereof, it is adjudged and decreed by this Court, that the decree of the said Superior Court, in this cause, so far as it declares the claim of the petitioners' to be valid, be, and the same is hereby, affirmed in all respects; and that a survey be made of the lands contained in the said concession, according to the terms thereof, for the number of acres, and at the place therein designated; provided it does not interfere with the rights of third parties. And it is further ordered by the Court, that a mandate be issued to the surveyor of public lands, directing him to do and cause to.be done, all the acts and things enjoined on him by law, and as required by the opinion and decree of this Court in this case; and that this cáse be remanded to the said Superior Court, for further proceedings to be had therein, in conformity to this decree, and the opinion of this Court, which must be annexed to the mandate.