Per Curiam.
We are of opinion that the motion to award a feigned issue in this case should be overruled, for the following reasons: —
Samuel C. Roane, district attorney, and William S. Fulton, for the United States.
Chester Ashley, Robert Crittenden, William Trimble, and William Kelly, for defendants.
1. Because it rests in the sound discretion of the chancellor to award a feigned issue or not; and where the truth of the facts can be satisfactorily ascertained by the chancellor, without the aid of a jury, it is his duty to decide as to the facts, and not subject the parties to the expense and delay of a trial at law. Dale v. Roosevelt, 6 Johns. Ch. Rep. 255.
2. Because the chancellor, when he directs such issue, does it upon the ground that the evidence produced before him in the record is not sufficient to enable him to arrive at a satisfactory conclusion ; he, therefore, directs the facts to be tried by a jury, for the purpose of collecting additional evidence; which additional evidence, when so collected, the chancellor considers in connection with that already existing in the records of the chancery court. Bootle v. Blundell, 19 Vesey, jr. 500; 1 Archbold's Practice, 347, 348, 349.
3. Because the verdict of the jury upon such feigned issue, is not conclusive upon the chancellor; he may have it tried again and again, if these verdicts are not agreeable to his sense of justice; or he may even decree contrary to a verdict, if he thinks proper. Moris v. Davis, 14 Sergt. & Lob. 380.
4. Because the bill in this case has been taken for confessed, and every distinct and positive allegation in it must be taken as true. Williams v. Corwin, 1 Hopkins, 471.
Motion overruled.
On the 7th of February, 1831, the court decreed that the former decree in favor of Bernardo Samperyac against the United States, for four hundred arpens of land, pronounced and recorded at the December term of this court in 1827, be reversed, annulled, and held for nought; and that Stewart pay his own costs. Decrees of reversal were pronounced in the other cases.
Johnson, J.—
This is a bill of review, filed by Samuel C. Roane, attorney of the United States for the Territory of Arkan sas, for and on behalf of the United States, to revise, reverse, and annul a former decree of this court, pronounced and recorded at the December term, 1827, in favor of Bernardo Samperyac, for four hundred arpens of land.
The substantial allegations in the bill of review are, that the decree is erroneous, and was obtained by fraud and surprise; that the original petition, or requite and order of survey exhibited in this case, are forged and corrupt; and that the order of survey was never signed by Miro, governor of Louisiana, as the same purports to have been; and that this fact has come to the knowledge of the said district attorney since said decree was entered of record ; that Bernardo Samperyac is a fictitious person, and never had an actual existence; that if he ever did exist, he was dead at the time of exhibiting his bill; that John Hebrard, upon whose testimony the decree was made, committed the crime of perjury in giving his testimony; and that the statements sworn to by him upon the hearing of this cause, as set forth in his deposition, are false and corrupt; that the original petition and order of survey in this case, shows upon its face, that it was not made as early as the year 1789, but appears to have been made long since; and that the former decree of this court was obtained by fraud, covin, and misrepresentation, in violation of the principles of equity and of law.
The district attorney, for and on behalf of the United States, avers and says, that since the decree was made in this case, he has discovered new and important record evidence, which was not within his control, and the existence of which he did not know, and had not time to procure at the hearing of this cause; all which he believes he will be able to procure and exhibit upon the final hearing.
The first question made and argued at the bar, which will be considered, relates to the power conferred on this court by the act of congress of the 26th May, 1824, entitled " An Act enabling the claimants to land within the limits of the State of Missouri and Territory of Arkansas, to institute proceedings to try the validity of their claims."
It is contended by the counsel for the defendants that the act of 1824 constituted a special tribunal, with limited and restricted powers; that full chancery powers were not conferred ; that this court possessed no greater powers than have been heretofore delegated to boards of commissioners, created by acts of congress, to decide upon claims similar to those now pending in this court; that this court cannot entertain a bill of review, because the authority to do so is not given by the act of 1824. That this court, sitting as a court for the adjudication of French and Spanish claims, possesses no power not delegated and conferred by the several acts of congress upon that subject, we are ready to admit.
To ascertain the extent of the power and jurisdiction of this court, let us examine the act of 1824. That act provides, that it shall be lawful for certain claimants to present a petition to the district court of the- State of Missouri, setting forth their claims as pointed out in the act; praying in said petition, that the validity of such title or claim may be inquired into and decreed by said court; and the said court is authorized and required to hold and exercise jurisdiction of any petition presented in conformity with the provisions of the act, and to hear and determine the same on the petition, in case no answer be filed, after due notice, or on the petition and answer of any person interested ; and the answer of the district attorney of the United States, where he may have filed an answer, according to the evidence which may be adduced by the parties, in conformity with the principles of justice, and according to the laws and ordinances of the government under which the claim originated ; a copy of the petition to be served on any adverse claimant, and on the district attorney of the United States when the government is interested in the defence. The act further provides, that any petition which shall be presented, shall be conducted according to the rules of a court of equity, except that the answer of the district attorney of the United States shall not be required to be verified by his oath, and tried without any continuance, unless for cause shown; and said court shall have full power and authority to hear and determine all questions arising in said cause, relative to the title of the claimants, and, by a final decree, to settle and determine the validity thereof, according to the laws of nations, and all other ques tions properly arising between the claimants and the United States; and the court may, at its discretion, order disputed facts to be found by a jury, according to the practice of said court, when directing issues in chancery before the same court; and in all cases, an appeal to the supreme court of the United States is allowed, within one year from the rendition of the judgment or decree, the decision of which court shall be final and conclusive between the parties; and should no appeal be taken, the judgment or decree of the said district court shall, in like manner, be final and conclusive.
By the 14th section of the act of 1824, it is enacted, " That all the provisions of that act shall extend to and be applicable to the Territory of Arkansas, and for the purpose of finally settling and adjusting the title and claims to land derived from the French and Spanish governments; the superior court for the Territory of Arkansas, shall have, hold, and exercise jurisdiction in all cases, in the same manner, and under .the same restrictions and regulations, in all respects, as by this, act is given to the district court for the State of Missouri."
The question arises under the foregoing act, Whether this court has been clothed with full and complete chancery jurisdiction and power, in adjudicating upon these claims ; or whether it has been invested with a limited and restricted authority, capable of performing nothing which is not expressly delegated by the act, resembling rather a board of commissioners than a court of equity 1 Upon the best reflection which we have been able to bestow upon the subject, we entertain little doubt that the act of 1824, intended to confer, and does confer, upon this court, the full and ample power of a court of chancery.
Instead of creating a special tribunal, a board of commissioners to decide and report upon claims like these, congress has referred them to the decision of a court, possessed of common law and chancery jurisdiction ; a court invested with a part of the judicial power of the United States.
The cases, when brought before this court, are to be conducted according to the rules of a court of equity. This court, then, possessing both chancery powers and common law jurisdiction, are required to try these cases on the chancery side of the court. The fact that the cognizance of these claims is given to a court possessed of full and ample equity jurisdiction, with the injunction to try the cases according to the rules of a court of equity, goes far to prove that congress intended to refer them to the judiciary, and allow the United States to be sued before her own courts, that a final termination might be put to these demands upon her justice. The provision for an appeal from the decision of this court to the supreme court of the United States, by either party, strongly evinces the intention of congress that these claims should receive their adjudication by the judiciary of the United States. If, then, congress intended to refer them to the judiciary, can it be reasonably inferred that they intended to limit the general powers of the court to which the reference is made ? We think not.
The act, in terms, does not limit the jurisdiction of this court; and we are not to infer a limitation unless it be expressed, or arises from a necessary implication.
If we are correct in affirming the proposition that the act of 1824 authorizing certain claimants to bring suit against the United States, on the equity side, possessed of full chancery power and jurisdiction, it follows, that a bill of review will lie in this court, unless there be something in the act itself forbidding it.
It has been urged that that part of the act which says that the judgment or decree of this court, unless appealed from in one year, shall be final and conclusive, necessarily precludes the idea of a bill of review. We entertain a different opinion. The provision just referred to, relates to the time in which an. appeal may be taken. It says nothing about a bill of review, or rehearing.
Each of these modes of revising the decrees of this court, according to the practice in chancery, is left untouched, and stands precisely as they existed had no time been limited for an appeal. The court entertains a bill of review, in virtue of the chancery jurisdiction conferred by the act of congress by which it was created, and possessing that power previous to the act of 1824, continued to possess it, with the authority to apply it to these cases, for the adjudication of which the latter act was passed. It is, however, further contended by the counsel for the defendants, that, as the bill of review in this case was filed upwards of two years subsequent to the final decree in the original cause, and more than one year after the time allowed for an appeal had elapsed, this remedy is barred by length of time. In the case of Thomas v. Harvie, 10 Wheat. 146, the supreme court of the United States held that a bill of review, for error apparent in the decree, is barred by length of time, unless it is filed before the time limited for an appeal; but, in the same case, the court expressly reserved the question, whether a bill of review, founded upon matter discovered since the decree, is in like manner barred by the lapse of the time limited for the appeal. That question is directly presented in this case, and calls for our decision. We have bestowed upon it all the reflection of which we are capable; and the conclusion to which we have arrived is, that a bill of review, founded on the discovery of new matter after the decree, ought not to be barred by the lapse of one year, the time limited in these cases ; nor do we think it ought to be barred by the lapse of two years and four months, the time between the former decree and the filing of this bill. The reasons assigned by the supreme court, in the case cited, for applying as a bar to bills of review for error apparent on the face of the decree, the time limited for an appeal, do not, in our judgment, apply to the case of a bill of review, founded on new matter, discovered subsequent to the decree. Judge Washington, in delivering the opinion of the court, says, " that courts of equity, acting upon the principle that laches and neglect ought to be discountenanced, and that in cases of stale demands, its aid ought not to be afforded, have always interposed some limitation to suits brought in those courts;" and the decision was, that, although bills of review are not strictly within the statute of limitations, yet courts of equity will adopt the analogy of the statute in prescribing the time within which they shall be brought.
In the case of a bill of review for new matter recently discovered, no laches or neglect can, we think, be properly imputed to the party filing the bill.
It is allowed only on the ground of his ignorance of the ex istence of the new matter before the former decree; and it is incumbent on him to file his bill in a reasonable time after the discovery is made ; all this is alleged in the present bill. The bill could not be filed within one year after the decree, because the new matter had not then come to light, but was subsequently discovered.
If, then, laches or neglect are not imputable, has so great a time intervened that it may justly be denominated a stale demand ? Two years and four months can scarcely be considered in that light. It would not bar an action of assumpsit upon a parol contract, and cannot be considered an unreasonable delay in bringing a bill of review. In England, twenty years is allowed; and in the case decided in 10 Wheaton, before cited, five years was allowed.
We do not think that, to a bill of review for new matter, no lapse of time ought to bar the remedy. Upon the principle of repose, we think the lapse of a reasonable time ought to present a bar; what that reasonable time should be considered, and it is well settled to be in the sound discretion of the chancellor, it is unnecessary for us to decide, since we are clearly of opinion that two years and four months is not an unreasonable time for filing a bill of review. Whether the principle settled by the supreme court of the United States, in several cases, that laches are not imputable to the government, ought to apply in this case, we need not decide. The second inquiry which arises in this case, and which has been ably argued at the bar, is, whether a case is made out for a bill of review according to the established principles of equity.
The material allegations in the bill have already been stated, by which it appears that the main and principal ground relied upon for a review, is the discovery of new matter since the making the former decree.
The only allegation we deem material to. notice is, that the original petition, or requite and order of survey on which the decree was based, is forged and corrupt, and was never signed by Miro, governor of Louisiana; and that this fact has come to the knowledge of the district attorney of the United States since the rendition of the decree, asked to be reviewed; and that he has, since the said decree, discovered new and important record evidence, which was not within his control, the existence of which he did not know, and had not time to procure, at the hearing of the cause.
The objections urged by the counsel for the defendants are, that this is a matter which was put in issue by the pleadings in this case before the former decree was pronounced and recorded; and having been once put in issue, a bill of review will not lie for the discovery of evidence relating to the matter put in issue previous to the decree; that a bill of review will lie only for error apparent in the decree, or for new matter subsequently discovered, which was not in issue between the parties. Let us examine this position. The ordinances of Lord Chancellor Bacon respecting bills of review, are generally referred to as good authority, and have never been departed from. 3 Atkyns, 26. The doctrine is there asserted that no bill of review shall be admitted except it contain either error in law, appearing in the body of the decree, or some new matter which has arisen after the decree, and not any new proof that has come to light after the decree was made; nevertheless, upon new proof that has come to light after the decree was made, which could not possibly have been used at the time when the decree passed, a bill of review may be granted.
According to the doctrine of the above ordinance, the present bill makes out a good case for a bill of review.
New proof, important and material, none could be more so, is alleged to have come to light since the making and recording of the former decree, which could not possibly have been used at the hearing, because it was not known by the district attorney to have existence.
This new proof is, that the title papers of the defendant are fraudulent and forged. But this fact is said to have been before put in issue. Admit it, for the sake of argument. What is the doctrine asserted by the Chancellor Eldon in the case of Young v. Keighly, 16 Ves. 348. The ground of a bill of review, the chancellor says, is error apparent on the face of the decree, or 'of new evidence of a fact material pressing upon the decree, and discovered after publication in the cause.
Again, he says, " as far as I can ascertain what the court permits with regard to hills of review upon facts newly discovered, the decisions appear to be on new evidence, which, if produced in time, would have supported the original case, and are not applicable where the original cause does not admit of the introduction of the evidence ; as not being put in issue originally."
The doctrine is to be found in Cooper's Pleading, 91. The author asserts " that it must be on new matter to prove what was before in issue, for a party cannot be entitled to a bill of review on new matter to prove a title which was not in issue." For this position he cites Cary's Reports, 82, and Ambler's Reports, 293. If these authorities are to be relied upon, they prove conclusively, that in the present bill, a good cause is made out for a review.
We are ready to admit, that in the two cases decided by the court of appeals of Kentucky, reported in Hardin's Reports, 342 and 454, a different doctrine seems to be established. But the rule as laid down by Chancellor Eldon, accords better with our views of what the rule ought to be, and accordingly we adopt it as intrinsically correct. But, admitting that the new matter must relate to something not before put in issue by the parties, still we think a case is made out for a bill of review.
It is certainly true that the district attorney, in his answer, denied all the allegations in the petition, and required the petitioner to produce proof of them; but, at the same time that he denied them, he stated that he was wholly uninformed as to their truth. It is like the answer of a guardian, denying the allegations of a bill on the ground of ignorance, whether they are true or false ; and such answer has been held insufficient to dissolve an injunction. Apthrope v. Comstock, 1 Hopkins, Ch. Rep. 143; Roberts v. Anderson, 2 Johns. Ch. Rep. 202.
By this general denial of the title of -the petitioner, no special fact in relation to that title was put in issue. The district attorney made no allegation that the title papers of the petitioner were fraudulent or forged. He could not make such an averment at the time he filed his answer, because he was wholly uninformed as to the authenticity of those papers, and, on that .ground, required that they might be proved.
There was no controversy as to the fact whether those papers were genuine or forged; no conflicting testimony was introduced, and all the proof adduced before the court was by the petitioner. This surely cannot be such a putting in issue of the fact of forgery or not, as to preclude a reexamination of that matter, when subsequently discovered. We suppose the judges of the court of appeals of Kentucky mean to say, that after certain material matters of fact have been put in issue, and evidence adduced by each party to that issue, and a decree rendered, a bill of review will not lie merely upon the discovery of additional testimony to the same point, unless that evidence consists of records. In which event they admit that a bill of review will lie. According, then, to the principles settled in Kentucky, a case is made out for a bill of review; for the present bill contains the allegations that important record evidence has been discovered conducing.to prove that the title papers of the petitioner are false, fraudulent, and forged. The court of appeals of Kentucky, in the case of Respass v. McClahan, Hardin's Rep. 346, say: "There is an important difference between the discovery of a matter or fact itself, which, though it existed at the former hearing, was not then known by the party to exist, or which was not alleged or put in issue by either party, and the discovery of new witnesses, or proof of a matter or fact which was then known or in issue. In the former cause, the party not knowing the fact, and it not being particularly in issue, there was nothing to put him on the search, either of the fact or the evidence of the fact, and therefore the presumption is in his favor, that, as the matter made for him, £is failure to show the matter was not owing to his negligence or fault. They further say, after the most careful search, they cannot find one case reported in which a bill of review has been allowed on the discovery of new witnesses to prove a fact which had been before in issue, although there are many where bills of review have been sustained on the discovery of records or other writings relating to the title which was generally put in issue."
It cannot be affirmed that the forgery of the title papers of the petition was particularly put in issue by the former pleadings. The title only was generally put in issue, and, according to the authority just quoted, as record evidence in relation to that title is alleged to have been discovered, a clear case is made out for a bill of review.
If, then, this court possesses the jurisdiction to entertain a bill of review in the case now before the court, and a case is made out by the bill, according to the principles of equity, the next inquiry is, Does the evidence adduced call upon the court to pronounce a decree of reversal ?
What is the evidence ? First, the defendant, Samperyac, the original petitioner in whose favor the former decree was rendered, has failed to answer this bill, and, under a rule of this court, an order of publication was duly published in the Arkansas Gazette; and at the October term, 1830, of this court, the bill was taken for confessed as to the said defendant. The inquiry arises as to the effect of taking the bill for confessed. The doctrine is well settled, that when the allegations of a bill are distinct and positive, and the bill is taken for confessed, such allegations are taken as true without proof. That a decree pro confesso is like a judgment by nil dicit at common law. Williams v. Corwin, 1 Hop. Ch. Rep. 471; 3 Atkyns, Rep. 468. In the case of Hawkins v. Crook, 2 P. Wms. 556, the bill alleged a decree to have been obtained by fraud.
The decree assumes that the order to take a bill pro confesso admitted the facts charged as fraudulent, and the court plainly took them to amount to fraud, and without further proof, decreed the appropriate relief. The authorities clearly establish this principle, that if the allegations are of a nature so distinct and positive, that, taking them to be true, the court can make á decree upon them, it will, upon the order pro confesso, decree without proof. Where they are in their nature so defective or vague that a. precise decree cannot be made upon them, proof must be adduced from the necessity of the case. No rule can be better founded in reason and propriety.
A refusal to deny where the party is legally bound to speak, is equal to an admission of the charges made against him. What is admitted, need not be proved.
The allegations are incontrovertibly established, when confessed by him against whom they are made. This is the doctrine applicable to original bills; and we have, in our researches, been able to find no case where the doctrine has been applied to bills of review. Perhaps it may be because no such case exists, and that this is the first where a bill of review has ever been taken pro confesso. But the principle applies with equal force and propriety to the latter as to the former. The allegations of this bill are, that the title papers are forged and spurious, and that the witness who proved them committed perjury. These allegations, when admitted, destroy the evidence upon which the former decree was based, are distinct and positive in their nature, and justify a decree without additional proof. But admitting that the doctrine applicable to original bills, in relation to the effect of taking a bill pro confesso, ought not to be applicable to bills of review, still we are of opinion that the evidence adduced in this case is full and conclusive to prove that the title papers upon which the former decree was based are forged, fraudulent, and spurious. Let us advert to the evidence: Hilary B. Cenas, register of the land-office at New Orleans, states, in his deposition, that he has instituted a careful search among the Spanish records under his charge, particularly in a book entitled Register de los primeros decretos de concesión; in which book it was customary to enter any order of survey, as it was first made, from the year 1786 up to 1799, inclusive, and could not find any order of survey of lands in favor of, or granted to, Celestine Armón in the District of Arkansas.
He further says that he has examined the form of orders of survey, as sworn to by Judge Tessier and Jean Mercier, the register of mortgages in New Orleans, and found it to correspond with the orders of survey of record in his office; that he has compared the signatures affixed to orders of survey, upon which Messrs. Tessier and Mercier have given their depositions in the cases of the United States against the persons, named in said depositions, and that he verily believes that they' are false and counterfeit. By consent of parties, this deposition was read in this case, to prove the same facts in relation-to the order of survey in favor of Samperyac. Isaac T. Preston, late register of the land-office at New Orleans, asserts that he has examined the papers annexed to the depositions of Jean Mercier and Charles Tessier, in the cases in which they have- given their depositions before the honorable Giííen Preval, purporting to be Spanish orders of survey. The signatures are not in the handwriting of governor Miro or Gayoso, as they purport to be. Deponent is well acquainted with the signatures of those governors, having seen their genuine signatures to many different records. Deponent further says, that said papers are not in the form in which Spanish orders of survey were given, but that the form annexed to the depositions of Mr. Tessier and Mr. Mercier, were adopted in all orders of survey, except when the nature of the place to be surveyed required a different form. He further states, that he has seen the deposition of Hilary B. Cenas, register of the land-office at New Orleans; and that deponent, when register of the same office, made a similar search with the same result. Charles Tessier deposes that he was a clerk in the office of the late Spanish government, from the commencement of the year 1790 to the end of the year 1802; that he was acquainted with the handwriting of governor Miro, and Manuel Gayoso de Lemos, from seeing them write frequently; and says, positively, that the signature of Miro presented to him, and appended to the order of survey in this case, and which has been signed by me, nevariator is not in the handwriting of said governor Miro; that the decree or order of survey is not in the form used and prescribed in such case, nor is it recorded, as was the usual practice, in granting lands by the governor; that the practice was to insert at the foot of the said order, the word "reg'd," with the flourish of the recording clerk; further, that the spelling of.the said decree is not according to the rules of Spanish orthography, and that the clerks, whose duty it was to write such orders, were all good Spanish scholars, and would not have been permitted to use such spelling in any official business; that the handwriting of the aforesaid order of survey is not that of any of the clerks that were, at that time, employed in that department of the government, the deponent being well acquainted with the handwriting of all the clerks who wrote in the office during the time he was in the employ of the government, and he is also acquainted with the handwriting of those that preceded him for many years.
This witness further states, that he has no recollection of John B. Hebrard, Harea Devere, and Lemuel Masters, and is positive that these men were not familiar in the office of the Spanish government, and never known or seen in that office; that he does not know the handwriting of the order of survey in this case; that it is not in the handwriting of any of the clerks that ever were employed in the office of the Spanish government then existing.
Jean Mercier, a clerk in the office of the late Spanish government in Louisiana, from 1792 to 1801, deposes to the same facts, in all respects, testified to by Charles Tessier, and which it is unnecessary to repeat.
Antoine Cruzat, sen., deposeth, that he was employed as an officer of the regiment of Louisiana, in the office of governor Manuel Gayoso de Lemos, all the time he was governor of Louisiana under the Spanish government. That he had frequent opportunities to see and examine the signature of governor Miro, and to see him also sign his name.
He further says that he is well acquainted with the handwriting and signature of all the clerks of the office of the said governors; and that he has no hesitation in saying, that the signatures of Miro and Gayoso, appended to the orders of survey in which Charles Tessier and Jean Mercier have given their depositions before Judge Preval, pursuant to several commissions from the superior court of the Territory of Arkansas, are not genuine, as well as the handwriting of the orders of survey. That the spelling of said orders of survey is incorrect, and that no clerk would have been permitted to use it; that the form of the orders of survey, as given by Mr. Mercier and Mr. Tessier, is the only true and correct one; that he has never known any men by the name of John B. Hebrard, David Devere, and Lemuel Masters; and that he is confident they have never been seen in the office of governors Miro and Manuel Gayoso de Lemos, at New Orleans.
The deposition of Martin Durald, late register of mortgages in New Orleans, taken in a similar case to the one now before the court, in which the United States is plaintiff, and Martin Durald defendant, has been read as evidence in this case, by consent of parties. He deposes that he was born in Louisiana, and has never had any grant nor any order of survey for any land in the Territory of Arkansas; that his father was of the same name with himself, and that, to the best of his knowledge, his father has never had any land in the Territory of Arkansas; that he is well acquainted with all the names of the French and Spanish inhabitants of Louisiana, as having kept a public office in New Orleans; and that he knows no person, except his father and himself, of the name of Martin Durald ; that he had a brother by the name of Joseph V. Durald, and that, to the best of his knowledge, his said brother never had any land in the Territory of Arkansas.
From' the testimony, it is manifest that the order of survey in this case is not to be found recorded in the record book at New Orleans, in which it was usual and customary to record any order of survey made from 1786 to 1799. The same fact is also proved in relation to every case amounting to upwards of one hundred, now pending before this court, upon bills of review.
Tessier, Mercier, Preston, and Cenas, all depose to this fact; Tessier, Mercier, Cruzat, all of them well acquainted with the handwriting of Governor Miro, and having frequently seen him write, swear that the name of Miro, signed to the order of survey in this case, is not in his handwriting, and therefore not genuine. Cenas, the present register, and Preston, the late register of the land-office at New Orleans, both swear that they have seen many genuine signatures of Governor Miro; and from the comparison with the present order of survey, the signature is not in the handwriting of Governor Miro. Tessier, Mercier, and Cruzat, depose that they are well acquainted with the bandwriting of all the clerks who wrote in the Spanish governor's office, at New Orleans, and that the order of survey in this case, is not in the handwriting of any clerk who ever wrote in the said office, and that the form of the order of survey in this case, is not in the form used by the Spanish government; Cenas and Preston also swear to this latter fact; Tessier and Mercier swear that Hebrard was never seen in the governor's office, at New Orleans.
The fact that the name of Samperyac, the original petitioner and defendant to this bill, is signed in a good handwriting to the petition 1o the governor for a grant, and that his mark is used in the deed of transfer to John J. Bowie, is also in proof.
It is further in proof, that the defendant, Samperyac, has never made his personal appearance in this court, nor has one of the original claimants, amounting to one hundred and seventeen, ever appeared here, except by John J. Bowie, their agent, and the counsel employed by him; and the counsel admit that they have never seen one of the original claimants in whose favor the former decrees of this court were made. The evidence upon which the former decree was made, is the deposition of John B. Hebrard. In deciding upon this testimony, we think there is no rational ground to doubt, we are entirely satisfied, and believe it to be abundantly manifest, that the order of ^survey, upon which the former decree was made, is fraudulent, forged, and counterfeit; and that Samperyac himself is an ideal, fictitious being, and never had an existence except in name. The fact that Samperyac, nor any of the other claimants have ever appeared here, or been seen by their counsel employed for them, that no one of them has filed an answer in these bills of review; that their title papers upon which the former decrees of this court rested, are not to be found of record where such papers were generally and usually recorded; that their title papers are not in the form used at the time, by the Spanish government, in making concessions of land; that they are misspelt, and above all, that they have been proven by the testimony of three or four witnesses, who stand above suspicion, having the best opportunity of being well informed, to be counterfeit, forged, and spurious, speak a language not to be misunderstood, and calculated to produce the strongest conviction, that the order of survey, on which the former decree is based, is a forged and spurious paper, and, consequently, that the former decree of this court ought to be reversed, unless there is some other circumstance in the case to prevent it. There is, however, another defendant in this case, besides the original petitioner. Joseph Stewart, at a former term, appeared, and, on his motion, was admitted a defendant to this bill of review, and has filed his answer. In it he alleges that he is an innocent purchaser, without notice, for a valuable consideration, of the land decreed by a former decree of this court; that he purchased from John J. Bowie, who, he alleges, purchased from Samperyac, the original petitioner, and exhibited the deeds of transfer or assignment. He denies all the allegations in this bill, of fraud, forgery, and perjury, but admits his entire ignorance of these matters, and prays that his interest may be protected by this court.
The question arises, What effect is this answer entitled to have in the decision of this cause ? The defendant Stewart, in our judgment, does not occupy the attitude of an innocent purchaser without notice, so as to stand on any higher ground than the defendant Samperyac himself. The interest which he has purchased in the land decreed by this court, is an equitable and not a legal right.
It is well settled, that a judgment or decree is not assignable# at law, so as to vest a legal title in the assignee. The act of congress of 1824 does not authorize the assignment or transfer of the decree of this court; and, under that act, the land decreed to the claimant could be entered or located only in his name, or in the name of his legal representatives, in case of his death, and the patent could issue only to the claimant or his legal representatives, not to his assignees. Stewart, then, can only be considered as the purchaser of an equity; and it is an established principle, that a purchaser for a valuable consideration without notice, in order to protect himself, must be clothed with the legal title, and not a mere equity. 2 Bro. Ch. Rep. 66 ; 2 Madd. Ch. 258; 1 Atkyns, 571; 3 lb. 377. The defendant Stewart, having only an equitable title under the former decree of this court, takes it subject to all equity which attached to it in the hands of his assignor. It cannot be asserted that Stewart is a purchaser under the former decree of this court. This can be true only when there has been a judicial sale, in which ease the purchaser is protected, though the judgment or decree is erroneous. Upon this ground, alone, we think it is obvious that the defendant Stewart stands on no other or different ground than the original petitioner, in whose favor the former decree was made. 2d. If, however, we are mistaken in this position, still we think the defendant Stewart is not entitled to be protected as an innocent purchaser without notice, on the ground that the transfer from Samperyac to John J. Bowie is a forgery. The evidence establishing this fact will be briefly detailed.
The transfer or deed from Samperyac to John J. Bowie, of the land decreed by the former decree of this court, now claimed by Stewart, bears date on the 14th day of February, 1828, and is attested by Henry Hobbs and John Cook, and proved by the said Cook before John Williams, as justice of the peace in Clark county in this territory. By consent of parties, about sixty-six deeds of transfer-from the original claimants, in whose favor this court have made decrees, all of which are now pending in this court upon bills of review, and are similarly situated with the case now under consideration, have been filed as evidence in this cause.
Twenty-four of those transfers, from the original claimants, are made to John J. Bowie, attested by John Cook and another name. The first of these transfers bears date on the 29th day of December, 1827, in a few days after the decree was entered of record. The second bears date on.the 18th January, 1829; the third on the 19th ; the fourth on the 21st; the 5th on the 24th of the same month and year. The sixth bears date on the fourth February, 1828; the seventh on the 6th; the eighth on the 8th ; the ninth and tenth on the 9th; the eleventh on the 10th; the twelfth and thirteenth on the 11th; the fourteenth on the 12th; the fifteenth on the 13th; the sixteenth on the 20th ; the seventeenth, eighteenth, and nineteenth, on the 21st; the twentieth on the 22d; the twenty-first on the 23d; the twenty-second on the 28th; the twenty-third and twenty-fourth on the 29th February, 1828. These twenty-four transfers, one of which is the transfer in this case, purport to have been executed by the original claimants, in whose favor the decrees of this court were made to John J. Bowie, are all attested by John Cook and another, and certified by John Williams, a justice of the peace in this territory, to have been proved before him by John Cook, the subscribing witness.
How does it happen that this witness, John Cook, should have been present to witness the execution of twenty-four deeds from different persons to John J. Bowie, and most of them on different days? Could it have been necessary that Bowie should have employed this Mr. Cook to travel round with "him to become a witness to their execution ? Could Bowie have procured witnesses residing near these claimants to attest their deeds or transfer to himself? How does it happen Bowie is so fortunate as to find these original claimants so soon after the decree of the court was made? One of them he found in a few days after the decree, in a shorter time than would be required to travel beyond the limits of the territory. Having been fortunate in the commencement, his good fortune never seems to desert him until he obtains all the transfers. On the 4th February he finds one of them; one of them on the 6th ; he is equally fortunate on the 8th; on the 9th he finds two, and on the 11th his efforts are still crowned with greater success, he finds three; on the 23d of the same month he finds three others; and by the 29th February, he discovers all of them. Thus it would seem that these original claimants, not one of whom can now be found to answer these bills of review, these men whom the counsel employed by John J. Bowie to advocate their rights, never saw; not one of whom are proven to be living, or that they ever did exist. These are the men whom John J. Bowie finds residing so near each other, that he could obtain the deeds of three of them in one day, and find all of them in little more than one month after the decrees. If, however, we could believe all this, is it not passing strange that Mr. Cook, whom nobody knows, should have happened to be present at all these various times and places ready to attest these transfers from the original claimants to John J. Bowie ? Unless we indulge the presumption, that Bowie employed this Mr. Cook to go along with him to attest these deeds, for which we can see no reasonable motive, we are unable to account for his presence whenever wanted or called for by Bowie. Bowie must have had a talisman, possessed of the magical power of Aladdin's lamp, by which he calls up, at his bidding, this omnipresent witness. "We have no doubt that this witness, like the genius in the Arabian tales, having performed the office for which he was invoked, has vanished into air, and disappeared for ever. In addition to these twenty-fonr deeds of transfer, thirty other deeds of transfer or assignment from the original claimants to John J. Bowie and other persons, are by consent exhibited as evidence in this cause; all these deeds are attested by Lemuel Masters and other names, and certified by J. Williams, a notary-public in Louisiana, to have been proved before him by Lemuel Masters on the 29th day of February, 1828. The two first bear date on the 10th January, 1828; the third and fourth bear date on the 20th; the fifth and sixth on the 21st; the seventh on the 24th; the eighth on the 25th; the ninth and tenth on the 26th ; the eleventh on the 27th; the twelfth on the 28th ; the thirteenth and fourteenth on the 29th January, 1828; the fifteenth and sixteenth bear date on the 2d day of February, 1828; the seventeenth on the 9th; four more on the 10th; one on- the 11th; one on the 13th; one on the 21st; two on the 22d; one on the 25th; one on the 26th ; one on the 27th, and the rerñaining three on the 28th February, 1828. Lemuel Masters, the witness who proves these deeds, is not an ideal being, but is one of the three witnesses who proves the original claims, and on whose evidence the former decrees of this court were made. This circumstance adds nothing to his credit. Why should one of these witnesses to the original claims, brought here by John J. Bowie, which fact is known to this court, he being the only person -who appeared here as agent of the claimants, have been selected to travel round and attest the deeds of transfer from these claimants? All the remarks made in relation to the twenty-four transfers apply with equal force to the thirty just named. Can it be believed that Lemuel Masters could find eighteen of these original claimants in one month, and four of them in one day? If they resided so near each other, why have not one of them answered these bills ? Why has no deposition been taken to prove that any one of them ever had an existence ? Why, in short, has not John J.. Bowie himself, answered these bills in the character of an innocent purchaser ?
The defendant Stewart claims through him, and the answer of Bowie might be received upon the same ground. This cir cumstance is pregnant with proof that these transfers are fraudulent and base forgeries, and that the original claimants never existed except in name. There is another peculiarity about these transfers calculated to throw discredit upon them. It is this: in thirteen of these deeds, it is manifest, from an inspection, that the name of one of the witnesses thereto is written in the same handwriting with the body of the deed, and in the same ink. It is not usual or common for a witness to a deed to be called on to write the deed itself; and as the witness is never after heard of, the presumption is very strong that he, too, lives only in name. There are also twelve other deeds of transfer filed by consent, as evidence in this cause. We will not waste our time in remarking upon them. To pursue the subject further, would be worse than useless. In investigating frauds like these, the mind sickens and the feelings revolt. From a review of all the evidence in this case, we entertain no doubt that the transfer in this case, which purports to have been made from Bernardo Samperyac to John J. Bowie, is false and forged; and, consequently, upon that ground also, the de-. fendant -Stewart cannot be permitted to occupy the attitude of an innocent purchaser, fairly and bond fide, from Bowie. But his recourse is upon Bowie, of whom he purchased; and he cannot stand upon other and different ground than Bowie himself. The -act -of congress of the 26th May, 1824, from which this court derives its authority to decide in these cases, has been continued in force by several subsequent acts, the last of which was passed on the 8th May, 1830. That act has expressly given the power to this court to entertain bills of review in these cases, and to reverse the former decrees of this court, if, upon a revision, it shall appear that these decrees were based upon forged title papers.
From the view we have taken of this case, it has not become necessary for us to consider the question made, and ably argued at the bar, whether congress have not, in the act of 1830, transcended the limits of sound legislation; and we withhold the expression of an opinion upon it, as we are satisfied that the act of 1824 referred the decision of these cases to this court, sitting as a court of chancery; and that, under the system of equity by which this court is governed, a power exists to entertain a bill of review in the present case.