Supreme court of the United States. No. 135. The United States, appellants, vs. John A. Sutter. Appeal from the District court U.S. for the Northern district of California.

The United States vs. Sutter. 113
tablish beyond reasonable doubt, the due execution of the grant to
Sutter, and the admissibility in evidence of the paper marked "Titulo," in Exhibit A. Annexed to his petitioners substantially acorrect copy of the same. The making of the grant by competent authority being thus shown, its loss accounted for, and its contents
proved by the best evidence which the nature of the case admits of,
we will now proceed to consider the character of the grant itself, and
rights acquired by the grantee under it.
The grant recites, that whereas John Augustus Sutter has solicited
for his own benefit, and that of twelve families, eleven square
142 leagues of land on the borders of the Sacramento river, &c.,
and after setting forth certain considerations and reasons for
the concession, it proceeds to grant to the said Stnor Don Augusto
Sutter, for him and his settlers, the said land called New Helvetia.
The third article, or condition of the grant, declares that the land of
which donation is made to him is of the extent of eleven square
leagues, &c., and then proceeds to describe it by certain metes and
bounds, which will be considered in connection with another branch
of the case.
The construction given by the law agent to these previsions of the
grant, if understood properly, is, first, that the effect of the grant is to
constitute Capt. Sutter an "empressario," within the meaning of the
colonization laws of Mexico; and that this title-paper should therefore
be consumed in a tripartite contract, to which the government, the
grantee, and the twelve families mentioned in it, were parties. The
inference which he draws from this proposition is not very clear, but,
as far as it can be gathered from his brief, it appears to be, that, upon
the fulfilment of the terms of the contract, the last named parties
became tenants in common with the grantee in the premises granted.
Secondly, that if not tenants in common, then the effect of the grant
was to constitute Capt. Sutter a trustee to the extent of the interest
vested by it in the twelve families referred to; and as a necessary consequence to those propositions, he was not entitled to a confirmation
in his own name to the full extent of the land claimed; and third, that
inasmuch as it was impossible to identify the particular twelve families intended to be benefitted by the grant, it was therefore void as to
them for uncertainty. In support of this first proposition, he refers
to the laws and practice of Spain in relation to the establishment of
new settlements in her American provinces by empresarios, and particularly to the settlements of Stephen F. Austin in Texas, as illustrating the practice and policy of Mexico in colonizing her vacant
lands under the law of the 18th August, 1824.
Admitting that the grant now under consideration was an empresario grant, within the meaning of that law, we can see no
143 analogy between this case and those referred to. Austin's first
contract was made with the Spanish government, and was in
process of fulfilment when Mexico achieved her independence, by
which Texas became a part of the newly founded republic. Austin
applied immediately to the new government for a recognition and
ratification of his contract, and after a long delay succeeded in
[REC. CCLVIII, D. T. 1862.]-8