[Yeaton and others v. Lenox and others.]

and filed with the clerk. The appellees move to dismiss the suit because the record has been irregularly brought up.

The act of March, 1803, which gives the appeal from decrees in chancery, subjects it to the rules and regulations which govern writs of error. Under this act it has been always held that a decree may be prayed in court when the decree is pronounced; but if the appeal be prayed after the court has risen, the party must proceed in the same manner as had been previously directed in writs of error.

The judicial act directs that a writ of error must be allowed by a judge, and that a citation shall be returned with the record; the adverse party having at least twenty days' notice. This notice, we understand, is twenty days before the return day of the writ of error.

In this case the appeal is not allowed by the judge, and the citation is to appear before the court then sitting. The record is brought up irregularly, and the cause must be dismissed.

On consideration of the rule granted in this cause, and of the arguments of counsel, as well for the appellants as for the appellees, thereupon had, after mature deliberation, it is the opinion of this court that the record is brought up irregularly, and that this appeal should be dismissed: whereupon it is ordered and decreed by this court, that the appeal be, and the same is hereby dismissed with

costs.

164

*BERNARDO SAMPEYREAC AND JOSEPH STEWART, APPELLANTS,

THE UNITED STATES, APPELLEES.

V.

Construction of the act of Congress passed the 5th of May, 1830, entitled "an act for the further extending the powers of the judges of the superior court of the territory of Arkansas, under the act of the 26th May, 1824, and for other purposes."

Under the provisions of an act of congress passed on the 26th May, 1824, proceedings were instituted in the superior court of the territory of Arkansas, by which a confirmation was claimed of a grant of land alleged to have been made to the petitioner, Sampeyreac, by the Spanish government, prior to the cession of Louisiana to the United States by the treaty of April 3d, 1803. This claim was opposed by the district attorney of the United States; and the court after hearing evidence decreed that the petitioner recover the land from the United States. Afterwards, the district attorney of the United States, proceeding on the authority of the act of 8th May, 1830, filed a bill of review, founded on the allegation that the original decree was obtained by fraud and surprise, that the documents produced in support of the claim of Sampeyreac were forged, and that the witnesses who had been examined to sustain the same were perjured. At a subsequent term Stewart was allowed to become a defendant to the bill of review, and filed an answer, in which the fraud and forgery are denied, and in which he asserts that if the same were committed, he is ignorant thereof, and asserts that he is a bona fide purchaser of the land for a valuable consideration, from one John J. Bowie, who conveyed to him the claim of Sampeyreac by deed, dated about the 22d October, 1828. On a final hearing, the court being satisfied of the forgery, perjury and fraud, reversed the original decree. Held that these proceedings were legal, and were authorized by the act of the 5th of May,

1830.

Almost every law providing a new remedy, affects and operates upon causes of action existing at the time the law is passed. The law of 1830, is in no respect the exercise of judicial powers; it only organizes a tribunal with the powers to entertain judicial proceedings. The act, in terms, applies to bills filed, or to be filed. Such retrospective effect is no unusual course in laws providing new

remedies.

The act of 1830 does not require that all the technical rules in the ordinary course of chancery proceedings on a bill of review shall be pursued in proceedings instituted under the law.

In the case of Polk's Lessee v. Wendell, 5 Wheat. 308, it is said by this court, that, on general principles, it is incontestable that a grantee can convey no more than he possesses. Hence, those who come in under a void grant, can acquire nothing.

*APPEAL from the supreme court of Arkansas.

[*223

The appellant, Sampeyreac, under the act of congress of the 26th of May, 1824, entitled "an act enabling the claimants to lands within the limits of the state of Missouri, and territory of Arkansas, to institute proceedings to try the validity of their claims," exhibited the bill against the United States, which was filed in the clerk's office of the superior court, in the territory of Arkansas, in chancery sitting, on the 21st day of November, 1827, stating that, being an inhabitant of Louisiana, he did, on the 6th day of October, 1789, address a letter to the governor of the then Spanish province of Louisiana, asking for ten arpens of land in front, with the usual depth, on Strawberry river within the district of Arkansas, to be granted to him

[Sampeyreac and Stewart v. The United States.]

in full property; and that the said governor did, on the 11th day of October, 1789, make an order of survey upon said petition, which the appellant alleges is such a claim as might have been perfected into a complete title, under and in conformity to the laws, usages and customs of the government of Spain, under which the same originated, had not the sovereignty of the country been transferred to the United States; and is therefore provided for by the treaty between the United States and the French republic, made the 30th April, 1803. The bill prays that this claim may be confirmed, according to the provisions of the act of congress before mentioned. Upon this petition the clerk of the court issued a subpoena against the district attorney of the United States, which was executed on the 24th of November, 1827. To this bill the district attorney of the United States filed an answer at the December term of said court, 1827, denying, generally, the facts and allegations in said bill, and alleging that Sampeyreac was a fictitious person, or was a foreigner, and then dead. On the 19th day of December, 1827, the district attorney of the United States moved to postpone the final adjudication of the case until the following term, for the following reasons.

1. The petition and subpoena in this case were served on the United States within one month of the present term of this court, but more than fifteen days allowed by law; and in consequence of this short notice, the United States attorney has not answered this bill until the present term.

*224]

2. *Has not had a sufficient length of time to take counter depositions, if counter evidence does exist.

3. There are many more cases pending in this court on the same principles, and similarly situated in all respects; and the attorney for the United States asks this continuance for the purpose of procuring such evidence as may exist on the part of the government.

The court proceeded to hear the cause; and, upon the deposition of one John Heberard, entered on that day a decree against th United States, in favour of said Sampeyreac, for four hundred arpen of land.

On the 14th day of February, 1828, a deed purporting to be: decree executed by Sampeyreac, transferring his claim to the clerk' certificate of the existence of this decree, and of all his right, title and interest in said decree, to John J. Bowie, was proved and admitte to record on the 22d day of October, 1828, in the office of the circui court of Hempstead county, in the territory of Arkansas, and whic title was transferred by Bowie to Joseph Stewart in December, 1828 by virtue of which transfer the said Stewart filed with the register of the land office at Little Rock, an application for the N. E. 17, 11 S. 26 W. and E. S. E. 17, 11 S. 26 W. and W. N. E. 13, 11 S. 27 W. and which application was admitted by the register on the 13th of December, 1828.

At the April term, 1830, of the court, the United States attorney, upon leave granted, filed a bill charging that the decree entered by the court at the December term, 1827, in the case of Sampeyreac,

[Sampeyreac and Stewart y. The United States.]

was obtained by fraud and surprise, and alleging that the court erred in proceeding to the trial of said cause, at the said December term, without having set said cause for hearing, and without affording the United States time to prove the injustice of the claim. The bill charges that the original petition to governor Mero, and the order of survey are forgeries; which fact has come to the knowledge of the attorney since the decree was made; that Sampeyreac is a fictitious person; or, if he ever did exist, is dead; that Heberard and the other witnesses committed perjury in this case; and that the petition and order of survey were made since 1789; and that record evidence has been discovered since the decree, which will be produced upon the hearing to prove the forgery.

[*225 Sampeyreac was proceeded against as an absent defendant, after the return of the subpoena, that "he was not to be found in the territory of Arkansas ;" and a decree pro confesso was entered, as to him, on the 28th day of October, 1830. Before this decree was entered, Joseph Stewart was permitted to file his answer and was made a defendant in this case, which was excepted to on the part of the United States, and a bill of exceptions was signed by the court on the 28th October, 1830.

It was not charged or contended that Stewart purchased with a knowledge of the forgery, either of the original grant, or of the transfer from Sampeyreac to Bowie.

The final decree, reversing and annulling the decree entered in favour of Sampeyreac at December term, 1827, was delivered by the court, February 7th, 1831.

From this decree this appeal was taken by Joseph Stewart, for himself and Sampeyreac.

The case was argued by Mr. Prentiss and Mr. White, for the appellants; and by Mr. Fulton and Mr. Taney, the attorney-general, for the United States.

For the appellants, the following points were stated for the consideration of the court.

1. That, by the provisions of the act of 1824, and of the act continuing it, the decree of confirmation, rendered in December term, 1827, became final after the lapse of one whole year from its date, without an appeal being taken therefrom.

2. That a bill of review cannot be prosecuted after the time for allowing an appeal has expired.

3. That, if the foregoing proposition is not universally true, it so is to a bill of review for errors apparent, and as to which the party could have availed himself by an appeal.

4. If a bill of review can be prosecuted for any cause, after the time for an appeal has expired, it cannot be for causes known to the party at the time of rendering the decree complained of.

5. The refusal of the court to continue the cause at *December term, 1827, was not an error re-examinable on appeal;

[*226

[Sampeyreac and Stewart v. The United States.]

or, if so, was an error apparent, which could have been corrected on an appeal, if taken within the year allowed for an appeal; and, therefore, not by a bill of review, after the expiration of the time allowed for an appeal.

6. The substantial ground in difference between the United States and Sampeyreac, supposing there was such a person in being, was that the order of survey was or was not a genuine one-was or was not a forgery. This was the whole ground of difference; and both. this fact and the question whether Sampeyreac was a real inhabitant of Louisiana, capable of taking or had assigned his claim, were all put directly in issue on the original trial.

7. After the decree rendered in the first case, a bill of review cannot be maintained, on after discovered testimony which could have been used under the issue joined, unless such after discovered evidence be evidence of record.

8. Although the bill of review suggests the discovery of such record evidence, none such is produced on the bill of review; the only evidence being that of witnesses and the title papers in the other cases then depending, all of which were known, and, if proper evidence,

could have been used on the first trial.

9. All that is alleged in the bill of review, concerning the appearance of the papers themselves, and other facts to show they were post dated, appeared on the first trial.

10. The time of discovery of the new evidence is not stated, nor does it appear; and it is contended that, if such be evidence, discovered after trial, as will sustain a bill of review, the bill must, at least, appear to have been filed within one year from the time of such discovery.

11. If the refusal to continue the cause at December term, was a matter which could be alleged on a bill of review, or considered on an appeal, there was no error in that refusal, as the law only required fifteen days between the service and return of the subpoena, whereas twenty-eight days intervened, and required a trial to be had at first term, unless good cause should be shown for a continuance; and it is contended that, as the cases were all treated as similar, and it was not alleged that there had not been time to file answers; and as the United States attorney admitted the credibility of the *227] claimant's witness, and stated that he knew of no testimony which could impeach the genuineness of the claim, he showed no cause of continuance, unless he could show it in the improvident provisions of the act of congress under which he was acting.

12. The defendant Stewart is an innocent purchaser, and is entitled to protection, whether the original claim was a forged one or not. That Sampeyreac, after the decree confirming his claim, conveyed his right to Bowie, appears from his recorded deed in evidence by consent; and, although they insisted that that deed was a forgery, no evidence of any kind was taken to support that objection. That Stewart was an innocent purchaser, in November or December, 1828,