Suñol v. Hepburn. So, also, by the royal ordinance for the establishment and instruction of the Intendants of Army and Province in New Spain, which received the sanction of the Spanish monarch Charles III in the year 1781, it was ordered, that crown lands should be distributed to married Indians, who were not, either in their own right or in the right of their wives, the owners of any, with a prohibition from aliening the same, in order that their heirs of both sexes might succeed thereto; "for," says the ordinance, "my royal pleasure is, that all such natives may have a "competent quantity of real property." (Sec. 61, of Real Ordenanza de Intendentes.) These are some of the provisions of Spanish and Mexican law, touching the disability of Indians to transfer their lands. All of them manifest the great anxiety which the rulers of Mexico have felt, to collect the natives together in communities and subject them to municipal regulations, to secure to them the ability to pay the tribute imposed upon them for the supply of the national treasury, to induce them to forget their ancient religious rites and embrace the catholic faith, to reform their idle and roving propensities and make them industrious and useful subjects. (See Ley 1, tit. 3, lib. 6, Rec. de Indias.) The legislation on this subject was not limited solely to considerations of benefit to individuals. Its whole tenor abundantly proves, that its main purpose was the advancement of great measures of national policy in respect both to temporal and spiritual affairs— that it was a series of continued efforts to obviate the hurtful consequences resulting to society from having in its midst a population destitute of habitations and the means of subsistence, and consequently vicious, vagrant, and easily seduced into the commission of crime. It would seem to be sufficient to establish the position, that the conveyance from Roberto to Suñol did not give even a color of title, that the attempted transfer was not only in palpable violation of the plain terms of the grant to Roberto, but was expressly prohibited by positive law, and in contravention of the entire spirit of Spanish and Mexican legislation. I cannot doubt, that the Mexican courts would have held the conveyance Suñol v. Hepburn. to be void, not only when directly attacked by the government or by the beneficiary himself or his heirs, but when coming up collaterally, as in this case. The law, for wise municipal purposes, has pronounced it to be of no validity or effect, and courts ought not to attempt to overturn the ascertained policy of the legislative power. But the counsel for the appellants insists, that, by the decrees of 1812 and 1813, (9 Col. of Decrees 54, 57, 107,) and by the provisions of the constitution of 1836, (Arts. 1, 2, 7,) and of the constitution of 1843, (tit. 2, art. 7,) the restrictions on alienation by Indians were removed. The decrees cited provide for the distribution to Indians of lands in the vicinity of the Pueblos, and lands held in common, with prohibitions to entail the same or convey them in mortmain; and the conclusion is deduced from the fact of such limited prohibition, that the beneficiaries had, in all other respects, the unqualified power of alienation. I cannot come to the same conclusion. I think these decrees neither do, nor were intended to, supersede the laws then in force. The law, as it then stood, did not absolutely forbid the transfer of lands held by Indians; but it required, as an essential requisite to the validity of a conveyance, that it should be made under the supervision, and receive the approbation, of the proper officer. These decrees, however, take away the power of alienation, even in this manner, when the transfer is by way of entail, or in mortmain. The anterior law is not expressly repealed by the decrees cited, and, at the same time, not being inconsistent with, nor repugnant to them, is not affected by implication. The constitutions referred to, it is said, by conferring upon Indians the character of Mexican citizens, thereby removed all restraints on the alienation of lands by them. But this argument proves too much. Infants, idiots, lunatics, spendthrifts, and married women, are also Mexican citizens; yet it can scarcely be claimed that those constitutional provisions were intended to remove all disabilities, under which they are placed by law, and enable them to contract and alienate their property without the intervention of tutor or curator, committee or guar Suñol v. Hepburn. dian. So with Indians. Though elevated to the condition of Mexican citizens, they must-still contract, and convey property, in the mode prescribed for them by law. It is further contended that, by virtue of the Plan of Iguala, and the circular of January 11th, 1821, which declared that all the inhabitants of Mexico were equal in rights, without distinction of Europeans, Africans or Indians, the disabilities of the latter class to transfer their lands without control were removed. The same objection to this argument arises, which has been noticed in respect to that founded on the constitutions referred to. It proves too much. Besides, it is laid down in the Febrero Mejicano, (tom. 1, p. 97,) in speaking of the Plan of Iguala, that all those laws, which establish different regulations, according to the diversity of races, still remain in force, when they concede some rational and substantial favor, though not, when, without reason, they subject any class to a distinction ridiculous and abhorrent. And we have seen, that the object of the disability under consideration, was not to create an invidious distinction or impose a useless burden, but, in part at least, to favor the native inhabitants by shielding them from the impositions of the superior races. By the above reasoning I am led to the conclusion that the title of the plaintiffs is null and void. The next question is whether it was void on its face. The approbation and consent of the government being necessary to the transfer by Roberto, and his conveyance having been made without such approbation or consent, the title, therefore, on its face, is lacking in a substantial point, as much as if, in any other particular, it were defective in the essential requirements of law. Are the plaintiffs chargeable with knowledge that they took nothing under their deeds? It is a principle of Spanish and Mexican jurisprudence, equally with the English and American, that every citizen is presumed to know the law, and, with some exceptions not affecting this case, ignorance of it excuses no one. (Escriche, Dic. de Leg. Art. "Ignorancia," 1 Feb. Mej. 13.) The law, then, says that the plaintiffs, when they received Suñol v. Hepburn. their title, knew that Roberto had not the capacity to convey; that the title to them was void, on its face, for the want of an indispensable requisite. They cannot, therefore, according to the Mexican authorities herein before cited, insist that they claim in good faith. I come, now, to consider the effect of a claim set up under a title thus defective. In Spanish law, nullity is divided into absolute and relative. The former is that which arises from a law, whether civil or criminal, the principal motive for which is the public interest; and the latter is that which affects only certain individuals. Nullity is not to be confounded with rescision. Nullity takes place, when the act is affected with a radical vice, which prevents it from producing any effect; as where an act is in contravention of the laws or of good morals, or where it has been executed by a person, who cannot be supposed to have any will, as a child under the age of seven years or a madman, (un niño 6 demente.) Rescision is where an act, valid in appearance, nevertheless conceals a defect, which may make it null, if demanded by any of the parties; as for example, mistake, force, fraud, deceit, want of sufficient age, &c. Nullity relates generally to public order, and cannot, therefore, be made good, either by ratification or prescription; so that the tribunals ought, for this reason alone, to decide that the null act can have no effect, without stopping to inquire whether the parties to it have, or have not, received any injury. Rescision, on the contrary, may be made good by ratification or by the silence of the parties; and neither of the parties can demand it, unless he can prove that he has received some prejudice or sustained some damage by the act. (Escriche, Dic. de Leg. Art. “Nuli dad.") In Spencer v. Grimball, (6 Martin's New Series, 362,) the court, treating of the Spanish law on this subject, say: "Some "of the writers on our law, of the very highest authority, are "of opinion that it is only such nullities as grow out of prohi"bitions, having for their first and principal object, reasons of "public utility, that strangers can set up in their defense; and Suñol v. Hepburn. "that, whenever the nullity is pronounced by the law more in "relation to the individual than the public, the party intended "to be protected, can only claim the benefit of it. Others, of "equal celebrity, reject the distinction, and think, that, when(( ever the contract claimed under is declared null for want of "certain formalities, no person can claim under it." The nullity of the conveyance from Roberto results as we have seen, from its being in violation of legal prohibitions, having for their first and principal object public order and public utility, and, therefore, in the language of Escriche above cited, cannot be made good either by ratification or prescription, and may, as implied by the language of the court in Spencer v. Grimball, be set up by a stranger in his defense. I am aware that the case last cited may be claimed to have decided the contrary of the conclusion to which I have arrived. Were that, indeed, so, I might perhaps think that we ought not to determine a point in opposition to the authority of that distinguished tribunal. The facts of that case, however, bear but a remote analogy to the facts of the case before us. The sale there was by a tribe of Indians-here, by an individual. The question there was, whether the Beloxi tribe of Indians had parted with the title to their lands. But it appeared that the sale was not, as in the case at bar, a private transaction, but a public act, passed before the commandant of Rapides, and approved by the governor of Louisiana. The Spanish law was thus substantially complied with. The only point decided by that case is, that it was not necessary that the sale should be at public auction, and in that conclusion I entirely concur. I may be allowed to suggest, with the highest respect for the eminent legal ability of the judge who delivered the opinion of the court in Spencer v. Grimball, that the reasoning of that case, if extended beyond the precise facts to which it is there applied, can scarcely bear the test of examination. He likens the incapacity of Indians to the temporary disability to which minors are subject, and deduces the conclusion, that, because a sale from a minor is only voidable, therefore a sale from Indians is also only voidable. But we have seen from the author |