AINSA
v.
UNITED STATES.

*645 Mr. Frank J. Heney for appellants. Mr. Rochester Ford filed a brief for same.

Mr. Matthew G. Reynolds for appellees. Mr. Solicitor General and Mr. William H. Pope were on his brief.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The amount that passed to the grantee was six and one half short sitios, or about 28,200 acres, and the court below properly held that the case was controlled by the decisions of this court in Ainsa v. United States, 161 U.S. 208, and subsequent cases. It is contended that because a general description by natural objects was given in the original petition this was not a grant by quantity; but the proceedings leave no doubt that that was nothing more than the designation of the particular territory wherein the quantity purchased was to be located. The measurement of the tract was made with great care and the quantity repeatedly recited. Eighteen sitios and twelve and one half caballerias of land at the three places named were appraised, *646 sold, purchased, paid for, and granted, and no more. The survey of the Agua Prieta tract placed its contents at six and one half sitios, and of the other tracts, eleven and one half sitios, twelve and one half caballerias, which were separately appraised, and while the advertisement was of eighteen sitios and twelve and one half caballerias comprising the lands of the three places, the valuation of the six and one half sitios composing the Agua Prieta tract, and the valuation of the eleven and one half sitios, twelve and a half caballerias, were given separately, although all were sold, paid for, and granted together. The law then in force authorized the treasurer general to grant to old breeders, "who, from the abundance of their stock, need more," the quantity shown to be needed, but the minimum price was fixed by law, and before sale the land had to be surveyed, appraised and advertised, as was done. The Mexican government construed this grant on the denouncement of Camou as a grant by quantity, and the cabida legal was deducted and the demasias sold and patented by that government. That lawful area is south of the international boundary line and in Mexico; and as we have just said in the Reloj Cattle Company v. United States, there was no legal or equitable claim therefor existing against the United States when this petition was filed.

Assuming that some part of the entire claim lay in the United States, which is not conceded, petitioner on May 16, 1895, by an amended and supplemental petition, prayed the court to award the overplus to him on payment of such amount as might be found due.

The laws of Mexico and of the State of Sonora in respect of demasias treated excess over rightful titles as subject to the jusdisponendi of the government. The possessor did not have title to the overplus, but might acquire it under the circumstances and in the way provided. A possessor does not mean owner. Escriche's Diccionario de Legislacion y Jurisprudencia. "Poseedor; Poseedor de buena fe; Poseedor de mala fe."

The second section of the Sonora law of May 12, 1835, No. 51, is given in Ainsa v. United States, 161 U.S. 226, though the words "pocedores de buena fee" should have been translated "possessors in good faith" rather than owners; and we there *647 said: "It thus appears that the resurvey of grants was provided for to ascertain the excess over the quantity intended to be granted, that unless the excess was more than half a sitio it might be disregarded, and that if it exceeded that, the owner of the original grant might be allowed to take it at the valuation. The application of Don Jose Elias was for a resurvey of the Casita in order that he might obtain the overplus lands therein on an appraisal, whereas if that ranch had been acquired by purchase ad corpus, that is to say, all the lands included by certain metes and bounds, possession delivered and monuments set up, it is not apparent how the necessity for having a resurvey could have existed; and so, when in 1882 and 1886, the Mexican government was applied to by defendant Camou, under the law of July 22, 1863, his application proceeded upon the theory that the grant under consideration was a grant of a specific quantity within exterior limits, and what he sought and was accorded was an adjudication of the overplus on paying the value thereof `in conformity with the tariff in force at the time of the denouncement.'

"Certain articles of the law of July 22, 1863, treat of the ascertainment and disposition of excesses where the indicated boundaries are supposed to cover only a certain quantity of land which, when resurveyed, turns out to be much larger than as described in the titles; and such resurveys had been practiced from an early day and were recognized by Don Elias himself in his application in respect of La Casita. Royal Decree, October 15, 1754, sec. 7, Reynolds' Span. & Mex. Land Law, 54; Law of July 11, 1834, chap. 9, sec. 3, Id. 187; Law of July 22, 1863, Hall's Mex. Law, 174."

If the excess did not exceed one half a sitio, it was disregarded. If it did, and the owner did not want it, or it was very great in the opinion of the government, it would be awarded to any one denouncing or soliciting it.

The second and third sections of the law of May 14, 1852, No. 197, were:

"2. Demasias are considered to be those that may be found within the true out boundaries of the grant titles, and they shall be excessive when they amount to the third part of the land which said titles may contain.

*648 "3. When the said demasias are not excessive, and the possessors apply for them with proof of having sufficient means for stocking them, they shall be adjudicated to them without public auction at the rates in force at the present time. If they should not want them, they shall be adjudicated to denouncers in like manner. Should they be excessive they shall be sold to the highest bidder."

Even when not excessive, the owner of the cabida legal was compelled to pay the rates in force at the time of the passage of the law, and by section eleven it was provided that they could not be secured without public auction unless the original expediente was presented to the treasury within one hundred days thereafter. When excessive, they had to be sold to the highest bidder. They were, in short, placed on the same footing as other public lands.

The United States is not subject to suit, except by its consent, and then only within the limits and on the terms prescribed. The act of 1891, in creating the Court of Private Land Claims, did not authorize that court to supervise performance of conditions unperformed, and by subsection eight of section thirteen it was provided that: "No concession, grant, or other authority to acquire land made upon any condition or requirement, either antecedent or subsequent, shall be admitted or confirmed unless it shall appear that every such condition and requirement was performed within the time and in the manner stated in any such concession, grant, or other authority to acquire land."

By section twelve, imperfect claims in respect of which no petition shall have been filed within two years, "shall be deemed and taken, in all courts and elsewhere, to be abandoned and shall be forever barred."

It is obvious that this contention cannot be sustained for the reasons indicated, and we repeat what we said in Ely's case, 171 U.S. 239: "This government promised to inviolably respect the property of Mexicans. That means the property as it then was, and does not imply any addition to it. The cession did not increase rights. That which was beyond challenge before remained so after. That which was subject to challenge before did not become a vested right after. No duty rests on this *649 government to recognize the validity of a grant to any area of greater extent than was recognized by the government of Mexico. If that government had a right, as we have seen in Ainsa v. United States it had, to compel payment for an overplus or resell such overplus to a third party, then this government is under no moral or legal obligations to consider such overplus as granted, but may justly and equitably, treat the grant as limited to the area purchased and paid for."

Decree affirmed.