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Jose Sutton Grant

by J. J. Bowden

Jose Sutton, a naturalized Mexican citizen and one of the leading merchants of Santa Fe, became very concerned over the marked decline in the economy of the department, particularly in the livestock industry, following the Revolution of 1837. He was convinced that the prosperity of New Mexico could best be stimulated by the introduction and raising of merino sheep and the establishment of textile mills for the manufacture of woolen fabrics to supply the needs of its citizens. These new industries would give employment to many idle persons, advance commerce, and increase the public security and general welfare. To assist his adopted country in its economic recovery, he lent the Governor Manuel Armijo at least one thousand dollars. He also offered to construct a woolen mill on the eastern frontier and import within a period of five years, enough merino sheep to supply its entire needs if Armijo would give him a grant large enough to support his proposed operations. He stated that he had found a sixteen Spanish square league tract of vacant land on both sides of the Pecos River and surrounding the Ojo del Anil, which he stated would be suitable. Sutton then requested Governor Armijo to grant him these lands free of all conditions except that he was to construct a textile mill and commence raising sheep on the grant within three years from the date he would be placed in juridical possession of the premises. He then requested that this condition be restricted by fixing or prescribing no particular limit within which possession must be delivered. He justified this unusual request by stating that he had to make a trip to the United States and had other important business commitments which might temporarily prohibit his taking possession of the grant and delay the prompt institution of his plans for the development of the grant. On March 14, 1838, Armijo granted the requested lands to Sutton “under the conditions expressed in his petition.” Armijo also directed the Alcalde of San Miguel del Bado to survey the grant and place Sutton in legal possession thereof whenever called upon to do so.[1] Due to the continuous hostility of the Indians in the Pecos area, Sutton never requested the delivery of legal possession or attempted to occupy or use the lands covered by the grant.

Sutton petitioned the Surveyor General’s Office on December 14, 1858, asking for the confirmation of his claim to the Ojo del Anil or Jose Sutton Grant which he alleged contained sixteen leagues square of land. He asserted that the tract had been made to him in consideration of money advanced to the New Mexican government during the Revolution of 1837. In his decision dated September 25, 1861, Surveyor General A. P. Wilbar held that the claimant had satisfactorily shown that the grant papers were genuine, that the Governor of New Mexico had authority to make grants and that the grant had been made as a repayment of large indebtedness due Sutton by the Government. Continuing, Wilbar found the grant to be complete and absolute notwithstanding the lack of a formal delivery of legal possession to Sutton. Wilbar noted that the hostilities of the Indians in the vicinity of the grant from 1838 up to and including the date of his decision were of such a nature as to render it quite hazardous to go into the Pecos area temporarily, let alone to settle there permanently. Therefore, he was of the opinion that since Sutton had the privilege of selecting the time within which to take formal possession of the land he could postpone such delivery until conditions became safe enough to permit the use of the land without unreasonably imperiling his life and property. In conclusion, he recommended that the grant be confirmed by Congress for sixteen square leagues of land.2]

Sutton’s claim was referred to the House’s Committee on Private Land Claims, which reviewed the matter. In a report dated May 16, 1868, the Committee noted that there was no evidence that Sutton had ever demanded possession or attempted to comply with the conditions contained in the grant. It further called attention to the fact that Sutton had left New Mexico long before the United States acquired the area. The Committee therefore, concluded that Sutton had no title at the date of the Treaty of Guadalupe Hidalgo, but simply an inchoate or equitable right to acquire a title in the future. In conclusion, the Committee stated it could not recommend the confirmation of the grant but felt that Sutton should be afforded an opportunity to assert his claim in the court of justice in which the validity of his claim could be legally tested and at the same time the interests of the United States would be amply protected.[3] It does not appear that Congress took any action on this report. A preliminary survey of the grant was made in December, 1877, by Deputy Surveyor S. C. McElroy. This survey showed that the grant contained 69,455.55 acres, and was approved by the Surveyor General on February 20, 1878.[4] No further action was taken on the grant until George W. Julian was appointed to the office of Surveyor General. Pursuant to instructions from the General Land Office, he proceeded to review all land grants then pending before Congress. As a result of his investigation, he submitted a Supplemental Report dated April 3, 1886 pertaining to the grant. In this report, he recommended the rejection of the claim on the following grounds: 

1.The Regulations adopted November 21, 1828, under colonization law of August 18, 1824, were the only laws providing for the disposal of the public domain in force in New Mexico at the date the grant allegedly was made and under the Regulations no grant to a private person could be valid without the approbation of the Territorial Deputation of the Supreme Government.

2.Under the Colonization Law and Regulations, the Governor had no authority to make a grant for a monetary consideration nor a grant in excess of eleven leagues.

3.Since the grantee failed to demand and recover legal possession of the grant and did not establish himself on the land and comply with the conditions, he had no valid claim to the land.

4.Since the documentary evidence presented by the claimants was from private records and not from the public archives, such evidence was not sufficient to support the claim.[5]

Although there was no evidence of fraud in connection with this claim, Julian unjustly branded it as being “one of the most bare‑faced frauds yet perpetrated through the machinery of the Surveyor General’s Office.”[6]

The claim was still pending before Congress when the Court of Private Land Claims was established. The owners of the grant filed suit in the Court of Private Land Claims on February 28, 1893, seeking the recognition of their claim.[7] There were no substantial issues of fact and the case turned solely on questions of law. The government argued that the grant had not been made in consideration of a loan but for the grantee’s promise to raise a new type of sheep and construct a textile factory on the land. Since these obligations had never been performed and the grantee had left New Mexico in 1840, never to return, the government contended that he had abandoned his claim to the land. In the alternative, the government advanced two defenses which were even more fundamental and basic. First, it asserted if the grant was made in consideration of a loan, it was void since in 1838 the Governor of New Mexico had no authority to make grants for such a purpose. The Vigil case[8] was cited as authority for this proposition. The second was a jurisdictional point in which the government contended that the Court of Private Land Claims had no power to confirm an incomplete grant. Since the grantee had failed to perform the conditions contained in the grant prior to the date of the acquisition of New Mexico by the United States, it could not be considered to be an absolute and perfect grant unless some obstacle excused or rendered it impossible for the grantee to perform the conditions subsequently contained in the grant. In view of the fact that the Indian situation in the vicinity of the grant was substantially the same for some years prior to the date of the making of the grant as it was between 1838 and 1840, when the grantee permanently left New Mexico, it afforded the grantee no excuse for failing to perform the conditions. The Court of Private Land Claims in its decision dated December 20, 1898, rejected the claim and dismissed the petition on two grounds. First, that Sutton’s failure to perform the conditions contained in the grant prior to the acquisition of New Mexico by the United States amounted to an abandonment of the premises. Second, that the failure of the grantee to perform the conditions subsequently rendered the grant incomplete and the Court had no authority to confirm an incomplete grant. No appeal was taken.[9] This ended the history of one of the more controversial grants in New Mexico.

[1] H. R. Exec. Doc. No. 112, 37th Cong., 2d Sess., 4‑5 (1862).

[2] lbid.,11‑12.

[3] H. R. Report No. 66, 40th cong., 2d Sess., (1868).

[4] The Jose Sutton Grant, No. 45 (Mss., Records of the S.G.N.M.).

[5] Report of the Secretary of Interior, 266‑268 (1887).

[6] Julian, “Land Stealing in New Mexico”, 145 The North American Review, 22‑23 (1887).

[7] Lutz v. United States, No. 143 (Mss., Records of the Ct. Pvt. L. Cl.).

[8] United States v. Vigil, 13 Wail. (80 U.S.) 449 (1871).

[9] 4 Journal 75 (Mss., Records of the Ct. Pvt. L. Cl.).