Foreign Relations of the United States, 1902, United States vs. Mexico, In the matter of the case of the Pious Fund of the Californias, Appendix II

Exhibit B.

[1741–1759]

Résumé of litigation relating to the Rada property referred to in the answer of Mexico.

This synopsis is taken principally from the statement of the case contained in the first eleven pages of Document No. 3 in the volume produced by Mexico.

The Mexican exhibit consists of the following documents, which are bound together in the order in which they are here enumerated:

1. Memorial of Don Joseph de Rada, as ordered by the supreme council of the Indies, in the matter of his claim against the widow of the Marquis of Torres de Rada and the Marquis of Villapuente dated at Madrid, January 11, 1748.

2. Addition to the foregoing memorial.

3. Argument in support of the memorial of Don Joseph de Rada, printed in Mexico in 1742.

4. Statement made by the attorney appointed to defend the estate of the Marquis Villapuente dated 1741.

5. Legal defense of the missions of California as the devisees of the widow of the Marquis of Torres de Rada in the matter of the distribution of his estate, as ordered by the judgment at the end of the volume, dated Mexico, 1759.

6. Judgment of the royal and supreme council of the Indies dated Madrid, April 16, 1749.

These documents in substance recite that on the 23d of April, 1713, the Marquis of Torres de Rada died, and, as no will of his could be found, the probate judge in the City of Mexico proceeded to take the necessary steps to distribute the estate. The proceedings were opened on the 19th of May following, and by the testimony that was taken, especially by that of the marquis’s widow, Doña Gertrudis de la Peña, it appeared that he had not left any natural heirs, except herself, his brothers and sisters in Spain, a nephew named Francisco, who was with her; another, a Franciscan novice, and a third in Spain. Accordingly, on June 23 of the same year, an order was made reciting that the marquis had died intestate, and ordering the inventories and appraisements of his estate to be made, and all pertinent evidence to be produced, and referring the cause to the chief justice of the probate court, further reciting that the appraisers should be named by the marchioness and the attorney of the court, Defensor del Juzgado, reserving the right for any absent heirs to come in and prove their heirship. This order was communicated to the attorney of the court on the following day, and thereupon he and the marchioness named the appraisers. After some time—that is, on the 28th of August—the attorney of the court consented to the approval of the inventories then completed, and on the 29th of August an order was made approving them and allowing Doña Gertrudis to take further steps in the matter.

On the same day she came into court, reciting that the estate, as shown by the inventories, was insufficient to cover her separate estate (dote), and she asked that it be distributed to her, promising to pay the debts of the late marquis, and claiming the right to ask for the distribution to her of any other property that might at any future time be discovered. Service of her petition was made on the attorney of the court, who consented to it, and an order was made on the 9th of September in accordance therewith. At the same time the judge declared that Don Andres, Doña Francisca, Doña Isabel, and Dona Maria Lorenz de Rada, brother and sisters of the late marquis, to be his heirs, and in place of his brother Don Juan Antonio Lorenz de Rada and the other brothers, who were dead, their children should be so considered.

This order of the probate judge remained undisturbed until 1718, when Don Joseph de Rada appeared, through his guardian, and sought to compel the marchioness to render an account of the expenditures and administration of the estate of the late marquis, as well as to produce any evidence that she might possess concerning the title and expenditures of the marquis, and asking certain information as to properties which she took as her separate estate (dote). Notice of this was served on the marchioness. The moving party was the son of the late Don Juan Antonio Lorenz de Rada, who was the eldest brother of the deceased marquis. Upon this demand an order issued requiring that Doña Gertrudis produce all papers relating to the title of marquis in her possession, as well as all account books and papers of the marquis. From this order she appealed, but it was sustained. The marchioness thereupon produced some papers of her husband, declaring them to be all that she could find that in any way related to his property, saying that she thought her late husband had not kept any books of account, whereupon Don Joseph de Rada asked that the inventories made in the estate of her husband be annulled, saying that they had been falsified. The marchioness resisted the demand and the court ordered that if the moving party considered that the properties had been undervalued in the inventories he should bring forward some one who would offer more for them than the prices set down in said inventories. This was not done and the demand was refused. An appeal was taken, which was dismissed by the Audiencia Real on the 21st of July, 1721.

The suit remained in this condition until August 18 of the following year, when an attempt was made by the Marchioness to have Don Gregorio Joseph del Pino appointed to be chancellor, and after various steps in the courts she was, in 1724, referred to the King of Spain and the council of the Indies. From the orders submitting this appointment to the council of the Indies, the Marchioness appealed.

At about this time, Don Joseph de Rada came forward, asking that he be furnished with copies of all the orders made in these proceedings. His demand was granted, and the Marchioness appealed; her appeal was dismissed, and she was enjoined from further proceeding. The order appealed from was confirmed in 1726. In view of the decision against the Marchioness, Don Joseph Lorenz de Rada came into court, demanding that he be declared the successor to the title of Marquis, and that the rights and possession of the offices of chancellor and registrar be granted him, at the same time asking that an account accompanied by payment over to him of the receipts of these offices, since 1713, be rendered him. To this the Marchioness made objection, producing a royal cedula of 1725, declaring that she was the person who should succeed to the title and offices. This paper was served on Don Joseph Lorenz de Rada, who represented that it could not abridge his rights in his demand, as it had been obtained by misrepresentation, and he insisted upon his rights.

An order was thereupon made for the production of the proceedings since November 26, 1729. (This must have been some years after the production of the cedula.)

The case remained in this state until March 12, 1738, when the Marchioness having died, Don Joseph Lorenz de Rada asked that the suit be revived as against her heirs and personal representatives. Notice of this revival was served on one Father Juan Francisco de Tompez a Jesuit, the attorney in fact of the Marquis of Villapuente, whom the Marchioness had named as her executor and heir by an instrument (el poder de testar), executed before the notary, Francisco de Valle, on October 15, 1735. He (the attorney in fact) contended that the whole controversy had been settled by the royal cedula of 1725, to which Don Joseph Lorenz de Rada replied that the cedula had been obtained by misrepresentation, etc. The court then learned of the death of the Marquis of Villapuente at Madrid, apparently without leaving any will, and it therefore appointed an attorney to defend his rights. This attorney set up practically the same defense as Padre Tompez, and the court then ordered that the evidence in the case be taken.

Don Joseph contended that he was entitled to the title of Marquis and all receipts of the offices of chancellor and registrar since 1713, as well as the property remaining over after the payment of the separate estate (credito dotal) of the late widow of his uncle.

The other parties asked that the suit be dismissed, and that all property distributed as the separate estate of Doña Gertrudis be exempt from this judgment.

This suit was decided by the audiencia real on December 20, 1742, against Don Joseph Lorenz de Rada, and he was condemned to pay costs, and enjoined from further proceedings. (These latter facts are set forth in the judgment of the council of the Indies at the end of the volume.)

Furthermore, the right of appeal was denied him, and on this account he instituted proceedings to take the matter to the council of the Indies by an appeal to the King. These proceedings resulted in his being allowed to take an appeal from the judgment of the court below, and the former judgment of the audiencia real of December 20, 1742, was reversed, and it was ordered that the parties appear in that court to show their respective rights to the property left by the Marquis over and above the separate estate of his widow. This judgment was rendered without any notice to the heirs or representatives of the Marquis of Villapuente, or the missions of California.

In accordance with this judgment, in 1752 an order of the council of the Indies was made, formally referring the question of division of the properties of the late Marquis of Torres de Rada to the audiencia real of Mexico.

In 1759 the representatives of the missions of California furnished a brief on the subject, which is to be found in the volume just before the judgment of the council of the Indies, and although it precedes said judgment in the arrangement of this exhibit, it is, in fact, ten years later in date. This brief recites the facts substantially in the same way as the argument made on behalf of Don Joseph de Rada, except that it brings the matter down to a later date. Upon reading it, it will be seen that the statement made by Pedro Ramirez (Transcript, p. 518 et seq.) is entirely correct.

We thus trace this suit, beginning in 1718, through all its stages, down to 1759. Mexico has not furnished any additional evidence bearing on the case, but the ultimate result of the whole litigation was considered and passed upon by the mixed commission of 1869. The history of the case from 1759, as given by Pedro Ramirez, brings it down to 1840. At that time the claimant, Señor Jauregui, was willing to settle for $210,000. (Transcript, p. 520.)

In making his award, the umpire followed the American commissioner’s opinion, and rejected the estate of Ciénega del Pastor, because it was under attachment at the instance of Señor Jauregui. This property was afterwards sold for $213,750, as will be seen by the deed of sale, executed by order of the Mexican Government on November 29, 1842, in the City of Mexico, before the notary, Ramon Villalobos, a copy of which is in evidence as Exhibit D.

sentencia de el real y supremo consejo de indias.	judgment of the royal and supreme council of the indies.
(Senorcs: La Isequilla, Regalía, Cornejo, Contreras, Aguero.)	Those of the Supreme Council of the Indies in the Hall of Justice considering that by virtue of the royal cedula of commission, dated at San Ildephonso October 21, 1744, the suits prosecuted by Don Josef Lorenz de Rada, and others his coheirs, as heirs ab intestato of the Marquis of Torres de Rada, first before the probate fudge of the City of Mexico, and afterwards in the Audiencia of that place; with Dona Gertrudis de la Peña, late Marchioness of Torres de Rada, widow of said Marquis, and in consequence of her death, with the attorney in fact of the Marquis de Villapuente, her heir, and upon his death with the lawyer appointed to defend his estate (Défenser nombrado á sus bienes): which suits were prosecuted at first for the production of the books; and papers of the said Marquis of Torres de Rada; the cancellation and annulment of the inventories and appraisements, made after his estate; the exhibition of them; the succession to the title of Marquis, and the office of Chancellor and Registrar of said Audiencia and those of Guadalajara, Guatemala, Santo Domingo, and the Philippines, and for an account accompanied by payment of the emoluments of these officers; and finally, for the annulment of the adjudication insolutum, both of which, and the restitution of the salaries and emoluments, with the rest, were decided in favor of Doña Gertrudis de la Peña which are the decisions (on appeal), which were ordered produced and they were presented before the council as evidence, and they are pending in the nature of a second appeal taken by the aforesaid Don Joseph Lorenz de Rada from the decrees pronounced by the judges of it (the Audiencia) on the 14th of November and 20th of December, 1742, in which, by the first, they declared that on the part of Don Joseph Lorenz de Rada he had not proved his suit and demand, and that on the part of the attorney appointed to defend the estate of the Marquis de Villapuente in his pleas and defenses this had been done, and in consequence they ordered that the decree of the 5th of July, 1721, should be obeyed, complied with, and executed, in which it was declared by said audiencia that the appeal from the one (the decree) of the 13th of February of the same year, pronounced by the chief justice of the probate court should be dismissed, and that in order that it be executed, the decisions be remanded to the said court, where the parties might appear to pray (the relief) that they may deem proper; and in addition perpetual silence was imposed on said Joseph de Rada and his colitigants, and they were adjudged to pay costs and other things, which are more specifically set forth in said decrees; and by the second, that of the 20th of December of 742 (1742), said audiencia adjudged the former proceedings to be nonappealable; which decrees have been enforced in the absence and nonappearance of the lawyer appointed to defend the estate of Marquis de Villapuente, in the halls of this supreme council, because of his not having appeared at the rendering of these decrees; and considering that by á decree of November 27, 1748, interposed by the said Don Joseph Lorenz de Rada, and weighing all that was said by the attorney-general in them (decrees) the right of taking a second appeal was sustained, and it was ordered that the decrees be set forth in the premises, which was done, and in the knowledge of this and all the other facts of the suits, and it seeming just:
Vistos por los del Supremo Consejo de Indias en Sala de Justicia en virtud de Real Cedula de Comision de su Magestad, su fecha en San Ildephonso á 21 de Octubre de 1744 los Autos seguidos por Don Joseph Lorenz de Rada, y otros sus Coherederos, como herederos, ab intestato del Marqués de las Torres de Rada, primero ante el Juez de bienes de difuntos de la Ciudad de Mexico, y despues en aquella Audiencia; con Doña Gertrudis de la Peña, Marquesa que fué de las Torres de Rada, viuda de dicho Marqués, y por muerte de esta, con el apoderado del Marqués de Villapuente, su heredeo, y por su fallecimiento, con el Defensor nombrado á sus bienes: cuyos Autos se Siguier en en su principio, sobre la exhibición de los Libros, y Papeles del referido Marqués de las Torres de Rada, recision, y nulidad de los inventarios, y aprecios hechos por su muerte de sus bienes, manifestación de ellos, sucesion en el Titulo de Marqués y en los Oficios de Chaneillér, y Registrador de aquella Audiencia, las de Guadalaxara, Goathemala, Santo Domingo, y Philipinas, y quenta con pago de los rendimientos de estos oficios; y ultimamente sobre la nulidad de la adjudicación insolutum, que de uno, y otro se hizo á dicha Doña Gertrudis de la Peña, y restrución de sus salarios y emolumentos, con lo demás, que son los Autos: los quales se mandaron entregar, y presentaron en el Consejo, por Testimonio, y penden en grado de segunda suplicación, interpuesta por el expresado Don Joseph Lorenz de Rada, de los Autos proveídos por los Ministros de el la en 14 de Noviembre, y 20 de diciembre de 1742 en que por el primero declararon, no haver probado su acción, y demanda la parte de Don Joseph Lorenz de Rada, y haverlo hecho de sus excepciones, y defensas, la del Defensor de los bienes del Marqués de Villapuente, y en su consequencia mandaron se guardasse, cumpliesse, y executasse el Auto de 5 de Julio de 1721 en que se delarò por aquella Audiencia por desierta la suplicación del de 13 de Febrero de este mismo año, proveído por el Juez General del Juzgado de bienes de difuntos, y que para su execución se bolviessen los Autos á dicho Juzgado, donde las Partes ocurriessen á pedir lo que les conviniesse; y á mayor abundamiento se impuso perpetuo silencio á dicho Don Joseph de Rada, y sus Colitigantes, y se les condenó en las costas, con otras cosas que por menor se expressan en dicho Auto; y por el segundo de 20 Diciembre de 742 declaró dicha Audiencia por insuplicable el antecedente; cuyos Autos se han substanciado enausencia, y rebeldía del Defensor de los bienes del Marqués de Villapuente, en los Estrados de este bupremo Consejo, por no haver comparecido á su seguimiento; y vistos por uno de 27 de Noviembre de 1748. teniendo presente lo dieho por el señor Fiscal en ellos, se declaró haver lugar á el grado de segunda suplicación, interpuesto por dicho Don Joseph Lorenz de Rada, y que se traxessen estos Autos en lo principal, lo que se executó así, y en su inteligencia, y de todq lo demás que es él processo, y vér convino.
fallamos:	we decree:
Atento á los meritos de él, á que nos remitimos, que debemos revocar, y revocamos, los Autos proveídos por aquella Audiencia, que quedan citados en 5 de Julio de 721 y 14 de Noviembre de 742 por los que declaró por desierta la suplicación interpuesta por Don Joseph Lorenz de Rada, y Don Francisco de Revilla, del Auto proveído por el Juez General de bienes dedifuntos en 13 de Febrero del referido año de 721 como también el de 20 de Diciembre de 742 que vá expressado; y declaramos por nulos, y de ningún valor, ni efecto, los Inventarios, y aprecios de los bienes que quedarón por meurte del Marqués de las Torres de Rada, y la adjudicación hecha de ellos á la referida Marquesa, y reservamos á los successores de esta, y al referido Don Joseph Lorenz de Rada, y sus colitigantes, su derecho á salvo, para que usen de él como les convenga, sobre los respectivos derechos deducidos en aquella Audiencia, donde lo deberán executar. Declarando, como declaramos que por muerte de Don FranciscoLorenz de Rada, Marqués de las Torres de Rada, se transfirió en Don Joseph Lorenz de Rada, su sobrino, la possession civil, y natural del Titulo, y Dignidad de Marquès de las Torres de Rada, la que realmente, y con efecto debe verificarse en èl. Yassimismo mandamos se le ponga en la possession de los oficios de Chaneillèr, y Registrador de aquella Audiencia, y las demàs que ván citadas, para que las sirva, y possea, en la misma forma, y con las proprias facultados que las gozò, y posseyò, el Marquès su Tio, perciviendo los Frutos de ellas por salario, y manteniendo la propriedad responsable à las resultas del juicio que sigan las partes en aquella Audiencia, por los derechos que les vàn reservados: y en consequensia de todo lo que và dicho, mandamos se chancele, y tenga por de ningun valor, ni efecto la caucion Juratoria, y obligacion otorgada por dicho Don Joseph Lorenz Rada para las resultas de este Juicio; y por esta nuestra sentencia difinitivamente jusgando, assi lo pronunciamos, mandamos, y firmamos. Don Joseph de la Isequilla. Marqués de la Regalia. Don Joseph Cornejo. Don Pedro Domingo deContreras. Don Juan Vazques de Aguero. Dada, y pronunciada fuè la sentencia antecedente por los Señores del Supremo Consejo de las Indias, que la firmaron en Madrid à 16. Abril de 1749. Don Antonio de Salazar y Castillo.	That mindful of the merits of him to whom we remand this cause, that we ought to revoke, and we do revoke, the decrees rendered by said audiencia, which have been cited as of the 5th of July, 1751, and 14th of November, 1742, by which the appeal taken by Don Joseph Lorenz de Rada, and Don Francisco de Revilla, from the decree pronounced by the chief justice of the probate court on the 13th of February of the said year 1721, as also the one (the appeal) of the 20th of December of 1742, which has been set forth, was dismissed; and we declare null and of no value nor effect the inventories and appraisements of the properties left by the Marquis of Torres de Rada upon his death, and the distribution of them made to the said Marchioness, and we reserve to her successors, and to the said Don Joseph Lorenz de Rada and his colitigants, their right safe and in full force, in order that they may make use of it as they see fit, according to the respective rights deduced in that Audiencia, where they shall execute it. Declaring, as we do declare, that on account of the death of Francisco Lorenz de Rada, the Marquis of Torres de Rada, the civil possession and right of title and rank of the Marquis of Torres de Rada, which really and in effect ought to be confirmed in him, were transferred to Don Joseph Lorenz de Rada, his nephew. And at the same time, we command that he be put in possession of the office of Chancellor and Registrar of that Audiencia and the others before mentioned, in order that he may fill and possess them in the same way, and with the proper authority which the Marquis, his uncle, enjoyed and possessed, enjoying the emoluments of them, as salary, and maintaining the property in accordance with the outcome of the judgment which the parties may pursue in said Audiencia, by reason of the rights above reserved; and in consequence of all that has been said, we order that the parol (oath taken in lieu of bail) and bond executed by said Don Lorenz de Rada to abide the outcome of this judgment be cancelled and held of no value nor effect; and by this our judgment definitively (definitivamente) decreeing, thus we pronounce, command and sign. Don Joseph de la Isequilla. El Marquès de la Regalia. Don Joseph Cornejo. Don Pedro Domingo de Contreras. Don Juan Vazquez de Aguero.
	The foregoing judgment was given and pronounced by the officers of the Supreme Council of the Indias, who signed it in Madrid, the 16th of April, 1749. Don Antonio de Salazar y Castillo.