The case of Florida's missing real estate records.

• Author: Boggs, Glenn

Most Florida lawyers are probably aware of the historical connection between Florida and Spain. The chain of title to some Florida real estate runs back to a beginning with a Spanish land grant. Perhaps only a few Florida lawyers know that Spain claimed sovereignty in Florida for nearly 300 years--longer than the United States has held the peninsula so far. (1) Probably only a tiny handful of Florida lawyers are aware of the mystery that surrounds the missing real estate records that Spain was supposed to turn over to the United States, but did not.

Background

The two principal cities in Spanish colonial Florida were St. Augustine and Pensacola. Travel between these two sites was very difficult--either a long voyage around the Keys or an arduous overland trip through a frequently hostile wilderness. Quite naturally, Spain developed the administration of "La Florida" by dividing it into two parts: East Florida and West Florida. Consequently, colonial government offices were situated in Pensacola (West Florida) and St. Augustine (East Florida) and resulting governmental files, documents, and archives began accumulating in each location. Spanish officials in both Pensacola and St. Augustine reported to and received instructions from more senior colonial administrators, often located in Havana, Cuba.

To best understand Florida's colonial history, it is useful to recall that Spain was once one of the world's greatest military and economic powers with an empire that stretched across the Atlantic and the Pacific reaching the Philippines, and included most of what is now Central and South America and much of North America as well. Spain's history reveals many exploits of epic proportions including, for example, Cortez's conquest of the Aztec Empire in Mexico, Pizarro's parallel triumph over the Inca nation in Peru, and DeSoto's march of exploration from Florida to the Mississippi River. Spain's very considerable power probably peaked in the latter years oo the 16th century. (2) Many Spanish officials, administrators, and military officers were very proud of their nation and its accomplishments. Indeed, critics of Spanish authority probably perceived an attitude of imperious arrogance liberally distributed throughout the Spanish domain.

By the early years of the 19th century, however, Spain's prominence on the international stage was declining. At this juncture, the interests of the newly emerging United States and those of the Spanish colonial province of Florida became heavily entangled. In 1817, the U.S. appointed Andrew Jackson as commanding general of an American army with a mission to improve protection to U.S. settlers living near the border of Spanish Florida. This action resulted partly from complaints from American settlers that their lives and property were repeatedly jeopardized by attacks from Seminole Indians. Clearly, there were atrocities committed by both settlers and Indians, but one of the most provocative incidents was an attack by Indians on a boatload of soldiers and their dependents, on the Apalachicola River in late 1817. (3)

During the ensuing months, General Jackson marched his soldiers into Spanish Florida, battled and chased the Seminoles further south into the peninsula, captured Spanish garrisons at St. Marks and Pensacola, and court-martialed and executed two British nationals for aiding the Seminoles. In 1818, Jackson triumphantly withdrew from Spanish Florida, ending what is known to history as the First Seminole Indian War. (There were two more later, for a total of three Seminole Indian Wars.) Looking back at this situation, it now seems clear that Jackson's incursion into Florida signaled the beginning of the end of the Spanish era. The very next year, 1819, U.S. Secretary of State John Quincy Adams and Spanish diplomat Don Louis De Onis negotiated a treaty ending the long tenure of Spain in Florida. This treaty was subsequently and duly approved by the U.S. Senate and Spanish authorities. In 1821, General Jackson, who was by then appointed governor by President Monroe, returned to Florida from Tennessee. That July, a formal military ceremony was held in Pensacola and Governor Jackson officially took possession of "La Florida" on behalf of the United States.

The central terms of the treaty that accomplished this land transfer are remarkable and, to be blunt, very one-sided in favor of the Americans. Some authorities describing the treaty report that the U.S. agreed to pay Spain the sum of $5,000,000 for Florida. This is not technically correct. Instead, what the U.S. promised was to pay debts owed by Spain to various third party claimants up to a total sum of $5,000,000. This is considerably different from a cash deal. Furthermore, the treaty granted the U.S. the sole right to judge whether the third party claims were legitimate, and even if they were, the U.S. retained an option to pay the claims using bonds with future maturity dates instead of paying in cash.

Can you imagine selling your house to a buyer on these terms? If you did, the transaction would go something like this: 1) You transfer title to the buyer, but get no direct payment. 2) Instead, the buyer runs a series of ads in the local newspaper to see if anyone claims you owe them money. 3) The buyer alone decides whether any claims are valid, but still does not actually have to pay them immediately-even if they are genuine. 4) Finally, the buyer can give bona fide claimants promissory notes to pay the claim in the future, up to a total cap.

Why would Spain agree to terms like this? Perhaps as a "face saving" device, the treaty afforded the Spanish crown a better arrangement at the time than a potential future outright seizure of the province by the Americans. After all, Jackson's army had already run roughshod in the territory before. That was humiliating enough, and who could say whether it would happen again, perhaps on a more permanent basis. So Spain signed.

Consider, however, the effect of these developments on Spain's colonial officers in Florida at the end of a long line of Spanish grandeur. The treaty (Article 2) required them to turn over:

Archives and Documents, which relate directly to the property and sovereignty of said Provinces, are included in this Article. The said Archives and Documents shall be left in possession of the Commissaries, or Officers of the United States, duly authorized to receive them.

Did the Spanish colonial officials fully cooperate and abide by the express terms of the treaty? The short answer is: No, they did not. Perhaps they were resentful regarding the one-sided nature of the treaty, or perhaps some were spiteful due to wounded pride on losing Florida. Maybe incompetence or corruption played a part. For these reasons, or perhaps others, Spain's colonial officials did not transfer a full and complete inventory of their real estate records to the U.S. Ownership of hundreds of parcels and some vast tracts of Florida land, with corresponding livelihoods and fortunes, frequently depended on these land titles.

The Nature of the Problem

A core principle of American jurisprudence when acquiring jurisdiction over territory from other sovereign nations was that legitimate individual landowners from a previous regime should be afforded protection for their private property rights. (4) One of the delicate and contentious points of the treaty that transferred Florida addressed this issue. It is found in Article 8, as follows:

Article 8: All the grants of land made before the 24th of January 1818 by His Catholic Majesty or by his lawful...