Chastang's Heirs v. Armstrong, 20 Ala. 609

20 Ala. 609 | Ala. | 1852

DARGA.N, C. J.

The plaintiffs rely upon the same title on which they did in the case of the Heirs of Chastang v. Dill, decided at the last term, but they did not introduce all the written evidence of title offered in that case. In this, they have omitted the certificate of confirmation and the warrant of survey issued by tbe Register and Receiver of the Land-Office at St. Stephens, and consequently, they rely upon the application of Basil Chastang, made to the commissioner in behalf of himself and the other devisees under the will of John Chastang, the will of John Chastang, deceased, the report of the commissioner to the Secretary of the Treasury recommending the confirmation of the claim, and the subsequent act of Congress, passed the 8th of May, 1822, by which the claim was confirmed. The defendant again insists, that the plaintiffs have failed to show such a legal title as will sustain the action of ejectment. We, however, think it is the act of Congress that gives the title, and not the subsequent location and survey which the Register and Receiver was authorized to make under the fifth section of that act. The plaintiff’s claim is of that class which is confirmed by the third section of the act; that is, a claim that had passed through the office of the commandant, and founded, as the claimant supposed, on a grant that was lost. The third section of the act, referring to such claims, declares, that they “ shall he confirmed in the same manner as if the titles were in existence.” Now I take it, that the true meaning of the word “ confirmed,” as here used, is to make make good, or establish ; the claim, therefore, which before the act was invalid, is thereby made good and valid. The question might be asked, from what time did Congress conceive that the validity of the claim would date ? The answer would be, from the time of the passage of the act. It was this that gave validity to the claim; and I see nothing in tbe act from wbicb it can be inferred, that its validity was intended to be deferred or postponed, until a subsequent period; and if it was the intention of Congress, to make the claim valid from the date of the act as against the government, it rvas at that period of time that the plaintiffs received a title, the character of which is precisely the same, as if the original grant (supposing one to have been obtained by the applicant, which had been lost,) had been in existence. Consequently, the title thus derived under the act of 1822 is a legal title as contra-distinguished from an equitable title. This view I think in accordance with several decisions of the Supreme Court of the United States.

In the case of Farmer’s Heirs v. Eslava, 9 How. 421, the plaintiff’s title consisted of a claim founded on a French grant to Groudel, bearing date in 1757. Groudel conveyed to Guichandene, who sold to Count Pascher, who, by deed alleged to be lost, conveyed to Robert Farmer. This claim was presented to the commissioners by the heirs of Farmer, who, by their report, recommended its confirmation, and the plaintiffs insisted that it was confirmed by the act of 182’2. The plaintiffs also showed, that a certificate of confirmation had been issued by the [Register and Receiver of the Land Office, and the claim located and surveyed, after which a patent regularly issued to the plaintiffs, professing to convey such title as the government then had in the premises, subject however to all just claims derived from the government of the United States, or from the Spanish, French or British authorities.

The title of Eslava consisted of a Spanish concession, dated in 1788, granted to Elizabeth Fonnerette, who conveyed it to Fontennella, who sold to Orsona, and Orsona conveyed to Eslava. The claim of Eslava had been presented to the commissioner, who reported it as one that had passed through the office of the commandant, and recommended its confirmation. This claim was confirmed by the third section of the act of 1822, as one founded on a grant that had been lost. He also showed a certificate of confirmation issued by the Register and Receiver, and further, that the claim had been located and surveyed, but no patent had been issued to him; nor did it appear that he had ever applied for one. The Supreme Court, confining its decision exclusively to tbe titles derived from tbe United States, said, “Both claims were confirmed by Congress at tbe same time; tbe former then is no better than tbe latter.” This language, as well as tbe entire opinion delivered in tbe case, shows that tbe Supreme Court considered that it was tbe act of Congress of 1822 that gave tbe title, and not tbe subsequent location and survey, or patent issued tbereon; and as tbe claims of botb parties to tbe same lot were confirmed by tbe same act, the one could not, by virtue of tbe title thus derived, claim superiority over tbe other; for botb titles dated from tbe same period of time, and botb were derived from tbe same authority. This decision is sustained by the cases of Stoddard v. Chambers, 2 Howard, 307, and Chouteau v. Eckart, ib. 344. Indeed it cannot be doubted, but that a title may as well pass by an act of Congress, as by an act of a ministerial officer of tbe government; and when a claim is presented to Congress and is confirmed, its validity as against tbe government must date from that period. And if there is nothing in tbe act itself that would show that tbe title did not then pass to tbe claimant or confirmee, we should bold that tbe title thus derived was a legal one, which would sustain tbe action of ejectment, if the particular land, tbe title to which was confirmed, could be identified or ascertained by proof aliunde. See Ladiga v. Roland, 2 How. 581.

Nor does this construction conflict with tbe fifth section of tbe act, which gives to tbe Begister and Beceiver authority to direct tbe manner in which tbe claims to land thereby confirmed should be located and surveyed, and also to decide between tbe parties in all cases of conflicting claims. These locations and surveys were not only necessary to give tbe claimants convenient evidence of title, but when tbe claim did not show tbe quantity of land claimed, nor tbe boundaries by which tbe quantity could be ascertained and tbe particular land identified, they became indispensable, in order to fix tbe title to tbe precise land granted by tbe confirmation. But when tbe claim shows tbe quantity, and tbe identity of tbe land can be ascertained, then tbe location and survey are not indispensable, for it is tbe act of Congress, and not tbe subsequent location, that gives tbe title. We therefore must bold, (applying this test to tbe plaintiff’s claim,) that tbe title derived under tbe act of tbe 8tb of May, 1822, is a legal one on wbicb an action of ejectment may be brought.

But it is again insisted, on tbe part of Armstrong, that the title derived under tbe act of Congress vested in Basil Chastang, and not in tbe devisees of John Chastang, according to tbe provisions of bis will.

It is true that tbe legal title, by these acts of confirmation, vests in tbe claimants, for it is in their favor tbe act was passed, and tbe legal title passing from tbe government by tbe act, it can vest only in tbe person who was designed to take. Independent of all authority, this seems to be self-evident ; but tbe question is well settled upon authority, Bissell v. Penrose, 8 How. 317; Laroche v. Jones, 9 How. 170; Strother v. Lucas, 6 Peters, 763; 12 Peters, 458; 2 How. 316. This proposition, however, does not solve tbe question. Tbe inquiry still is, who is tbe claimant in tbe case before us ? To answer this inquiry, we must ascertain what constitutes tbe claim, and by whom or in whose favor was it presented; then, applying tbe act of confirmation to tbe claim thus presented, we shall be able to discover in whom tbe legal title is vested. Tbe claim, as I understand it, is tbe right, title or interest, propounded by tbe applicant to tbe Commissioner, in reference to which be was required or authorized to take evidence, and report bis opinion thereon to tbe Secretary of tbe Treasury. His report upon the claim cannot be said to be tbe claim itself, but rather his opinion or conclusion in reference to it Tbe claim, then, consisting of the right or title presented to tbe Commissioner, it follows, that tbe claimants are those who are alleged in tbe application to him to have that right or title, and tbe act of Congress confirming tbe claim vests tbe title in the claimants, according to their interest as propounded to tbe Commissioner. I, therefore, feel satisfied that tbe title granted by tbe act of 1822, upon tbe application of Basil Chastang, vested not only in him, but in all tbe devisees of John Chastang, deceased, according to tbe provisions of bis will; for tbe application or claim was not presented by Basil Chastang for himself alone, but also in behalf of all tbe other devisees under tbe will of bis father; they, therefore, were all claimants, though their claim was presented by Basil Chastang alone, and tbe act inured to tbe benefit of all. We come, therefore, to the conclusion that the plaintiffs have shown a legal title, on which an action of ejectment may be sustained, and in order to defeat recovery, the defendant must show a better, or at least an equal title, either in himself, or outstanding in another; and this leads us to consider the evidence of title offered by the defendant.

To show title in himself, the defendant proved that the lot in controversy was occupied by one Plumley in 1813, who had taken a lease for it from one Pollard, but Plumley disclaimed the tenancy, and asserted title in himself. In 1814 Plumley sold the lot to Schaffer, who entered into possession and commenced erecting a building, but died shortly after-wards. Carman Erasee intermarried with the widow of Schaffer, and completed the house. After the death of Mrs. Erasee, her son and heir at law sold the lot to one Raizor, who also died, and the lot was again sold by order of the County Court of Tuskaloosa, and was purchased by Daniel Dill, who sold it to the defendant. The defendant also read in evidence the application of Carman Erasee for the lot, made to the Commissioner, his report thereon to the Secretary of the Treasury, and also the act of Congress of 1822, and insisted that it was confirmed thereby. But the record does not disclose the character of this claim, nor the report of the Commissioner made thereon ; we, therefore, cannot judge of its validity as a title, and will dismiss its consideration without further remark. The defendant also read in evidence a Spanish concession, granted to Henry Baudain, bearing date in 1798. This claim of Baudain had been presented to the Commissioner, who made a favorable report thereon, recommending its confirmation, and then read the same act of Congress showing that it had been confirmed. The defendant then proved that the Register and Receiver had, under the authority of the fifth section of the act, located and surveyed this claim in the year 1823, whereupon a patent was issued to Baudain in the year 1837. It was also proved that the locus in quo was within the claim of Baudain, and was covered by the patent. But it was shown that the claimants under the patent of Baudain had brought an action of ejectment in 1838, against the then tenant in possession, but had been defeated on the ground that the tenant, and those through whom he claimed, bad bad tbe adverse possession of tbe lot for more than twenty years. Upon tbis evidence, tbe court instructed tbe jury that tbe defendant could not set up tbe title of Bau-dain, though perfect within itself, because it was not a subsisting title against tbe defendant, being barred as lo him by tbe statute of limitations.

We all agree that tbis charge was erroneous. We have seen that tbe plaintiff’s title, as well as tbe title of Baudain, is derived from tbe same source, to wit: tbe government of tbe United States. They both commence at the same point of time, and from tbe same authority ; and if it be true that tbe title of Baudain is perfect within itself to tbe ' locus in quo, it would follow as a necessary sequence, that tbe plaintiffs have no title to tbe lot sued for. Tbej'- derive title under tbe act of 1822, and of course can take only such title as that act gives them. Baudain derives title under tbe same act, and if be acquired tbe title to tbis lot, then tbe plaintiffs could not; for tbe Federal Government bad but one title, and if tbis was imparted by tbe act to Baudain, it could not be given to another. By showing, therefore, a perfect title in Baudain, tbe defendant showed an absence of all title in tbe plaintiffs.

But no question was made in tbe court below upon tbe comparative merits of tbe two titles. Tbe court assumed that tbe title of Baudain was perfect, and wc, therefore, have examined tbis ease upon tbis assumption, without intending to say which title, that of tbe plaintiffs or that of Baudain, is superior ; or rather, as between them, who has tbe title to tbe lot in controversy. That question can only be properly decided, when it is made tbe point in tbe court below on which tbe case turns; but, as the case now stands, tbe court below thought it unnecessary to decide between tbe two titles, and we think it improper for us to do so.

Tbis view renders it unnecessary to decide tbe question touching tbe statute of limitations; for if tbe title of Baudain should be found tbe better, it will prove that tbe plaintiffs have none, and if tbe title of tbe plaintiffs be superior to that of Baudain, still no question touching tbe statute of limitations can arise, for tbe defendants will then fail to show a superior outstanding title.

Let tbe judgment be reversed, and tbe cause remanded.