Doe ex dem. Chastang v. Dill

19 Ala. 421 | Ala. | 1851

DARGAN, C. J.

The government of the United States having acquired the territory of Louisiana by the treaty concluded at Paris on the 30th of April, 1803, it became necessary to ascertain the lands which had been granted to individuals in the ceded territory by the different sovereigns, through whose hands it had passed. Until this was done, it could not be known what lands were private property, nor what public domain. To do this, to distinguish tho private from the public land, commissioners from time to time were appointed, whose duty it was to examine into all claims presented to them, to make a record of such claims, and report them to the Secretary of the Treasury, together with their opinion as to their validity. It was also made the duty of all claimants to land to present their claims to the commissioners, to be examined and recorded in the manner and within the time prescribed by the several acts, and the consequence of their-neglect was declared to be, that the claim should never afterwards be recognized or confirmed by the United States, nor should any grant, order of survey, deed, conveyance, or other written evidence,, which should not be recorded as directed in said acts, ever be considered or admitted as evidence in any court, against a grant derived from the United States. William Crawford was appointed commissioner for the district lying between the Pearl and Perdido rivers, under the authority of the act of the 25th April, 1812, (see Land Laws, vol, 1,606,) and before him Bazel Chastang appeared and presented his claim, on behalf of himself and the other devisees of John Chas-tang, his father. It is alleged in his petition that the lot lies in the city of Mobile, bounded by Rue Royal and the river, on the upper side of Rue Conception, now known as Dauphin street, fronting one hundred and fifty-five feet on Rue Royal, and two hundred and eighty-one feet on Rue Conception. It is also stated that the petitioner believed that the lot had been granted to his father, but that the written evidence of said grant had been lost or carried away by the Spanish authorities, and that his father had had uninterrupted possession of the lot for thirty-two or three years. The applicant offered as evidence of his claim, to the commissioner, the will of his father, John Chastang, by which he devised the lot to his “friend and companion, Louisa/5 during her life, and after her death to the lessors of the plaintiff. He also proved by the depositions of two witnesses, that the testator had possessed and enjoyed the lot, as stated in his petition, but offered no grant or other written evidence, showing title in the testator.

At this stage of the plaintiff’s title it may be well to consider what title did the applicant present to the commissioner ? What title did he show as against the government of the United States, in the testator, through whose will he claimed 1 All will at once admit, that he stood at the mercy of the government, without any legal title rvhatever. The possession of the testator, and the idea or possibility that the Spanish authorities may have granted the lot to him, the evidence of which was lost, might very well form a reason or an inducement why the government of the United States should grant a title to the applicant, but such evidence showed no title in the testator that could avail him as against the government, or one deriving title from the United States. The only evidence of title in the testator, if indeed it could be called evidence, was the quiet possesion of the lot for thirty-two or three years. This evidence would avail nothing as against a patentee of the government, or one deriving title from the United States.—Kennedy’s Ex’r. v. The Heirs of Townsley, 16 Ala. 239.

The plaintiffs must therefore rely, as in fact they do, upon the report of the commissioner, and the act of Congress of the 8th of May, 1822, confirmatory thereof, as the source of their title; and to the extent that they can show title under this act, they have title without any regard to the boundaries of the supposed Spanish grant. We must therefore look to the commissioner’s report, and to the act of Congress confirming it, to ascertain the character and extent of the plaintiffs’ title. The commissioner reported the claim as one founded on a private conveyance that had passed through the office of the commandant, but recommended its confirmation on the ground that it had been possessed and cultivated by the testator from the year 1782 until the year 1812. His report gives the dimensions of the lot as described in the petition, but not its boundaries. On the 8th day of May, 1822, Congress passed an act entitled “ an act confirming claims to lots in the town of Mobile, and to lands in the former province of Louisiana, which claims have been reported favorably on by the commissioner,” the third section of which is in the following language : cc That all claims in the town aforesaid, reported as aforesaid, and contained in the reports'of the commissioners, and of the register and receiver acting as commissioner, founded on private conveyances which have passed through the office of the commandant, or other evidence, but founded, as the claimant alleges, upon grants lost by timo or accident, and which ought, in the opinion of the commissioners, to be confirmed, shall be confirmed in the same manner as if the titles were in existence. Provided, that in all such claims, when the quantity claimed is not ascertained, no one claim shall be confirmed for a quantity more than seven thousand two hundred square feet.”

The fifth section of the act authorizes the registers and receivers to direct the manner in which all claims to land confirmed by tbe act shall be surveyed, and also to decide between all claims interfering or conflicting with each other.

Under the provisions of this act the register and receiver issued to the plaintiffs a certificate of confirmation, and also a warrant of survey, by which the surveyor was directed to locate the plaintiffs’ claim so as not to interfere with the claims of Henry Baudain or Piere Lucien. The plaintiffs also introduced a diagram, or plat, of said lot, taken from the map of the city of Mobile, which was approved, of by the Surveyor General and deposited in the office of the register and receiver at St. Stephens, which shows that the plaintiffs’ lot had a front on Dauphin street of about one hundred and thirty-two feet, but there was no other evidence that the claim was located or surveyed under the authority of the warrant. This is, in substance, the written evidence of the plaintiffs’ title, and it is insisted that they failed to show such a title as will support the action of ejectment. We are, however, constrained to hold otherwise. In the case of Hallett v. Eslava, (2 Stewart, 115,) the plaintiff’s title was derived under the same act of Congress, and he offered in evidence a certificate of confirmation issued by the register and receiver in pursuance thereof, and the only question was, whether the plaintiff had offered such evidence of legal title as Would support the action of ejectment. It was held sufficient under our act of the Legislature, passed in 1812. — Clay’s Dig. 341.' This decision has never been overruled, but on the contrary, has been affirmed in several subsequent cases.—See 3 Stewart & Por. 105 ; also Lewis v. Gognette, ib. 180; Ryder v. Innerarity, 4 ib. 14; Eslava v. The Heirs of Farmer, 7 Ala. 543. Under the influence of these decisions we must hold that the title shown by the plaintiffs is such as must prevail at law, unless in the defence a better title was shown by the defendant. We, however, think it unnecessary at this time, to examine the title introduced by the defendant, for, under the instructions of the court, it became unnecessary for the jury to consider of any other fact than this, whether the locus in quo was within the limits of the supposed Spanish grant. This instruction evidently made the Spanish Government the source of the plaintiffs’ title, and the quantity to which they were entitled to depend upon their old Spanish grant. But it is manifest that they offered no evidence of a written grant from the government of Spain, and it is equally clear that their only source of title is the act of Congress confirming the commissioner’s report, to which we have referred. Nor is it material to inquire, in what manner that act gives title to the plaintiffs, that is, whether it be considered as a statutory grant, or as an acknowledgment on the part of our government that Spain had granted the lot to the ancestor of the plaintiffs, and thus giving them title as it were, by way of es-toppel. In whatever mode it may be considered that the plaintiffs acquired title, one thing is certain — they acquired it under the act of 1822, and not from the King of Spain. They therefore have the quantity this act gives them, and no more, without regard to the supposed boundaries of a Spanish grant. We are fully sustained in this view by two recent decisions of the Supreme Court of the United States, to wit, the cases of Menard’s Heirs v. Massey, (8 How. 293,) and Bissell v. Penrose, (ib. 317.) We come, therefore, to the conclusion, that the court erred in charging the jury that they must find for the defendant unless they wore satisfied that the locus in quo was within the limits of the plaintiffs’ old Spanish grant. As the questions raised on the defendant’s title are not presented in such a manner as requires us now to decide them, we shall postpone their consideration until they are directly presented, and in such a manner as will enable us to pronounce a judgment upon the merits of his defence.