Doe ex dem. Farmer's Heirs v. Eslava

| Ala. | Jan 15, 1847

COLLIER, C. J.

The objections of the plaintiff to the documentary proof of the defendant, was rightly overruled. By the act of 1803, the Governor was required to appoint and commission some person to keep, translate and preserve the records of the office of clerks and recorders which were kept during the administration of the Spanish government, with authority to make and certify copies of the same under his official hand and seal. [Toulm. Dig. 239, § 23.] The act of 1816 provides, that the keeper and translator of these records shall cause them to be transcribed in books, &c.; that copies shall be given and inspection of them allowed, as of other records, and that copies duly certified shall be received and read in evidence in the same manner and with like effect, as other certified copies of records, &c. [Toulm. Dig. 695, 696, § l, 4.] By the act of 1818, the governor of the Alabama territory was authorized to appoint and commission a keeper and translator of the Spanish records, &c. who should keep his office at Mobile. [Toulm. Dig. 696, 697, § 1, 2.] These several enactments made documents number 1, 2 and 3, admissible, unless there was an objection to their competency, other than that they were copies, and the absence of the original was not accounted for. The statutes we have cited all related to the same' subject matter, and must be construed together, and when thus looked to, it is perfectly clear that they make the copies of the original Spanish records evidence, when duly authenticated by the keeper and translator. To the form of the authentication no objection has been made.

It may be conceded that documents number 1, 2 and 3, are at best, evidence of an imperfect title, and to entitle them to the dignity of evidence “ against any grant derived from the United States,” should have been recorded as directed by the acts of Congress of 1805, 1806, 1807 and 1812. [3 Stewt. & P. Rep. 105; 3 How. Rep. 32.] But the question arises whether these papers are not admissible for the purpose of showing that Spain asserted a right to the premises in question, or laying a predicate from which it may be presumed that the defendant and those under whom he claims had been in possession of the premises in question for twenty years previous to the institution of this suit, so as to give him a title by prescription. Our predecessors, in Hallett v. Eslava’s Heirs, 3 Stewt. 1 P. R. 122, intimated that the evidences of an incomplete claim under Spanish authority should be received for the purpose indicated, though they had not been recorded as the statutes referred to contemplate. It is clear their admission is not inhibited by the letter of the acts of Congress, as they do not deny the validity of the confirmation and patent consequent upon it; but the defence which they intended to aid, concedes to the plaintiff’s title the validity which the confirmation and patent can, under the circumstances impart. The statute of limitations, of which the defendant seeks to avail himself, merely addresses itself to the remedy, and insists that the plaintiff has slumbered on his rights until they have become too stale to be enforced.

Ancient documents, it is said, are allowed to support ancient possession, though these documents are not proved to be part of any res gesta. They are admitted in such cases, as forming a part of every legal transfer of title and possession by act of the parties; and there is also some presumption against their fabrication, where they refer to co-existing subjects by which their truth may be examined. On this ground, therefore, as well as because such is generally the only attainable evidence of ancient possession, this proof is admitted. The value of these documents, it is said, depends mainly on their having been contemporaneous with the act of transfer, if not part of it; care is first taken to ascertain their genuineness ; and this is shown prima facie by proof that the document comes from the proper custody, or by otherwise accounting for it. It is not necessary that they should be foun$ in the best and most proper place of deposit. There can ouly be one such place, but there may be many that are reasonable and probable, though differing in degree. In respect to these latter, the proposition to be determined is, whether the actual custody is so reasonably and probably accounted for, that it impresses the mind with the conviction that the instrument found in such custody must be genuine,

It is also requisite, where the nature of the case will admit it, that proof be given of some act done in reference to the documents offered in evidence, as a further assurance of their genuineness, and of the claiming of title under them. Where the document bears date ante litem motam, .and the transaction is so ancient that proof of contemporaneous acting, such as possession or the like, is not probably to be obtained, its production is not required. But where unexceptionable evidence of enjoyment referable to the document may reasonably be expected to bo found, it must be produced; but if such evidence is not to be expected, still it is necessary to prove some acts of modern enjoyment with reference to similar documents, or that modern possession or use should be shown, corroborative of the ancient documents.

Under these qualifications, ancient documents purporting to be a part of the transactions to which they relate, and not a mere narrative of them, are received as evidence that these transactions actually occurred. An ancient deed, that is, one more than thirty years old, having nothing suspicious about it, is presumed to be genuine without express proof; and if it is found in the proper custody, and corroborated by evidence of ancient or modem corresponding enjoyment, or by other equivalent, or explanatory proof, it is presumed that the deed constituted part of the transfer of property therein mentioned ; because this is the usual and ordinary course of such transactions among men. The residue of the transaction may be unerringly inferred from the existence of genuine ancient documents. [1 Greenl. Ev. 166 to 169, and citations in notes.]

In Jackson v. Laroway, 3 Johns. Cas. 283, Kent, J. held that an ancient deed was not admissible without proof of its execution, unless evidence was adduced to show that possession had gone along with it; but the other judges maintained a different doctrine. And in Doe v. Passingham, 2 Carr. & P. Rep. 440, it was said to be no objection to the admissibility of a will more than thirty years old, that possession has not followed it; the court must first be made acquainted with it by its admission as evidence, before it can be known how the possession should go. At the present day, the weight of authority is decidedly against the opinion of Judge Kent, and establishes, that if proof of possession cannot be had, the deed may be read, if its genuineness is satisfactorily established by other circumstances. [See 9 Ves. Rep. 5; 4 Term Rep. 707, (n. b), and 709, (n. †); 1 Phil. Ev. 477; 3 Id. 1310, C. & H's Notes.]

In the case at bar, the documents objected to, come from a depository where they should probably and reasonably, (at least), have been looked for. The possession of Fontenello was proved previous to, or about the time the deed from himself to Orsono bears date ; and if the papers can be regarded as originals, they are sufficiently authenticated to warrant their admission as evidence.

The petition of Fornerette to the governor of Louisiana, and his order thereon, were prima facie deposited, if not registered in a public office and became a part of the public archives of the province. This was quite sufficient to make the copy evidence. As it respects the deeds from Fornerette to Fontinello, and from the latter to Orsono, it is recited in the body of each that the respective grantors signed the same, and the transactions were attested before the commandant at - Mobile, and two witnesses of assistance, for want of a notary public. If it be allowable judicially to notice the Spanish law, there can be but little doubt but these papers, as found in the archives, are originals, known as public acts, carrying on their face, faith and credit, and making full proof in the tribunals of Spain. [See Los Caygas v. Larionda’s Syndycs, 4 Mart. Rep. 283; Mauri v. Heffernan, 13 Johns. Rep. 58.] As a general rule, it is true that a party claiming a benefit from a foreign law, or the law of a sister State of the Union, must prove its existence; but when the laws of one state or nation are operative in another, the rule it is apprehended does not apply. It was accordingly held, that, where lands lying in Indiana were subject to the legislation of Virginia for certain purposes, it was competent for the courts of the former state to take judicial notice of the Virginia laws in respect to such lands, though they were not specially proved. [Henthorn v. Doe, 1 Blackf. 157" court="Ind." date_filed="1822-05-07" href="https://app.midpage.ai/document/henthorn-v-doe-7029412?utm_source=webapp" opinion_id="7029412">1 Blackf. Rep. 157, 164.] The laws of Spain were operative at Mobile when the several conveyances referred to were made, and by them, these conveyances were regulated; although our laws furnish the rule by which the transactions of parties are directed since the United States took possession of the country, yet we are bound to know, in the absence of all testimony, what were the laws.previously applicable to conveyances of land situated within it. From this view, it results that documents number 2 and 3, are copies from the original records, and are admissible evidence as well upon principle as authority.

We understand from the bill of exceptions, that the conveyance from Orsono to Eslava was produced at the trial— after (we suppose) the objection was made to the certified copies. But if the original had not been produced, it perhaps might be questioned whether a certified copy would not be admissible, as the original had been laid before the commissioner appointed to examine such claim, and recorded by him ? We will not stop to inquire whether this conveyance embraces as well the lot as the house, though perhaps when all its terms are considered, it will be found that they are sufficiently comprehensive to embrace the entire premises. But be this as it may, it will suffice to show that the defendant and his ancestor held under color of title.

It was not indispensable to the admission of the survey by Dinsmore, to show that an order for that purpose was made. The act of 1822 contemplated that the tracts of land which were not located, nor their limits defined, if claimed under incomplete grants, should be surveyed in order to obtain from the United States the usual evidences of title. This was sufficient to make it evidence, when taken in connection with the fact that Dinsmore was a deputy surveyor, that the survey, as certified, was in his hand-writing, and was recognized by the patent certificate.

The certificate made by the register was an act within the appropriate sphere of his duties, to enable the defendant to receive a patent, and its genuineness being proved, was properly admitted.

In the absence of any proof of an adverse possession, we incline to think a jury would be warranted in inferring from the fact of Fontinello’s possession about the time of the sale by him to Orsono, that that possession commenced as early as 1798, when the conveyance from Fornerette to himself was made. Nor are we sure that the presumption might not be indulged consistently with reason and law, that Madam Fornerette was in possession under the concession to her made in 1788. But if a jury would infer the possession of Fontinello, this would be quite sufficient to complete the bar of the statute of limitations, if the ouster by De Yobiscey did not occur until after the 14th of June, 1818.

An uninterrupted adverse possession for twenty years, not only gives a right of possession which cannot be divested by entry, but also gives a right of entry. So that if a person, who has such a possession is turned out of it, he may lawfully enter and bring an ejectment for its recpvery; upon which he will be entitled to judgment. Such a possession forms a prescriptive bar. [1 Ld. Raym. Rep. 741; 2 Salk. Rep. 421, 685; 2 Hen. & M. Rep. 318; 5 Sergt. & R. Rep. 240.] To constitute an adverse possession, there must be a claim of title. A possession, unless accompanied by such claim, will not be considered adverse, and will not constitute a bar to those having the real title. [Co. Lit. 153; Runn. Ejectm. 9; 2 Prest. Abs. 388; 9 Johns. Rep. 180; 5 B. & Ald. Rep. 232; 3 B. & Adol. Rep. 738; 9 Wheat. 241" court="SCOTUS" date_filed="1824-02-16" href="https://app.midpage.ai/document/kirk-and-others-in-error-v-smith-ex-dem-penn-in-error-85413?utm_source=webapp" opinion_id="85413">9 Wheat. Rep. 241.] A person in possession cannot be put to his action, entry or claim, nor can he be barred by the statute of limitations. [2 Prest. Abs. 357; 9 Co. Rep. 106 a; 5 Leigh’s Rep. 691, by Carr, J.]

In respect to prescription at common law, it is said that to consummate it, it must have been uninterrupted and peaceable, yet the interruption of mere trespassers, if they were unknown, will not affect the possession. But if they were known, and the trespasses have been repeated without legal proceedings being instituted, they then become what Brac-ton has called legitimes, interruptiones, and are converted into adverse assertions of right; and if not promptly and effectually litigated, they defeat the claim of rightful prescription: and a mere threat of action for the trespasses without following it up, will not have the effect to preserve the right. [Knapp’s Rep. 60, 70; 1 Chitty’s Prac. 284, 757.]

In Innis v. Miller, et al. 10 Mart. Rep. 289, it was held, that to entitle the possessor of property to unite the possession of his predecessor to his own, that of the latter must have been, first, in good faith and under color of title; secondly, it must have been continued, and without interruption ; thirdly, it must be that, which the possessor had at the time it was delivered to him. Prescription, it is said, is not interrupted by filing a petition, which is the initiatory step in a suit, according to the practice in Louisiana; but by its service, [6 Mart. Rep. N. S. 129]; so it was interrupted by an, action in which the plaintiff was non-suited. [2 Mart. Rep. N. S. 582.]

Possession may be adverse without written evidence of title ; for without it there may be an ouster, either by dissei-zin, abatement, intrusion or deforcement. [2 A. K. Marsh. Rep. 18.] Every possession, it is said, is presumed to be in subordination to the title of the true owner, [12 Johns. R. 365; 1 Paine’s R. 457]; and the question of adverse possession is to be determined by the jury, under the instructions of the court. [9 Johns. R. 101.]

The entry by De Yobiscey, it must be intended from the facts recited in the record, was made under an assertion of right and color of claim, as an heir in right of his wife, of Robert Farmer, deceased. This entry, it is said, was peaceable, and effected an ouster of defendant, or his father, under whom he claims. If the possession had been recovered in a proceeding for a forcible entry and detainer, or by an unlawful detainer, promptly instituted, it might not have interrupted the continuity of possession; but it appears from the proof that defendant was twice unsuccessful in the prosecution of the former, and then resorted to an action of trespass to try titles. In this form of action the title was doubtless controverted, and a recovery could not have been upon proof that the defendant’s entry was as a mere trespass. The verdict and judgment must have been obtained upon evidence of superior title resting upon documentary proof, or previous possession. Now, although the defendant must be taken to have shown the better right to the premises, yet we incline to think that the peaceable entry, and consequent occupancy of De Vobiscey under an adverse claim of title was ^sufficient to interrupt the possession, and arrest the operation of the statute of limitations, if it had not previously completed a bar. If however the statute had run previous to the ouster by De Yobiscey, it gave to the défendant a right of entry upon which he might prosecute ejectment, or if sued, defend himself.

When this cause was here at a previous term, [7 Ala. 543" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/eslava-v-doe-ex-dem-heirs-of-farmer-6502458?utm_source=webapp" opinion_id="6502458">7 Ala. Rep. 543] we held that the simultaneous confirmation by Congress of the claims of the respective parties, operated only as a quit claim or relinquishment by the United States of the title of the government, and left them to adjust by suit or otherwise, the question of superiority of title, as resting upon independent evidence. [See also Hooter v. Tippet, 8 Mart. Rep. 637.]

In this view of the case the first inquiry is, has the plaintiff shown such a legal title as would support a verdict in his favor. The French patent to Grondell is not a part of the transcript before us; but as it is not objected to, as being insufficient to convey the title at the time it bears date, we will suppose it to be unobjectionable in point of form. It appears from the proof, that Farmer occupied a house on the premises in controversy, that this house was burnt by the British or Spaniards, when the latter took possession of Mobile about 1780, that Farmer died in Mobile, that his family after having removed to a place on the Tensaw, left the country; “ and during the Spanish times, and until the return of the DeYobiscey, were never known or heard of, in the Province of West Florida, as claimants of this lot.”

In 1762, Louisiana was ceded by the King of France to the King of Spain, [2 White’s New Recopilacion, 529 to 532;] and by a treaty of the following year between his Britanic Majesty, the King of France, and the King of Spain, Florida, with»the country east of the Mississippi river, excepting the town ofNew-Orleans and the Island on which it is situated, were ceded to his Britanic majesty. [Id. 291, 292, 533, top page.]

In 1783, the country last mentioned, was retroceded by Great Britain to Spain by treaty, the fifth article of which is as follows: “ His Catholic, Majesty agrees, that the British inhabitants, or others who may have been subjects of the King of Great Britain in the said provinces, may retire in full security and liberty, when they shall think proper, and may sell their estates, and remove their effects as well as their persons, without being restrained in their emigration, under any pretence whatever, except on account of debts or criminal prosecutions; the term limited for this emigration being fixed to the space of eighteen months, to be computed from the day of the exchange of the ratifications of the present treaty; but if from the value of the possessions of English proprietors, they should not be able .to dispose of them within the sai dterm, then his Catholic Majesty shall grant them a prolongation, proportioned to that end.” By a royal order dated in 1785, the time was prolonged four additional months. Another royal order was made in 1786, and communicated to the Captain General of both Florida’s, by which the English and American families established at Baton Rouge, Mobile, Pensacola and Natchez, were permitted to go from the provinces agreeably to the treaty. These familes were, however, permitted to continue to dwell “ where they are established, on the condition, that for the present, and as indispensable circumstances they take a solemn oath of fidelity and obedience to his Majesty, and that they go not out of the limits where they are actually situated, without the power of going to ofher parts, not having an express license of the government.” [2 White’s New Recop. 306, 307.]

The law organizing the board of commissioners under the Florida treaty, directed them to examine and determine, “agreeably to the laws and ordinances heretofore existing of the governments making the grants respectively,” the validity of claims submitted for adjudication. In the investigation of British claims, the attention of the commissioners was specially directed to two objects. 1. How far were they valid by the law of nations. 2. How far were they considered valid under the Spanish government; and if satisfied of their validity and correctness to confirm them. The commissioners submitted an elaborate report on British claims. Their exposition so far as material to the present case may be thus condensed. They first adddress themselves to the argument that these titles are valid by the law of nations, and show that the jus postliminium, as laid down by writers on that branch of the law, only applies, where persons and things taken by the enemy comes again into the power of the nation to which they belonged, either by conquest, or treaty stipulation; that Mobile and the adjacent country was wrested from Great Britain by conquest, and upon peace being made, yielded up to Spain; consequently, there was no restoration of territory, so as to make this principle of national laxv applicable. “ Whatever is ceded to the enemy by a treaty of peace, is truly and completely alienated. It has no longer any claim to the right of postliminium, unless the treaty of peace be broken or cancelled. It might be said in general, that the right of postlimininum no longer exists after the conclusion of the peace. That right entirely relates to a state of roar." Further, American citizens can occupy no better ground than the subjects of Great Britain. The treaty of ’83 recognized claims and provided for their disposition, by the subjects of that nation who were inclined to emigrate. The validity of the fifth article of the treaty is considered unquestionable, and necessary to avoid the influence of that principle of public law, which declares that “immoveable possessions, lands, towns, provinces, &c., become the property of the enemy who makes himself master of them; but it is only by the treaty of peace, or the entire submission and extinction of the state to which these towns and provinces belong, that the acquisition is completed, and the property becomes stable and perfect.” This article embraces not only “ British inhabitants,” but subjects of the King of Great Britain in the provinces — it is to be considered like a stipulation in any other contract, and if it has not been complied with, the parties interested must submit to the penalty as a consequence of the failure to avail themselves of its provisions.

“ Every State,” says Yattel, “ has the liberty of granting or refusing to foreigners the power of possessing lands or immoveable property, within her territory. If the sovereign does not permit aliens to possess immoveable property, nobody has a right to complain of such a prohibition; for he may have good reason for acting in this manner; and as foreigners. cannot claim any right in his territories, they ought not to take amiss that he makes use of his power and of,his right, in the manner which he thinks most for the advantage of the State.” “ The necessity of making peace authorises the sovereign to dispose of the property of individuals; and the eminent domain gives him a right to do it.” [B. 2, C. 8, $ 114; B. 4, C. 2, § 12.] These citations were considered decisive of the authority of Great Britain and Spain to stipulate as they did by the fifth article of the treaty. A similar provision it is said, is contained in the treaty of 1763.

The commissioners state that after the expiration of the term within which the British claimants were to dispose of their property, Great Britain made them compensation, acknowledging thereby that she had no complaints or demands against the King of Spain. And Spain previous to the cession of the country to the United States, considered a British claim as void, where the claimant failed to dispose of it as provided by the treaty, or did not himself remain in the province upon taking the oath of fidelity. That the United States in virtue of treaty stipulations, is entitled to all the rights and immunities of Spain in respect to the land within the ceded territory, and if Congress were to recognize claims which are void or voidable, the act would be a mere munificence, and not the result of legal obligation. There is nothing in the treaty with France in 1803, or in that with Spain in 1819, which imposes upon the United States the duty of recognizing grants emanating from France or Great Britain, which were annulled by the operation of the treaty of 1783. [2 White’s New Recop. 296 to 303.]

What the commissioners say of British claims is shown by them to be applicable to grants from France or its local authorities in the Province of Louisiana, previous to 1762. It is affirmed that the treaty of 1763, contains a provision similar to the fifth article of the treaty of 1783, but if it did not, the latter is sufficiently comprehensive to embrace the title under which the plaintiff is seeking to recover. If Robert Farmer was not a “British inhabitant,” he certainly was a “subject of the King of Great Britain,” and no matter to which category we assign him, he is included by the article.

It is not pretended that the ancestor of the plaintiff’s lessors, or his heirs, made a disposition of the estate in controversy, as provided for by the terms of the treaty, or that either, or any of them took an oath of fidelity and obedience, so as to authorise them to remain in the province, ft is by no means certain that Robert Farmer did not die in Mobile while it idus in possession of Groat Britain. But however this may be, it is certain that he died there, and after the peace of ’83, his family left the country, and did not return again until 1818 or 1819. The title then under the French patent to Grondell became inoperative in virtue of the treaty, and if it was necessary for the government of Spain, to claim the forfeiture, this was done by the concession to Fornerette. But we incline to think that no act was necessary, and the title vested in Spain by the failure of Farmer or his heirs to avail themselves of the provisions of the treaty.

This view indicates that the title under which the plaintiff claims does not give a legal right to the premises in question, and that his lessors are not entitled to recover, although no opposing evidence had been offered.by the defendant. It is not necessary then to decide, whether the law was correctly ruled by the court below; for however this may be, the plaintiff, as the jury should have found a verdict against him, cannot have been prejudiced. We have but to add that the judgment of the circuit court is affirmed.