7 Miss. 237 | Miss. | 1842
delivered the opinion of the court.
This- is an action of ejectment instituted in the circuit court of Adams county, by the plaintiffs in error, against the defendants in error. The questions for our determination arise out of two instructions given by the court to the jury, at the request of defendants’ counsel. After the testimony was closed, the defendants’ counsel moved the court to charge as follows: First. “That a title to land confirmed by a Spanish grant legally and fully executed, is superior to a title under a Spanish warrant or order of survey confirmed; and if the jury believe defendants’ claim title, and have proved a confirmation of title under a Spanish grant legally and fully executed, and the plaintiffs have no other title than a confirmation of a Spanish warrant or order of survey, they must find for the defendants; and, second, that the confirmation to Stephen Minor of a less number of acres than are mentioned and called for in the grant, without specifying that such confirmation is for a part of the land embraced or described in the grant, is a confirmation of the title to the whole tract of land called for in the grant.”
The title of the plaintiffs is not set out, and we can only know from the instructions given by the court, what kind of title was shown. It seems to have been a confirmed Spanish warrant, or order of survey.
The defendants introduced a notice of a claim presented by Stephen Minor to the board of commissioners west of Pearl river, in which said Minor claimed three hundred and fifty-nine arpents of land, as assignee of Richard Harrison, by virtue of a complete Spanish grant to said Harrison, bearing date in March, 1783, accompanied by a map of the land. They also presented the certificate of confirmation to Minor for fifty-nine acres of the land
For the plaintiff, it is argued that his title is superior and should prevail, being an older warrant or order of survey under the Spanish government. It would be a sufficient answer to this position to say, that the plaintiff has not shown the date of his title, or the time of its confirmation by the commissioners; but assuming it to be an older warrant or order of survey, the question is, whether such a title is superior to a Spanish grant legally and fully executed? To enable us to solve this question, we must of course look back to the origin of the respective titles. That the Spanish government never had a right of soil above the thirty-first degree of north latitude, is no longer a debatable question. The treaty of 1795, by which the line between the United States and the provinces of East and West Florida was established or recognized at the thirty-first degree of latitude, was a mere settlement of territorial limits according to pre-existing rights. Spain did not cede any territory above the boundary then acknowledged, but admitted
The plaintiffs claim under an order of survey from the Spanish government. We have said that the Spanish government possessed no right to convey; the order of survey therefore passed no title. It possessed no intrinsic validity. Such titles, however, were recognized and directed to be confirmed by the act of 1803, and from that act alone do they derive their validity. Congress, under certain restrictions, had an undoubted right to confirm such titles, or rather to make donations to such claimants, in consequence of their pretended claims, and when their titles were thus recognized they became good and valid titles, having relation back to their inception, so as to cut out junior claimants who derived their titles from the same source. Let us then inquire whether it was competent for congress to place such titles on an equal footing with complete British and Spanish grants.
The United States acquired the right of soil in 1802, by cession from the state of Georgia; previous to which time the Federal Government had no right whatever to the soil. Such private rights as had been previously acquired from Georgia, were of course not divested or in any way affected by the cession, and it was competent for Georgia by the treaty to recognize the validity of such titles as she might think proper, and titles thus recognized were placed
It is scarcely necessary to say any thing in regard to the second instruction asked, since it is admitted that the land in controversy is covered by one or the other of Minor’s patents. If therefore the first patent mentioned was only a title to fifty-nine acres, and the land is covered by it, it is sufficient. But the merits of the question are free from difficulty.- Minor it seems presented a patent for three hundred and fifty-nine arpents, and was confirmed in his title to fifty-nine, the balance having been sold to the government. It was not the act of confirmation by the commissioners which gave him title. His title was above the action of the commissioners. It was recognized and secured by the articles of cession, and the commissioners could neither abridge or limit. They had but to inquire whether he had a Spanish grant legally and
The bill of exceptions in this case is imperfect, on the part of the defendants as well as on the part of the plaintiffs. The defendants have not proven a title under Minor, and the plaintiff has shown no title at all. We have therefore taken for granted what seemed to have been tacitly admitted, that the plaintiff introduced an order of survey under the Spanish government, and that the defendants derived title from Minor. If we had rejected such presumptions, the result must have been the same, as we could not set aside a verdict for the defendants in possession, when, the plaintiff had shown no title.
The judgment must be affirmed.