16 Miss. 234 | Miss. Ct. App. | 1847
delivered the opinion of the court.
The appellee, Kitturah Bryan, filed this bill in the superior court of chancery, to recover a tract of land on the Mississippi river, containing two hundred and forty acres, on part of which the town of Grand Gulf is now situated. She claims title, as the sole heir of Gideon Matlock, deceased. The title originated under the third section of the act of congress, passed on the 3d of March, 1803, which declared that every person, and the legal representatives of every person, who, being the head of a family, or above the age of twenty-one years, did, at the time of passing the act, inhabit and cultivate a tract of land in the Mississippi territory, not claimed by virtue of the preceding sections of the act, or by a British grant, or by the articles of cession from Georgia, should be entitled to the preference in becoming the purchaser at the minimum price, to be paid in the same manner as .directed by the act in regard to other lands, which was in four annual instalments. The fifth section of the act declared, that every person claiming land by virtue of a British grant, or by the three first sections of the act, or under the articles of cession, should before the last day of March, 1S04, deliver to the register of the land office of the proper district, a notice in writing, stating the nature and extent of his claim, together with a plot of the tract claimed, with every grant, order of survey, deed, conveyance, or other written evidence of his claim, to be recorded by the register; and in case of neglect by the claimant to comply with this provision, he lost all right under the provisions contained in the first three sections. By this act, three persons were appointed, or, at least, a provision was made for their appointment, as commissioners to hear and determine land claims. By the act of congress, of the 27th of March, 1804, the time for presenting claims under the first three sections of the original act, was extended to the last day of November, 1804.
To entitle any one to a preference, in becoming the purchaser of a tract of land, or, as it is commonly called, a preemption right, it is necessary that he should have brought himself within the conditions of the act, the first of which was, that the claim
Having thus stated the provisions of the law under which complainant claims, two questions arise ; first, does the record show that the complainant, or her ancestor, acquired a right under the law? and second, does that right still exist in her, or has it been legally divested?
First, has the complainant established a right to the land which can be asserted in a court of equity? We will here remark that in equity, as well as at law, the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary’s title. Watts v. Lindsey’s Heirs, 7 Wheat. 161. In a court of equity a complete equitable title must be shown, and in a court of law a complete legal title is requisite. It is therefore immaterial on what right the respondents may rely; their possession will protect them against any but a perfect equitable title.
It has been urged in the argument of counsel for the appellants, that neither complainant’s ancestor nor the complainant herself were entitled to a preference, right under the act of congress for two reasons; first, because the land was claimed under a Spanish warrant, and therefore not subject to a preemption right; and second, because the provisions of the law were not complied with. The act of congress only conferred the right of preemption to land not claimed by virtue of the first two sections of the act, nor by a British grant, or the articles of cession from Georgia. A reasonable construction of this provision seems to be, that so long as land was subject to any such superior claim, it was exempt from the operation of the third section ; but when
But it is said that Clarke, as the attorney for the heirs, presented their claim. Clarke filed a memorandum to this effect, that if Matlock’s claim under the Spanish warrant was not allowed, the heirs tVould take a preemption. This instrument is without date, and does not specify what land the heirs would take. For anything that appears, it may have been filed after the last day of November, 1804. Matlock died in October, 1804, and the time for pre'senting claims expired on the last of November of that year. But assuming that it was filed within the proper time, still it was not supported by the requisite proof of Matlock’s settlement. On the contrary, the commissioners then had proof before them that Burnett had resided on the land on the'3d of March, 1803, and if any person was entitled to a preemption it was Burnett. The probability is, that Matlock’s right to a preemption was confirmed on the strength of Burnett’s settlement, from whom he had purchased. Certain it is that Matlock’s heirs did not show that they were entitled to a preemption, in virtue of a settlement by their father. For anything
But let it be admitted that these were questions for the determination of the commissioners, and that their decision, allowing a preemption in favor of Matlock’s legal representatives is conclusive, which may be true, at least as regards the government. Then the question is, what right did it confer? The most important provision of the law still remained to be complied with; the land was to be paid for. The determination of the commissioners settled nothing but that Matlock’s representatives had a right to buy the particular tract.of land if they wished to do so. A mere right of preemption is not a title. It is only a proffer to a certain class of persons that they may become purchasers if they will. Without payment, or an offer to pay, it confers no equity. It is only regarded as conferring an equity when the party has consented to accept the offer by payment, or by claiming the benefit of the law in the proper manner, within the required time. The bill proceeds upon the ground, that the first payment for the land was made by, or for the heirs of Matlock ; and the whole argument is based on this ground. It is the important point in the cause. Without it the complainant’s claim has nothing to rest on. There is no proof on this" subject which can be called positive, and yet the circumstances are so irresistibly conclusive against the pretensions of the complainant, that it seems impossible to entertain a doubt. This is a question of fact, and each prominent event in the cause seems to contribute something to the answer. When they are all considered in chronological order, the conclusion seems, inevitable, and to that end we shall note each one particularly.
1. On the 16th of February, 1804, Gideon Matlock, of Claiborne county, presented to the 'commissioners appointed under the act of congress of March, 1803, a claim for one thousand and sixty-six arpens of land, lying in Claiborne county, on the Mississippi river, having such shape as represented by a plat annexed, by virtue of a decree warrantor order of survey from the Spanish government to one John Biirnett, bearing date the 2?th of August, 1795, which claim states that the land was im
2. He died in October, 1804, and on the 16th of that month, administration was granted to his widow, Elizabeth Matlock, the mother of complainant.
3. On the 23d of October, 1804, Matlock’s estate was appraised to $676.
4. On the 13th of March, 1805, the probate court of Claiborne county made an order that the land of Matlock, being the land in question, should be sold by the administratrix to. pay the debts due from the estate.
5. On the 10th of July, 1805, the commissioners made an entry on their journal, as appears by an extract, that the legal representatives of Matlock claimed one thousand and sixty-six arpens of land in Claiborne county, on the Mississippi river, by virtue of a Spanish warrant of survey to John Burnett, dated the 27th of August, 1795; also a bargain and sale from Burnett to G. Matlock, deceased, dated 8th February, 1804, which was produced. Witness, Hezekiah Harmon, proved, that the land in question was settled in the year 1802 by John Burnett, who moved on it the latter end of the same year, or the beginning of 1803, and continued to inhabjt and cultivate it until he sold to Matlock. Burnett was the head of a family at the date of the warrant. This was probably the first action taken by the commissioners, on the claim which had been presented by Matlock on the 16th of February, 1804; and the deed of bargain and sale from Burnett, and the testimony of Harmon mentioned in the entry, were no doubt both furnished by Matlock when he first presented his claim. He, in the meantime, had died, of which fact the commissioners by some means, but how is not shown, had been apprized, and hence the entry on the journal that Matlock’s representatives claimed the land. The fairest conclusion is, that Elizabeth Matlock, the administratrix, was prosecuting the claim. But a few months before she had obtained
6. On the 13th of August, 1805, commissioners were appointed by the probate court to receive claims against the estate of Matlock, and ordered to make report at the next term of the court.
7. The administratrix sold the land, after a second advertisement, on the 10th of December, 1805, to Hezekiah Hannon, for fifty dollars, he being the best bidder.
8. At the February term, 1806, the administratrix reported the sale to the probate court, which report was received and ordered to be recorded. It states that the estate had been reported insolvent; the order authorizing the sale for the benefit of creditors; the due advertisement of the land; the failure to sell for want of bidders; the second advertisement, and the final sale to H. Harmon for fifty dollars on the 10th of December, 1805.
9. On the 13th of February, 1806, Elizabeth Matlock, as ad-ministratrix, made a deed to Harmon, the purchaser. It recites the order of court, and professes to convey only Matlock’s
10. Mrs. Matlock died in March, 1806, the complainant then being about four years of age, and her brother Thomas, who has since died, about two years old. After the death of the mother, the children had neither parent, guardian, or relation near to protect their persons or property, nor was a guardian appointed for them at any time.
11. On the 11th of August, 1806, Joshua G. Clarke was appointed administrator de bonis non on the estate of Matlock, and on the same day commissioners were again appointed to receive and examine claims against the estate of Matlock.
12. On the 19th of December, 1806, the land commissioners entered on their journal, that two hundred and forty acres of land should be surveyed for the legal representatives of Gideon Matlock ; and on the 22d of the same month, they made an entry to the following effect. No. 271. Legal representatives of Gideon Matlock; 240 acres ; claim confirmed;
13. On the 23d of December, 1806, only one day after the confirmation, Harmon, by indorsement on the deed from the ad-ministratrix, transferred his interest to Samuel Wallace.
14. On the first of January, 1807, John Henderson, as receiver of public moneys, gave a receipt in favor of the “ legal representatives of Gideon Matlock” for $120, as the first instalment on two hundred and forty acres of land under a preemption right; charging at the same time, in the books of his office, the representatives of Matlock as debtor in the sum of $480 for the tract of land, and giving a credit of $120.
15. In the latter part of the year 1807, the complainant and her brother Thomas were taken to Louisiana by a relativé who resided in that state, where they remained. Complainant there married in 1817, and was under coverture until 1838.
16. On the 3d of January, 1810, Wallace, the assignee of Harmon, sold to Charles Patterson by deed, which, after describing the laud, recites that it was the same land granted by
17. Let us for a moment return to the proceedings of the probate court, which present the next occurrence in point of time. On the 12th of February, 1810, other commissioners were appointed in the room of those previously appointed, to receive claims against Matlock’s estate, this being the third appointment of commissioners for that purpose. ,
18. On the 22d of September, 1810, Patterson paid the three remaining instalments due on the land, and took from the receiver a certificate in his own name, as assignee of the legal representatives of Gideon Matlock. The respondents derive title from Patterson.
There are some facts which cannot be precisely located in point of time. The memorandum of Clarke as the attorney for the heirs, that they would take a preemption if the claim under the Spanish warrant was not confirmed, is without date. There is also a memorandum, the date of which cannot be precisely ascertained from the record ; it is in these words: “The claimant requests that the board of commissioners will only grant or reduce the within quantity to two hundred and forty acres.”
Do these facts prove that the first payment, made on the 1st of Jaquary, 1807, was made by or for the heirs of Matlock ?' We cannot think that they will justify any such conclusion. The heirs were infants, one but a little over four years old, and the other not three. They of course did not make the payment. It is perfectly manifest, therefore, that it was made by some other person, and it would seem to be incumbent on the complainant to show by whom it was made, if made for her benefit. It was not made by Elizabeth Matlock ; she had died in 1806.
But, say the complainant’s counsel, the proof is clear that the payment was made by Matlock’s heirs, because the confirmation of the commissioners, made on the 22d of December, 1806, was in favor of the “ legal representatives” of Gideon Matlock; and the certificate of payment given by the receiver on the 1st of January, 1807, was in favor of the “ legal representatives” of Matlock; that by the term “legal representatives” children were meant. As regards the certificate of confirmation, this is a matter of little consequence, as it only decided that the legal representatives of Matlock had a right to avail themselves of the preemption law, if they should choose to do so. And let it be admitted that the receiver meant the children of Matlock, by the use of the words “legal representatives;” what then? If it be clear that they paid nothing, then they acquired a title by mistake, which, howev.er good at law, will not do to rely on in a court of chancery. It will not be contended that such receipt is not susceptible of explanation. But we deny that the words “ legal representatives,” as used in the act of congress, mean children, or heirs only. In legal parlance, the execptor or administrator is most commonly called the legal representative. Still, in regard to things real, the heir is also the legal representative, and so is a devisee, who takes by purchase. Heirs may be the legal representatives, or they may not. Suppose by will a testator should give his land to one who is not an heir; the devisee would be the legal representative, in regard to the thing devised. The act of congress was evidently intended to have a broader signification than that contended for. This is manifest from the fifth section,',which required that'any claimant should file with the register every grant, order of survey, deed, conveyance, or other written evidence of his claim. There was no provision in favor of assignees or grantees, by name, yet we find they were required to present their evidences of title; they were necessarily intended to be embraced by the use
The certificate of payment, then, given by Henderson on the 1st of January, 1807, would establish a payment by the purchaser under the administrator’s sale, or his vendee quite as well as it proves payment by the complainant. When the complainant asserts that the -money was paid by her, the onus is with her, and she must make proof aliunde. Where there is an ambiguity, the person claiming under the instrument must explain it. When a description suits two persons, the claimant must show that he was the person intended. The complainant has not only failed to make the requisite proof, but the proof
Concurring, as we do fully with the counsel of the appellants in the view taken of the facts of the case, we are not called on to make an application of the principles presented in the very profound and interesting argument addressed to us on the law of the case. That argument was only intended to meet a different view of the facts. We may be permitted to remark, however, that possession is an apparent right, and when it has been long continued, it is highly favored by the law, which sustains it by all reasonable presumptions. The authorities abundantly prove that, in favor of long possession, almost every variety of written evidence of title will be presumed. The defective links in the chain of title will be supplied by presumption, and the title declared perfect, where the possession has been continued for a great length of time without interruption. The statute of limitations is but a recognition of the same principle, differently applied. We are not required by the state of the case to apply the doctrine of presumption, arising from lapse of time. All presumptions are in favor of the possessor; none against him. The respondents, who are in possession, have abundant protection in the weakness of complainant’s title, without a resort to the presumptions of law to supply a supposed defect in their own.
Let the decree of the chancellor be reversed, and the bill dismissed.