7 Ala. 882 | Ala. | 1845
— The fourth section of the act of 1812, “ for ascertaining the titles and claims to lands, in that part of Louisiana which lies east of the river Mississippi, and island of New Orleans,” directs, that persons claiming lands in that “ tract of country,” by virtue of any grant, order of survey, or otherevidence of claim whatsoever, “derived from the French, British, or Spanish governments,” shall exhibit their claims to the commissioner appointed for the examination of the same, that he may cause them to be recorded, &c. By the fifth section, the commissioner is authorized “ to inquire into the justice and validity of the claims” filed with him, &c.; and the seventh section requires the commissioner, &c. to prepare, &c., abstracts from the records of claims exhibited, and report them to the secretary of the treasury, who is to lay them before Congress, “ for their determination thereon.” [1 Land Laws, 208, ed. 1838.] The lands in question being situated within the territory to which the statute refers, the then claimants submitted the evidence of their title to the commissioner for examination, who reported thereupon in November, 1817, that John Forbes & Co. were then, as well as originally, the claimants under the Spanish government, by grant, dated 25th September, 1807, That the quantity claimed was three hundred and ten arpents, 77! perches, situated near Mobile, surveyed on the 14th September, 1807, and cultivated since the year seventeen hundred and seventy-nine, &c. He further reported, that the claim was founded on a complete grant which was valid, agreeably to the laws, usages and customs of Spain.
On the third of March, 1819, Congress legislated upon the commissioner’s report, and enacted, “ that all the claims to lands founded on complete grants, from the Spanish government, reported to the secretary of the treasury, by the commissioners, from the district east and west of Pearl river, appointed under the authority of an act, entitled ‘ An act for ascertaining the titles and claims to lands, in that part of Louisiana, .which lies east of the river Mississippi, and island of New Orleans,’ which are contained in the several reports of the commissioners, and which are, in the opinion of the commissioners, valid, agreeably to the laws, usages and customs, of the said government, be and the same are hereby recognized as valid and complete titles against any claim on the part of the United
It will be observed, that the grant to Forbes & Co. does not derive its legal efficacy from the statute cited. The act of 1819, explicitly recognizes, that is, acknoivledges it to be a valid and complete title against the United States, or any right &erived from the United States. It does not confirm or impart to.it validity, but admits that per se it possessed this quality; that independently of the legislation of Congress, it operated proprio vigore.
It is objected to this view of the statute, that as Spain, by the treaty of St. Ildefonso, ceded the country west of the Per-dido, and south of latitude thirty-one, to France, it was incompetent for the Spanish authorities, subsequent to the date of that treaty, to grant the land situate within the same ; and therefore, the grant to Forbes and company, made some seven years thereafter, was a mere nullity. True, every department of the Federal government has maintained that France thus became the proprietor of this territory, that France ceded it to the United States, and all hough a portion of it remained in the possession of Spain up to the year 1813, the latter government could make no disposition of the soil subsequent to 1800, when the treaty of St. Ildefonso was negotiated. In thus asserting the rights of the United States, the judiciary was but carrying out the principles and opinions often expressed, both by the executive and legislative departments. It has never been intimated, by any decision, that it. was not competent for Spain, during the period of its occupancy, to grant the lands in the ceded country, with the assent of the United States, or that Congress could not recognize its grants as valid. The course of the judiciary has been mainly influenced,by the opinions and course of action of the co-ordinate branches of government; if these had yielded to Spain the dominion of the soil, by acquiescing in her construction of the treaty under which she ceded Louisiana to France, the judiciary would doubtless have re echoed their conclusion. This the Courts should have done according to strict propriety. Both the executive and legislative depart
In speaking of incomplete titles, originating after the treaty of St. Ildefonso, the Supreme Court of the United States say, “ Such claims are certainly not beyond the reach of Congress to confirm, although it may require a special act of Congress for that purpose; and the present claim being founded upon such act, distinguishes it from the doctrine of this Court, in the cases of Foster and Elam v. Neilson, 2 Peters, 253; and Garcia v. Lee, 12 Peters, 511. And such claims have been recognized by this Court as existing claims,and_ not treated as being absolutely void.” [Lessee of Pollard’s heirs v. Kibbe, 14 Peters’ Rep. 365. See also, Keene v. McDonough, 8 Peter’s Rep. 310.]
Mr. Justice Baldwin, in a separate opinion, which he delivered in the case cited from 14 Peters, notices the different classes of claims enjbrabed by the'act of 1819. The first, are those founded on complete grants from the" Spanish government, which are, in the opinion of the commissioners, valid, and agreeably to the laws, usages and customs of Spain. These we have seen, are “recognized as valid,” &c. The learned Judge says, “Both the acts of 1819 and 1822, being founded on the reports of the commissioners, must be taken with reference thereto; and recognizing the claims therein reported as valid, to be complete titles by their intrinsic effect.”
The fourteenth section of the act of 1804, “erecting Louisiana into two territories, and providing for the temporary government thereof,” enacts, that all grants for lands within the territories ceded to the United States by the French Republic, by the treaty of Paris, in 1S03, made after the treaty of St. Il-defonso, shall be deemed null, void, and of no effect, from the beginning; except in certain cases, &c. [1 Land Laws, 114, ed. 1838.] Surely it was competent for Congress to disregard this enactment, and give to the treaty a different exposition as to all grants ,whidh were valid by the Spanish laws, or else exempt from its application certain claims, by acknowledging that they a,re “valid and complete titles,” against the United States, or persons claiming under them. This much the act of
It is further objected to the title of the plaintiff below, that it will not sustain an action at law, because no patent was obtained from the United States by the original grantees, or their legal assignees, for the lands they claim. The recognition of its validity by the act of 1819, we have seen, was an admission that it was complete in itself, and that the Federal government had no interest to convey. In Strother v. Lucas, 12 Peters’ Rep. 454, it was held, that a grant may be made by law, as well as by a patent pursuant to a law; and a confirmation by a law, is as fully, to all intents and purposes a grant, as if it contained in terms a grant de novo. And in Grignon’s Lessee v. Eckhart, 2 How. Rep. U. S. 344, it was decided, that an equitable, became a legal title, by its confirmation, by an act of Congress, which was equivalent to a patent. “It was a higher evidence of title, as it was the direct grant of the fee- which had been in the United States, by the government.itself, whereas the patent was only the act of the ministerial officers.” See also, United States v. Arredondo and others, 6 Peters’ Rep. 723-4; Land Laws, part 11, ed. 1838, Nos. 864, 1017.
It is not necessary to enable the assignees of Forbes & Co. to maintain an action, to show, that the lands embraced by their grant were actually located, and the limits defined by a surveyor, acting under the authority of the United States. The act of 1819 makes an unqualified acknowledgment of the validity and completeness of their title, without requiring any act to be done. The eleventh section, which is the only one pertinent to the present point of inquiry, makes it the duty of the principal deputy surveyor for the lands south of the State of Tennessee, to survey, or cause to be surveyed, the lands, the claims to which are confirmed, and that are directed to be granted as donations, where the same have not been already surveyed, and the lands which may be claimed by right of pre-emption, whenever directed by the register and receiver, and to execute such other surveys as may be necessary for the ascertainment of the lands as "embraced in the report of the commissioners, &c.
Although the commissioner in his report,' states the precise quantity of land granted to Forbes & Co; yet this will not limit their claim, and prevent them, or their assignees, from maintaining a title for all that was in fact granted by the authorities of Spain. The statute, as we have said, acknowledges, that the grantees had a complete title, independent of the right of the United States, and it must be permitted to operate according to the terms of the grant. If, by an extension of lines, as this contemplates, the quantity is greater than the commissioner supposes, his report cannot prejudice the title to the excess. In respect to a concession -which was confirmed, such was the opinion of the attorney general. [Land Laws ed. 1838, Part 11, No. 20.]
Under the act of Congreás of March, 1827, the register and receiver of the land office at St. Stephens made a special report, dated the 23d February, 1S28, upon the claim of Thomas Price, entitled, “Special Report, No. 1.” In March, 1829, a law was enacted by Congress, entitled, “ An act, confirming the reports of the register and receiver of the land office for the district of St. Stephens, in the State of Alabama, and for other purposes the second section of which provides, that all the claims contained in special reports, numbered one to
We have seen, that the effect of the act of 1819, is an acknowledgment of the validity of the grant to Forbes & Co., independent of the legislation of Congress. This being the case, the act of 1839, even if it were an unqualified confirmation of the concession, under which the defendants below claimed, it could not be allowed to prevail against the plaintiffs’ title. The confirmation would be an act harmless to the latter, of no advantage to the former, and operative against the interest of the United States only; interests, which, if they ever existed, are estopped from being asserted, by the act of 1819.
In the United States v. Arredondo and others, 6 Peters’ Rep. 735, it was held, “that no land which had been severed from the royal domain by antecedent grants, which were valid by the laws of Spain, and created any right of property to the thing granted in the grantees, passed to the United States; such lands were not liable to subsequent appropriation by a subsequent grant.” A government is never presumed to grant the same land twice.
In Chouteau v. Eckhart, 2 How. Rep. 344, it appears, that Congress, by an act passed in June, 1813, confirmed to the inhabitants in St. Charles, in Missouri, “ the rights, titles, and claims, to town or village lots, out lots, common field lots, and commons, in, and adjoining to the several towns and villages of
The Court, after citing several decisions of the Supreme Court of Missouri, says, ‘‘These cases maintain in substance, that such inchoate claims, (as that of Chouteau was in 1812, when the community of St. Charles took its- title, previously also inchoate,) were not changed in their character, by the treaty by which Louisiana was acquired ; that the treaty imposed on this government only a political obligation to perfect them; that this obligation, sacred as it may be, in any instance, cannot be enforced by any action of the-judicial tribunals; and that the legislation of Congress, from Í804 to the present time, has proceeded upon this constructioh of the treaty, as is manifested by the modes adopted to investigate the claims through boards of commissioners, and then acting on them by legislation. This Court held, likewise, in the United States v. Wiggins, 14 Peters, 350. Further, the Federal government being unable to confirm the same land to tw.o adverse claimants, must then, to some extent, determine between the conflicting titles. Each claimant depends upon the justice or comity of the present government; and when the government exercises its powers, and confirms the land to one, it must necessarily be considered, in a Court of law, the paramount and better title.” Consequently, the title confirmed in 1812, being prior in tem-pore to that confirmed in 1836, was held to b% potior in jure.
The case which we have noticed thus at length, would seem to be conclusive against the defendants, even if the title of the plaintiffs, instead of being recognized as perfect, was confirmed as incomplete. It is unnecessary to consider the character
In the grant to Forbes & Co. it is said, that the survey made by Collins, in 1802, shows, that the land “is situate in the district of Mobile, and on the west side of the river, a quarter of a league, more or less, to the north of the Fort, and terminated by the bank of said river on the east side, and bounded on the north by lands of Jeremiah Terry, said now to be royal domain; on the south by vacant lands, and a lot belonging'to said house (John Forbes & Co.;) and according to information, on the west, by lands of Genevieve Fisher, which are said to belong to the royal domain.5’ The grant has a plat or figurative plan, showing the form and location of the land, across which is drawn a dotted line, running due south from a point where the north line strikes the marsh of the river, over which line is written as follows: liN. 140 Perchas.” This plat is referred to by the grant, and may be considered as a part of it, but there is nothing therein said as to the geometrical length of either of the lines that limit the tract.
The bill of exceptions shows, that evidence was adduced at the trial, that the south line of the lands claimed by the plaintiffs below was the same as that on which they now insist. It was also proved by the defendants, that the lands embraced by the grant to Forbes & Co. was surveyed by Dowell subsequent to its recognition by Congress, and again by James H. Weakley, the Surveyor General of the United States. The latter run the line between the tracts claimed by the plaintiffs and defendants respectively. Both of these surveys are protracted on paper, and the latter shows, that the iron-bound stake is on the south line of the land which the plaintiffs are seeking to recover. In addition to this, it was shown, that the iron-bound stake is correctly located in the plat which illustrates Weakley’s survey. -
Under this state of fact, we think the Court very properly refused to give the fourth instruction prayed by the defendants, viz: that the grant to Forbes & Co. could not be extended more than one hundred and forty perches south of the recognized north line. There is nothing in the plat, when taken in connection with the recital, or description in the grant, which will thus limit it. The writing along the dotted line cannot
The defendants cannot complain, that they are prejudiced by this conclusion; for the act of 1829, by which their claim was confirmed, authorizes, in fact, contemplates, such a survey as that which was made by Weakley.
In Hagan, et al. v. Campbell and Cleaveland, 8 Porter’s Rep. 9, the Spanish title under which the plaintiffs below claim was before us, and the question of its eastern terminus most elaborately considered. We then held, that it not only extended to high-water mark, but that the north and south lines were to be continued without deflection to the channel of the river. This conclusion was attained upon a view of the terms of the grant, and the accompanying plat to which it referred, on which the lines were thus traced. ¶ By that decision, we are still willing to abide. [See also the Mayor and Aldermen of Mobile v. Eslava, 9 Porter’s Rep. 577.]
What we have said renders it unnecessary to add any thing as to the power of Congress, to grant the shore of the navigable waters in this State, and the effect, in a political point of view, of the act providing for the admission of Alabama into the Union. We have, in the case last cited, expressed ourselves o'n these points. It will also be apparent, that the evidence excluded upon the plaintiffs’ objection was irrelevant, and that there is no available error, either in the charges given, or in those refused. We have only to add, that the judgment of the Circuit Court is affirmed.
