Hallett v. Eslava, 2 Stew. 115

Hallett v. Eslava

2 Stew. 115 | Ala. | 1829

By JUDGE COLLIER.

The facts shewn by the bill of exceptions require that we should express an opinion; first, upon the nature of the title of the defendants founded on previous possession: second, upon the legality of the certificate offered by the plaintiff: and third, whether the possession of documentary evidence of title gives paramount right.

Evidence of title to real property founded on and deduced alone from possession, is the most unsatisfactory and inconclusive of all other, by which title is made out.

Possession cannot, consistently with reason and law, unless sanctioned by the length of time which the Legislature have prescribed a3 a bar to an action to try titles, give a right to lands, but can only be considered in a case thus circumstanced, as creating a presumption that the title is with the possession. It is believed that a plaintiff can only recover where such proof is not accompanied with, or countervailed by proof of title in another. The presumption which it creates may be destroyed in various ways, by shewing that the title was not with the possession, a# that the possession was permitted, or that it was held against the consent of the person in whom the title is. This brings us to consider the second point.

By an act of Congress passed on the 8th. of May, 1822, entitled an act confirming claims to lots in the town of Mobile, &c.a when taken in connection with an act of the same date, entitled “an act supplementary to the several acts for adjusting the claims to land and establishing Land Offices in the District East of the Island of New Orleans,”b power is given to the Register and Receiver at Jackson Court House, Augusta, Mississippi, in default oí commis*118sioners specially appointed to confirm claims to lots in Mobile, derived under British or Spanish authority, and upon a claim being reported on favorably, they are authorised to issue a certificate of confirmation to the person entitled, setting forth the nature of the claim, and the quantity of the land allowed. The certificate seems to be sufficiently formal and to have been regularly issued.

By an act of the Mississijipi Territory, a “all certificates issued in pursuance of any act of Congress by any of the boards of Commissioners, Register of a Land Office, &c. upon any warrant, &c. for any land in this Territory, &c. shall be taken as vesting a full, complete and legal title in the person in whose favor the said certificate is granted, &c. and the same shall be received in evidence as such in any Court in this Territory.” The acts of Congress have authorised the issuance of the certificate. The territorial act just recited declares what fact it shall be taken to prove, and for that purpose has made it evidence. It now remains to consider the third point.

The certificate, it is declared by our statute, vests the legal title fully and completely in the grantee. Possession it has been said conveys no title in itself, but is evidence when uninterrupted for a long space of time, that the title is with the possession; the force of which presumption yields to documentary evidence. If then the possession of the ancestor was of a character to authorise the inference that the title was vested in him, that inference must yield to the strength of the title vested by the certificate in the heirs of Farmer. It is unnecessary for us to decide upon the legal effect of the certificate further than we have expressed ourselves. Its conclusiveness as evidence against all persons who claim adversely,. or whether the facts and and suggestions on which it issues can be enquired, into now, are topics which cannot be legitimately adjudicated in this case. We will however remark, that the method pursued under the direction of Congress, of examining and confirming, and rejecting the Spanish and British land claims, seems to have been sustained by the Supreme Court of the United States in De La Croix vs. Chamberlain.b

In the action of trespass to try titles, the plaintiff must recover upon his own title, and if he shall make out & grima facie case, it is competent for a defendent to shew a bettor title in a third person. It was therefore legal lor the plaintiff to have defended himself behind the title in the heirs of Farmer. It is scarcely necessary to say any thing of *119the proof of purchase from the Spanish commandant by the ancestor, as it seems not to have been regarded by the presiding Judge in his charge; we however think that prima facie, he had no right to sell. Could the fact of sale be made out by legal testimony, it would be proper to give evidencfe of a right to dispose of the property before the sale could be made availing, if at all. We are of opinion, from the facts appearing on the record, that the Court should have instructed the jury that the certificate offered by the plaintiff, overbalanced the presumption of title in the -defendants founded on the possession of their ancestor.

Judgment reversed and cause remanded.

The Chief Justice not sitting.

Land Law, 819.

Land Law, 323.

Laws Ala. 248.

12 Whea. 599.