3 Stew. 60 | Ala. | 1830
It is assigned for'error, 1st. That the verdict and judgment are erroneous for their uncertainty in describing the land recovered. The alleged uncertainty, is explained in argument to refer to the terms adopted to express the quantity of land intended to be
The further inquiry on this point is, docs this record contain the requisite certainty? The method adopted by the Federal Government for dividing out the public domain into townships and sections, and the allotment of sections into less subdivisions, is known from the public laws. This is done preparatory to the sale or other appropriation of them. It is a fact of universal notoriety, and unavoidable in its nature, that the different townships and sections, though intended to be of the same dimen-tions, and so suryeyed as nearly as practicable, vary con
In as much then as the different allotments of the public lands sold to the French association, as well as those in most other pails of the State, must vary in quantity, it. was difficult or impossible for the defendant in error, without an actual survey', to ascertain the exact quantity or dimensions of the land sued for. From the description oí the land given in the declaration, it is perfectly evident, that Noel claims, and attempted to describe three eighths of the north half of section No. 25, and that to be taken from the east side of the said half section. His description contained reasonable certainty; the lot or tract may not be precisely, but must be near the quanty and dimensions he gives. It is therefore sufficient to say “about” so much, at least when accompanied with definite bounds on the north, east and south, and when described as being; bounded on the west by part, which must be the residue, of the said north-east quarter of said section No. 25.
2. As to the second assignment of error, all may be embraced which imputes error in the admission by? the Court, as evidence, of the paper purporting to be the original contract between the Secretary' of the Treasury of the United States, and Charles Villar as agent of the association of French emigrants, and also the admission of the copy thereof.
The original contract objected to, is the same that was tested as evidence in the case of White v. Saint Guirons,
3. Under the next assignment of error, will be noticed the objection that the French emigrants or allottees were incapable of assigning their interest; and that the Court below refused to instruct the jury, that if they believed the plaintiff below was an alien, they ought to find for the defendant.
It is admitted with respect to the first branch of this exception, that an inchoate title to lands, as well as one more complete, by the principles of the common law, may be assigned. But it is contended that the spirit and design of this contract, necessarily restrain alienation by implication. That as its object was “to set apart, and dispose of certain public lands for the cultivation of the Vine and Olive,55 and the French emigrants were supposed to be peculiarly fitted for the enterprise, the right of alienation by them would defeat the purposes of the grant. By the act of Congress of the 3rd of March 1817, the Secretary of the Treasury was authorised, under the direction of the President, among other duties, to make allottments of the lands among the individual emigrants, to stipulate in the proposed contract, for such conditions of settlement,
It was further contracted between the Secretary and the agent of the allotces, that on payment being made, and the fulfilment of the other conditions prescribed in the contract, patents should be granted to the respective individuals, or their assigns, for lands to which they might be entitled, under the act of Congress; but that no patent should be granted for a greater quantity of land than U40 acres for any one person; nor should any patent be granted for any of the land, or any title be obtained therefor either in law or equity, until payment was made, and ail the other conditions were complied with and performed.' Doubtless the United States posseses the right, and in several instances has exercised it, of rejecting the names of such persons claiming allotments, as come not within the description of French emigrants. But it has not been discovered or shewn, that either the law or the contract have restrained alienations of the claims or interest in the respective allotments, either in their incipient state, or af-terwards. On the contrary it is seen that after the conditions shall have been performed, the United States has stipulated to grant patents to the respective individuals, or their assigns. Patents can never be rightfully claimed until the conditions precedent have been complied with, yet we have no authority to say that any claim of an as-signee will then be rejected on- the ground of the transfer, or that an assignee shall not have the full benefit of his contract until denied by the government.
The second branch of this exception is, that an alien is incapable of maintaining an action to recover real estate. This is a question of the utmost importance, whether considered with reference to this controversy, or to its influence on the principles of civil liberty, and national policy. Its importance, however, is entitled to no other influence on the Court, than to strengthen their desire to decide ii according to the best established principles of law. The
On the part of the plaintiif in error it is contended, that though an alien may purchase lands, he cannot hold them; consequently he cannot, in any form, maintain an action for their recovery. Some of the authorities referred to by the counsel, afford some sanction to this doctrine. Among others may be noticed 2 Blaekston’s Commentaries
It also appears to have been held that an alien could not maintain a real action for the recovery of lands: but that it did not then follow that he might not defend, in areal action, his title to lands against all persons but the sovereign.
In support 01 the contrary doctrine we are also referred to many authorities. Judge Kent
Also in the case of Jackson v. Sunn,
This is a question on which the decisions of the Supreme Court ot the United States are more particularly entitled to the respect of the Slate tribunals, for the reason, that the right in question, as well as the titles to lands in this State and several others, in most instances emanate from that source. On a slight review of the decisions of that Court, it will be found, that it sustains the right of aliens to acquire lands by purchase; to hold them, and instituto suit for their recovery, unless the sovereignty interpose, by instituting an inquest, and effecting what is called an office found. In the case of Fairfax’s Devisee v. Hunter’s Lessee
Again in the case of Governeur’s heirs v, Roberson,/ the same Court, in an opinion delivered by Johnson J., to which there was no dissent, held that an alien may take real property by grant, whether from the Slate, or a private citizen, and may hold the same, until his title is divested by an inquest of office, or some equivalent proceedings. The Court remarks, with reference to the language used by Blackstone, “that if the King grants lands to an alien, it operates nothing,” that it would be doing injustice to the writer not to weigh his meaning by the
4. The two remaining exceptions may be blended, as the last point involved in the case. It is objected that the Court permitted the paper, containing a drawing of lines, a list of names, &c., bearing date October 26, 1819, as set forth in the bill of exceptions, and also the deed from John Haez to the plaintiff below, to be read to the jury as evidence.
Noel claims to derive title through Haez to part of á tract of land which had been allotted to Gaines, whose name in the contract mentioned as having been executed between the Secretary of the Treasury and Villar the agent, with many others, had been erased from the list of allot-tees. In lieu of several allottees whose names had been rejected, several other persons were designated in the contract as their successors. Other allotments thus remaining vacant, it was agreed they should- be assigned to other late emigrants, subject however to the regulation, that their names should be presented to the Secretary of the Treasury for his approbation, by the agent of the association or his successor; but that actual settlement should in all cases be an indispensable condition. Authority subsequently given by the Secretary, in the form of a letter, dated January 11, 1819, to the agent, directed that Messrs. Peniere and Meslier should designate the persons to whom the allotments should be assigned according to the terms of the contract; and it was further directed that should these persons disagree as to the persons who ought to be provided for out of said allotments, they might either appoint a third associate, or determine the selection by lot. But the names selected were to be transmitted to
Much is due to the discretion of the Court of original jurisdiction, as to the particular order in which the several links composing the chain,of title shall be introduced, provided it be rendered complete. To commence at the source and trace the title, by regular conveyances, to the plaintiff, would appear to be the most natural order; but various circumstances may excuse a departure from this course.
In this case I shall take notice of the objections made to thejudgment of the Cir-cuí* Court, in the order pursued by the counsel for the plaintiff in error,
The first proposition contended for was, that the description of the premises sued for, was too uncertain to sustain the judgment; that thejudgment and verdict refers back to the declaration for a description, and ihat the land is then described as being a tract, “containing about 120 acres, and about half a mile long north and south, and about three-eights of a mile wide east and west, and situated on the eastern side of the N. E. quarter of section No. 25, township No. 20, range 4, east.” From this description it appears that three of the boundary lines are given, but the length of two of them is undefined and' the quantity of land is left uncertain. If the metes and' bounds had been distinctly and definitely set out, then certainty as to the quantity would be immaterial. But certainty as to quantity would aid an imperfect description, provided the land be sufficiently identified. If the land had been described accurately in the verdict, this would have cured the imperfect description contained in the declaration; for I hold that the land must be described with certainty, either in the verdict, or declaration, and that when the quantity and description are both uncertain, as in the present case, thejudgment is clearly erroneous.
From the authorities which I have considered with some deliberation, I infer that the land should be described with that certainty, which will place its identification beyond a doubt; with such certainty that a verdict might-be pleaded in bar to another action for the same premises;, and with so much certainty as would enable the Sheriff to. know of what land he was to give the plaintiff possession. As a judgment imports absolute verity, it is essential to-its validity that it be equally certain, and it ought not to > require extrinsic aid nor any further act of the party to give it force and effect.
The second position was, that the contract made by the Secretary of the Treasury, under the seal of the Treasury department, with Villar, the agent of the French colony,.
The third position relied on, was, that there was no proof of title in Haez, and who consequently had no right which he could legally convey to Noel the plaintiff. The evidence going to shew title in Haez is what was emphatically and correctly called by the counsel, a non-descript paper, and which no doubt was intended to be a very material link in the chain of title; but it appears not to be connected therewith by sufficient testimony. There is no sufficient evidence to prove that Haez was substituted in place of Gaines, or that the land in dispute was allotted to him, under the provisions of the contract, and in pursuance of the instructions of the Secretary of the Treasury. These material facts cannot be inferred from the face of this non-descript paper. On this ground therefore I concur with the Court in reversing the judgment.
But two other propositions were assumed,which if true, must effect an entire reversal of the case, and defeat the plaintiff’s claim for ever. The one was that if Haez was a grantee under the contract, yet his interest was not assignable before the annexed conditions should be performed. The other was that the plaintiff Noel was an alien, and could not maintain an action for the recovery of land.
As to the first proposition, it will be recollected that the main object of the government, in granting four townships of land to the French emigrants, was to encourage the cultivation of the Vine and Olive. It was supposed by the government, that these emigrants coming from a soil and climate which were congenial to the growth of the grape, these.branches of agriculture would flourish under their better skill and experience. In order to advance the principal object of the grant, many inducements were held out, and favors conferred. The selection was made from the most valuable lands in the country. To each ipember of the association was granted a half section, and.
When the conditions annexed to the grant shall have been performed, the government then covenants to give a patent to the grantees or their assigns; but it is expressly declared that no title, either in law or equity, shall be obtained until full and complete payment shall have been made, and the conditions and stipulations faithfully performed.
I will not inquire whether such an interest in land could be assigned at the common law. It is^nough for my purpose, if from the object of the grant, the spirit and meaning of the contract, and conditions annexed, an inability to assign can be fairly deduced. If the grantee had no title in law or equity, then he had nothing which could be assigned, so as to enable the assignee to maintain a legal action. If the right of assignment existed at all, it must have been as perfect immediately after the making of the contract, and the allotment of the land, as now. And if so, the grantees might have assigned to persons, who were not emigrants from France, and who knew nothing about the culture of the Vine and the Olive, and thus would, have totally defeated the object of the grant in its inception. When the conditions and stipulations annexed to the contract were performed, then and not till then, they were authorized to assign, because then the object of the grant would have been attained, and the grantees would have acquired something like an assignable title. That the conditions have not been performed is a fact of public notoriety, and may be considered as a part of the history of the country. Indeed the time has not yet arrived, when the payment is to be completed. But I will not resort to public notoriety to maintain a legal proposition. I insist that if an assignee, who must be viewed as a stranger to the original contract, had a right to maintain the action before the grant of a patent, it was incumbent on him to prove at the trial, that the conditions had been performed. In the case of White v. St. Guirons, as I understand it, the action was brought by a grantee, party to the contract, who stands in a very different situation from an assignee; and for this reason, it was determined, that his claim ought to prevail against all persons
As to the last proposition, which was that the alienage of the plaintiff was a good defence under the general issue of not guilty, it is laid down in many authorities on the subject, that alienage of the plaintiff is an available de-fence in bar to an action for the recovery of land; and the authorities further maintain, that, what constitutes a good bar at the commencement of this action, is admissible in evidence on the trial of the general issue. The question then to be settled i$at what time would alienage constitute a good defence. Is it before or after the inquest of office hath been found against the alien? Though with us it may be said to be novel and difficult, yet on a careful examination of the law, and especially the decisions in Massachusetts and New York, and the doctrine as laid down by Chancellor Kent, I am inclined to think it well settled, that an alien in possession of land may defend against all persons except the government, or its grantee; that an alien cannot claim by inheritance, but that he may purchase and hold land; sue for and recover it, at any time before inquisition of office hath been found against him, escheat-ing the land to the government. In this position therefore I.concur with the rest of the Court. As to those points touching which it is my misfortune to differ from them, I wish to be understood as entertaining great respect for their opinion, while I am constrained to adopt a different one as the result of my judgment.
Judgment reversed and cause remanded.
Bul. N. P. 109.
Esp. N. P. 448 1 Bun. 629.
See Wheat. Sel. 565, and references.
Minor's Reports 331.
Page 347-8
Co. Litt. 129 b. 1 Mun.618.
2 Com. 46.
3 John. Cases 109.
1 Mass.Rep. 256.
8 Mass. Reports 430. 12 idem 143.
1 Bac. Abr. alien c. p.133
5 Co. 22.
Park’s Rep 267, ib 144. Hob. 231. Bro.Denizen pl 17. Co. Litt. 2 b. /11 Wheaton 351.