1 Miss. 119 | Miss. | 1822
This cause was brought before us by writ of error from Adams supers*
The errors assigned are: — 1st. Because the court after rejecting a patent offered by the plaintiffs below, and signing a bill of exceptions, tendered by their counsel, admitted the same, as stated more particularly in the bill of exceptions.
2nd. Because the court below admitted the Spanish warrant and order of survey in said bill mentioned, and instructed the jury, that the same vested a complete legal title in the plaintiffs below.
3rd. Because the court refused to permit the defendants below to show a non compliance of the plaintiffs lessors, with the terms imposed by the Spanish government as stated in the bill of exceptions.
4th. Because the court refused to permit the defendants below, to read the Spanish grant in the bill of exceptions mentioned, for the purposes therein expressed.
5th. Because the presiding judge refused to give to the jury the instructions required by the counsel of defendants below, as detailed in the bill of exceptions.
These instructions were: — 1st. That the plaintiffs cannot avail themselves of the patent in deriving their title — 1st. because it is subsequent to the demise laid in the declaration.
2nd. Because it appears in evidence that James Cole was dead long anterior to the issuing of the patent.
2nd. That as the Spanish warrant or order of survey did not appear to have emanated from the regular Governor, but from Grandpre, the deputy, his authority for making the warrant should have appeared.
3rd. That the title to the plaintiffs, under the said warrant, or order of survey, could not accrue, until a certificate should be obtained from the board of commissioners.
4th. That the certificate offered by defendant from the board of commissioners, is conclusive of title in defendant.
The heirs, in their declaration, of April term, 1817, lay the demise to have been by James Cole, the ancestor, since dead, on the first day of
The property in contestation, is lot No. 4, in square No. 12, as designa* ted in a map of the city of Natchez. ,
The evidences of plaintiffs title are---
1st. The petition of their ancestor James Cole, for the said premises to the Spanish governor, bearing date 5th of June 1795.
2nd. The certificate of Wm. Dunbar, the deputy surveyor general, 'that said lot was vacant,- bearing same date.
3rd. A possessory order of thedeputy, governor, or Grandpre, in favor of the petitioner, for the premises in question, bearing date 6th June 1795.
4th. Certificate of survey of same, by William Dunbar, the deputy surveyor general, of date 3rd October 1795.
5th. The aforesaid patent, from the United States of America, bearing date 29th December 1815 — Viewing the title alone, and it presents the principal features of a regular, complete legal title, but when confronted with the defendant’s title, and affected by the evidence in the Case, it is said to be imperfect, and cannot prevail against that of the defendants. It is also said, that the confirmation, being by the deputy governor, and not by Guyosa, the governor in chief, the authority of the subordinate ought to appear. It may be well to consider this objection first. The character of these deputy, or Lieutenant governors, is well known to be such, that they succeed to the discharge of the executive functions, in all cases of the absence of the governor in chief, and his mandate having been complied with in the present case, on the part of the deputy surveyor general, in the absence of all proof of the want of competent authority, affords a satisfactory presumption, that at the issuing the possessory order in favor of James Cole, Grandpre was legitimately performing the executive functions in this behalf. This fact ascertained, the possessory order in favor of James Cole to the premises in question, dated 6th day of June 1795, and executed by the surveyor on the third of October of the same year, by which the said Cole was put into possession, vested in him such a right as could only be defeated by his own act of alienation, voluntary abandonment. or by such an entire failure to perform the conditions, or by some
This court, having recently, in the case of Hackler’s heirs vs. Cabel, had occasion fully to examine the character of the titles granted to donees by the act of 3 J of March 1803, and that of 27th March 1804 supplementary thereto, and being of opinion that the same reasoning and principles will apply to such as hold under a Spanish order of survey, will not again go over the grounds occupied by their opinion in that case, but adopting i's deductions, refer to them as the basis of their present conclusions, and shall consider the right of the ancestor, and the present plaintiffs below, to be such legal right, as is sufficient, so far as may depend on its legal character,' as contradistinguished from its equitable one, to warrant a recovery in ejectment.
Having given this sanction to the opinion of the court below, which induced it to reconsider its decision, excluding the patent offered by plaintiffs below in evidence of title, after it had signed and sealed a bill of exceptions taken to its said opinion, set out by the first error assigned, we will consider, whether there.is any thing in this particular attitude of the cause, which forbids a change of opinion in the mind of the court below, after its first-expression is in paper. And we can see no good reason fox-denying this privilege to the judges. At the nisi prius sessions, where hasty and imperfect opinions are necessarily often formed, in the absence of books, and an opportunity for due reflection. Why should the judge be held to a hasty erroneous opinion, and thereby be compelled to conduct the cause, contrary to his clear conviction of right, because he had signed abillofexceptionstoan opinion he has since abandoned, when by such abandonment, he can give the party aggrieved by the error, the entire bettr efit he could desire from a decision of the supreme court, without subjecting him to the inconveniences and delays of a writ of error.
In regard to the third error assigned, the authorities cited at the bar by Mr. Metcalfe, Coke Littleton, 213;. 1 Bac. abrig’t. 635, 640, and many other passages in these authorities, prove satisfactorily to us, that the question in relation to the performance of subsequent'conditions to a deed, can only be raised by the grantor or bis heirs, and this principle we think applies to the present case, of the possessory order of survey of the Spanish government in favor of James Cole, having conditions subsequent to be performed by him, the performance of which, are either admitted or dispensed with by the American government which succeeded to the sovereignty, evidenced by the issuing a patent, for the premises in question, to the said Cole &. heirs. Had the United States, refused to confirm this order of survey, and the contest was now between them and Cole, it would perhaps in such case, have been proper to let in parol evidence, to show a non performance of conditions. It is attempted to evade the effect of this principle, by considering the expressions, that the land was vacant, some where made in the subsequent conveyance to Ros, as conclusive evidence of an official act of revocation and confiscation of Cole’s right, but this agreement has already been answered,, and had little weight with the government of the U. States, which preferred the claims of Cole, resting on his possessory order of survey, to the rights of those who claimed under the grant to Ros, even after this had received the sanction of their own board of commissioners. Whatsoever might be our opinion upon this subject, where a declaration of the Spanish government, which had the solemnity of a direct, express, and judicial decision against the rights of Cole, for a non performance of the stipulated conditions annexed to his grant, was under discussion, or even where there had been no confirmation of Cole’s rights by the former or present sovereignty, in the present case, we think the parol evidence was correctly excluded by the court, and that the plaintiffs in error cannot prevail on this ground. It may make this opinion more satisfactory to remark, that Cole was not put into possession until the
The arguments which induce us to overrule the third error assigned, produce the same convictions, in regard to the fourth.
We will now examine the grounds of the fifth error assigned, which relates to the refusal on the part of the court to give certain specific chai ges to the jury. The court was required in the first place to charge the jury, that-the plaintiffs could not avail themselves of the patent in deriving their title.
1st. Because it is subsequent to the demise laid in the declaration.
2d. Because it appears in evidence, that James Cole was dead long anterior to the emanation of the patent. •
The first of these objections, would have been very formidable, had the plaintiffs title rested wholly on this patent, but as we are inclined to think their title good, for all the purposes of bringing and sustaining this action as it existed in the order of survey, and the confirmatory act of Congress, in the ancestors, we consider this patent as a formal part of the conveyance, and shall have relation back to the substantial investiture of title aforesaid, and in this acceptation, the patent was well admitted. In 5th Cruise on real property 551, Lord Mansfield is reported to have said“
In 2nd Wilson H ep. 15, Roe vs Hicks it is said, that the surrenderee may recover the mesne profits from the time of the surrender, after he is once admitted, and so may a foofee from the date of the feofment afterliv-
The second specific charge required of the judge, was desparaging 'the official act of governor Grandpre, in the absence of proof of his au thority, and the answer to this has already been given. The third specific charge the judge was required to make, was, that the plaintiffs,-or their ancestor, had no title under the warrant or order of survey, until confirmed by a certificate from the hoard of commissioner^. Congress, by their acts, could not impair the vested rights of an individual, much less could any subordinate authority; but without placing the decision on that ground, it is sufficient for the present purpose, to consider the board of commis•sioners, and their acts, as subsidary to the general land office, proceeding under the sanction of the president of the United States, with full power, not to obstruct or vacate the rights of any claimant, but to advance and perfect them by their consummation -in a patent. A mere stranger, without title, could not say, at least in a court of law, that a patent ob-•iained without fraud, was a nullity, nor could any one, claiming under acts of the same government, which issued the patent, be permitted to say •on behalf of > that same government, that one of its acts was entirely inva
the fourth and last objection that the court refused to give in charge, that the certificate of the commissioners offered by defendant is Conclusive evidence of title.
The only question which remains to be considered, is the one raised by plaintiffs’ counsel, and for the solution of which, one of them devoted his whole argument, considering the Pase to rest upon it. Can the heirs recover on a demise of the ancestor, which implies an ouster at a time when they had no right to possession, the ancestor being then living, not set out in the assignment of errors, but if the record is pregnant with it, and it be error, the court can look through the record, and reverse the judgment, therefore, though not expresly assigned for error.
InRunington, on Ejectment, 23, it is laid down, by the modern practice, the defendant is obliged by rule of court io confess lease, entr3', and ouster; yet that rule was only designed to expedite (he plaintiff’s right, and not to give him a right he had not before. Hence it must appear, that the plaintiff had actually the possession, and was ousted thereof by the defendant; for the ejectment is an action of trespass in its nature, and is said-to have been committed vi et armis; St must, therefore, be done lo the person himself complaining, and not to anolher who had the plaintiff’s possession, though his title may 1 e affected by the ouster, for it would be absurd to state, that the defendant vi et armis ejected the plaintiff, when it appears by his own showing, that he had not the actual possession, but it was at the time of the ouster, in another. Therefore, if a lessee for years make a lease to B. at will, and B. is ejected, A. cannot sustain this action, upon that ouster; because, though 'the possession of B. was in law the possession of A.,yel the trespass viet armis, which is complained of, must be against the actual possession,1 which was in B. 1 Roll. Rep. 3. Runington, page 24, gives the following case from the same authori
This last case differs in nothing from the one which is now the subject of adjudication before us, but in this, that the demise is laid in the name of the heir, instead of that of the ancester; yet if, on a demise in the name of the heir, a proof that the ancestor was living at the time, and therefore the heir had not right to enter, which is a principle conceded in this case, though the facts did not in the mind of the court make out such a case, recovery cannot be had; the case would seem to be stronger where
The principles of these cases, and others having the same bearing, are to be met with in Adams on Ejectment, and other books of unquestionable authority, but need not be here adduced. These authorities are sufficient to convince us, that if there^were no interposition of the statute, but the case was to proceed upon the principles of the common law, notwithstanding the great leaning of the judges against the forms, and in favor of the substantial results of this action, it would be perhaps carrying that bias too far to overwhelm such a host of authorities. Many cases could ■be cited from the books, where, in the language of lord Mansfield “courts have gone the greatest extent in supporting ejectments,” which however need not be exhibited, since we are of opinion, that our statute of jeofails, ■in regard to this particular action, has left no discretion with us upon this subject. It is to be found in Turners Digest, page 186, sec. 142, of courts and is in the following words- “After issue joined in an ejectment, on the title only, no exception to form or substance shall be taken to the declaration in any court.” We therefore consider that plaintiffs at the time they instituted their action, had such a title on which they ought to recover in ejectment, and the only defect is in the manner of setting it out, and are protected herein by the statute just recited.
This is not analagous to the case stated by the defendants counsel, when the plaintiff in ejectment, having at one term of the court laid a demise in the declaration1 from A. and by an amended declaration, filed at a subsequent term, laid a demise from B. could not he permitted to connect the ■rights of A. and B. so as that if he failed in showing a title in A. but proved a title in B. who had not filed his count till after the statute of limitations would have interposed a bar, could not be permitted to amend, so a3 to connect the count filed by B. with the date of the count filed by A. «when the ¡statute of limitations had not yet given a title to the defendant.
Let the judgment be affirmed.-.