Doe ex dem. Nevitt v. Beaumont et al., 6 Howard 237

Mr. Chief Justice Sharkey delivered the opinion of the court. This- is an action of ejectment instituted in the circuit court of Adams county, by the plaintiffs in error, against the defendants in error. The questions for our determination arise out of two instructions given by the court to the jury, at the request of defendants’ counsel.

After the testimony was closed, the defendants’ counsel moved the court to charge as follows: First. “That a title to land confirmed by a Spanish grant legally and fully executed, is superior to a title under a Spanish warrant or order of survey confirmed; and if the jury believe defendants’ claim title, and have proved a confirmation of title under a Spanish grant legally and fully executed, and the plaintiffs have no other title than a confirmation of a Spanish warrant or order of survey, they must find for the defendants; and, second, that the confirmation to Stephen Minor of a less number of acres than are mentioned and called for in the grant, without specifying that such confirmation is for a part of the land embraced or described in the grant, is a confirmation of the title to the whole tract of land called for in the grant.” The title of the plaintiffs is not set out, and we can only know from the instructions given by the court, what kind of title was shown.

It seems to have been a confirmed Spanish warrant, or order of survey. The defendants introduced a notice of a claim presented by Stephen Minor to the board of commissioners west of Pearl river, in which said Minor claimed three hundred and fifty-nine arpents of land, as assignee of Richard Harrison, by virtue of a complete Spanish grant to said Harrison, bearing date in March, 1783, accompanied by a map of the land.

They also presented the certificate of confirmation to Minor for fifty-nine acres of the land claimed, the remainder having been sold by him to the government, which certificate bears date the 16th of May, 1806, and was given in conformity with the act of Congress of 1803.

They also introduced a certificate of survey made by the surveyor general of the district of Natchez, dated the 6th of March, 1795, in which he certifies that he had surveyed for Stephen Minor, in compliance with a decree of the general government, eleven hundred and fourteen square arpents of land, situated in the district of Natchez, about four miles north-east of the fort. This land seems to have been surveyed for Minor in virtue of several different claims which had been acquired by him. The certificate of survey is also accompanied by a map.

On this certificate of survey a Spanish patent was granted, which was also introduced with the certificate of confirmation by the board of commissioners. Thus it will be seen that the defendants relied on two Spanish patents to Minor, covering, as it appears by the maps, adjoining lands, but it does not distinctly appear which covers the land in controversy; it is admitted, however, that the land in dispute is embraced by the title of both plaintiff and defendants; it is therefore a matter of little consequence which of the defendants’ patents includes it, both being titles of the same grade.

There is no question about boundary, it is a question which depends on strength of title. For the plaintiff, it is argued that his title is superior and should prevail, being an older warrant or order of survey under the Spanish government. It would be a sufficient answer to this position to say, that the plaintiff has not shown the date of his title, or the time of its confirmation by the commissioners; but assuming it to be an older warrant or order of survey, the question is, whether such a title is superior to a Spanish grant legally and fully executed?

To enable us to solve this question, we must of course look back to the origin of the respective titles. That the Spanish government never had a right of soil above the thirty-first degree of north latitude, is no longer a debatable question. The treaty of 1795, by which the line between the United States and the provinces of East and West Florida was established or recognized at the thirty-first degree of latitude, was a mere settlement of territorial limits according to pre-existing rights.

Spain did not cede any territory above the boundary then acknowledged, but admitted •that tbe territory above that parallel had previously constituted a part of the territory of the United States. As a consequence of this adjustment, it followed that the possession by Spain of the territory in which this land is situated was wrongful, and as Spain never had the right of soil, it was manifest that' grants or titles derived from that government were invalid, for want of title in the granting power.

Anterior to the date of these patents, and up to the year 1802, the right of Soil was admitted to be in the state of Georgia; and of course titles originating during such ownership by Georgia possessed no intrinsic validity, unless they were acquired from the true owner of the soil. See Harcourt v. Gaillard, 12 Wheaton, 523; and Henderson v. Poindexter, 12 Wheat. 530. On the 24th of April, 1802, Georgia ceded the land which after-wards constituted the Mississippi territory to the United States.— By the second

article of .cession provision was made “that all persons'who on the twenty-seventh day of October, one thousand seven hundred and ninety-five, were actual settlers within the territory thus ceded, should be confirmed in all the grants legally and fully executed prior to that day, by the former British government of West Florida,- or by the government of Spain,” and they were also confirmed in claims derived from actual survey or settlement made under

an act of the legislature of Georgia for laying out a district of land situated, on the Mississippi river, to be called the county of Bourbon, passed the 7th day of February, 1785.— By the third

article it was'provided that the land ceded, after satisfying the sum of one million two hundred and fifty thousand dollars to the state of Georgia, and the grants recognized by the preceding conditions, should constitute a common fund for the United States.

This article' contains a proviso, that the United States might, within one year after the assent of Georgia to the boundary established, in such manner as not to interfere with the payment to be made to the state of Georgia, “ nor with the grants hereinbefore recognized, dispose of or appropriate a portion of the said' lands, not exceeding five millions of acres, or of the proceeds of said five millions of acres, or of any part thereof, for the purpose of satisfying, quieting or .compensating for any claims, other than those hereinbefore' recognized, which may be made to the said lands or any part thereof.” In legislating under this proviso, Congress, in March, 1803, passed

an act, by the first

section of which persons who were resident in the Mississippi territory on the 27th day of October, 1795, and who had prior to that day acquired from the British government of West Florida or from the Spanish government any warrant or order of survey for lands lying within said territory, and which on that day were actually inhabited and cultivated by such person or for his use, should be confirmed in his or her claim to such land in the same manner as if his title had been completed, the claimant being at the date of his claim the head of a family, or above the age of twenty-one. The second

section provided for a donation to actual settlers when the country was evacuated by the Spanish troops, and the third

section secured pre-emption rights to" actual settlers at the date of the act. The subsequent sections provided for the establishment of boards of commissioners for investigating claims, and the time and manner of their presentation and allowance. It will thus be plainly seen how the two titles originated. The plaintiffs claim under an order of survey from the Spanish government. We have said that the Spanish government possessed no right to convey; the order of survey therefore passed no title. It possessed no intrinsic validity.

Such titles, however, were recognized and directed to be confirmed by the act of 1803, and from that act alone do they derive their validity. Congress, under certain restrictions, had an undoubted right to confirm such titles, or rather to make donations to such claimants, in consequence of their pretended claims, and when their titles were thus recognized they became good and valid titles, having relation back to their inception, so as to cut out junior claimants who derived their titles from the same source.

Let us then inquire whether it was competent for congress to place such titles on an equal footing with complete British and Spanish grants. The United States acquired the right of soil in 1802, by cession from the state of Georgia; previous to which time the Federal Government had no right whatever to the soil.

Such private rights as had been previously acquired from Georgia, were of course not divested or in any way affected by the cession, and it was competent for Georgia by the treaty to recognize the validity of such titles as she might think proper, and titles thus recognized were placed beyond the reach of congress, except so far as power over them was expressly or impliedly given by the articles of cession.

By those articles, persons who were actual settlers within the ceded territory on the 27th of October, 1795, were confirmed in all grants legally and fully executed, made prior to that day by the British government of West Florida, or by the government of Spain, and also in grants made under the Bourbon act. In this consists the superiority of the defendant’s title. It was secured' by the same treaty which passed the soil to the United States, and was in all respects equal to the title of the United States. The mere Spanish grant was not in itself a valid title, but 'it was made the basis of a title by treaty.

The individuals who held such grants, and who were inhabitants of the territory in 1795 were confirmed in them; and not only were they confirmed, but their titles were made paramount to any that could be conferred by the United States, for although express power was given by the articles of cession to the Federal Government to appropriate five millions of acres of the ceded lands for the purpose of satisfying and quieting other claimants, yet such appropriation was not to be made so as to interfere with the grants recognized by the articles of cession.

As the Spanish patent under which defendants claim was recognized by the cession, congress was prohibited by the proviso in the third

article from maMng any appropriation of any part of the ceded territory which should interfere with it. None but actual residents were confirmed in these grants legally and fully executed.

By the 5th sec. of the act of congress of 1803, all persons claiming lands by virtue of any British grant, or by the articles of cession, or by the three first sections of that act, were required to present a written notice of their claim to the commissioners, together with the deed, grant, order of survey, or other evidences of title, which were to be presented within a given time, and on failure the title was to be considered void.

This, as chief justice Marshall observed, was rigorous legislation in regard to those who claimed under the articles of cession; but it is not necessary to inquire whether congress had a right to impose these restrictions on such claimants, as Minor did present his claim to the commissioners, who gave him a certificate of confirmation.

As to claimants who had a patent, the commissioners had but two points to settle: first, was the grant genuine or bona fide? and second, was the claimant a citizen of the territory on the 27th of October, 1795? both of which inquiries being affirmatively settled, the title became complete under the articles of cession. Even proof of these facts might perhaps have been equally effectual if made in a court of justice or elsewhere. The plaintiff then claims under an order of survey derived from the Spanish government, which had no validity as a title, until it acquired it under the act of the 3rd of March, 1803.

The defendants claim under a Spanish grant which was recognized and guaranteed. as a perfect title by the articles of cession dated 24th of April, 1802. And not only was their title recognized and guaranteed prior in point of time, but it was so recognized to the exclusion of the plaintiffs title, for such is the declared object of the proviso to the third

article of cession. It will not do therefore to say that the order of survey was anterior in date to the Spanish grant, and when it was confirmed it related back as a valid title to its date, for we have already seen that congress was prohibited from confirming any title which should interfere with such as were recognized by the articles of cession: or what is in effect the same thing, none of the ceded territory was to be appropriated so as to interfere with the payment to be made to Georgia, or with the title she had recognized.

The act of 1803 which confirmed orders of survey which conflicted with Spanish patents, was therefore an illegal appropriation. We cannot therefore hesitate in saying that the defendants have shown a title superior to the plaintiff's. It is scarcely necessary to say any thing in regard to the second instruction asked, since it is admitted that the land in controversy is covered by one or the other of Minor’s patents. If therefore the first patent mentioned was only a title to fifty-nine acres, and the land is covered by it, it is sufficient.

But the merits of the question are free from difficulty.- Minor it seems presented a patent for three hundred and fifty-nine arpents, and was confirmed in his title to fifty-nine, the balance having been sold to the government. It was not the act of confirmation by the commissioners which gave him title. His title was above the action of the commissioners. It was recognized and secured by the articles of cession, and the commissioners could neither abridge or limit.

They had but to inquire whether he had a Spanish grant legally and fully executed, and whether he was a resident of the territory on the 27th of October, 1795. These things being settled in his favor, he needed not the confirmation of his title by the commissioners. He then had a prior and better confirmation than they could give him; and although by their certificate they may have professed to confirm him in his title, yet it is evident that such certificate was not for that reason a title. It conferred no additional right whatever.

If he had sold part of the land, that was a question between him and his vendee, and the certificate so far as it professed to confirm his title, was a useless act. The bill of exceptions in this case is imperfect, on the part of the defendants as well as on the part of the plaintiffs. The defendants have not proven a title under Minor, and the plaintiff has shown no title at all. We have therefore taken for granted what seemed to have been tacitly admitted, that the plaintiff introduced an order of survey under the Spanish government, and that the defendants derived title from Minor.

If we had rejected such presumptions, the result must have been the same, as we could not set aside a verdict for the defendants in possession, when, the plaintiff had shown no title. The judgment must be affirmed.