ESLAVA'S HEIRS vs. BOLLING & BOLLING, 22 Ala. 721

CHILTON, C. J. 'This was an action of ejectment, brought by the heirs of Miguel Eslava, to recover certain lands claimed by them under a patent from the government of the United States, issued in pursuance of

an act of Congress approved the 3d of March, 1841. The defendants claim title to a portion of the land under a patent from the same source, issued in pursuance of the same act, to Audley H. Grazzam, and which has vested in them by mesne conveyance. It is apparent that the question, as to which of these alleged titles shall prevail, depends upon the construction to be placed upon the act of Congress under which they respectively accrued. This act is in the following words: “ Be it enacted, &c., That tbe decision of tbe register and receiver of tbe land office for tbe district of St.

Stephens, in tbe State of Alabama, as contained in tbeir report bearing date tbe 3d day of May, 1832, confirming a claim of tbe beirs of Miguel Eslava, deceased, (being claim number 3, in report number 2,) and made in pursuance of tbe act of Congress approved tbe 2d day of March, 1829, entitled “

an act confirming tbe reports of tbe register and receiver for tbe district of St.

Stephens, in tbe State of Alabama, and for other purposes,” be, and tbe same is hereby confirmed: Provided, That tbe confirmation provided to be made by this act, shall amount only to a relinquishment, forever, on tbe part of tbe United States, of all right and title whatever to tbe land so confirmed or granted; Provided, also, That tbe survey and location hereafter to be made of said claims, which are hereby confirmed, shall be made in conformity with the original Spanish title papers, unless tbe surveys of said claims be found variant from tbe grants, according to the usages of the Spanish government; in which case, tbe grants are to govern.

Sec. 2.

And be it further enacted, &c., That after the proper location of tbe claims hereby confirmed, it shall be the duty of the commissioner of the general land office, to issue patents for the same, containing a reservation of the rights of all third persons: Provided, That the said patents shall be construed to convey to the claimants all such legal and equitable rights only, as may exist under the laws of nations, or under the constitution and laws of the United States, or treaties applicable to the said grants, under and by virtue of the said Spanish grants; and it shall be also the duty of the commissioner of the general land office, forthwith to issue patents to Jonathan Hunt and Audley H.

Gazzam, for all such portion of said lands for which they now hold receipts issued by the receiver of the land office at St.

Stephens, in the State of Alabama; which patents shall contain an exception and reservation of all the rights of the Spanish grantees, their heirs or assigns, under the titles claimed by them under the Spanish government : Provided, That the patents issued to the said Hunt and Gazzam, shall be construed to convey to them all such rights only as are not inconsistent with the legal or equitable rights of the Spanish grant ees, their heirs or assigns, under the laws of nations, or under tbe constitution and laws of tbe United States, or treaties applicable to said grants, under and by virtue of tbe Spanish grants hereby confirmed.” Tbe better to comprehend tbe true intent and meaning of tbe foregoing enactment, it is proper that we briefly recur to tbe circumstances which gave rise to it.

Miguel Eslava, tbe father of tbe lessors of tbe plaintiff, bolding tbe office of military store-keeper under tbe Spanish government, at the port of Mobile, in consideration of bis services rendered tbe king of Spain, and in anticipation of a treaty, by which tbe province in which be resided was to be transferred to tbe French Kepublic, or to tbe United States, solicited, by petition to tbe Spanish commandant, of tbe Spanish government five thousand superficial arpents of land on bayou Durand, a league from Mobile.

In consequence of tbe death of tbe assessor of tbe inten-dancy, tbe land office was closed, but a temporary concession was made, to enable tbe petitioner to make the necessary clearings and erect suitable buildings; but the grant was upon tbe express' condition, that, as soon as tbe office of tbe inten-dant general of tbe province should be open, tbe petitioner should have a valuation of said lands made in conformity with tbe regulations of that office respecting lands, and should forward tbe proceedings to tbe superintendent for tbe purpose of obtaining a regular title.

This was done on tbe 25th day of February, 1803. In 1814, Eslava presented bis claim before tbe United States commissioner, predicated upon this concession, and what purported to be a survey by Joseph Collins, tbe deputy surveyor of tbe port of Mobile, but it was rejected. (3 Amer. St. Papers 14.) It was again presented by him in 1827, but again rejected. (5 ib. 124.) Finally, be having died, bis heirs presented tbe claim before the register and receiver of tbe land office at St. Stephens, under tbe third

section of tbe act of Congress of tbe 2d of March, 1829. This

section provides: “ That every person or persons, or tbe legal representatives of such person or persons, who, on tbe 15th day of April, 1813, bad, for ten consecutive years prior to that day, been in possession of a tract of land, not claimed by any other person, and not exceeding tbe quantity claimed in one league square; and who were, on that day, resident in that part of Louisiana situate east of Pearl river and west of the Perdido, and below the thirty-first degree of nortl| latitude, and had still possession of such tract of land, shall be authorized to file their claim, in the manner required in other cases, before the said register and receiver for their decision thereon: and it shall be the duty of the said register and receiver, to hear and record the evidence offered to support such claim; and if the same shall be established by sufficient proof, agreeably to the provisions of this section, the said officers shall, in their report, recommend the confirmation of the right to such claim as in other cases,” &c. 4 U.

S. Stat. at large 358-9. The register and receiver, having investigated the claim of the heirs of Eslava, reported favorably upon it, as falling within the provisions of the act above recited, and their report was forwarded to the general land office on the 3d of May, 1832. See 5 Amer. St. Papers 124. In the meantime, Jonathan Hunt and Audley H.

Gazzam had made entries embracing portions of the land supposed to be claimed by the heirs of Eslava, and when the report of the register and receiver was laid before Congress for final action and confirmation, they contested their right before Congress; and to settle this controversy, the act under consideration was passed. The plaintiffs say that their title, as reported by the register and receiver at St.

Stephens, for confirmation, was confirmed ; and that thereby the fee, which up to that time was in the United States, immediately became vested in them, and that the act makes the title of Hunt and Gazzam subservient to theirs. It is true, the first

section of the act does confirm the report of these officers, and had it stopped there, this difficulty would hardly have arisen; for there could have been no doubt of the intention of Congress to confer the title which was in the United States absolutely on the plaintiffs, subject to the limitations contained in the provisoes.

And we may venture to assert, that if the controversy between the parties before Congress involved merely a question of boundary, the act would have stopped here, or it would merely have superadded, that Hunt and Gazzam should have a patent for so much of the land claimed by them as was not embraced in tbe claim of Esla-va’s beirs. But it does not stop here. On tbe contrary, it contains other provisions, which, so far as they explain and qualify the first section, must be regarded by us; for “ a law is tbe best expositor of itself; and every part of

an act is to be taken into view, for tbe purpose of discovering the mind of tbe legislature.” Pennington v. Coxe, 2 Cranch 52; ib. 358; 1 Brock. C. C. R. 162. Tbe second

section provides, that after tbe proper location of tbe claims thereby confirmed, tbe commissioner of tbe general land office shall issue patents for tbe same, containing a reservation of tbe rights of third persons; and it then declares what shall be tbe legal effect of these patents, namely: that they shall be construed to convey to the claimants “ all such legal and equitable rights only as may exist under tbe laws of nations, or under tbe constitution and laws of tbe United States, or treaties applicable to said grants, under and by virtue of said Spanish grants.” It then proceeds to make provision for arming Hunt and Gazzam with the evidence of legal title to tbe lands claimed by them.

Patents are to issue to them for portions of tbe same land, but these patents are to contain an exception and reservation of all tbe rights claimed by tbe Spanish grantees, their beirs and assigns, under tbe titles claimed by them under tbe Spanish government; that is to say, these patents to Hunt and Gazzam “shall be construed to convey to them all such rights only as are not inconsistent with tbe legal or equitable rights of tbe Spanish grantees, their beirs or assigns, under the laws of nations, or under tbe constitution and laws of tbe United States, or treaties applicable to said grants, under and by virtue of tbe Spanish grants hereby confirmed.” If tbe effect of this act be, to confer the land upon Eslava’s beirs, irrespective of tbe fairness or validity of their claim derived under tbe Spanish government, then, all that is said in tbe second

section about tbe patents to Hunt and Gazzam, is useless and nugatory. So also, if Congress, by this act of confirmation, designed to create an equity which did not previously exist in favor of Eslava, under tbe laws of nations, or treaties, or constitution and laws of tbe United States, then the act is repugnant and suicidal, in conferring on Hunt and Gazzam a title which this equity was designed to over-ride and destroy. But the act is susceptible of a construction which gives effect to all its provisions, and renders it neither repugnant nor absurd.

It was designed to meet and provide for every phase which the controversy before Congress had assumed. Eslava’s heirs contended that they had a claim upon the government in virtue of their Spanish concession; and if this, under the treaties with France and Spain, and the laws of nations, imposed no obligation on this government, then that their claim fell within the third

section of the act of 1829. The claim upon all these grounds being contested by Hunt and Gazzam, who claimed to have purchased a portion of the land from the United States, Congress, without undertaking to decide upon the questions at issue between the parties, determined to furnish them both with the evidence of a legal title, so that each might have a standing, prima facie, in court, and thus be enabled to settle the difficulty by a judicial determination.

In order, however, to protect the rights of the Spanish claimants, and to confer upon them all the benefits which this government, in the exercise of its political power, was accustomed to secure to those who held under imperfect or equitable titles, certain rules were prescribed by which the court, in “ construing” the patents, should be governed ; that is to say, the patent to Eslava’s heirs shall be construed to convey “ all such legal and equitable rights only” as may exist under and by virtue of said Spanish grants: 1st. Under the laws of nations; 2d. Under the constitution and laws of the United States; 3d.

Under treaties applicable to said grants. On the other hand, the patents to Hunt and Gazzam shall be construed to convey to them all such rights only as are not inconsistent with the legal or equitable rights of the Spanish grantees, under and by virtue of the Spanish grants confirmed by the act, existing under the laws of nations, the constitution and laws of the United States, and treaties applicable to said grants. Let us briefly consider what right the heirs of Eslava have, in virtue of their alleged Spanish concession, under the laws of nations. In the United States v.

Reynes, 9 How. 127, it was held, that a grant from the Spanish authorities, after the treaty of St. Ildefenso, although at tbe time of tbe grant, and for several years afterwards, Spain bad tbe actual occupation of tbe province in wbicb tbe land granted was situate, was void.

It was also further beld, that sucb grant was not protected by tbe treaty of Paris between the United States and Prance, of tbe 30th September, 1803, stipulating for tbe protection of tbe citizens of Louisiana in tbe free enjoyment of their liberty and property, as tbe term “ property,” in tbe correct acceptation, was applicable alone to possessions or rights founded in justice and good faith, and based upon authority competent to their creation. Tbe doctrine announced by this case, has been repeatedly re-asserted by tbe same court. United States v. D’Auterive et al., 10 How. 609; Montault et al. v.

The United States, 12 ib. 47; The United States v. Pillerin, 13 ib. 9. These decisions very clearly show, that tbe grant from Orsono to Eslava was void; and being void for this reason, it is unnecessary that we examine tbe other objections raised to it, of uncertainty in respect of tbe land granted, and tbe failure of Eslava to comply with the conditions upon wbicb be was to have a title in form by tbe Spanish government.

As tbe act of 1841 gives to tbe claim of tbe plaintiffs a qualified confirmation only, ripening into a legal, available title any right, legal or equitable, wbicb accrued to them in virtue of their Spanish grant, or possession beld under it, under tbe laws of nations, treaties, or constitution and laws of tbe United States; and having shown that, according to tbe repeated decisions of tbe Supreme Court of tbe United States, tbe grant was void, and conferred no right under tbe laws of nations or tbe treaties, let us turn to tbe last consideration : whether tbe laws of tbe United States confer a title upon them, otherwise than as given in charge by tbe Circuit Court, whose decision we are revising.

Tbe plaintiffs rely upon tbe act of 2d March, 1829. Their claim under the previous laws passed for tbe benefit of persons resident in tbe ceded territory, bad been, up to that time, rejected. In order to bring them within that act, three things are necessary: 1. Residence in that part of tbe country east of Pearl and west of Perdido rivers, and below tbe thirty-first degree of north latitude, on the 15th day of April, A. D. 1813; 2. Possession for ten consecutive years prior to that date; 8. Possession of tbe tract claimed on tbe 2d March, 1829, tbe date of tbe passage of tbe act. 4 Stat. at large, 358.

As to whether tbe possession required by this act must be an actual, pedis possessio, or may be constructive merely, is not properly before us for decision; for tbe court below charged tbe jury that either was sufficient, so that it was defined in such manner as to render it practicable to separate tbe tract so passed and claimed from tbe public domain.

But it is insisted on tbe part of tbe plaintiffs, that their claim having been submitted before tbe register and receiver, tbe proof having been taken, and a decision predicated on that proof made by them in their favor, the action of these accredited officers is binding upon tbe government; and to this point we are cited to Bissell v. Penrose, 8 How. 339, and Lytle v. The State of Arkansas, 9 ib. 333.

In tbe first case it is said: “ In cases where tbe report recommends tbe confirmation of tbe claim according to tbe survey, tbe effect of tbe confirmation under tbe act of 1836 is, probably, to conclude tbe government; so that an error in tbe private survey cannot be corrected on a re-survey of tbe tractbut it is added : “ when recommended in tbe general form of tbe present case, any such error may be corrected, agreeably to tbe intention of Congress, in declaring, as they did in the act of 1806, that these surveys should be regarded only as private surveys;” thus showing that where tbe report is specific, and is confirmed, then tbe confirmation becomes specific, and tbe government is concluded by tbe specifications contained in it; but it is very certain that Congress was, not bound to confirm tbe report, as to each claim recommended for its confirmation by these officers.

Tbe numerous acts which have been passed upon tbe subject of organizing such boards, seem to contemplate their action as furnishing a basis for tbe final action of Congress. If their action was final, then tbe confirmation of tbe reports by Congress was a matter of supererogation. In tbe case of Lytle v.

Tbe State of Arkansas, tbe determination of tbe register and receiver of tbe land office, in tbe matter of a contested pre-emption right, was held final, for tbe reason that Congress bad invested them with tbe power of deciding, and allowed no appeal; a very different case from tbe one before ns, where the officers were required to prepare abstracts of their reports, embracing the substance of the proof, and transmit them to the proper department, that the same might be laid before Congress, “for their determination thereon.” 2 Stat.,at large 716 § 7; 3 ib. 528, 699, 707; 4 ib. 239.

The report is only conclusive, so far as made so by the act of confirmation, and this act, as we have endeavored to show, limits and restricts the effect of the confirmation, and the patent to be issued thereupon, to a conveyance of such legal or equitable right as existed under the grant and the laws and treaties applicable to it. All the title which the United States held, and which was not inconsistent with the legal or equitable title of the plaintiffs, as above limited and restricted, to the land for which Hunt and Grazzam held the receiver’s receipts, was vested by the act and patents in the latter.

We think, therefore, that the question of possession was not concluded by the act and confirmation, but was open to be controverted by the parties. The construction which we feel constrained to put upon this act of confirmation, distinguishes this case from the numerous decisions predicated upon the doctrine of relation. It is certainly true, that the United States, in the exercise of their political power, could recognize, and often have recognized as valid, claims which, stricti juris, create no obligation upon the government, and which, when confirmed, may relate back to their inception.

But the act of 1841 was not designed to give validity to that which possessed none before; but merely, by a confirmation of the report, and the issue of a patent, to vest in the plaintiffs a legal title, the efficacy of which as such was to depend upon the existence of their legal or equitable rights, growing out of the Spanish concession to their ancestor, as recognized by the laws of nations, the treaties, or laws and constitution of the United States. What these legal or equitable rights are, Congress did not attempt to define; nor were they in any wise affected by the act.

The court below, therefore, very properly went into an inquiry concerning them ; and guided by the decisions of the Supreme Court in analogous cases, we are of opinion, that the charges of the circuit judge were fully as favorable for the plaintiffs as the law will warrant. We have duly considered tbe argument of the counsel for the plaintiffs, which endeavors to deduce a right to the land in controversy, or to enforce an equitable obligation on the United States to confer it upon the plaintiffs, from the void grant of Eslava, his survey defining the limits of such grant, and his possession under it.

Without stopping to inquire whether these did not furnish plausible grounds for a resort to the political power of the government, we think it quite clear, that when considered in the courts of justice, if the possession does not bring the plaintiffs within the act of 1829, the void grant, and the survey made of the land supposed to be granted after the passage of the act of 26 March, 1804, prohibiting such survey under a heavy penalty, (2 Statutes at large 289,) and the possession short of ten years, conferred no title whatever, and created no obligation upon the United States to recognize their claim.

If the possession by Spain of the ceded province was wrongful after October, 1800, and her officers had no authority to make grants, or to dispose of the public domain, so as to bind the United States, as was held in 9 How. 127, and several subsequent cases, we are at a loss to perceive how the prohibited survey of the 20th April, 1804, or the possession of Eslava, either actual or constructive, could confer any right upon the claimants, aside from legislation on the part of the United States.

True, if this government chooses to recognize such claim as valid, by its specific action in the confirmation of favorable reports made by its officers charged with their investigation, the title passes from the government to the claimants, and no one has a right to controvert it with them.

But as the United States is in such cases the source of title, and confers it upon the claimants more as a matter of favor, prompted by a sense of moral duty, than as fulfilling a strict legal obligation, Congress has the unquestioned right to prescribe the terms upon which the title will be conferred, and to declare the effect of the confirmation as it respects other antagonistic claims. In other words, as was decided in Bagnell et al. v. Broderick, 13 Peters 436-450, “Congress has the sole power to declare the dignity and effect of titles emanating from the United States.” See, also, Hall et al. v. Doe ex dem.

Root, 19 Ala. Rep. 378-394. In tbe case before ns, Congress has declared, in no equivocal terms, wbat shall be the effect of the titles conferred upon the parties respectively. The vice of the plaintiffs’ argument, which attempts to deduce an estoppel against the government, as binding upon those claiming under it, from the confirmation of the report, the relinquishment of title to the plaintiffs, and the issue of a patent to them, consists in its being predicated upon a partial view of the act of 1841, and not upon a consideration of the whole act.

It proceeds upon the idea of an absolute confirmation and investiture of title, unqualified and unrestricted by the second

section of the act, except as respects the location of the land. But this, we have seen, is not the proper construction of the statute.

The government may well be estopped from denying that either Bslava’s heirs or Hunt and Grazzam have a title to the land embraced in the receipts of the receiver given to the latter, (H. and Gr.) Congress has declared that patents shall issue to both for the same land, and both are owners against the government; whilst, as between themselves, the title in the one or the other depends upon the existence of the legal or equitable rights of the plaintiffs, “under the laws of nations, the constitution and laws of the United States, or treaties applicable to said grants, under and by virtue of the said Spanish grants.” If the right in Hunt and Grazzam be not “inconsistent” with the “legal or equitable rights ” of the plaintiffs, as above enumerated, then their title is to prevail.

It is quite manifest, we think, that Congress was legislating with respect to the right or title, and not merely with respect to the identity of the land. The language of this act is not unlike that employed in other statutes authorizing claimants to test the validity of their claims by judicial investigation, so far as the inquiry into the character of the title is concerned. By the second

section of the act of 1824, since revived and extended, the District Court was to settle, by final decree, the validity of the title, “ according to the law of nations, the stipulations of any treaty, and the proceedings under the same, the several acts of Congress in relation thereto, and the laws and ordinances of the government from which it (the title) is alleged to have been derived,” &c. 4 Stat. at large 53; ib. 676.

This analogy to the previous legislation serves to strengthen our conclusion, that, in “ construing” these patents, we must look beyond the qualified confirmation, to ascertain the plaintiff’s rights; and at the same time shows, that the numerous decisions under the former acts are not inapplicable to this case, but furnish us guides on which we may safely rely.

After the best consideration which we have be en enabled to bestow upon this case, we have unanimously arrived at the conclusion, that there was no error committed by the Circuit Court prejudicial to the plaintiffs, and the judgment is consequently affirmed.