James M. Groover et al., Appellants, vs. Andrew J. Coffee, Appellee, 19 Fla. 61

The Chief-Justice delivered the opinion of the court. This is an action of ejectment commenced by appellants in Madison county and moved to Jefferson for trial. The lands are in Madison county, and described as “ about seventy-seven acres in fractional lot number 200 in originally Irwin county, Georgia, and about twenty acres in fractional lot number 199 in the southeast corner of said lot in originally Irwin county, Georgia, both now in Madison county, Fla., said lots being more particularly described as ninety-seven acres in the northern part of fractional

section twenty-nine, township three, north, of range nine, east.” Appellants introduced in evidence two patents issued by Governor McDonald, under the seal of the State of Georgia, dated January 1, 1842, granting to James Groover, his heirs and assigns, (in pursuance of

an act of the General Assembly passed 28d December, 182-2, relating to lands in the territory lately acquired from the Creek aud Cherokee Indians,) fractional lot number 199 containing two hundred and twenty-six 2-100 acres and fractional lot number 200 containing two hundred and fifty 2-10 acres “lyingand being in the fifteenth district of Irwin county in the said State, * * * haviug such shape, form and marks as appear by the plat of the same hereunto annexed.” The plats annexed designate the southern line as “ Florida line,” and dimensions, area, monuments, courses and distances are duly certified by the Surveyor-General of the State of Georgia as being correct, and as having been surveyed on the second day of July, 1820, and the grants were duly registered by the Secretary of State January 1, T842.

Plaintiff also put in evidence a deed of James Groover, oí Thomas county, Ga., to Thomas A. Groover, of Lowndes county, dated 31st December, 1855, recorded in Lowndes county, conveying the same lands in fee.. Also a deed of Thomas A. Groover to Charles A. Groover, of Brooks county, Ga., dated 8th July, 1860, recorded in Brooks county, Ga. The plaintiffs are the heirs at law of Charles A. Groover now deceased. It was proved that James Groover was in possession of the land in controversy when he conveyed it to Thomas A. Groover, and the latter was in possession when he conveyed it to Charles A.

Groover, and that he and his family occupied and cultivated it until they were dispossessed by the defendant in 1876, and the defendant, A. J. Coffee, has been in possession since that year. All the land in question was cultivated by Thomas and by Charles A. Groover while they were in possession.

A plat made by a surveyor was introduced by plaintiffs, showing the location and boundaries, from which it appears that about 120 acres of the lots described as lots 199 and 200 in the Georgia patent and in the deeds falls south of a line called the “ McNeill line,” and north of the “Watson line.” The plat also shows that the lands south of the McNeill line, including the land in controversy, are within the surveys made by the United States and designated by sections, bounded by the McNeill line on the north, so that the 97 acres claimed by plaintiff constitute a part of

section 29 according to this plat of the U. S. surveys. It seems to be conceded by both parties that this tract is south of the present boundary line between Georgia and Florida, and hence is treated as a part of the present territory of Florida and within the county of Madison. Precisely where the State line is does not appear in the evidence. One of the witnesses (Bentley) says the Watson line was considered the State line.

Another (Lanier) says he considers the McNeill line the boundary, and he knows of an-another line “ that runs between the two States still south of the Watson line.” Both lines were distinctly marked. On the part of the defendants there was introduced a deed executed by the Trustees of the Internal Improvement Fund conveying to the defendant the whole of' fractional

section twenty-nine, township three, north, range nine, east, containing 269 85-100 acres in the county of Madison, State of Florida. This is dated September 12, 1874. Defendant further introduced a certificate of Hugh A. Corley, Commissioner of Lands and Immigration for the State of Flox-ida, dated May 6, 1880, “ that the whole of fractional

section twenty-nine in township three north, of range nine, east, was patented to the State of Florida as ‘ swamp and overflowed land ’ under act of Congress approved September 28th, 1850. as appears from Patent No. 9, dated July 6, 1857, which patent now remains on file in this office.” Defendant also offered a certificate of Dennis Kagan, l ° " Commissioner of Lands and Immigration of the State of Florida, dated January 20, 1874, certifying that “ the records of this office show that fractional

section twenty-ixine in township three, nox-th, of range nine, east, was sold to McCall and Stripling on the second day of September, A. D. 1857.” Defendant testified that his brother, John Coffee, had the land in controversy in 1889, had a “ claim ” and cleared part of it before it was in market. He bought his brother’s claim, and after it was put in market Bryant Stripling and T. Fane McCall entered it and got a certificate which they transferred to defendant, and he had the title made to himself by the Trustees of the Internal Improvement Euncl. Defendant, further testified that “ Charles A.

Groover had a clearing on part, of the land in controversy, and I had part of the land in-cultivation-that was included in my deed south of the Watson line, and as there was a dispute between Mr. Groover and myself about tlie land we agreed to let it remain as it was until Congress would settle it.” Defendant and Mrs. Groover made a bargain for a sale of the land to her. but it ivas not consummated. Defendant says lie then commenced suit and obtained-judgment against her for the possession in the U. S. Court, and ivas thereby put in possession.

Until that time defendant did not take actual possession of the land north of the Watson line or make crops on it. Every document and paper introduced hv either party was objected to by the opposing party, and was received by the court and given to the jury as evidence. Other testimony of witnesses was received or excluded upon objections being made, and these rulings will be noticed as they may be deemed material.

The court refused to give certain instructions prayed by plaintiffs’ counsel and charged the jury, (exceptions being taken to the refusal and to each paragraph of tlie charge) and the jury found a verdict for the defendant. The plaintiffs (a new trial having been denied) appealed from the judgment, assigning errors in the rulings and charge of the court and in the verdict as against the law and the evidence.

The grants of land by the Governor of Georgia to James Groover were objected to by defendant, “ because they were not connected with the ease.” Courts recognize, without other proof than inspection, the seals of other States and nations which have been recognized by their own sovereign. 1 Greenleafs Ev., §479. The land in question is claimed to have been formerly within the territorial jurisdiction of the State of Georgia, and the land is described in the grants as lying within the county of Irwin in that State.

The grants were offered as parts of the history of the title to the land, and in view of the fact that a dispute existed for a long period as to the exact boundary line of the States, and that the law sometimes recognizes titles to property granted by the government exercising the powers of sovereignty for the time being, the documents were properly received as alleged links in the chain of title. Whether thej^ were “ connected with the case ” depended upon the whole evidence offered. In this aspect the court properly received the documents in evidence.

The defendant objected to the deed of .James Groover (grantee of the Georgia patents) to Thomas A. Groover and the deed of Thomas A. Groover to Charles A. Groover, the ancestor of the plaintiffs, on the ground that the execution of the deeds was not sufficiently proved, and that as to the last named deed one of the subscribing witnesses was living and should be called to prove the same. As to the deed of James Groover, it. was shown that he was dead, and the subscribing witnesses were also dead. The signatures of the grantor and of the subscribing witnesses were shown to he genuine. As to the deed of Thomas A.

Groover to Charles A. Groover, it was .shown that the grantor was living in Georgia, and one of the subscribing witnesses, James G. Groover, was living and was out of the State, residing in Georgia, and the other subscribing witness wTas dead. Thomas A. Groover was produced and testified to the genuineness of the signatures of both subscribing witnesses, and they were signed in his presence and at his request, and that the one now living was in Georgia.

In all cases there should he strict, diligent and honest inquiry made for the subscribing witnesses, satisfactory to the court under the circumstances of the case, before proof of their hand-writing will be received. And where the subscribing witness to a deed is out of the jurisdiction of the court proof of his hand-writing is sufficient evidence of the execution of the deed without any proof of the signatures of the parties to the deed. (The People vs. Rowland, 5 Barb., 449; 1 Greenleaf Ev., §572, and notes.) This is the recognized rule. These deeds, having been duly proved, were competent evidence.

The grantee of the Governor of Georgia, and his grantees and successors under the same title, were in actual possession of the premises from the date of the Georgia grants (1842) to 1876, when the plaintiffs were dispossessed by the defendant under a judgment in his favor “ against Mrs. Groover,” as he testifies, up to which time he had never had possession of the land in controversy. The first evidence on the part of the defendant was a deed from the Trustees of the Internal Improvement Fund of Florida, dated September 12, 1874, conveying to defendant fractional

Section 29, T. 3, R., R. 9, E., in Madison county. This was admitted against plaintiffs’ objection that it should be first shown that the grantors had possession when they attempted to convey. Defendant’s claim, however, is that the Trustees and the State (whose Trustees they are); derived title originally and direct from the United States, and that this title is superior to any other. As a link in the chain of proofs by which the defendant proposes to overcome the evidence of the plaintiffs’ right of possession, the deed was admissible in the first instance.

The character of the title held by the Trustees, though not original, is still of such a public character that their deed may be deemed prima fade evidence of title in the grantee, subject, however, to be overthrown by a former or superior grant or other evidence of superior title or right of possession. In support of the objection the plaintiffs’ counsel cite the ruling of this court in Doe ex dem. Magruder vs. Roe, 13 Fla., 602.

It was there held that there was nothing in the nature of the title of the Trustees which should preclude a party against whom it may be introduced from showing a superior title in himself. In that case the opposing title which the court thought might be shown against the deed of the Trustees was a grant made by the Spanish government before the treaty of cession and actual possession under it, and this might be a better title than could be derived from the State, even though the State had a patent issued from the United States Land Office. The defendant was attempting to show a legal title.

The question tried was, which was the better title; 'either, unopposed, may be prima facie a legal title. The second error assigned by plaintiffs is the admission of the certificate of Corley, Commissioner of Lands, &c., to show a conveyance from the United States to the State. The act of the Legislature, approved February 20, 1875, Ch. 2063, (McC. Dig., 515, §10,) makes such certificate evidence prima facie “ with respect to the ownership by the State or by the School, Seminary or Internal Improvement Fuuds of an\’ lands in this State.” The certificate offered is embraced in this act.

It certifies that the land described was patented to the State as “ swamp and overflowed lands ” July 6, 1857, and is evidence of that fact. The third erron assigned is that the court admitted the certificate of Eagan, Commissioner of Lands, &c., that a 'sale of the lands to McCall and Stripling had been made in 1857. "We think this exception is well taken. This certificate is not one of the character recognized as evidence under the statutes or otherwise.

It is not a certificate of ownership by the State or the Trustees, nor is it a deed, agreement or contract, or a copy of any document or record pertaining to the office of the Commissioner within the meaning of the act of February 20, 1875, Ch. 2063, or the act of February 20,1879, Ch. 3127, McC. Dig., 515, Secs. 10, 11. "We find no law making this certificate evidence. The fourth error assigned relates to the testimony of defendant by which it was sought to prove by parol that McCall and Stripling had entered the land and procured a certificate of entry. which they transferred to defendant.

There was no evidence that such certificate had been issued, to McCall and Stripling. Ro copy was produced, and there was no evidence that a certificate had been lost or destroyed, or in the possession of the other party, in order to lay the foundation for parol evidence of its existence or of its transfer. If this proof was material as bearing upon the title or transfer of the right to a patent, parol testimony was not admissible until a foundation for it had been shown. As to the fifth error assigned, the admission of proof of a parol bargain between the defendant and Mrs.

Groover for the purchase of the land by her and its abandonment, though such evidence was not competent to affect, the rights of the parties to this suit, yet it cannot he considered that the testimony alluded to had any influence with the court or jury. Other grounds of error assigned by appellants are covered, so far as they seem to require notice in the present case, by the conclusions which follow. The appellants proposed several instructions which they requested should be given to the jury, several of them assuming that the boundary line between the States of Florida and Georgia had never been settled.

The boundary between the two States is a straight line drawn from the junction of the Flint and Chattahoochee rivers to the head of St. Mary’s river, thence down the middle of that river to the Atlantic Ocean. This was the boundary fixed by the treaty of 27th October, 1795, between the United States and Spain. (8 U. S. Statutes at Large, 138.) The exact point called the head of the St. Mary’s river was a matter of controversy for a long time. Finally it was determined that “ Ellicott’s Mound ” (as marked on the map) should be considered the eastern terminus of the straight line striking the St. Mary’s river.

Before the erection of this mound as the eastern terminus it had been variously contended on the part of Georgia and Florida that this terminus was northerly or southerly of the mound. Since then Ellicott’s mound has been decided by agreement between the States to be the easterly point from which the line should be located. From time to time the Legislatures of Geoi’gia and Florida passed very many acts and resolutions providing or endeavoring to provide for the actual survey, location and marking of the straight line between the two points mentioned, and to effect a settlement of the question.

It is a part of the history of the matter that several lines have been run by surveyors employed by the United States and marked, which lines run respectively north or south of the land in controversy. After much legislation and much communication between the Executives of the two States, in the year 1859 their several Legislatures by acts or resolutions agreed that the line to be run and marked by B. F. Whitner, Jr., on the part of Florida, and G. J. Orr on the part of Georgia, should be recognized as the true boundary line.

On the 8th day of February, 1861, the line run and marked by Whitner and Orr was declared by the Legislature of each State to be “ the permanent boundary line.” Congress, on the 9th April, 1872, passed

an act entitled “An act to settle and quiet the titles to lands along the line between the States of Georgia and Florida,” declaring as follows : “ That the titles to all lands lying south of the line dividing the States of Georgia and Florida, known as the Orr and Whitner line, lately established as the true boundary between said States, and north of the line run by Georgia, known as the Watson line, being all the lands lying between said lines, be and the same are hereby confirmed, so far as the United States has title thereto, in the present owners deriving titles from the state of Georgia.” This act is considered a ratification by Congress of the boundary line as adopted by Georgia and Florida, and we deem the Whitner and Orr line as marked to have been established from the date of the adoption thereof by the two States.

Precisely where this line is with reference to the land in question does not appear by any testimony in the record before us, but it is evidently assumed that it lies north of the lot claimed by plaintiffs, and we therefore consider that the land is within the present boundaries of Florida. That it lies within the territory formerly claimed by Georgia to be within her borders is unquestionable. This appeal’s not only by the evidence here, but by the history and legislative action of the two States. The true liue was a matter in dispute between the respective legislative and executive authorities.

Surveyors employed by the United States had run and marked lines south of this land.

Up to the time of the agreement by the governmental authorities of the States that the Orr and Whitner line “ should be and was thereby declared to be the permanent boundary lines' between the States of Georgia and Florida,” (as expressed by the Legislature of this State in the act of 22d December, 1859, and the resolutions of February 8, 1861,) and which line is spoken of in the act of Congress of April 9,1872, as “ the line dividing the States, * * lately established as the true boundary,” it was “a case of disputed boundary.” It is in evidence that in July, 1820, the Surveyor-General of Georgia caused the land in question to be surveyed and platted as situated in the 15th district in the county of Irwin, State of Georgia; and that it was conveyed to James Groover by the Governor of Georgia January 1, 1842, as land belonging to that State, “ in pursuance of the act of the General Assembly passed 23d December, 1822, to dispose of the fractional lots of land in the territory lately acquired from the Creek and Cherokee Indians.” By the convention of 24th April, 1802, between the United States and Georgia, all the public lands south of the southern boundaries of Tennessee, North Carolina and Sooth Carolina and east of the Chattahoochee river, &c., and not within the proper boundaries of any other State, were ceded to the State of Georgia. (1 Laws of U.

S., 488, 490.) By the same convention the United States agreed to extinguish all the Indian titles to lands itr Georgia for her benefit. This was accomplished by treaty with the Greeks June 16, 1802, and November 14, 1805. 1 Laws IT. S., 370, 373. The State of Georgia, as appears, considered and treated the land in dispute as part of the Indian lands within her borders, and surveyed and sold it to James Groover. The “ Watson Line ” is recognized by the act of Congress of April 9,1872, by confirming to the grantees of Georgia all the interest of the United States in any lands north of that line.

We do not mean that the Watson line was recognized as a State boundary, but the United States thereby recognized the grants made by the State of Georgia as valid against any claim of the United States. Kor do we intend to say that this act of Congress gave any right to plaintiffs in the disputed tract, if the United States had before conveyed it to the State of Florida by the patent of July 6, 1857. Kor on the other hand do we determine that the United States had title as against Georgia to the lands north of the Watson line.

It is not demonstrated by the proofs in this record or from the action of the United States Government or the governments of Georgia and Florida, that the line adopted by these States in 1859 and 1861 to be the permanent boundary between them, was the true line prior to that agreement. It was “ adopted ” and “ recognized ” as the settlement of a disputed boundary. The act of Congress of 1872 recognized and acted upon this settlement and mentions it as “ lately established as the true boundary,” thereby assuming that this “ true boundary ” had not been before established.

The United States Supreme Court in Poole vs.

Fleeger, 11 Peters, 185, in reference to a controversy between grantees of Kentucky • and Tennessee, says: “Although in the compact Walker’s line is agreed to be in the future the boundary between the two States, it is not so established as having been for the past the true rightful boundary.” The court further remarks (p. 209): “ It cannot be doubted that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories, and the boundaries so established and fixed by compact between nations become conclusive upon all subjects and citizens thereof, and bind their rights, and are to.be treated, to all intents and purposes, as the true and real boundaries. * * It is a right equally belonging to the States of this Union,” Congress consenting.

In that case it was held that the grants made by Forth Carolina and Tennessee were not rightfully made, because they were originally clearly beyond their territorial boundary, and that the grant under which the claimants claimed was rightfully made, because it was within the well known territorial boundary of Virginia. In that case there was no ground of cavil as to where the original boundaries had been located. The same court in The State of Rhode Island vs. The State of Mass., 12 Pet., 657, 748, speaking of the principle announced in Poole vs. Fleeger that an agreement between .

States, consented to by Congress, bound the citizens of each State, says: “ There are two principles of the law of nations which would protect them in their property: 1. That grants by a government de facto of parts of a disputed territory in its possession are vcdid against the State which had the right. 2.

That when a territory is acquired by treaty, cession or conquest, the rights of the inhabitants to property are respected and sacred. 8 Wheat., 589 ; 12 Wheat., 535 ; 6 Pet., 712 ; 7 Pet., 867 ; 8 Pet., 445 ; 9 Pet., 133 ; 10 Pet., 330, 712.” In the controversy between the States of Rhode Island and Massachusetts, involving their disputed boundary, the matter was again before the Supreme Court in 4 How., 591, 639, and at the close of the opinion of the court this language is used : “ For the security of rights, whether of States or individuals, long possession under a chain of title is protected.

And there is no controversy in which this great principle may be invoked with greater justice and propriety than in a case of disputed boundary.” The principles cited from the foregoing cases cannot be questioned. They are clearly applicable to the case under consideration.

It is considered established by the record here, in connection with the legislation of Georgia and Florida on the subject of the boundary, that Georgia claimed and exercised dominion of the territory down to the "Watson line; that she caused it to be surveyed and mapped in 1820, and the surveys and maps to be recorded in her public records; that the territory was incorporated in the original county of Irwin ; that acting under the authority of the Legislature the Governor issued patents to James Groover covering this land, and the same, the plat and certificate of survey, were recorded in the records of Irwin county; that from the date of this patent, January 1,1842, the patentee and his grantees have, under conveyances recorded in Irwin county and its sub-divisions, been in constant possession by actual occupancy and cultivation down to 1876, when the defendant took possession under some proceeding against Mrs.

Groover, and has held possession since that year. A definitely marked boundary line between the Spanish province of Florida and the United States, or between Georgia and Florida, had never been made and recognized by the governments claiming dominion on either side until the boundary line was run by Orr and Whitner and recognized by the two States in 1859 and by Congress in 1872, whereby further controversy as to the location of the line was closed. Up to that time it was in controversy and doubt.

Congress in 1872 recognized and confirmed the titles granted by Georgia down to the Watson line as against the United States.

By numerous decisions of the Supreme Court of the United States it appears that'the law of nations has been recognized and adopted as applicable to the States of the Union ; that grants by the nationality or the State actually exercising dominion over territory along the line of a disputed boundary, such State having power to grant lands within its border, as to the “ rights of the inhabitants to property, are respected and sacred.” The claim on the part of the defendant is based upon a deed of the Trustees of the Internal Improvement Fund conveying to him in 1874 fractional

section twenty-nine, which, according to a survey and plat in evidence, covers the land in question. This survey and plat is supposed to accord with the surveys made by the United States Surveyors of the public lands in Florida, and this land is described in the deed of the Trustees and the patent to the State as swamp and overflowed land granted by Congress by act of September 28, 1850, to the State, and by the State placed in the hands of the Trustees of the Internal Improvement Fund by the act of January 6,1855, known as the Internal Improvement Act.

The court in charging the jury gave^ this instruction : “ That the State of Georgia had no power to grant a valid title to the land in controversy,” referring to the grant of Georgia to James Groover January 1,1842. This instruction, in connection with what followed it, was decisive of the case before the jury.

It determined, as a matter of law and fact, that the State of Georgia had no power to confer the title, and that the boundary line between Georgia and Florida was, at the date of the grant, considered to lie north of this land, and that therefore it was not included within the then boundaries of the State of Georgia. From what has preceded we think this charge cannot be sustained.

Hot only wras thex*e no evidence that at the date of that grant the known and recogixized boundaxy line was nox’th of this land, but the State of Georgia had exexnised dominionand administered its governmentand laws upon the territory, graxxting lands, making surveys and x’ecords, and recording deeds of conveyance of these lands in Irwin county for a long period from a date anterior to the making of surveys by the United States.

The grant by Georgia was, at least, a “ grant by a government defacto of parts of a disputed territory in its possession, and is valid against the State which had the right,” and “ the rights of the inhabitants to property are respected and sacred.” 12 Pet., 748.

The case is analagous to that of an adverse possession by one having color of title, and although we do not assert that a right by prescription or under acts of limitation is good against the sovereign power, yet the title of the United States will not prevail, when asserted merely by production of its patent, against an antecedent right. “ Neither the law ol nations or the faith of the United States would justify the Legislature in authorizing these boards [the Commissioners appointed to ascertain the validity and location of grants of land claimed under the Spanish authorities in Florida] to annul pi'e-existing titles, which might consequently be asserted in the ordinary courts of the country, against any grantee of the American government.” U.

S. vs. Clarke, 8 Pet., 436, 445, opinion by Marshall, C. J. That the right of this grantee under the Georgia patent is superior to that of this grantee of the United States, is a proposition clearly shown in the before mentioned cases, decided by the highest tribunal in the land. The Congress having sovereign legislative power in the matter of the public lands, has never sought to annul these grants made by Georgia, but on the contrary has expressly recognized them. Ve are entirely satisfied of the justice of our conclusion that in the case made by the record before us the right is with the appellants.

The judgment is reversed and a new trial awarded.