Doe ex dem. Mims' Heirs v. Higgins , 39 Ala. 9 ( 1863 )

A. J. WALKER, C. J.

The plaintiffs’ claim originally belonged to the class of incomplete Spanish concessions, which, after the acquisition of the territory by the United States, were addressed to the liberality and justice of the political department of this government. No title vested until the concession was confirmed by congress. — Menard’s Heirs v. Massey, 8 How. 806; Les Bois v. Bramell, 4 ib. 464; Doe, ex dem. Chastang v. Dilt, 19 Ala. 421. "Whatever right the plaintiff may have, cognizable in a judicial tribunal, is derived from the act of congress, acting upon the Spanish concession, and the subsequent proceedings of the executive officers under the authority of law.—Willot v. Bandford, 19 How. 79.

By the first section of an act of congress approved March 2d, 1829, a claim in favor of the plaintiffs was confirmed. — 4 U. S. Satutes at large, 358. If the plaintiffs have a title to the particular land in controversy, it must either be bestowed by that act of congress, or result from that act and the subsequent proceedings of the proper officers of the general government. Whether, in either of those modes, a title to the loans in quo has vested in the plaintiffs, we proceed to inquire.

3. Does the act of congress, by its own intrinsic force, clothe the plaintiffs with a title to the particular area in litigation? The section of the act of congress above cited enacts, that certain claims, described in a report of the register and receiver at St. Stephen’s, “ be confirmed to tbe extent recommended in the report” for confirmation. The claim of the plaintiffs, along with three others, is embraced in “Abstract D, No. 1,” of the report, and is “ recommended for confirmation in the same manner as if the titles were complete.” — 5 Am. State Papers, 122. Congress confirms to the extent recommended, and a confirmation as if the titles were complete is recommended. The confirmation by congress thus refers to, and is limited by, the recommendation. Its effect is to place the claim, predicated upon the Spanish concession, in the situation at the date of the act of congress in which it would have stood if - the concession had been a complete title. It converts the Spanish concession, from that date, into a complete title. The same view was taken by this court, in Chastang v. Armstrong, (20 Ala. 623,) of the operation of an act, by which claims were “ confirmed in the same manner as if titles were in existence.”

Congress has confirmed - the title to that land embraced in the concession. The land for which Samuel Mims, the plaintiffs’ ancestor, petitioned on the 22d July, 1796, and which was granted by the governor-general, Baron de Ca-rondelet, on the 12th August, 1796, was described as one of the vacant lots towards the north on Boyal street, “ with the accustomed dimensions, the first of the vacant ones there is going up the said Boyal street, which is bounded on the south by a new street, and on the north by the lands of the dominion.” The petition of Benjamin F. Smoot in behalf of the plaintiffs, on the 27th May, 1827, to the commissioners for the adjustment of land claims, is not more specific in its description than the petition of Mims above stated. ' In the description found in the concession, neither the location, boundaries, nor quantity is defined; there is no designation of the particular land.

It is an established doctrine, in reference to confirmations of claims without identification and specification of boundaries, that the confirmation does not vest a title to any particular land, and does not clothe the claimant with any right cognizable in a judicial tribunal, but leaves him to obtain from the executive department of the government, through its officers, the location and identification of the land.—Chastang v. Armstrong, 20 Ala. 609; Ledoux v. Black, 18 How. 473 ; Menard v. Massey, 8 How. 309 ; Cousin v. LeBlanc, 19 How. 202. Tbe confirmation of snob a claim gives a right, demandable from tbe political department of tbe government, but bestows no title to any distinct parcel of land separated and severed from tbe public domain. It is manifest, then, that tbe plaintiffs took no title by tbe act of confirmation, if it was made in reference alone to tbe description in tbe original petition of Mims, upon wbicb tbe Spanish concession was predicated.

It must be conceded, that an act of congress might confirm a concession, in itself containing no identification, and yet might so supply the description as to completely identify and specify tbe particular land upon wbicb tbe confirmation was designed to operate ; and this, it is contended, was done in reference to the claim of Mims. As we have seen, there is nothing in the terms of tbe act of congress, wbicb refers to a more definite location and description than is afforded by tbe concession. Tbe same thing is true in reference to tbe recommendation of tbe register and receiver. That recommendation simply states, that Samuel Mims was tbe original claimant; that tbe nature of tbe claim was a Spanish permit; that its date was August 12th, 1796; that it was granted by Baron de Ca-rondelet; that its quantity was four hundred and thirty-eight by two hundred and twenty-two feet; that it was situated upon Boyal street in Mobile; that there was no survey, and that it was built upon in 1797. — 5 Am. State Papers, 122. Conceding, then, that tbe confirmation by congress bad reference to tbe recommendation and its specifications, it contributes nothing to relieve tbe claim of its indefiniteness and want of certainty as to location and boundaries.

It is said, however, that before tbe recommendation of tbe register and receiver was reported, and pending their investigation of tbe claim, a survey and plat of tbe land was made, under their direction, by "William Boberts, deputy-surveyor; and that although that survey, being unapproved, bad of itself no force, tbe recommendation, and also tbe act of congress based upon tbe recommendation, must be referred to that survey, which fixes the location, boundaries, and area; and that the act of congress, therefore, confirms the claim, and adopts the location and description given in the plat and survey. This position cannot be maintained. The survey does not appear to have been a part of the report in which the recommendation is made, or to have been in any wise brought to the view of congress. It is not referred to in the report, and does not appear in any way to have received the sanction of the register and receiver. The area indicated in the recommendation does not at all correspond with that given in the survey; and the report, so far from affirming that it is predicated upon a survey, says that there was no survey. Upon these facts, it cannot be inferred, either that the register and receiver adopted the plat and survey, as giving locality to the land and fixing its boundaries, or that congress, in confirming the claim, had reference to the location and boundaries specified in the survey.

The question, in reference to this survey of Roberts, is not at all analogous to that decided in the case of Bissdl v. Penrose, 8 Howard, 317. In that case, the claim was made in writing, accompanied with a survey, under an act requiring the survey to be filed. The survey was thus a part of the claim. The report upon which congress acted, contained the survey. The commissioners decided, that the claim ought to be confirmed; and congress enacted that the decision of the commissioners should be confirmed. — 5 U. S. Statutes at large, 126; 5 American State Papers, 735. The decision predicated upon such a case is obviously inapplicable here. The claim asserted was according to the survey, and in like manner it was confirmed. The confirmation of the plaintiffs’ claim by congress, we are compelled to conclude, had no reference to any tract of ascertained and defined location and boundaries, and, therefore, did not vest a title, as against the general government, in any particular land.

2. The second question is, whether the act of congress, and the subsequent proceedings of the officers of the government, have vested a title in the plaintiffs. By the confirmation, as has. already been said, the heirs of Mims acquired a right to have the claim located, its boundaries fixed, and themselves thus clothed with a complete title to a particular tract of land. The acts of congress provide the mode of accomplishing that object, through the agency of the executive officers. Under those acts, there was a survey by Henshaw, in January, 1835, which was approved by the surveyor-general; and in March, 1835, the register and receiver issued a patent certificate, conforming to the survey, and containing a condition, which was held to be void by this court in Innerarity v. Heirs of Mims, 1 Ala. 660. This patent certificate does not seem to have been at any time communicated to the commissioner of the general land-office. But, on the 20th September, 1850, a second patent certificate, omitting the void condition, but otherwise identical with the first, was granted. This last certificate was communicated to the commissioner of the general land-office, who returned the certificate, with instructions, to the register and receiver ; and, after some investigation by them, and report thereupon, the commissioner, in an able opinion, with the reasoning and conclusions of which we fully concur, decided, that the claim did not cover the area upon which it was located, and that the location and survey were erroneous; and farther, that no patent should issue, unless it should be otherwise adjudged by a court of competent jurisdiction. This decision and conduct of the commissioner were equivalent to a judgment of condemnation of the survey and patent certificates referring to it. Whether or not the survey and patent certificates were avoided by the decision of the commissioner, depends upon the question, whether the latter could legally exercise a revising power in reference to those matters.

The first section of the act of congress of 4th July, 1836, entitled “An act to re-organize the general land-office,” is as follows: “From and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents under the authority of the government of the United States, shall be subject to the supervision and control of the commissioner of the general land-office, under the direction of the president of the United States.” — 5 U. S. Statutes at large, 107. It is so fully settled that this act invested the commissioner of the general land-office with the authority to revise the acts of the subordinate officers engaged in regulating and disposing of the public domain, that, declining to enter upon the investigation of it, we decide, that the commissioner did have, by virtue of that act, such power as he has exercised in reference to the patent certificates and surveys before us.—Bates v. Herron, 35 Ala. 120 ; Cousin v. LeBlanc, 19 Howard, 202; Bernard v. Ashley, 18 Howard, 43; Bell v. Hearne, 19 Howard, 252; West v. Cochran, 17 Howard, 403.

But the survey here was made and approved, and one of the patent certificates was issued, before the passage of the act of 1836; and it is contended that, under that act, there can be no power of revision over acts done before its adoption. "We are therefore called upon to inquire, whether the commissioner of the general land-office did not have, before 1836, the revising power which he has exercised. The 5th section of the act of 1829, which confirms the plaintiffs’ claim, confers upon the register and receiver authority to direct the manner in which all claims to lands and town lots, confirmed by that or any former act of congress, should be located and surveyed. The 6th section directs, “that certificates of confirmation, and patents, shall be granted in the same manner as patents are granted for lands and town lots under former acts of congress.” — 4 U. S. Statutes at large, 358. The certificates of confirmation are evidently the same which we have heretofore in this opinion denominated “patent certificates.” Upon recurring to the “ former acts of congress,” to ascertain the manner in which patent certificates and patents were granted under them, we find that the act of 1822 contains a similar provision, and that the 12 th section of the act of 1819, upon the same subject, points out the manner. — 3 U. S. Statutes at large, 532, and 707. That section provides, that the registers shall examine the claims confirmed, and shall make out a certificate, under such instructions as they may receive from the commissioner of the general land-office ; and that on presentation of the certificate at the general land-office, a patent shall be granted, “where it shall appear to the satisfaction of the commissioner of the general land office, that the certificate has been fairly obtained according to the true intent and meaning of this act.” This provision of the act of 1819, prescribing the mode of issuing certificates and patents, is, in effect, incorporated into the act of 1829, under which the plaintiffs claim. It is impossible to resist the conclusion, that, by that provision, the commissioner of the general land-office is clothed with the authority, upon the presentation of a patent certificate, to inquire whether it was fairly obtained according to the true intent and meaning of the act, and, if he decides that question in the negative, to withhold a patent. Such authority in the commissioner necessarily includes the power to annul the acts of the subordinate officers, upon which the claim to a patent is predicated; for it would be absurd to say, that the claimant had a perfect title by virtue of acts of subordinate officers, when, because those acts were wrong, the commissioner had rightfully refused a patent. Besides, it would be utterly useless to give to the commissioner power to refuse a patent, where the certificate was wrongfully granted, if, notwithstanding his refusal, the claimant had a complete title.

In this case, the commissioner decided, rightfully as we think, that the act of congress was never designed to confirm a claim to the lands specified in the patent certificates— 'that the certificates were not obtained according to the true intent and meaning of the act; and he had authority so to decide. He thereupon, in the exercise of an unquestionable authority, refused a patent. Now, this authority to decide and withhold a patent is altogether worthless and vain, if, notwithstanding, the plaintiffs have a complete title. The theory of the entire law, in reference to the public lands, is, that he who acquires a title to any part of the public domain, is entitled to a patent. But, if the acts of the commissioner in reference to the patent certificates in this case do not annul them, we have a case, where a party has a title as against the government of the United States, and yet bas no right to a patent, because the commissioner, having the authority to do so, has refused a patent.

Note by Beporter. — The foregoing opinion was delivered at the June term, 1861.

We conclude, that the location and survey, and patent certificates obtained by the plaintiffs, have been annulled, and that the plaintiffs have no title to any particular piece of land, and no right cognizable in this case.

It is unnecessary for us to look farther into the points of the case. There was no error in the charges given, nor in the refusals to charge as requested; and if there was any error in the admission or rejection of testimony, the plaintiffs have not been injured thereby, because they have no title to the locus in quo.

Judgment affirmed.