Stewart v. Trenier , 49 Ala. 492 ( 1873 )

B. F. SAFFOLD, J.

— The action was ejectment, brought by the appellants against the appellee, and decided in favor of the defendant, under charges of the court. The land in controversy is a portion of Mon Louis Island, which is formed by Fowl River and Mobile Bay. The plaintiffs deduced their title from Nicholas Baudin, and the defendant from Henry Francois. The question is, which of the two had the better title. The following is an abstract of their respective titles. [The material facts, as above set forth, were here stated at length.]

On the 10th February, 1763, by a treaty signed at Paris, France, by virtue of her original acquisition, ceded to Great Britain the bay and port of Mobile, and all her possessions on the east side of the Mississippi River, except the town of New Orleans and the island on which it is situated. By the same treaty Spain ceded Florida to Great Britain. By a separate secret treaty, France ceded the remainder of what she called Louisiana to Spain. Great Britain, having previously consolidated her acquisition from France with that from Spain, obtained in 1763, into two provinces, under the name of East and West Florida, ceded them to Spain, by a treaty signed at Versailles on the 3d of September, 1783. On the 1st of October, 1800, by tbe treaty of St. Ildefonso, Spain ceded Louisiana to France, with the boundaries as they were when France possessed it before. On the 30th of April, 1803, France ceded it to the United States, with the same boundaries, by a treaty signed at Paris. The land in controversy is contained within that cession, and governed by that treaty as to the rights of property of individuals.

The third article of the treaty of Paris, of 1803, is in these words: “ The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted, as soon as possible, according to the principles of the federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and, in the mean time, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.” Justice Daniel, in the United States v. Reynes (9 How. 127), says: “ The term property, in this article, will embrace rights, either in possession or in action; property to which the title was completed, or that to which the title was not yet completed; but, in either acceptation, it could be applied only to rights founded in justice and good faith, and based upon authority competent to their creation.” The article declares only what the international law requires when there is no stipulation — that the United States shall perform to the acquired citizens the duties which were incumbent on France. In all of the legislation of Congress intended to adjust the claims of persons to land under title derived from any of the preceding governments, the authority on which a grant, purporting to have emanated under all the official forms and sanctions of the local governments, has never been required to be filed, recorded, or its validity adjudicated. The inquiry, in this respect, has been confined to the validity and good faith of the grant itself. United States v. Arredondo, 6 Pet. 691-722.

The contract of cession made to Nicholas Baudin in 1710-13 was reported to Congress in 1816. The commissioners made no recommendation, and no action was taken. This report establishes the presentation and record of the claim, as required by an Act of Congress of 1812, and another of April 18, 1814, together with the inhabitation and cultivation of the land. But it says there was no survey. In O'Hara v. The United States (15 Pet. 275), it is said a survey would be presumed from a settlement made by the grantee. A further act of Congress for adjusting the claims to land in the district east of the island of New Orleans, approved March 3, 1819, made additional provision for ascertaining the titles complete or inchoate. An Act of March 3,1827, supplementary to this and others, extended the time for presentation of titles and claims, as provided by the Act of 1819, to the 1st of September, 1827. Under this act the claim of Baudin was renewed, reported on favorably by the commissioners, Hazard and Owen, and confirmed by Act of March 2, 1829.

But by an act of May 8, 1822, the claim of Henry Francois to a donation of six hundred and forty acres of the same land, as an actual settler, without claim derived from either the French, British, or Spanish government, was confirmed. A government survey of the island Mon Louis was made in 1831, by James Dowell, deputy surveyor, at the instance of the register and receiver of the land office at St. Stephens, Ala., and was approved on the 4th of July, 1843, by James H. Weakley, surveyor general of the public lands in Alabama. On the 5th of May, 1870, the patent was issued to the heirs of Henry Francois.

In Burgess v. Gray (16 How. 48) it is held that, under the treaty with France of 1803, no court of justice has jurisdiction to maintain or establish an inchoate and imperfect title to land derived from the French authorities, unless such jurisdiction to try and decide it has first been given by an act of Congress, and that such jurisdiction has certainly not been given to any state court. But if a title so derived was complete, or, being imperfect, has been confirmed, its validity and merits may be determined by the courts under their general jurisdiction* when contested against other titles. The patent to the heirs of Francois mentions the Baudin claim as interfering, by junior confirmation, with the rights of the patentees, and expressly subjects the patent to any just claim derived from either the British, French, or Spanish authorities, or from the United States. The confirmation of Baudin’s claim, in 1829, also amounted only to a relinquishment forever, on the part of the United States, of any claim whatever, and was not to affect the claim or claims of any individual or body politic or corporate.

Two propositions are conceded in this case. 1st. If both of these claims depend for their validity on title derived solely from the United States, that of Francois must prevail. He who first obtains the title, and not he who first applies for it, must hold it. McCabe v. Worthington, 16 How. 86. 2d. If Baudin’s title was complete at the time the United States acquired the territory, it is the superior right, by virtue of the tr'eaty. Congress having confirmed the grant or concession to Baudin, as one derived from the French authorities, its genuineness and authority is established. United States v. Arredondo, supra. Did it sever the land claimed from the public domain ? The •evidence seems to establish, clearly, that Grosse Pointe was the appellation given to land embraced in the island now called Mon Louis. The contract of cession describes it as “ beginning at and running along Fowl River, till it reaches the Oysters (Oyster Pass), which separates Massacre Island from the mainland.” The purpose of the gift was “ to raise cattle thereon.” From the subsequent survey, we see that Fowl River separates the island Mon Louis from the mainland, the other boundaries being the Bay of Mobile and the Gulf of Mexico. “ Grosse Pointe ” must have referred primarily to some point of land formed by the larger waters, especially as we find two points to which it may have been applied, to wit, Cedar Point and another. These would naturally have become the first objects of notice, and the name given to them would embrace a considerable portion of the back country, it being wild, and imperfectly known. The beginning at Fowl River would be the nearest to the Grosse Pointe. The course would be along that river, from the Pointe to the Oyster Pass. This pass was obliged to lead into the Mobile Bay, as we find no other stream forming the island than the river. The tract of land, about 14,000 acres, was not large for a grant of that day. Its situation as an island was admirably adapted for the intended purpose. Its claimants occupied it, under the cession, without interruption, for nearly a hundred years. On every change of the government, they brought up their papers, and demanded an official recognition of their rights. Fifty years after the concession, and just before Great Britain became the sovereign, the widow of the original grantee obtained the recording of her husband’s right. Twenty years afterwards, and when the country was about to pass under the dominion of Spain, another assertion of title is made. Nobody interrupts them until the United States acquires possession. The entire cession and transfer of the land, with its circumstances and dependencies, was made to him and his children, heirs, and assigns," forever, subject only to the right of eminent domain inherent always in the sovereign. We think no survey could more effectually have ascertained the tract, or separated it from the public domain, than was done by Fowl River, designated as its boundary; and, also, that what we call the fee simple was conveyed.

But, if the boundaries were not sufficiently described (the only point about which there can be any question as to the completeness of the grant), Baudin had rights of property to some portion of the land, which the United States recognized its obligation to protect under the treaty of 1808, by confirming them in 1829. The donation to Francois, in 1822, was made subject to them by the act which confirmed it. The government never at any time repudiated Baudin’s claim, directly or by necessary implication. In this respect, this case differs from that of McCabe v. Worthington, supra. If the grant was satisfactorily shown, it has been the practice of the United States, either by its courts, or by other agency, to order a sur- , vey, if sufficient data existed from which it could be made. The almost accurate estimate of the number of acres embraced in Baudin’s claim, made by the commissioners in 1828, previous to any survey, and the confirmation, show how readily the proper boundaries were ascertained. We therefore think that, notwithstanding something may have remained to be done to define more clearly the extent of the grant, as the government, in its confirmation of both claims, reserved the rights of individuals, while relinquishing its own, the claim of Baudin is superior in every respect to that of Francois.

Note by Reporter. — On a subsequent day of the term, in response to an application by the appellee’s counsel for a rehearing, the following opinion was delivered: —

It results from what has been said, that the charge of the court was erroneous, and that the first four charges asked by the plaintiffs ought to have been given. As to the fifth, the patent obtained by the heirs of Francois recognizes the confirmation of their claim in 1822 to 640 acres, and remedies any obscurity in reference to their location.

2. The transcripts from the land office at Mobile, certified by the register, and entitled “ Exhibits A and B,” were properly admitted in evidence, notwithstanding the objections of want of date, and of the seal. Section 2691 R. C. recites that “ all transcripts of any official book, official entry, or any other document pertaining to any land office in this State, certified by the register of such land office, must be received as primé facie evidence of the facts contained in such transcripts so certified, in all the courts of this State.” No seal is specified, and, “ on general principles of law, a copy of a paper given by a public officer, whose duty it is to keep the original, ought to be received in evidence.” United States v. Perchman, 7 Pet. 51.

The judgment is reversed, and the cause remanded.

SAFFOLD, J.

— The appellee insists, that the French concession to Baudin in 1710 is void for uncertainty in the description of the land; and that there is no evidence in the record to identify Grosse Pointe with Mon Louis Island.

The report to Congress, made in 1816, represents, in Powell’s affidavit, that the land was on Fowl River. The report of Hazard & Owen, in 1828, speaks of it as the “ claim of the heirs of Nicholas Baudin to an island in Fowl River, called Grosse Pointe, L’isle Mon Louis, estimated to contain about 14,360 arpents; ” and proved by several witnesses to have “been inhabited and cultivated from a period prior to 1761 to the present time.” The patent to the heirs of Francois mentions the Baudin claim as interfering with the rights of the patentees, and subjects itself expressly to the justice of that claim.' The map of the United States survey, copied into the transcript, shows the island Mon Louis, formed by Fowl River with Mobile Bay and the Gulf of Mexico. The certificate of Mr. Brown, city engineer of Mobile, appended to the application for rehearing, shows that Oyster Pass is a determinable point, and that it is three or four miles from where Fowl River enters into the bay of the same name. If we read the description of the land given in the concession thus — “ to begin at, and run along the (entire) course of Fowl River, till it reaches the Oysters (Oyster Pass), which separate Massacre Island from the mainland,” and the Oyster Pass should be near Cedar Point, as I am inclined to think it is, we would have a line of water entirely surrounding Mon Louis Island, except the side bounded by Mobile Bay — derived alone from the concession. The identity of objects mentioned in a deed to designate the land conveyed, or of a distinctive appellation given to it, is obliged to be proved independently.

A rehearing is denied.