Ansley v. Nolan , 6 Port. 379 ( 1838 )

GOLDTHWAITE, J.

This is an action of trespass, instituted in Chambers Circuit court, by Thomas ’ F. No~ lan, against Gilbert and Samuel Ansley, to recover possession of a tract of land, described in the declaration. The defendants pleaded not guilty ; and on the trial, a verdict was rendered in favor of the plaintiff, who thereon had judgment.

To reverse this judgment, the plaintiffs in error, prosecute their writ, in this court.

The hill of exceptions, taken on the trial, discloses that the plaintiff below, deduced title to the land in controversy, fromthe United States in manner, following:—

1st. He produced, and read to the jury, a certificate of the receiver of public moneys, at Montgomery, for, the land; which certificate, is in these words—

“Pre-emption act. ) Receiver’s office, at M'ontg’y “ 19th June, 1834. ) April 14th, 1830.

“Received fronuLeandcr Burns, of Chambers, the sum of one hundred and ninety nine- dollars, and forty three coats, being in full payment for the south cast quarter of section No. twenty two, in township No. twenty three, of range No. twenty eight, containing 159 54-ICQ acres, at fl 25 per acre — -$199 43-100.

N. E. Benson, Receiver.”

2d. A transfer, or assignment, of the land, written on the certificate, in tírese words—

“ For value received, I, Leander Burns, of Chambers county, Alabama., do hereby assign, .transfer, and set over unto Thomas F. Nolan, of Chambers county, all my right, title, claim and demand, to the within described quarter section of land, and request that a patent may be issued to the said Thomas iV Nolan, his heirs or assigns.

Witness, my hand, this 20th April, 1830.

his

Leander M Burns, n ark.”

To the admission of these papers, as evidence of title, the defendant below, excepted; and their admission, is the only matter to he examined in this cor rt.

it is contended, that as the act of congress, of 1830, chap. 209, makes all assignments or transfers, of the right of pre-emption, prior to the issuance of the patent,, void; and as the act of 1834, chap. 54, simply revives the act of 1830, that the prohibition contained in the; first act, is yet in force, and consequently,, this attempt, to transfer the land, is inoperative.

The counsel for the plaintiff in erroi’, do not seem to-have adverted to the fact, that the restriction imposed by the act of congress, as to the transfer' of such rights,, was withdrawn by the act of congress, of 1832, chap. 9; and that at the timo of the transfer,'there was no daw making it void.

This question, however, we do not intend at this time to decide, as wc are of opinion, that it is not presented by the record. The mere reference to the caption of the receiver's certificate, cannot sufficiently inform this court, that the right of Bums, to the land described therein,, was derived under the pre-emption laws. If it was desired to present this question, for adjudication, the facts to bring the cose within its operation, should have been shewn, with precision and certainty.

The assignment of the land, to Nolan, by the instrument set out, cannot invest him with such a title as will-enable him to maintain-this action; because it is not under seal.

It is unnecessary, at this time, to determine, whether ■any conveyance of lands, not under the seal of the grantor, can pass the legal title to the grantee, it is sufficient to observe, that the instrument of conveyance set forth, if under seal, .would, in that event, be operative, solely as a release, which under the statute of uses, adopted in this state,^* must — to be effective as a conveyance — be by deed.

In the admission, of this instrument, in evidence, to shew title in the plaintiff, in the court- below, the Circuit court erred; and for this error, the judgment must be reversed: and as the plaintiff may have other title to-the land, if desired, the case will be remanded.

* Dig. 94, sec. 37.