Jinkins v. Noel , 3 Stew. 60 ( 1830 )

By JUDGE SAFFOLD.

It is assigned for'error, 1st. That the verdict and judgment are erroneous for their uncertainty in describing the land recovered. The alleged uncertainty, is explained in argument to refer to the terms adopted to express the quantity of land intended to be conveyed, and in ils dimenlions north and south, and east and west, by describing it as containing “about” the ber of acres; and being “about” the extent mentioned, instead of a more exact description; and in only describing the western boundar}' as being part of the said quarter of the said section 25. By an authority referred to, ^a it is held that “ejectment will not lie of 20 acres of arable and pasture, without shewing how much of each; nor will it lie of a close of meadow called Partridge Lees, containing 10 acres more or less, because the certainty of acres ought to appear in the declaration; nor will it lie for a cióse containing three acres, without ascertaining whether arable, meadow, or pasture.” In support of the judgment, reference has also been made to authority,^b where it was ruled “that a very exact description of the nature of the land is not required, and that a greater latitude is now' admitted than formerly, because the lessor of the plaintiff is to shew the lands to the Sheriff and to take possession of (hem at his peril.” Also, it is said to be usual for the plaintiff to indemnify the Sheriff, and then the Sheriff gives him execution of what he demands. And if the plaintiff takes out execution for more than the recovery warrants, the Court will interpose in a summary wray, and: restore the tenant to the possession of such part as was not recovered.^c I am of opinion, however, that all rea sonable and practicable certainty of description should be required, and that the correct rule of law does not permit a successful plaintiff, by indemnifying the Sheriff or otherwise, to exercise an arbitrary discretion as to the quantity, or particular location of the lands to be delivered under his recovery; but that the verdict and judgment must ascertain, to a common intent the precise lot or tract recovered, and that this must appear either in the verdict and judgment, or by the usual reference to the declaration.

The further inquiry on this point is, docs this record contain the requisite certainty? The method adopted by the Federal Government for dividing out the public domain into townships and sections, and the allotment of sections into less subdivisions, is known from the public laws. This is done preparatory to the sale or other appropriation of them. It is a fact of universal notoriety, and unavoidable in its nature, that the different townships and sections, though intended to be of the same dimen-tions, and so suryeyed as nearly as practicable, vary considerably in quantity'; so that sections intended to be made-tracts of 640 acres, often vary from that quantity, by an excess or diminution of 20 acres; and are disposed of by' the- government at what appears from surveys to be the true contents. A section however, in common parlance, is understood to contain 640 acres, and each subdivision a proportional quantity. 'Hie sections being divided into quarters by two right lines, through their centre, intersecting each other at right angles, would leave 160 acres to each quarter, provided the sections contained the exact quantity of 640 acres. But the division of the sections not having been actually made by the authority of the United States, individuals are left to purchase the subdivisions as though it had been done, and must themselves ascertain the precise bounds of the smaller allotments by such legal means as are provided by the laws of the State.

In as much then as the different allotments of the public lands sold to the French association, as well as those in most other pails of the State, must vary in quantity, it. was difficult or impossible for the defendant in error, without an actual survey', to ascertain the exact quantity or dimensions of the land sued for. From the description oí the land given in the declaration, it is perfectly evident, that Noel claims, and attempted to describe three eighths of the north half of section No. 25, and that to be taken from the east side of the said half section. His description contained reasonable certainty; the lot or tract may not be precisely, but must be near the quanty and dimensions he gives. It is therefore sufficient to say “about” so much, at least when accompanied with definite bounds on the north, east and south, and when described as being; bounded on the west by part, which must be the residue, of the said north-east quarter of said section No. 25.

2. As to the second assignment of error, all may be embraced which imputes error in the admission by? the Court, as evidence, of the paper purporting to be the original contract between the Secretary' of the Treasury of the United States, and Charles Villar as agent of the association of French emigrants, and also the admission of the copy thereof.

The original contract objected to, is the same that was tested as evidence in the case of White v. Saint Guirons,^a with the principles of that decision, the Court feel no dissatisfaction. It was, that the seal of the Treasury department of the United States, and the signature of the Secretary, are intrinsically evidence to authenticate the official acts of the Secretary. But the objection particularly to the absence of proof of the execution of the contract, by Villar the agent. That Villar was the agent he purports to have been, is not questioned; and he is acknowledged as such, by the United States, in the supplemental act of Congress in favor of the emigrants. The allottees claim no title as having been derived from him, but from the United States, through the Tx-easury department. Therefore authentication of the contract by the Secretary, executed pursuant to an act of Congress with the agent of the emigrants or allottees, and for their benefit, is sufficient to entitle them to use it as evidence. That the original contract being in the possession of the party, was admissible as evidence, at least equal to the copy, it is impossible to doubt. The copy which was certified by the Secretary oí the Treasury, with the seal of the Treasury department, to be a true copy from the records of his office, and which is in all respects similar to the original, is conceived to have been entirely innocent. It could have produced no injury, and though unnecessary, as the jury would have been bound to give the same credit to the original alone, that they could to both, there could be no error in admitting it as evidence.

3. Under the next assignment of error, will be noticed the objection that the French emigrants or allottees were incapable of assigning their interest; and that the Court below refused to instruct the jury, that if they believed the plaintiff below was an alien, they ought to find for the defendant.

It is admitted with respect to the first branch of this exception, that an inchoate title to lands, as well as one more complete, by the principles of the common law, may be assigned. But it is contended that the spirit and design of this contract, necessarily restrain alienation by implication. That as its object was “to set apart, and dispose of certain public lands for the cultivation of the Vine and Olive,55 and the French emigrants were supposed to be peculiarly fitted for the enterprise, the right of alienation by them would defeat the purposes of the grant. By the act of Congress of the 3rd of March 1817, the Secretary of the Treasury was authorised, under the direction of the President, among other duties, to make allottments of the lands among the individual emigrants, to stipulate in the proposed contract, for such conditions of settlement, and for the cultivation of the Vine and other vegetable productions, as might to him appear reasonable. Pursuant to this authority, the Secretary did establish and confirm, with certain exceptions, and alterations, the allotments which had been made by and among the individuals described in said act, a list of whose names was deposited in the office of the Treasury department, and a copy whereof, together with maps of the allottments so made, was annexed to the contract, so as to form a part thereof.

It was further contracted between the Secretary and the agent of the allotces, that on payment being made, and the fulfilment of the other conditions prescribed in the contract, patents should be granted to the respective individuals, or their assigns, for lands to which they might be entitled, under the act of Congress; but that no patent should be granted for a greater quantity of land than U40 acres for any one person; nor should any patent be granted for any of the land, or any title be obtained therefor either in law or equity, until payment was made, and ail the other conditions were complied with and performed.' Doubtless the United States posseses the right, and in several instances has exercised it, of rejecting the names of such persons claiming allotments, as come not within the description of French emigrants. But it has not been discovered or shewn, that either the law or the contract have restrained alienations of the claims or interest in the respective allotments, either in their incipient state, or af-terwards. On the contrary it is seen that after the conditions shall have been performed, the United States has stipulated to grant patents to the respective individuals, or their assigns. Patents can never be rightfully claimed until the conditions precedent have been complied with, yet we have no authority to say that any claim of an as-signee will then be rejected on- the ground of the transfer, or that an assignee shall not have the full benefit of his contract until denied by the government.

The second branch of this exception is, that an alien is incapable of maintaining an action to recover real estate. This is a question of the utmost importance, whether considered with reference to this controversy, or to its influence on the principles of civil liberty, and national policy. Its importance, however, is entitled to no other influence on the Court, than to strengthen their desire to decide ii according to the best established principles of law. The decision depends on the rules of the common law, as they are understood at the present day.

On the part of the plaintiif in error it is contended, that though an alien may purchase lands, he cannot hold them; consequently he cannot, in any form, maintain an action for their recovery. Some of the authorities referred to by the counsel, afford some sanction to this doctrine. Among others may be noticed 2 Blaekston’s Commentaries^a where it is said “if he (the King) grants land to an alien, it operates nothing.”

It also appears to have been held that an alien could not maintain a real action for the recovery of lands: but that it did not then follow that he might not defend, in areal action, his title to lands against all persons but the sovereign.^b

In support 01 the contrary doctrine we are also referred to many authorities. Judge Kent^c says “an alien can not acquire a title to real property by descent, or created by other mere operation of law. The law quss nihil frustra, never casts the freehold upon an alien heir who cannot keep it. This is a well settled principle of the common law; it is understood to be a general rule, that even a natural born subject cannot take by representation from an alien, because the alien has no inheritable blood, through which a title can be deduced. If an alien purchase land, or if land be devised to him, the general rule is, that in these cases, he may take and hold, until an inquest of office has been had.”

Also in the case of Jackson v. Sunn,^d the Supreme Court of New York held, that in case of a purchase, the law will recognize the title of an alien in land, until office found; but in case of a descent, the law takes no notice of an alien heir, on whom the inheritance can not be cast. In the decision of that case, Radcliff J. remarks, “I apprehend it is not true, with respect to aliens in general, that they cannot purchase or hold lands, under any circumstances. On the contrary it appears to have been settled from the time of Lord Coke, that an alien may take by purchase, and even maintain an action for land, if the crown in England, or the people here, do not interfere.” In 1 Johnson’s cases399,as well as in the later decisions,the same doctrine iiS held, and in thatState the principle is well settled. The Supreme Court of Massachusetts, in Sheaffe v. O’Neal,^e held unanimously, “that an alien could purchase and hold real estate against all, except the Commonwealth and could be divested only by office found; of course until office found, he could convey.” This doctrine has become entirely current in that Slate.^a It also prevails in most of the other States.

This is a question on which the decisions of the Supreme Court ot the United States are more particularly entitled to the respect of the Slate tribunals, for the reason, that the right in question, as well as the titles to lands in this State and several others, in most instances emanate from that source. On a slight review of the decisions of that Court, it will be found, that it sustains the right of aliens to acquire lands by purchase; to hold them, and instituto suit for their recovery, unless the sovereignty interpose, by instituting an inquest, and effecting what is called an office found. In the case of Fairfax’s Devisee v. Hunter’s Lessee^b it was ruled that even an alien enemy may take lands in Virginia by devise, and hold the same until office found. In delivering the opinion of the Court in that case, Story J. remarked, “if we arc right in the position that the capacity of an alien enemy docs not differ in this respect from an alien friend, it will not bo easy to maintain the disability of aliens to purchase and hold lands. It is incontroverlibly settled upon the fullest authority, that the title acquired by an alien by purchase, is not divested until office found. The principle is founded upon the ground, that as the freehold is in the alien, and he is tenant to the lord of whom the lands arc holden, It cannot be divested out of him, but by some notorious act; by which it may appear that the freehold is in another, ^c Now an office of entitling is necessary to give this notoriety, and fix the title in the sovereign. So it was ad • judged in Page?s case ^d and has been uniformly recognized. ^e And the reason for the difference why when an alien dies, the sovereign is seized without office found, is, because otherwise the freehold would be in abeyance, as an alien cannot have any inheritable blood.”

Again in the case of Governeur’s heirs v, Roberson,/ the same Court, in an opinion delivered by Johnson J., to which there was no dissent, held that an alien may take real property by grant, whether from the Slate, or a private citizen, and may hold the same, until his title is divested by an inquest of office, or some equivalent proceedings. The Court remarks, with reference to the language used by Blackstone, “that if the King grants lands to an alien, it operates nothing,” that it would be doing injustice to the writer not to weigh his meaning by the words precceding; and following this sentence. Tils language is this, “but the King’s grant shall not enure to any other intent than that which is precisely expressed in the grant. As if he grants land to an alien, it operates nothing; for such grant shall not also enure to make him a nizen, that so he may he capable of taking by grant.” The Court proceeded to declare the true principle thus,, “that an alien can take by deed, and can hold until office found, must now bo regarded as a positive rule of law, so well established, that the reason of the rule is little moré than a subject for the antiquary.” Hence it appears thd law on this subject is now too firmly settled to be further questioned; and that it is settled in the way most congenial to the spirit of our institutions, at least in relation to alien friends, to whom we delight to afford an asylum.

4. The two remaining exceptions may be blended, as the last point involved in the case. It is objected that the Court permitted the paper, containing a drawing of lines, a list of names, &c., bearing date October 26, 1819, as set forth in the bill of exceptions, and also the deed from John Haez to the plaintiff below, to be read to the jury as evidence.

Noel claims to derive title through Haez to part of á tract of land which had been allotted to Gaines, whose name in the contract mentioned as having been executed between the Secretary of the Treasury and Villar the agent, with many others, had been erased from the list of allot-tees. In lieu of several allottees whose names had been rejected, several other persons were designated in the contract as their successors. Other allotments thus remaining vacant, it was agreed they should- be assigned to other late emigrants, subject however to the regulation, that their names should be presented to the Secretary of the Treasury for his approbation, by the agent of the association or his successor; but that actual settlement should in all cases be an indispensable condition. Authority subsequently given by the Secretary, in the form of a letter, dated January 11, 1819, to the agent, directed that Messrs. Peniere and Meslier should designate the persons to whom the allotments should be assigned according to the terms of the contract; and it was further directed that should these persons disagree as to the persons who ought to be provided for out of said allotments, they might either appoint a third associate, or determine the selection by lot. But the names selected were to be transmitted to the Treasury department for the approbation of the Secretary. Flaez, who appears to have assigned to Noel, the plaintiff below, claims to have derived his interest by virtue of this latter allotment by Peniere and Meslier. The -evidence which Noel gave of this till'-, consists only of the paper of October 26, 1819, appropriately styled in argument a nou-descript, It is a paper containing a draft of several allotments of land, with their contents and numbers .accompanied with a list of names, and a description of allotments set opposite thereto. This document exhibits the names of Prudhomme and Haez, opposite allotment number 5, of 240 acres, and purports to have been signed by Peniere and Meslier, as makers, and Mes-layer, Prudhomme, Mannoury and Metáis as witnesses. It also purports to have been proven by said Prudhonmie in the usual form of a deed, before William Halo, as Judge of the County Court of Mobile. This probate, however, appears to have been excluded from the jury, consequently it is not in question. The execution of the paper is sta'ed to have been proven in no other way than by making proof of the hand writing of the several persons whose names as makers and witnesses, appear signed at the foot of it. There was evidence that Prudhomme resided in Mobile, and the other persons whose names were subscribed at the bottom, in New Orleans. After objection by the counsel of Jinkins, the defendant below, the Court admitted this paper, and a deed for the land from Haez to Noel, duly proven, to be given as evidence to the jury. On this point it is thought sufficient to observe, that this new allotment is deemed insufficient to vest in Haez any title that could authorize him to sustain an action in his own name, or to transfer an interest to another on which a recovery can be had, until the allotments thereby made shall have received the sanction of the Treasury department. Proof of this fact appears not to have been inade, which was indispensable by the terms of the contract. It is unimportant to examine the admissibility, as evidence, of the deed from Haez to Noel.

Much is due to the discretion of the Court of original jurisdiction, as to the particular order in which the several links composing the chain,of title shall be introduced, provided it be rendered complete. To commence at the source and trace the title, by regular conveyances, to the plaintiff, would appear to be the most natural order; but various circumstances may excuse a departure from this course.

On the former ground alone, that Ilaez’s evidence of title was inadmissible, we are unanimous in opinion, that there was error, for which the judgment below must be reversed, and the cause remanded.

By JUDGE CRENSHAW.

In this case I shall take notice of the objections made to thejudgment of the Cir-cuí* Court, in the order pursued by the counsel for the plaintiff in error,

The first proposition contended for was, that the description of the premises sued for, was too uncertain to sustain the judgment; that thejudgment and verdict refers back to the declaration for a description, and ihat the land is then described as being a tract, “containing about 120 acres, and about half a mile long north and south, and about three-eights of a mile wide east and west, and situated on the eastern side of the N. E. quarter of section No. 25, township No. 20, range 4, east.” From this description it appears that three of the boundary lines are given, but the length of two of them is undefined and' the quantity of land is left uncertain. If the metes and' bounds had been distinctly and definitely set out, then certainty as to the quantity would be immaterial. But certainty as to quantity would aid an imperfect description, provided the land be sufficiently identified. If the land had been described accurately in the verdict, this would have cured the imperfect description contained in the declaration; for I hold that the land must be described with certainty, either in the verdict, or declaration, and that when the quantity and description are both uncertain, as in the present case, thejudgment is clearly erroneous.

From the authorities which I have considered with some deliberation, I infer that the land should be described with that certainty, which will place its identification beyond a doubt; with such certainty that a verdict might-be pleaded in bar to another action for the same premises;, and with so much certainty as would enable the Sheriff to. know of what land he was to give the plaintiff possession. As a judgment imports absolute verity, it is essential to-its validity that it be equally certain, and it ought not to > require extrinsic aid nor any further act of the party to give it force and effect.

The second position was, that the contract made by the Secretary of the Treasury, under the seal of the Treasury department, with Villar, the agent of the French colony,. was-not proved. I concur with the Court in believing that the adjucation in the case of White v. St. Guirons is decisive of this question. It was then decided that the seal of the Treasury department, with the signature of the Secretary, are intrinsically evidence to authenticate the official acts of the Secretary. After the original contract was introduced to the jury, it was .certainly unnecessary to oiler a copy in evidence. But the copy being immaterial testimony, after the original was introduced, it could not mislead the jury, and thereiore should not now be considered as erroneous.

The third position relied on, was, that there was no proof of title in Haez, and who consequently had no right which he could legally convey to Noel the plaintiff. The evidence going to shew title in Haez is what was emphatically and correctly called by the counsel, a non-descript paper, and which no doubt was intended to be a very material link in the chain of title; but it appears not to be connected therewith by sufficient testimony. There is no sufficient evidence to prove that Haez was substituted in place of Gaines, or that the land in dispute was allotted to him, under the provisions of the contract, and in pursuance of the instructions of the Secretary of the Treasury. These material facts cannot be inferred from the face of this non-descript paper. On this ground therefore I concur with the Court in reversing the judgment.

But two other propositions were assumed,which if true, must effect an entire reversal of the case, and defeat the plaintiff’s claim for ever. The one was that if Haez was a grantee under the contract, yet his interest was not assignable before the annexed conditions should be performed. The other was that the plaintiff Noel was an alien, and could not maintain an action for the recovery of land.

As to the first proposition, it will be recollected that the main object of the government, in granting four townships of land to the French emigrants, was to encourage the cultivation of the Vine and Olive. It was supposed by the government, that these emigrants coming from a soil and climate which were congenial to the growth of the grape, these.branches of agriculture would flourish under their better skill and experience. In order to advance the principal object of the grant, many inducements were held out, and favors conferred. The selection was made from the most valuable lands in the country. To each ipember of the association was granted a half section, and. the long credit of 14 years was given, in which to make payment, though the purchase was at two dollars per acre, the then minimum price of the public lands. These were certainly greater favors than the government then or at any time since has extended to her native

When the conditions annexed to the grant shall have been performed, the government then covenants to give a patent to the grantees or their assigns; but it is expressly declared that no title, either in law or equity, shall be obtained until full and complete payment shall have been made, and the conditions and stipulations faithfully performed.

I will not inquire whether such an interest in land could be assigned at the common law. It is^nough for my purpose, if from the object of the grant, the spirit and meaning of the contract, and conditions annexed, an inability to assign can be fairly deduced. If the grantee had no title in law or equity, then he had nothing which could be assigned, so as to enable the assignee to maintain a legal action. If the right of assignment existed at all, it must have been as perfect immediately after the making of the contract, and the allotment of the land, as now. And if so, the grantees might have assigned to persons, who were not emigrants from France, and who knew nothing about the culture of the Vine and the Olive, and thus would, have totally defeated the object of the grant in its inception. When the conditions and stipulations annexed to the contract were performed, then and not till then, they were authorized to assign, because then the object of the grant would have been attained, and the grantees would have acquired something like an assignable title. That the conditions have not been performed is a fact of public notoriety, and may be considered as a part of the history of the country. Indeed the time has not yet arrived, when the payment is to be completed. But I will not resort to public notoriety to maintain a legal proposition. I insist that if an assignee, who must be viewed as a stranger to the original contract, had a right to maintain the action before the grant of a patent, it was incumbent on him to prove at the trial, that the conditions had been performed. In the case of White v. St. Guirons, as I understand it, the action was brought by a grantee, party to the contract, who stands in a very different situation from an assignee; and for this reason, it was determined, that his claim ought to prevail against all persons except the government, and that a mere trespasser had no right to require of him proof that the conditions of the grant had been performed. On the ground therefore, that the interest in the land could not be assigned to the I am for reversing the judgment.

As to the last proposition, which was that the alienage of the plaintiff was a good defence under the general issue of not guilty, it is laid down in many authorities on the subject, that alienage of the plaintiff is an available de-fence in bar to an action for the recovery of land; and the authorities further maintain, that, what constitutes a good bar at the commencement of this action, is admissible in evidence on the trial of the general issue. The question then to be settled i$at what time would alienage constitute a good defence. Is it before or after the inquest of office hath been found against the alien? Though with us it may be said to be novel and difficult, yet on a careful examination of the law, and especially the decisions in Massachusetts and New York, and the doctrine as laid down by Chancellor Kent, I am inclined to think it well settled, that an alien in possession of land may defend against all persons except the government, or its grantee; that an alien cannot claim by inheritance, but that he may purchase and hold land; sue for and recover it, at any time before inquisition of office hath been found against him, escheat-ing the land to the government. In this position therefore I.concur with the rest of the Court. As to those points touching which it is my misfortune to differ from them, I wish to be understood as entertaining great respect for their opinion, while I am constrained to adopt a different one as the result of my judgment.

Judgment reversed and cause remanded.

Judge White, not sitting.

a Bul. N. P. 109.

b Esp. N. P. 448 1 Bun. 629.

c See Wheat. Sel. 565, and references.

a Minor's Reports 331.

a Page 347-8

b Co. Litt. 129 b. 1 Mun.618.

c 2 Com. 46.

d 3 John. Cases 109.

e 1 Mass.Rep. 256.

a 8 Mass. Reports 430. 12 idem 143.

b 7 Cranch 603.

c 1 Bac. Abr. alien c. p.133

d 5 Co. 22.

e Park’s Rep 267, ib 144. Hob. 231. Bro.Denizen pl 17. Co. Litt. 2 b. /11 Wheaton 351.