Doe Ex Dem. Barbarie v. Eslava , 13 L. Ed. 200 ( 1850 )

50 U.S. 421 (1850) 9 How. 421

JOHN DOE, EX DEM. OF CATHARINE LOUISA BARBARIE, ANN BILLUP BARDE, DANIEL R. BROWER AND ANN B. BROWER, HIS WIFE, CURTIS LEWIS AND ISABELLA LEWIS, HIS WIFE, JOHN T. LACKEY AND MARGARET LACKEY, HIS WIFE, HEIRS AND LEGAL REPRESENTATIVES OF ROBERT FARMER, DECEASED,
v.
MIGUEL D. ESLAVA, AND OTHERS, TENANTS IN POSSESSION.

Supreme Court of United States.

It was argued by Mr. Phillips and Mr. Coxe, for the plaintiff in error, and Mr. Campbell, for the defendant in error.

Mr. Justice WOODBURY delivered the opinion of the court.

This was a writ of error on a judgment rendered in the Supreme Court of Alabama.

Our jurisdiction to revise such a judgment is very strictly limited to cases where some right or title was set up by a party under the general government, — its constitution, treaties, or laws, — and was overruled. It is this Federal character of the claim decided against which furnishes some justification for a revision of a State judgment in a Federal court; and unless it be clearly of that character, the foundation as well as the policy for our interference entirely fails.

So we are confined in our inquires in a writ of error like this, under the twenty-fifth section, to what appears on the record in some way or other, not only to have been set up under the United States, but decided against by the court. Montgomery v. Hernandez, 12 Wheat. 129; Crowell v. Randell, 10 Peters, 392; McKinney v. Carroll, 12 Peters, 66; Pollard's Heirs v. Kibbe, 14 Peters, 353, 360; Coons v. Gallaher, 15 Peters, 18; 16 Peters, 281; 7 Howard, 743. It must, too, be overruled improperly; otherwise there is no grievance to be redressed.

As the plaintiff asserts, that such a right or title has in this case been overruled, and that improperly, the burden to show it devolves on him (Garnett et al. v. Jenkins et al., 8 Peters, 86); and as the State tribunals are presumed to do their duty, we should not disturb their decisions, even on matters connected with the general government, unless very manifestly improper or erroneous. Carroll v. Peake, 1 Peters, 23; 13 Peters, 447; United States v. Arredondo, 6 Peters, 727; 12 Peters, 435, 436. From the record in this case, it appears that both parties claimed the land in controversy, by titles confirmed by the United States, as well as by long possession at different periods.

The possession by those under whom the plaintiff claims had continued from 1757 to 1787; while that of the defendant and his grantors had remained from the last date to the present time, with no interruption except by some legal proceedings between 1819 and 1826, which in the end terminated favorably to the defendant, and left him in the actual occupation of the premises.

The British power, under which Farmer was an officer, ceased a short time before Farmer's heirs left the country, in 1787, and the Spanish power ceased just before their return, in 1819, and for this or some other cause there seems to have been an entire abandonment of the country and of this lot by Farmer's heirs during that period of over thirty years; and a new license by the Spanish government was, therefore, soon given to those under whom Eslava claims, to enter upon it as a vacant lot; and an exclusive occupation and building on it, as if their own, followed by them and Eslava during the same period of thirty years, as well as most of the time since.

The principles of law applicable to these possessions, as existing in Alabama, and as to land held under ancient French and Spanish permits and grants, we do not propose to consider; nor to revise the correctness of the rulings of the State courts concerning them, because they are matters clearly within their sole jurisdiction. But with the other branch of the case, so far as title was attempted to be proved by the plaintiff from or through the United States, and was decided against, the course should be otherwise, and our jurisdiction must be good to ascertain whether the decision made was a correct one.

Under this consideration it is doubtful in the outset whether the claim of the plaintiff ought not, on the evidence now produced, to be regarded as a perfect or complete title, derived from the French patent or grant of 1757, to Grondel, and not to be regarded as a title derived from the United States, and to be revised here if overruled in the State courts. Such a title is not to be affected or regulated by the political authorities to whom a country is afterwards ceded, any more or otherwise than any private rights and property of the inhabitants of such a country. United States v. Arredondo, 6 Peters, 691; United States v. Percheman, 7 Peters, 51, 97; Mitchel et al. v. United States, 1 Peters, 734, 744; 12 Peters, 437, 438; 14 Peters, 349, 350.

And when a party, holding such complete title, is encroached upon, he should find protection in the judicial tribunals, as he can get nothing by a resort-to confirmations, or releases, or patents by the political power which acquired the sovereignty over the territory, but not the property itself, "belonging to its inhabitants." Chief Justice Marshall says, in 7 Peters, 87, "The king cedes that only which belonged to him. Lands he had previously granted were not his to cede." And the complete title to them before obtained is strengthened by no confirmation from the United States, who have acquired no interest in them. Garcia v. Lee, 12 Peters, 519; 6 Peters, 724.

It is questionable, then, whether the confirmation and qualified patent sought and obtained in this instance from the United States conferred any title, or are to be deemed the true source of the title of the plaintiffs. In this view, it would be a title or right derived from France, and to overrule it is to overrule what is derived from France, and not the United States.

The language of the acts of Congress on this subject (4 Stat. at Large, 700 and 708) seems decisive on this point; as by it the complete grants or titles are "merely recognized as valid," while the incomplete ones of a certain character are "confirmed." In the former, the title has already passed to the possessor before the cession, and no confirmation is needed nor rights required from the United States, they having nothing to grant, whether by a statute, or, as here, by a mere quitclaim patent.

The exceptions or defects in the chain of this title to Farmer seem by the present proof to have been all overcome by entry, building, and legal presumptions; though when before the local officers, both parties appear to have been very unsuccessful in collecting many of the facts and papers since obtained.

But if, as reported by the commissioners, this is to be treated as an incomplete and confirmed claim, the State court do not appear to have overruled the title set up by the plaintiff, so far as derived from the United States. They instructed the jury, as to "the title from the United States to either party," that "both were confirmed equally, and the confirmations balanced each other; and, to decide the controversy, the jury must look to the other evidences of title." They accordingly did so look; and as the defendant's grantors, after Farmer's death, and after his family left, entered under a license from the public authorities, given on the ground that the lot had been abandoned and was vacant; and as they and Eslava had occupied it since till 1819 undisturbed, and had been quieted in it again in 1826, and continued there till this time, the jury appears to have found they were not to be disturbed now by any possession or title of Farmer and his heirs before 1787.

Beside this general instruction concerning the confirmations of each title being of equal validity, the court refused to instruct the jury, though requested by the plaintiff, "that the paper title produced by" him "was better than the paper title of the defendant." This is likewise excepted to.

But neither of these instructions, whether the general or special one, seems to have overruled any title derived from the United States; which was merely a confirmation. On the contrary, they consider it as sustained, but the defendant's title thus gotten sustained also, as well as the plaintiff's. It is true, they do not regard the former as better than the latter, and in this view we see no manifest error.

The title of the plaintiff, so far as connected with the United States, consisted of a confirmation of the French grant, and a quitclaim patent. The title of the defendant thus connected consisted of a confirmation of a supposed Spanish concession, and a certificate of this fact, entitling him to a patent, if he wished. Both were confirmed at the same time by Congress. The former, then, is no better as to title than the letter. A patent like the subsequent one in this case, merely quitclaiming or releasing any right of the United States, gives no title to the patentee superior to what a confirmation had given. Thus, in Grignon v. Astor, 2 Howard, 344, the court remarks, — "It has been contended by the plaintiffs' counsel, that the sale in the present case is not valid, because Peter Grignon had not such an estate in the premises as could be sold under the order of the County Court, it being only an equitable one before the patent issued in 1829; but the title became a legal one by its confirmation by the act of Congress of February, 1823, which was equivalent to a patent. It was a higher evidence of title, as it was the direct grant of the fee which had been in the United States by the government itself, whereas the patent was only the act of its ministerial officers." See also Les Bois v. Bramell, 4 Howard, 463; Strother v. Lucas, 12 Peters, 411; 8 Cranch, 244-249; and 1 Howard, 319, 324. After such a confirmation, no patent is necessary to confer a perfect legal title. Sims v. Irvine, 3 Dallas, 456, 457. The case of Bagnell v. Broderick, 13 Peters, 436, relied on against this conclusion, does not militate against it, but merely holds that, a patent of the fee having once issued on a certificate of purchase, it is not permissible to go back of it and to issue another on the same certificate. See also Boardman et al. v. Read et al., 6 Peters, 342.

But it is well settled, that a prior claim, independent of any patent, may for some purposes be considered, and be, valid, and for other purposes may be considered as confirmed by the patent. Carroll v. Safford, 3 Howard, 461; 4 Howard, 462; Brush v. Ware et al., 15 Peters, 106, 107; 7 Wheat. 149. A certificate of confirmation, such as Eslava had, is very different from a certificate of purchase, as the former shows that the legal title has already passed, while the latter is merely evidence that it ought to be passed. A patent is necessary to complete the legal title in the last case, but not in the first; though an equitable title for many purposes exists, even under a certificate of purchase, without a patent. 3 Howard, 400; 15 Peters, 93; 5 Cranch, 93; 13 Peters, 498. Again, as both of the titles here relate chiefly to the same land, the junior title might, but for other objections, be allowed under the act of 1836 to be located elsewhere, and then in some sense be deemed inferior. Les Bois v. Bramell, 4 Howard, 449, 464. But Eslava's claim covers more than that by Farmer's heirs. Beside this, it did not originate independent of Farmer's, but on the hypothesis that Farmer's had been abandoned and become vacant, and a title to the lot is set up also under long possession since, by Eslava and his grantors. The superior right is then to be settled under these facts, and not as if double patents had been issued for a title, existing at the same time to the same lot, and from like sources. There are no other questions raised on the record by the bill of exceptions, as to overruling the validity or superiority of either title, in connection with the United States. Though in the argument, on the side of the plaintiff, the title is contended to be superior, because commencing earlier, notwithstanding it is broken by an absent deed, and because certified earlier for confirmation. On the other side, the defendant's is insisted to possess a higher equity, because accompanied by a longer possession, an earlier survey, the erection of valuable buildings, and the claimant being both a Spaniard and resident when the country was ceded to the United States. But the State court does not appear to have given instructions on any of these particulars, or to have been specially requested to do it, and it is questionable whether the legal effect of any of them, if considered, would have been very material to the title, when both titles were treated by the government and the public officers as imperfect grants, and both confirmed at the same time by the same act of Congress. All the right or title really obtained in either from the United States is a confirmation of a grant and permit made before the cession, and deemed by the local officers incomplete and imperfect. Yet, so far as derived or held under the United States, each title was of the same rank or dignity and duration with the other.

Some questions arose at the trial concerning the construction of deeds and other conveyances.

In both lines of title, buildings only are in some instances nominally conveyed, and not in terms the lots on which they were situated; in both, too, some of the boundaries are unsettled, and the quantity of land in dispute by the papers is viewed differently. But such questions as these are subordinate to the question of title, and proper for the consideration of the State court in exercising its appropriate jurisdiction over local questions, and hence not subject to our revision. 13 Peters, 439; United States v. King, 3 Howard, 773.

Various other objections connected with the paper title on both sides appear, and almost every year some new difficulty is started in respect to Spanish and French grants, which is perplexing, and which at times seems to bring into doubt parts of former decisions.

But the chief trouble in disposing of this class of cases is in ascertaining the facts, happening under a foreign government, and after such a long lapse of time, and especially when new papers and some new witnesses are frequently discovered; and the aspect of particular claims is often thus materially changed. Where, however, rights of property have been adjudged, and litigation in some degree quieted, it is much better to regard them as binding, than to disturb or change them, and the actual possession, for slight or doubtful reasons.

The errors in the law of a case, on the facts at any time presented, are not likely to be material, where the Civil Code is the basis of it under Spain and France, and when that and its enlightened equities are well understood, and, with the plain provisions in treaties and acts of Congress, will lead usually to correct conclusions.

Only one other source of title, set up under the United States, remains to be examined. It is a provision in the fifth section of the act of May 8th, 1822, giving to the registers and receivers in this part of Alabama "the same powers to direct the manner in which all lands confirmed by this act shall be located and surveyed, and also to decide between the parties in all conflicting and interfering claims, as given in" another act mentioned, 3 Statutes at Large, 700. It is contended that in 1837 they decided such claims, concerning titles between these parties, and decided them in favor of the plaintiff, and therefore that the State court should have instructed the jury that his title was the better one.

But we do not consider that the act of May 8th, 1822, and that of the same date which is connected with it and referred to as in pari materia for a guide (p. 708), meant to confer the adjudication of titles of land on registers and receivers (7 Peters, 94). Those officers are not usually lawyers, and their functions are in general ministerial rather than judicial.

Sometimes, as in the case of preëmptioners, they are authorized to decide on the fact of cultivation or not; and here, from the words used, no less than their character, they must be considered as empowered to decide on the true location of grants or confirmations, but not on the legal and often complicated question of title, involving also the whole interests of the parties, and yet allowing no appeal or revision elsewhere.

The power given to them, as before quoted, is to decide only how "the lands confirmed shall be located and surveyed" (p. 700). The further power "to decide on conflicting and interfering claims" should apply only to the location and survey of such claims, which are the subject-matter of their cognizance; and on resorting to the reference made to the second act of Congress, that act appears to relate also to decisions on intrusions upon possessions and kindred matters (p. 708).

The language concerning this is, if conflicts arise, these officers, in settling them, shall "be governed by such conditional lines or boundaries as may have been agreed on" before the act passed, &c. (p. 708). So far from professing themselves to act on titles, in cases of conflict, they usually take evidence or settle boundaries alone.

The map from the surveyor's office in Alabama, of 22d April, 1837, confirms this. It is a mere location and survey of the different tracts; and the register of the warrant is entitled by them, "Register of Locations issued for Confirmed Claims," &c.

So, in cases of commissions to settle land claims, Congress seldom intrusts the final adjudication of titles to them, but requires them to report their opinions; and the titles are rejected or confirmed by Congress, as seems most proper under all the evidence on a revision of it. 7 Peters, 95; 12 Peters, 453.

The language changes in the acts of Congress when the local land officers are to act in any way on titles, and the expression is distinct, "titles and claims," as when asking them for evidence to be reported, as is sometimes done in respect to titles. See act of March 3d, 1827 (4 Stat. at Large, 240). Or it is "titles to be referred to and confirmed by Congress" (1 Land Laws, 437). Or it is expressed that this decision shall not "be construed to prevent or bar the judicial decision between persons claiming titles to the lands confirmed." Under these considerations, we do not feel justified in changing the judgment rendered in the State court. Beside the cases already referred to in support of this conclusion, we would quote, as in several respects directly in point, McDonogh v. Millaudon, 3 Howard, 706, 707.

Judgment affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Alabama, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed, with costs.