Harcourt v. Gaillard.

acknowledged limits, were as much theirs, at the declaration of independence, as at this hour. By reference to the treaty, it will be found, that it amounts to a simple recognition of the independence and the limits of the United States, without any language purporting a cession, or relinquishment of *right, on the part of Great Britain. In the last article of the treaty of Ghent, will be found a provision respecting grants of land made [*528

in the islands then in dispute between the two states, which affords an illustration of this doctrine. By that article, a stipulation is made in favor of grants before the war, but none for those which were made during the war. And such is unquestionably the law of nations. War is a suit prosecuted by the sword; and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails, can only derive validity from treaty stipulations. It is not necessary here to consider the rights of the conqueror, in case of actual conquest; since the views previously presented put the acquisition of such rights out of this

case.

The remaining question is, whether the parties plaintiffs have been established in their rights, by any act or treaty of the United States? The treaty of peace contains no stipulation in their favor. Nor does the treaty with Georgia, since all the reservations there made in favor of British or Spanish grants, and inchoate titles, are expressly confined to the case of actual settlers. But the spontaneous bounty of the United States has gone further, and confirmed a great variety of questionable titles, emanating from British and Spanish authority. Is this one of the titles embraced within the provisions of the statutes passed upon this subject? It is obvious, that it is not.

It is true, that the act of the 3d of March 1803, although making no express provision in favor of British or Spanish grants, unaccompanied with possession, does seem to proceed upon the implication that they are valid; recognising the principle, that a change of sovereignty produces no change in individual property, yet it imputes to them only a modified validity, since, by the 5th section, it imposes a positive necessity upon the proprietors, to record such grants, and makes expressly void, all the rights claimed under the first three sections of that act, or the Georgia treaty, if the duty so imposed be not complied with. And with regard to all *other evidences of title, not recorded in the time limited, declares, that they [*529 shall never be admitted in evidence against any grant derived from the United States. The first section of the supplementary act of 27th of March 1804, extends the time for recording British grants, and vests in the board of commissioners a power of examining and confirming the claims to be filed under its provisions, as extensive as that given by the previous act over the rights claimed under the cession from Georgia, or the first three sections of that act.

But the grant to Harcourt appears neither to have been recorded, nor passed upon by the commissioners; it has, therefore, nothing to claim from the bounty of the United States; and that provision in the 5th section of the act of 1803, which forbids its being received in evidence as against American grants, would certainly have operated against it, in any case clearly within the provisions of that act. Here, it is contended, that the court anticipated the question, and rejected the grant, before it was possible that the question could arise, whether the same land had passed under an American grant. On

Henderson v. Poindexter.

this subject, it must be observed, that neither of the acts of 1803 or 1804, contains an express recognition of the validity of any British grants beside those which were accompanied with possession; and for that reason, coming within the Georgia treaty, and those which should be confirmed by the commissioners under the first section of the act of 1804, with regard to which, there seems to be a very general power given to that board. All others must rest upon their validity, according to the principles of the modern law of nations. Upon these principles, it has been shown, that the grant to Harcourt was invalid, and, if so, it was not admissible as evidence to sustain the plaintiff's action, under any circumstances. The rule, therefore, applies to this case, that a plaintiff must recover by the strength of his own title, not the weakness of his adversary's; for which reason, we think the grant was properly rejected, and that the judgment below must be affirmed, with costs. Judgment affirmed.

*530] *HENDERSON, Plaintiff in error, v. POINDEXTER's Lessee, Defendant in error.

Spanish grants.

Spanish grants, made after the treaty of peace of 1782, between the United States and Great Britain, between the territory east of the river Mississippi, and north of a line drawn from that river at the 31st degree of north latitude, east to the middle of the river Apalachicola, have no intrinsic validity, and the holders must depend for their titles exclusively on the laws of the United States. 1

No Spanish grant, made while the country was wrongfully occupied by Spain, can be valid, unless it was confirmed by the compact between the United States and the State of Georgia, of the 24th of April 1802, or has been laid before the board of commissioners constituted by the act of congress of the 3d of March 1803, ch. 340, and of March 27th, 1804, ch. 414.2

ERROR to the District Court of Mississippi.

February 17th, 1827. This cause was argued by Webster and Coxe, for the plaintiff in error, citing Las Partidas, 381, l. 16, 384; l. 21, 382; l. 18; Civ. Code of Louisiana, 478, art. 23, 24; 484, art. 43; 486, art. 57; 5 Hall's L. J. 390; 3 Dyer 355 a; 10 Johns. 23: and D. B. Ogden, for the defendant in error, citing Vattel, Droit des Gens, lib. 1, c. 20, §§ 244, 263.

March 7th. MARSHALL, Ch. J., delivered the opinion of the court. This is a writ of error to a judgment rendered in the court of the United States for the district of Mississippi, in an ejectment brought by the defendant in error.

George Poindexter, the lessor of the plaintiff, claimed title to the premises in controversy, by virtue of several patents regularly issued to him. under the laws of the United States. If the lands were, at the time, grantable, his title is unquestionable. Consequently, the case depended, in the district court, on the title of the defendant in that court. Under several opinions given by the judge to the jury, to which bills of exceptions were taken, a verdict was found *for the plaintiff in ejectment,

*531]

1 United States v. Reynes, 9 How. 127; La Roche v. Jones, Id. 155; Robinson v. Minor, 10 Id. 627; United States v. Philadelphia, 11 Id.

609.

2 s. P. De la Croix v. Chamberlain, post, p. 599; Pollard v. Files, 2 How. 591; Pollard v. Hagan, 3 Id. 212.

Henderson v. Poindexter.

The case must

the judgment on which has been brought before this court. depend on the correctness of the opinions given by the district judge; but as those opinions bring the title of the defendant in ejectment before this court, the case will be best understood, by taking a general view of the principles on which that title stands.

The defendant gave in evidence a grant from the government of Spain, for 1000 acres of land, bearing date on the 20th of June 1795, with a plat and certificate of survey annexed; under which grant, he claimed so much of the land in controversy as it covered. He also offered in evidence a duly certified copy of a certificate of survey and patent, issued thereon to David Pannell, for 500 acres, the residue of the premises in controversy; the certificate by the Spanish surveyor-general Carlos Trudeau, dated the 25th of March 1795, and the patent issued December 7th, 1797, by Manuel Gayoso, the Spanish governor of West Florida, with a deed of release and confirmation from David Pannell to him, dated January 19th, 1820. It was admitted, that the originals of the plat and certificate of survey, and of the patent thereon, of which copies were offered, were not in his possession, nor under his control. These papers were rejected, and a bill of exceptions was taken to the opinion rejecting them.

The defendant also read the deposition of Tessias, to prove the fairness of the grants under which he claimed, and that they were regularly issued by the proper officers of the Spanish government, at the time they bear date respectively. To rebut this testimony, the plaintiff in ejectment produced a letter of instructions, found among the papers of William Atcheson, deceased, the deputy-surveyor, by whom the lands in controversy were surveyed. This letter was directed to William Atcheson, and was proved to be in the handwriting of William Dunbar, who is also dead, and who was proved to be the principal surveyor of the district of Natchez, under whom Atcheson acted. The signature appears to have been torn off. This paper tended to show, that the surveys and grant were not made at the time they bear date, but afterwards. The defendant objected to its admission, but his objection was overruled, and to this opinion also, he took an exception.

The defendant prayed the court to instruct the jury,

[*532

1st. If they should find that, at the time of the sale by the United States of the premises in question, the defendant was in full possession thereof, under an adverse title, or color of title, such sale was void, and passed no title on which the plaintiff could recover.

2d. If they should find, that the defendant, and those under whom he claimed, had the uninterrupted and quiet adverse possession of the premises, claiming under a Spanish title, legally and fully executed, prior to October 27th, 1795, under which the possession was originally taken, that the plaintiff cannot recover.

3d. If the jury should find, that on the 20th of June 1795, a patent emanated from the Spanish government to Joseph Pannell, under whom the defendant claimed, then such patent constituted a good title in the grantee, and those claiming under him, although the grantee was not, on the 27th of October 1795, an actual resident of the territory ceded by Georgia to the United States.

4th. If the jury should believe that Joseph Pannell, under whom the

Henderson v. Poindexter.

defendant claimed, on or before the 27th of October 1795, was a resident of the said territory, and that he claimed the premises in controversy, by virtue of a Spanish patent, legally and fully executed, prior to that day, the defendant is entitled to a verdict.

5th. That the paper purporting to be a copy of the articles of agreement between Joseph Pannell and Francis Poussett, dated September 20th, 1796, was competent testimony to prove any fact in controversy between the parties in this suit.

6th. If the jury should be of opinion, that the date attached to the paper, purporting to be the instructions from William Dunbar to William Atcheson, is an interpolation or forgery, in such case, they shall disregard it altogether. 7th. In this action of ejectment, after a long and continued possession of thirty years on the part of the defendant, and those under whom he claims, under title, or color of title, the jury are authorized to presume, that it had a legal *origin, and was legally continued in the defendant, and those *533] under whom he claims, in the absence of satisfactory proof to the

contrary.

8th. If the jury should believe, that the survey made by William Atcheson, in September 1795, was made at the time it purports to bear date, that then and in such case, it will constitute an instrument of a higher and superior nature to the instrument purporting to be private instructions from said Dunbar to said Atcheson, for the purpose of proving the residence of the said Pannell at that time.

9th. That if, on the whole matter, the jury should have a reasonable doubt, then their verdict should be for the defendant. The court granted the 4th, 6th, 7th and 9th prayers, but refused the 1st, 2d, 3d, 5th and 8th, to which refusal, the counsel for the defendant excepted.

In argument, two general questions have been made. 1st. Is the title set up by the plaintiff in error under the Spanish government, sufficient in itself to protect his possession? 2d. Has it been recognised and confirmed by the United States?

1. The first point has been argued very elaborately, and with deep research. The court will not enter into the reasoning of the parties, but will state the result of an attentive consideration of that reasoning. It is undoubtedly true, that the exact boundary line between the southern British colonies and Florida, was never adjusted, while that province remained in possession of Spain. Each crown claimed territory which had been granted by the other, and was settled by its subjects. Florida was at length ceded to Great Britain; after which, the 31st degree of north latitude was, by the proclamation of 1763, established as the dividing line between that province and Georgia. The crown, however, was in the habit of changing the limits of the colonies; and, though we complained of the manner in which this branch of the prerogative was exercised, we did not resist it. In consequence of a recommendation of the board of trade, the limits of Florida *534] were supposed to be extended, as appears by the commissions to *its governor, so as to comprehend the land in controversy. This was the state of things, when the war of our revolution commenced. In its progress, Spain took part in it, and reconquered Florida. At the treaty by which that war was terminated, Great Britain acknowledged the United States to be free, sovereign and independent, and treated with them as such. Their

Henderson v. Poindexter.

boundaries were particularly described, so as to comprehend the land in controversy. The preliminary articles of peace between the United States and Great Britain were signed at Paris, on the 30th of November 1782. But these articles were provisional, and were not to take effect until terms of peace should be agreed upon between Great Britain and France. On the 20th of January 1783, preliminary articles of peace were signed between. Great Britain and France, and between Great Britain and Spain. In the treaty with Spain, the Floridas were ceded to that power, without any description of boundary.

The United States continued to assert a claim to the 31st degree of north latitude, while Spain maintained perseveringly her pretensions to extend farther north. This was the subject of long and fruitless discussion between the two governments, which was terminated by the treaty signed at San Lorenzo el Real, on the 27th day of October 1795. By this treaty, “the high contracting parties declare and agree, that the southern boundary of the United States, which divides their territory from the Spanish colonies of East and West Florida, shall be designated by a line beginning on the river Mississippi, at the northernmost part of the 31st degree of latitude north of the equator, which from thence shall be drawn, due east, to the middle of the river Apalachicola or Chatahouchee; thence," &c. This treaty declares. and agrees that the line which was described in the treaty of peace between Great Britain and the United States as their southern boundary, shall be the line which divides their territory from East and West Florida. The article does not import to be a cession of territory, but the adjustment of a controversy between the two nations. It is understood as an admission that the right was originally in the United States. Nor is there anything extraordinary in this admission. The negotiations were all *depending at [*535 the same time and the same place. That between the United States and Great Britain was first completed and signed; it must have been communicated to France, and, of course, was known to Spain; in it, the southern boundary of the United States was accurately defined. The subsequent cession of the Floridas to Spain contained no description of boundaries. Great Britain could not, without a breach of faith, cede to Spain what she had acknowledged to be the territory of the United States; no general words ought to be so construed. We think, that Spain ought to have understood the cession, and must have understood it, as being made only to the extent that Britain might rightfully make. This opinion is confirmed by a subsequent part of the same article, which respects the troops, &c., of either party, in the territory of the other. It is in these words: "And it is agreed, that, if there should be any troops, garrisons or settlements of either party, in the territory of the other, according to the above-mentioned boundaries, they shall be withdrawn from the said territory, within the term of six months after the ratification of this treaty, or sooner, if it be possible; and that they shall be permitted to take with them all the goods and effects which they possess."

It has been very truly urged by the counsel for the defendant in error, that it is the usage of all the civilized nations of the world, when territory is ceded, to stipulate for the property of its inhabitants. An article to secure this object, so deservedly held sacred in the view of policy, as well as of justice and humanity, is always required, and is never refused. Had Spain