p. 637and the certificate of the board in his favor, and thence deducing their title regularly from him. It denies that the certificate was issued to Stephen Minor unlawfully, falsely, or by imposition or fraud; and avers that the Concord plantation has been in the possession of them, and those under whom they claim, since the 10th of August, 1799.
The answer does not admit Fernando Gayoso to be the lawful son and heir of Manuel Gayoso, or that said Manuel married Margaret Watts, or that she left children, or the date of the death of the said Manuel or Margaret, or the age of the said Fernando at the time of the death of the said Manuel, and requires proof of the averment of the bill on these héads.
The answer further denies that the said Manuel Gayoso was an actual settler, within the meaning of the act of Congress of 27th October, 1795, and that the appellees had any notice of the claim of the appellants prior to the commencement of the suit-; and, in addition, relies on the failure of the appellants to file their bill within twenty years after the accrual of the right in virtue of which they claim.
To this a general replication was filed, and a large, mass of evidence was taken.
In November,'1847, the cause was discontinued as to the heirs of Job Routh, and abated as to Austin Williams, Archibald' Williams, and Elias Ogden. It then came up for argument on the bill, answers, exhibits, and proof, when the Circuit Court dismissed the bill, with costs.
The complainants appealed to this court.
It was argued by Mr. Bullard, for the appellants, and Mr. J. Mason Campbell, for the appellees.
Mr. Bullard, for the appellant,
said, that, before stating the points of law in the case, it was proper to say, that the judge of the District of Mississippi gave as a reason for dismissing the bill, although no written opinion was delivered, the decision of this court in the case of the Lessee of Hickey and others v. Stewart and others, 3 Howard, 761 . That case appears to be totally different from this. Starke claimed under an order of survey which had never been presented to the board of commissioners for confirmation, under the act of 1803, and this court held that the court of chancery, in taking cognizance of Starke’s claim, and establishing it by its own judgment and decree, transcended its jurisdiction. The Gayoso title, as exhibited in this case, was complete and fully executed, as contemplated by the compact with Georgia in 1802, and was presented to the commissioners and confirmed; but confirmed not
p. 638in favor of the heir-at-law to whom the fee had descended, but to Minor, under a pretended right of Margaret Watts Gayoso, and we charge Minor as the trustee-of the infant heir of Don Manuel Gayoso de Lemos. There is no analogy between the two cases.He then stated the following points: — ■The-first, and indeed the principal, question in the case is, What degree of estate or interest did Clark, Lintot, and Minor, acquire under the conveyance of Mrs. Margaret Gayoso after the death of her first husband ? or, in other words, what was the extent of her right to or in the land ?I am willing to test,this question either by the Spanish law, which was, at least to a certain extent, in force in the district of Natchez, or by the common law; supposed to prevail in Georgia at that time. I say to a certain extent, because I freely'admit that Spain, not being the sovereign de jure, had ho right to dispose of any of the public domain; but being, until 1798, the sovereign de facto, having its governor, its tribunals of justice, and a body of laws or usages, in reference to which all contracts and donations were made, and which regulated all the civil-transactions of the people and the mutual relations and capacities of individuals, the Spanish law was the living law of the people; by it were regulated the transfers of all property once severed from the domain, whether by contract, or last will, or ab intestato; every question of marriage, of legitimacy, of donations, either mortis causa or inter vivos, which arose during the sovereignty de facto of Spain, ought to be tested by the Spanish law.I. What, then, was the Spanish- law applicable to this- case, as it relates-to the degree of estate acquired by Madame Gayoso 1 And here I assume, what is most favorable to the pretensions of the defendants, and rendered most probable by the ev lence, that the land in question was settled on Miss Watts as a donation in consideration of marriage, or a donatio propter nuptias.Upon that supposition she acquired the land in full property, defeasible on her-second marriage; in which event her-right would be reduced at .once to a usufruct during her natural life on a life estate, and on her decease the land would descend to the heir of the donor or first husband exclusively. I rely on the following authorities. 5 Partida, law 26, title 13; Commentary of Gregorio Lopes; 15 Law of Toro; Gomez ad Leges Tauri, (commentary,) mote 1st. Original Roman Law: — Justinian, Code, lib. 5, tit. 9, § 3; 2 Pothier’s Traite du Mariage, Nos. 605, 613, 614; Fibrero, part i, chap.'3.II. But supposing that the common law, or the law of Geor
p. 639gia, is to govern, as was contended by the defendants, what interest or estate did Madame Gayoso acquire in the tract of land according to the evidence in the record? It will be conceded that, according to both systems of* law, the only son is the heir of the father; and leaving out of view the transfer to Margaret Watts, Fernando Gayoso would have inherited the fee simple; and the title was perfect, according to the compact with the State of Georgia. I contend, then, that, according to the common law, Margaret Watts acquired at most a life estate, with remainder over in fee to the heir-at-law of Don Manuel Gayoso de Lemos, to wit, Fernando Gayoso, and that her vendee acquired no greater interest or estate.The indorsement of Gayoso on the patent is not a deed com veying the fee simple. It conveyed no interest which would go to her heirs; it contains no words or expressions to that-effect. Standing alone, it gave her a mere life estate, with remainder over to the heirs of Gayoso.Nor is it cured by any other part of the evidence. On the contrary, it being admitted that some conveyance from Gayo? so to his future wife accompanied the several mesne conveyances, and it not being produced as the highest evidence, the presumption is, it conveyed no higher interest than the indorsement itself. The recital in those deeds points to higher evidence than this mere indorsement On the patent, and cannot avail the party until he accounts for the original. Notes to Phillips on Evidence, Part 2,1236; 1 Greenleaf on Evid. 93.'III. The compact with Georgia confirms the title of Gayoso, without the necessity of any act on the part of the United States, except a mere certificate requiring no patent. See Act of 1803, § 6 (2 Stat. at Large, 231).This certificate adds nothing to the validity of the original patent. See Hickie et al. v. Starke et al., 1 Peters, 94.IV. Fernando Gayoso was the infant heir of Don Manuel Gayoso at the time Minor, having possessed himself of the patent, obtained the confirmation to himself, without showing any conveyance from the original grantee, which cut off his heir at law. He will then be held to be the trustee of the legal title of the infant heir, and condemned to convey the land, and account for the rents and profits. See Gaines et ux. v. Chew et al., 2 Howard, 650 — 655; Dormer v. Fortescue, 3 Atk. 130; Roberdeau v. Rous, 1 Atk. 543; Hutton v. Simpson, 2 Vern. 724; Townsend v. Ash, 3 Atk. 336; Mundy v. Mundy, 2 Ves. jr. 122.If it should be contended that Minor was an innocent pur-, chaser without notice, and to be protected, then we invoke the principle settled in the case of Biscoe v. the Earl of Banbury,
p. 6401 Cha. Cas. 287, and in Willis v. Bucher, 2 Binney, 466; to wit, that it Avas crassa negligenlia in him not to have examined into the extent of interest owned by Madame Gayoso, for he had at least fair notice that there was some conveyance to her, and it was in his poAver to ascertain the extent of her interests. Minor kept the patent safe, and exhibited it to the commissioners; but he carefully kept back, and yet keeps back, the deed or instrument of writing which accompanied the patént, and by which Gayoso is pretended to have divested himself of title in favor of Margaret Watts.V. Whether this be a proper case for chancery jurisdiction, or whether the demurrer ought to have been sustained, is a question which I could wish some other person, more conversant with the doctrines and practice of courts of equity than I am, could present to the court. But it does appear to me, that, although the plaintiff exhibits a legal title, on- which he might recover in an action of ejectment, yet the proceedings of Minor. during the infancy of Fernando were such, in procuring a certificate in his own name, as to raise;an implied trust; and that the show of title thus acquired by him throws such a shade over the title of the complainant, as on both grounds to authorize his appeal to a court of equity, and that-a court of law could not give him full and complete remedy. I rely on the principles settled in the case of Gaines et ux. v. Chew et al., 2 Howard, cited above.Mr. Campbell, for the appellees, relied upon the following points.
1st. That the appellants’ claim, as the heirs of Manuel Gayoso through Fernando Gayoso, fails, because Fernando was not born in wedlock. His birth took place on the 14th of- July,. 1797, in Natchez, and his parents were not married till the 10th of December following, in another territory.2d. That even if Fernando be legitimate, his father, Manuel, was an alien, and could not transmit aught to his son by descent. Orr v. Hodgson, 4 Wheat. 460 ; Tnglis v. The Trustees, &c., 3 Pet. 121 .3d. That even if legitimate, and capable to take by descent from his father, he is barred by limitations. Statute of Mississippi, 1818; Peyton v. Stith, 5 Pet. 494 .4th. That even conceding all the foregoing points in favor of the appellants, the certificate of confirmation concludes all legal and equitable rights existing anterior to its date, and vests an indefeasible title at law and in equity in the appellees, which .has since been recognized by Congress. Grand Gulf Bank v. Bryan, 8 Smedes & Marsh. 234; Ross v. Barland, 1 Pet. 667 ;
p. 641Hickey v. Stewart, 3 How, 760 ; United States v. King, 3 How, 787 ; Act of 1803, ch. 27, § 5 (2 Stat. at Large, 229); 9 How. 170 .5th. That even if the certificate be not conclusive, and be impeachable for fraud, there is no proof of any fraud in obtaining it, or otherwise.delivered the opinion of the court.
This case involves the title to a tract of one thousand arpents of land adjoining the city of Natchez.
On the 10th of September, 1794, a grant was obtained for this land from the Baron de Carondelet, Governor-General of Louisiana, by'Manuel Gayoso de Lemos, who resided in Natchez. He settled on Margaret Watts, his future wife, the .same tract of land, and indorsed upon the grant that it was transferred to her. They were afterwards married, and, with, the view to secure to his wife a military pension, the permission of the king of Spain was subsequently obtained. In .1797, some time after the marriage, the nuptial benediction was pronounced by the Bishop of Havana, in New Orleans. In 1797 Madame Gayoso had. a son, who was named Fernando. -In 1798 Gayoso succeeded the Baron de Carondelet as Governor-General of Louisiana, and removed to New Orleans, where he died in 1799, his wife and son surviving him.
On the 10th of August, 1799, for the consideration of five thousand dollars, Madame Gayoso conveyed the premises, .with all the improvements thereon,' to Daniel Clark, junior. And on the 15th of August, 1800, Daniel Clark; for the consideration of ten thousand dollars, conveyed the same to William Lintot. In this deed the original grant is referred to, and the plat. And it states, “ whereas by an instrument of writing, which accompanies this, dated the 12th of February, 1795, the said Don Manuel Gayoso de Lemos did, for certain considerations therein recited, convey the said land, with all the appurtenances, to Margaret Watts; and whereas the said Margaret Watts, now the widow of the said Don Manuel Gayoso de Lemos, by her deed dated the 10th of August, 1799, which accompanies this, did convey the said land to Daniel Clark,” &cs On the 15th of November, 1800, William' Lintgt, for the consideration of the sum of ten thou 'and dollars, conveyed the same land, with the same recitals, to Stephen Minor, the ancestor of the defendants.
In 1805, this title having been presented to the board of commissioners west of Pearl River, by, Minor, under the act of Congress of 1803, regulating the grants of land, &c.; south of the State of Tennessee, was confirmed for seven hundred
p. 642and fifty-six arpents. The possession of the- land is shown from the original grant to Gayoso under the titles stated.
The complainant, Fernando Gayoso de Lemos, claims the land as the son and only heir of Don Manuel Gayoso de Lemos. In his bill he represents that, after the death of his father, his mother intermarried with one James Stelle, in 1805, and that she died in the year 1829. That the defendant Minor, being in possession of the evidences, of title, ir\ fraud of his rights, he being an infant, procured from the board of commissioners a certificate for the land. That in 1815 .Stephen Minor departed this, life, and left Katharine Minor, his wife, a devisee and trustee of all his estate, and also executrix, and John Minor executor of his last will and testament. That conveyances were executed to the defendants, all of whom had notice of the claim of the complainant. A decree for a conveyance of the land is prayed for, &e. Fernando. Gayoso having died, his heirs were made parties.
Qn the part of the. complainant, it is contended that, the original grant for the land under the Spanish government being unconditional, no confirmation of it was required by the United States. That the treaty protected such a title, and that Congress by the act of 1803 could not have intended to interfere with absolute grants, but such claims only as required confirmation by the Spanish authority. And it is urged that Spain, being in possession of the country, and exercising a government de facto over it, had the power to grant lands. That the civil law applies as well to the transfer of the land alleged to have been made by Dón Manuel Gayoso to Margaret "Watts, as to the original grant.
These positions were sustained in the argument by much research and ability, but we are precluded from taking this view by the political action of the government, and the decisions heretofore pronounced, by this tribunal.
On the 27th of October, 1795, a treaty was made with Spain, which acknowledged the southern limits of the United .States to extend to the thirty-first degree of north latitude. The territory belonged to the State of Georgia, but by deed bearing date the 24th of April, 1802, she ceded it to the United States. In the deed of cession it was stipulated “ that all persons who, on the 27th of October, 1795,“"Were actual settlers within the territory thus ceded, shall be confirmed in all the grants legally and fully executes prior to that day, by' the former British government, or the government of Spain,” &c. The land was in possession of Gayoso at the ’time specified, and the grant having been “ legally and fully executed,” under the government of Spain, it was included in the deed of .ces
p. 643sion. By the fifth section of the act of the 3d of March, 1803, above referred to, it is provided, “ that every person claiming lands, by virtue of any British grant,” &c., “ or of the articles of, agreement and cession between the United States and the State- of Georgia, shall, before the last day of March, 1804, deliver to the register of the. land-office, within whose district the land may be, a notice in writing, stating the nature and extent of his claims, together with a plat of the tract or tracts claimed, and shall also, on or before that day, deliver to the said register, for the purpose of being recorded, every grant,” &c.; and on failure to do so, “ all his right, so far as the same is derived from the above-mentioned articles of agreement,” &c., “ shall become void, and for ever thereafter be barred ”; and it is' declared that such deed, &c., which shall not be recorded, shall not be evidence in any court of the United States against any grant under the same.
The sixth section provides, “ that, when it shall appear to the board that the claimant is entitled to a tract of land under the articles of agreement and cession with Georgia aforesaid,' in virtue of a British or Spanish grant legally and fully executed, they shall give a certificate thereof, describing the tract of land-arid the grant, and stating that the claimant is confirmed in his title thereto by virtue of the said articles;' which certificate, being-recorded by the register of the land-office,” who shall record -it,. “ shall amount to a relinquishment for ever on the part of tire United States.” An act supplementary to the above was passed on the 27th of March, 1804; providing for the survey of lands claimed by Spanish grants, but it has no direct bearing on the questions before us.
The treaty with Spain established a disputed boundary; there was no cession of territory. The jurisdiction exercised by Spain over the country north of the thirty-first degree of north latitude was not claimed or occupied by force of arms, aghinst an adversary power; but it was a naked possession, under a misapprehension of right. In such a case, Georgia, within whose sovereignty the country was situated,, was not bound to recognize the grants or other evidence of title by the Spanish government.
In the case of Pool v. Fleeger, 11 Peters, 210, where North Carolina,and Tennessee made grants for lands within the territory of Virginia, through a mistake of the boundary line, the court Say, “ It is- perfectly clear that the grants under which the defendants claim, being beyond the boundary of Tennessee, were inoperative.” The same doctrine has been held in relation to the Spanish grants north of the thirty-first degree of north latitude, in Henderson v. Poindexter, 12 Wheat. 530 ; Lessee
p. 644of Hickey et al.
v. Stewart et al.,
3 How. 756 ; La Roche et al.
v. Jones,
9 How. 170 .
The title in question belongs to a class which was recognized and made valid in the cession of the territory by Georgia to the United States. This act of Georgia, though voluntary, was just. It secured to the Spanish claimant a title, which, so far as he was concerned, had been acquired in good faith, but which was void for want of authority in the granting power. In requiring the holders of complete grants to present them and the plats of survey before commissioners, under the act of 1803, Congress carried out the compact with Georgia. In reference to sueh titles the words of the cession were, “ they shall be confirmed.” And although the forfeiture of the title, if not presented and recorded, was a rigorous provision, yet.it was within the power of Congress; Until these titles were examined, and their boundaries ascertained^ the government could not make a survey and sale of the lands to which there were no valid claims. It was therefore important, that all titles to which validity was given by the cession and by acts of Congress should be placed upon the public records, under the sanction or rejection of a-competent board of commissioners.
The ground on which the complainants chiefly rely for a decree is a presumed defect in the conveyance from the'widow of Gayoso to Clark..
The indorsement upon the original grant by Don Manuel Gayoso, that he had conveyed the property to Margaret Watts, referred to an instrument other than that indorsed on the grant. And we find in the deed from Clark to Lintot, and also in the deed from Lintot to Minor, there is a reference to that instrument, reciting its date and that it accompanied! the deeds executed. And these conveyances were sanctioned by the solemn act of the commissioners .when they confirmed the title to Minor. Under this title there has been a continuous possession of fifty years. The consideration paid by Clark satisfactorily shows that he supposed himself to have acquired a complete title to the land. Under thése circumstances, if the decision of the case turned upon the legal title, such, title might well be presumed, whether the conveyances were executed under the laws' of Spain or of Georgia.
It may be presumed that in the conveyance to Miss Watts, which has by some means been lost, the forms of the civil law were pursued, as the common law was not adopted in any part of the Spanish dominions. But validity was imparted to such conveyance by the compact with Georgia, the act of 1803,' and the proceedings undér that act, the same as to the
p. 645original grant. There is no probability that Gayoso by the conveyance vested no higher interest than might have been claimed by Miss Watts after her marriage with him under the civil law; The fact of his having executed to her a conveyance, of which there is proof, may well justify the inference, that he gave her an absolute title to the land.
But there is another and a more conclusive view of the case. If it be admitted that the complainants may go behind the confirmation of the title by the commissioners, there is nothing on which they can rest but a paramount equity. And what is the nature of that equity as made out in the proof? The heirship of the complainants may be admitted as proved, but there is no other proof of equity than a supposition unsustained by facts, and contradicted by strong circumstances, .that a life estate only in the premises was vested in Madame Gayoso. This supposition is jrefuted by the only rational motive which can be presumed to have induced Don Manuel Gayoso to make the conveyance to his intended wife; by the fact, that, after his death, the widow'sold the premises for a full consideration, and saw them occupied by persons claiming them in fee for thirty years, until her death, without setting up any claim thereto in behalf, of her son, or informing him that he had a right to the premises after her decease. Under such circumstances, equity can give no relief to the complainants. The decree of the Circuit Court dismissing the bill is affirmed.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.