author: COLLIER, C. J. — It

text:
    GAUSE & WIFE vs. HUGHES, BY HIS GUARDIAN, &C.
    Í-. Semble — at common law, an action to recover a legacy, may be maintained upon an express promise, founded on a sufficient consideration; and it is clear, that suéh an action is authorised by the act of 1806, entitled “an act concerning wills and testaments ; the settlement of intestates’ estates; and the duty of executors, administrators and guardians.”
    2. A demurrer to a declaration, which alleged that the defendants were appointed and qualified as executors of the will of the testator, and as such, received assets sufficient to pay all the debts and legacies with which the estate was chargable; and in consideration, &c. undertook, &c. to pay the plaintiff a legacy bequeathed to him, &c. admits an express promise.
    & And it is not necessary, that the declaration, in such case, should allege a special demand — the licet scepius requisitus is sufficient; nor is it necessary that a demand subsequent to the promise, should be proved on the trial.
    4. On objection to the declaration, that there was no one competent, in law, to claim the benefit of the promise, at the time it was made, the court held, that under a declaration, commencing as follows — “Alfred J. Hughes, by John R. Fleming, his guardian-, who is admitted by the court here, to prosecute for the said Alfred J. Hughes, who is an infant, within the age of twenty-one years; by attorney, complains, <fcc.” — -they would intend, 1. That Fleming was the general guardian of Alfred j. Hughes; % That the promises made by the executor and executrix-, to pay the legacy of Hughes, the ward^was effectual in law.
    Error to Montgomery Circuit court.
    Assumpsit. — The defendant in error, by his guardian, brought an action of assumpsit against the plaintiffs, in the Circuit court of Montgomery. In his declaration, he -alleges that one Elizabeth Hughes, did, on the twenty-eighth day of September, in the year one thousand eight hundred and thirty-six, by her last will and testament, in writing, amongst other things, will and devise; give and bequeath, to the plaintiff, the sum of two thousand dollars, and did appoint’ Eliza Gause, (then Eliza Hughes,) executrix of her will. She then proceeds to declare as follows: “And the said Elizabeth; afterwards; to wit, on the -- day of December, in the year of our Lord, one thousand eight hundred and thirty-six,- to wit, in the county aforesaid, died; without altering or revoking her said will and testament; as to the said bequest. And the said Eliza Gaiise, (then Eliza Hughes,) afterwards, to wit, on the twenty-first day of December; A. D. eighteen hundred and thirty-six, in the county aforesaid, took upon herself the burden of the execution' of the said last will and testament, by virtue of letters testamentary, granted by the County court of Montgo--mery county, exercising the jurisdiction of an Orphan’s court. And the said plaintiff avers,- that divers goods and chattels, of the said Elizabeth Hughes, of great value, to wit, of the value of thirty thousand dollars, to wit, oh the day and year aforesaid, in the county aforesaid,- cahie to the hands and possession of the said Eliza Gause} while sole and Unmarried, and into the hands and possession of the said defendants, since their intermarriage; to be administered; which said goods and chattels were more than sufficient to pay the just debts and legacies; and funeral expenses, of the said Elizabeth Hughes, and the charges of proving the said last will and testament; to wit, in the county aforesaid — of all which said premises, the said defendants; then and there, had notices by reason of which said several premises, the said Eliza Gause, executrix as aforesaid, after the death of the said Elizabeth Hughes, and whilst she was sole and unmarried, and the said defendants, since their intermarriage, then and there became liable to pay to the said plaintiff, the said sum of two thousand dollars, so bequeathed as aforesaid, by the said Elizabeth Hughes, whenever thereto afterwards requested: and being so liable, she, the said Eliza Gause, executrix as aforesaid, whilst sole and unmarried, and the said defendants, since their intermarriage, undertook, and then and there promised the said plaintiff, to pay him the said sum of two thousand dollars, whenever thereunto afterwards requested; yet the said Eliza Gause, executrix as aforesaid, after the death of the said Elizabeth Hughes, whilst she was sole and unmarried, and the said defendants, since their intermarriage, have not, nor hath either of them, as yet, paid the said sum of two thousand dollars, so bequeathed as aforesaid, although often requested so to do, but the same to pay, or any part thereof, the said Eliza Gause, whilst she was sole and unmarried, and the said defendants, since their intermarriage, have hitherto wholly neglected and refused,” &c. To this declaration, there was a demurrer and joinder; which being overruled, the case was submitted to a jury, on an issue of fact, who returned a verdict in favor of the plaintiff below, for the amount of his legacy, and interest — and judgment having been rendered accordingly, a writ of error has been prosecuted to this court, for its revision.
    Dargan, for plaintiffs in error.

      J. A. Campbell, contra.
   COLLIER, C. J. — It

is objected to the proceeding in the Circuit court, that that court should not have overruled the demurrer to the declaration. This objection makes it necessary to consider, to some extent, the jurisdiction of courts of lav;, in the recovery of legacies.

It is said, that originally, the jurisdiction over personal legacies, pertained to the tempqral courts of the common law, or that it was a jurisdiction mixtifori, claimed and exercised in the County court, where the bishop and sheriff sat together. Afterwards, the ecclesiastical courts acquired exclusive jurisdiction over the probate of wills of personal property; and, as an incident thereto, they acquired jurisdiction (though not exclusive) over legacies —(1 Story’s Eq. 553.)

It is clear, that no action would lie at the common law, to recover a legacy to which the executor had never assented — (2 Williams’ Ex’rs, 844; Deeks vs. Strutt, 5 T. R. 690; Far well vs. Jacobs, adm’r, 4 Mass. R. 634; 1 Story’s Eq. 554; Ward on Leg. 363.) But if the legacy be specific, the assent of the executor vests the interest in the thing in the legatee, so that he may maintain a suit at law, for the recovery of the interest which has thus vested — (Doe vs. Guy, 3 East, 123; Ward on Leg. 363; Young vs. Holmes, 1 Str. R. 70; 2 Williams on Ex’ors, 1187, 1188.)

In regard to pecuniary legacies, such is the conflict in judicial decision, that it is difficult to say whether, or under what state of facts, an action might be prosecuted at common law, for their recovery. The ground upon which the jurisdiction of the law courts has been doubted or denied, is, that the restricted rules of procedure which guide their action, necessarily inhibit them from imposing any terms upon the parties. Thus, if a legacy were bequeathed to the wife, it might be recovered by the husband, without making any provision for her, or her family ; while a court of equity would require such a provision to be made. So, also, a recovery might be had of the executor, without requiring of the legatee a bond to refund, in the event of other liabilities than those then known, being discovered — requisitions peculiarly appropriate in chancery. These arguments are confessedly cogent, yet they have not always been regarded as sufficient to divest, under all circumstances, the jurisdiction of courts of law, over the subject of legacies.

In Atkins and wife vs. Hill, (1 Cowp. Rep. 284,) the plaintiffs declared against the defendant in assumpsit, stating that “James Clarke, &c, by his last will, &c. did give and bequeath to the plaintiffs wife, the sum of sixty pounds, &c, and of his last will and testament, made the said Charles Hill sole executor, &c. and the said Charles Hill took upon himself the burthen and execution of his said will. And the said plaintiffs further say, that divers goods and chattels, &o, afterwards, &c. came to the hands of the said Charles Hill, as executor of the said James Clarke, which said goods and chattels were more than sufficient to satisfy and pay all the just debts and legacies of the said James Clarke, &c. of which the said Charles Hill then and there had notice: by reason of which said premises, the said Charles Hill became liable to pay to the said plaintiffs, the said sum of sixty pounds, and being so liable, he, the said Charles Hill, in consideration thereof, afterwards, &c, undertook, and faithfully promised to pay them the said sum of sixty pounds, whenever," &c. To this declaration, the defendant demurred generally. On argument, it was objected, that an action on the case would, not lie for a legacy issuing out of 'personalty —that a court of law could not do substantial justice between the parties, by imposing conditions upon the legatee, &c. It was answered, that the old books of entries, as well as some of the older reports, furnished cases where actions of debt, &c. were maintained for legacies —the facts, viz., that the defendant was executor, and had assets, &c. are a sufficient consideration for a promise —that the promise was express, and so admitted by the demurrer. Lord Mansfield delivered the opinion of the court of King’s Bench, and remarked, that the argument in favor of the exclusive jurisdiction of the spiritual courts, would go to prevent the intervention of chancery ■ — that if debts should appear, after the payment of a legacy, the legatee would be bound to refund, whether he gave security or not, for, in such case, the payment would be made under a misapprehension of fact; and he added, “but if justice required it, this court would make the plaintiff’s giving an indemnity, a condition of his recovering. There are many cases where this court has made parties give indemnity.” He admitted, that the law in regard to legacies was made in the ecclesiastical court, and would be applied in equity, as well as at law, in cases in which these latter courts exercised jurisdiction.

The Lord Chief Justice, then addressing himself to the case stated in the declaration, observed, that the defendant was sought to be charged, not upon the ground, that a sufficiency of assets bad come to his hands, to enable him to pay all the debts and legacies of the estate; but, because all this was true, and in consideration thereof, he undertook and 'promised to pay the legacy in question —the consideration was adequate — the payment might have been coerced in equity, and'it is well settled, that not only an equitable demand, but a moral duty, will uphold an, express promise. There was no necessity for going into equity — the object proposed by a resort to that tribunal, was to coerce an assent. Here was not a mere assent, but the demurrer admitted there was a promise, which must be intended to be true.

In the next case, (Hawkes and wife vs. Saunders, 1 Cowper’s Rep. 289,) Lord Mansfield and Mr. Justice Bul-ler, each delivered opinions, in which they re-affirm every thing that was said by the former, touching the declaration in Atkins and wife vs. Hill, and- perhaps went farther, even intimating, that an action might be maintained, where there was no express promise, and that it was probable, a sufficiency of assets to pay debts, Spc. would warrant its implication.

In Deeks and wife vs. Strutt, (5 T. R. 590,) the declaration was similar in form to that in Atkins and wife vs. Hill. The defendant pleaded the general issue. There was no proof of an express promise to pay the legacy, but it was shown that the defendant was possessed of a sufficiency of assets, and the question was, could the action be maintained ? Lord Kenyon was of opinion, that no action, till lately, (except one in the time of the commonwealth,) for a legacy, had been supported in a court of law, and to uphold the one before him, would be attended with the most pernicious consequences. He repudiated the' argument in favor of such suits, founded in convenience and justice, and argued to prove, that the jurisdiction exercised by courts of equity, was both more convenient and just — that there, settlements could be framed, so as to protect the interests of the wife, and of families — but a court of law possessed not the power to do this, though ruin were to result from its omission* The Lord Chief Justice was sustained by Mr. Justice Ashurst, and Mr. Justice Grose concurred fully in the judgment of the court, expressing, as the ground of his opinion, that there was no evidence of an express promise, and that an implied promise, would not sustain the action.

Though in the case of Hawkes vs. Saunders, an express promise was proved, yet Lord Mansfield went so far as to declare, that “ where a man is under a legal or equitable obligation to pay, the law implies a promisej though none was ever actually made.” Again: “An executor, who has received assets, is under every'kind of obligation to pay a legacy. He receives- the money by virtue of an office which he swears to execute duly. He receives the money as a trust or deposit, to the use of the legatee. He dught to assent, if he has assets. He has no discretion or election. He retains what belongs to the legatee, and therefore, owes him to the amount.” There can be no question, that it was the Lord Chief Justice’s opinion, that the law would imply a promise to pay a legacy, upon proof of a sufficiency of assets, and that consequently, an action of assumpsit would lie for its recovery. In regard to his decisions in general, it to ay be remarked, that they are distinguished by the most enlarged principles of justice — often discarding the narrow filies, which controlled the action of the law forums, and as if he disdained the trammels which inhibi-. ted him from administering the law in its purity, he would overleap the barriers of equity jurisdiction, and thus admeasure 'complete right. Lord Kenyon, in this respect, was the opposite of Lord Mansfield. It was his great desire to keep up the ancient distinctions between Equity and Law, so that each court might perform its appropriate functions. Hence it is, that in Deeks vs. Strutt, he considers that the maintenance of an action at law for a legacy, is an innovation upon the common law, of a recent date. Lord Kenyon, too, like his great predecessor, went farther than the decision of the case before the court required. Not contented, merely to decide that assumpsit would not lie for the recovery of a legacy, upon proof that the assets which came to the executor’s hands, were ample — he strongly intimates that the action could not be maintained, though the promise were express: and to this intimation, have the courts at Westminster accorded the weight of authority — (See 7 B. & C.Rep. 544, by Littledale, J. in Jones vs. Tannery Johnson vs. Johnson, 3 Bos. & Pul. Rep. 169.

Thus stands the question, upon authority, in England. Mr. Justice Story, after noticing the cases cited from Cowper, observes: “ but these cases have not been decided upon satisfactory principles; and though they have not been directly overturned in England, they have been doubted and disapproved by elementary writers and judges” — (1 Story’s Eq. 554; see further, The Mayor of Southampton vs. Graves, 8 T. R. 593; Dyer’s R. 264, pl. 41; Moore’s R; 917; Hob. R. 265; T; Raym. R; 28.)

It is worthy of remark, that in none of the old cases cited from the English books, was the action founded upon an express promise; so that not only these, but the later case of Deeks vs. Strutt, may be reconciled-with the cases in Cowper, as to the points adjudged* and differ only as to the general reasoning employed.-

In several of the States of the Union, it has been held that an action will lie for the recovering of a legacy,founded on an express promise, independent of a statute —(Beecker vs. Beecker, 7 Johns. R. 99 ; Clark, adm’r, &c. vs. Herring, 5 Binney’s Rep. 33; McNeil vs. Quince, 2 Hayw. R.- 153.) In New York,- even previous to the decision in Beecker vs/ Beecker, a statute was enacted, vesting the courts of law with jurisdiction over the subject of legacies,- to some extent ;■ yet, in that case, Mr. Chief Justice Kent, who delivered the opinion of the court, took no notice of the act, but reasons to prove that the action was maintainable at common law. He defends the cases of Atkins vs. Hill, and of Rawkes vs. Saunders* and contends that the great argument of Lord Kenyon, in Deeks vs. Strutt, if carried out, would go to inhibit the voluntary payment of a legacy by an executor.

In Farwell vs. Jacobs, adm’r, (4 Mass. R. 634,) it was said, that “ at common law,- no action lies to recover a legacy, or damage for non-payment of it.” Yet, in that case, the action was sustained under the influence of a statute of Massachusetts, which enacts, in general terms, that any person having a legacy given him, may sue for and recover the same at common law. The court remarked: “In consequence of these statute provisions, legacies have always been recovered by actions at law, in which the legatee shows the bequest, the probate of the will, the official capacity of the defendant, and his reception of assets, making him liable to pay, of which the probate records are evidence; whence an action has accrued by law to the legatee, to demand and have the legacy of the defendant, and that he, after notice and demand, has refused to pay,” &c. But the same court, in a late decision, say “ at the common law, an action lies for a legacy, on a promise to pay, there being a sufficiency of assets.” And further: “ an assent will be presumptive evidence of assets. By. our statute, an action at law is given for a legacy. But this action will not lie, immediately on the death of the testator, because, it may not be known, whether there are assets sufficient for the debts, unless there is an assent” — (6 Pick. Rep. 129, Andrews, ex’r vs. Hunneman et al.)

Thus far have we examined the question before us, with reference to the decisions made in the courts of England, or of our sister States. We will consider it now, in reference to our own statute. By the 42d section of the act of the 10th February, 1806, entitled “an act concerning wills and testaments; the settlement of intestates' estates; and the duty of executors, administrators and guardians?— it is enacted, that “ any person having a legacy-bequeathed in any last will and testament, may sue for and recover the same, at common law” — (Aik. Dig. 183, s. 29.) No case has arisen, to render it necessary to decide how far we would go under this statute, to sustain suits at law for legacies; and as the present case does not require, that in order to sustain the judgment of the Circuit court, we should consider that question, — we will content ourselves with the remark, that if it be doubtful, whether at common law, an action lay upon an express promise, the statute cited places the right to maintain it beyond all doubt.

In Pettigrew vs. Pettrigrew, (1 Stew. Rep. 580,) this court, under its first organization, determined, that however questionable it might be, whether, according to the English common law, an action at law lay for the recovery of a legacy, our statute had put that question at rest here. In that case, it was held, that a count in debt in the usual form, for money had and received, was good on demurrer.

To reciprocate, we incline to the opinion, that even at common law, debt or assumpsit could be maintained upon an express promise, made in consideration of assets, forbearance, or other cáuse, recognised as sufficient in law to sustain it. But be,this as it may, the action is clearly given by the act of our legislature.

It was objected to the declaration, that even conceding the remedy at law to be perfect, yet it did not sufficiently charge a liability upon the plaintiffs in error. The declaration is so framed, as not only to conform to that furnished in the report of Atkins vs. Hill, but it goes further, and is free from the objection made on demurrer, ip that case. There, Lord Mansfield decided, that the declaration stated an express promise, which was well sustained by the allegation, that a sufficiencyof assets haci come to the executor’s hands to pay the debts and legacies — that this being true, he was under a moral and equitable obligation to pay them, and his promise vested a legal right. This view is fully sustained by Clark, adm’r, vs. Herring, and Beecker vs. Beecker, cited above; see also, Mr. Justice Buller’s opinion, in Hawkes vs. Saunders.

If an express promise, on a sufficient consideration, was made, (and this is admitted by the demurrer,) it was not necessary to give a right of action, that a demand should have been subsequently made for payment. Like all other promises, which are valid in law, it imposed a legal liability, and must have been performed, at the peril of the party making it. In none of the cases noticed by us, is the declaration objected to, for the want of a special request, (they only contain the licet scepius requisi-tas,) and the absence of objection is strong persuasive proof, that cases like the present, do not constitute an exception to the general analogies of the law of contracts and pleading.

It is further objected by the plaintiffs in error, that though an express promise is stated, yet it could not bind them, because there was no one competent, in law, to claim the benefit of it, or if the promise was valid, it inured to the ward, to whom the plaintiffs could not, with safety, pay the legacy; and the guardian, before he could sue, should show that he was authorised to receive the legacy, when the promise was made, or that after he acquired his authority, he demanded it of the plaintiffs.

The declaration commences as follows: “Alfred J. Hughes, by John It. Fleming, his guardian, who is admitted by the court here to prosecute for the said Alfred J. Hughes, (who is an infant, within the age of twenty-one years,) by attorney complains,” &c. The most natural intendment, from the terms in which the plaintiff below, and his guardian, are described, is, that Fleming is the general legal guardian of the ward — if he was not, the usual description is, either that he was next friend^ or guardian ad litem. The demurrer being an admission of the truth of the facts well pleaded, we are authorised to suppose, 1. That Fleming was the general guardian of Alfred J. Hughes; and 2. That the promise made by the plaintiffs in error, to pay his legacy, was effectual in law, so far as it depends upon time and circumstance. This inference being made, we have already said, that the promise imposes a liability, unassisted by a subsequent demand. Our answer to this objection, is very fully sustained by the case of Miles vs. Boyden, (3 Pick. Rep. 213.)

Our conclusion, from a view of the case, as presented to us, is, that the judgment rendered by the Circuit court on the demurrer, was correct, — and the judgment of that court is therefore affirmed.


source: Caselaw Access Project

author: ORMOND, J.

license: Public Domain

text:
    ASHURST vs. MARTIN.
    1. Where it is alleged that a fraudulent intent is apparent on the face of a deed of assignment — the question of fraud, is a pure question of law.

      2. A deed of assignment, purporting to be a conveyance of all the estate of the debtor, both real and personal, in trust, to pay creditors, which contains the following provisions, does not, on its face, shew an intent to delay, hinder or defraud creditors : 1st. In the first place, to pay certain creditors described in a schedule marked A; — 2d. To pay fpari passu, such creditors described in schedule B, as shall, within a hundred and fifty days from the date of the deed, execute the same, and release and discharge the debtors from future liability; — 3d. To pay all debts not previously provided for, but that no debt shall be paid, unless the person entitled thereto, his agent, or some credible person, certify on oath, that the same is due, and founded on a lawful consideration ; — -4th. That the trustee shall not be responsible for the acts of his agents, nor be chargable for any moneys, except such as shall be actually received by him; — 5. That the trustee shall sell the trust property, at such prices, and on such terms, as he may deem expedient.
    3. A provision in the deed of assignment, that the trustee shall be responsible only for his own defaults, must, on its face, be understood to import, that he shall hot be liable for the acts of such agents, as are necessary to enable him to execute the trust, selected in good faith, with a due regard to their fitness, ¡and with a proper supervision exercised over them.
    4. The time limited by the deed, within which the creditors may come in and assent to it, must neither be too long, and thereby improperly delay the creditors in the collection of their debts, —nor so short, as not to afford time for examination, and therer fore, be merely illusory. The period allowed for assenting to the deed, must be stipulated in good faith, and regulated by the situation of the creditors — and, in this case, held, that as the creditors were dispersed over a large space, one hundred and fifty days was a reasonable time, after notice of the deed.

      Error to the Circuit court of Tuskaloosa.
    Trespass, to try title — tried before Chapman, J.
    The questions in this case,' arose upon a deed of assignment. On the trial below, the plaintiffs, to shew title to the lots sued for, produced and read to the jury, two judgments obtained in their favor, at the Spring term of said court, in eighteen hundred and thirty-two, against J. H. & A. H. Summerville. They also read a deed from the sheriff of Tuskaloosa county, to said plaintiffs, for the lots sued for, which deed bore date on the second July, eighteen hundred and thirty-two, and shewed a sale by the- sheriff to the plaintiffs, on the first Monday in July, eighteen hundred and thirty-two, under executions issued upon said judgments; which executions Were also produced and read to the jury.
    Plaintiffs further shewed, that defendant, some time-in the spring of eighteen hundred and thirty-two, purchased said lots at a public sale,- made by one George N. Stewart, acting as trustee, under a deed of trust made by' said Summervilles, and that under the sale, he went into possession, and was so, at the time suit was brought. Plaintiffs also shewed, that at the sale made by the trustee, public notice was given to all persons attending the sale by the plaintiffs’ agent, that they would insist said lots were subject to satisfy their demand. Plaintiffs also’ shewed, that defendant went into possession,- and held under the trust sale made as aforesaid, and proved the value of the rent of the premises.
    Defendant, claiming under the sale of the trustee, Stewart, as above stated, offered in evidence the trust deed, as-conducing to shew authority in the trustee to sell. The deed was executed, September ninth, eighteen hundred and thirty-one, and purported to be a conveyance of all the éstate of the debtors, both real and personal, in trust, to pay creditors, and contained the following provisions, which only are deemed essential here to state:
    1. In the first place, certain creditors named in a schedule marked A, were to be paid;

      2. Such creditors as were mentioned in schedule B, as should, within one hundred and fifty days from the date of the deed, execute the same, and release and discharge the debtors from all future liability, were to be paid pari passu;

    3. All debts not previously provided for, were then to he paid, but no debt was to be paid, unless the person entitled thereto, his agent, or some credible person, should certify, on oath, that the same was due, and was founded on a lawful consideration ;
    4. The trustee was not to be responsible for any moneys, except what really came to his hands;

      5-. The trustee was to sell the property at such prices, and on such terms, as he thought expedient.
    Plaintiffs moved the court to reject the deed, and exclude it from the jury, because said deed, upon its face, was fraudulent and void, as to creditors. The motion was overruled, and the deed read to the jury as evidence in the cause — to which plaintiffs excepted. Terdict and judgment for defendant.
    Plaintiffs now assigned for error, that the court below overruled their motion to exclude the deed.
    Peck, for plaintiff in error.
    Stewart, contra.
   ORMOND, J.

In the argument of this case, the follow-* ing points are' made by the learned counsel for the plain-*tiffs:

1. The assignment was fraudulent, and void, as tó the plaintiffs, because the legal effect of the assignment was to delay,- hinder and defraud creditors, of their just and lawful actions,- suits, debts, &c.

2. Because it makes the preference given to the creditors designated in schedule B, to depend upon the condition, that they shall, within one hundred and fifty d-ays from the' date of the assignment, execute the same, and wholly release and discharge the assignor.- ,

3. In! providing that no dividend shall be made to- any one under said assignment, unless affidavit be m’ade by the person entitled thereto, that the debt was really due,- and founded on lawful’ consideration.

4. In providing that the trustee shall not be responsible for the acts of his own agents, nor be charged for any. moneys,' except such as should be actually received by him.

5. In authorising the trustee to sell the trust property at such prices, and on such terms, as he might deem expedient; and

That the assignment, if void in part, is entirely void.

Taking into consideration the present state of the country, produced by the recent convulsion in the commercial world, this is truly an important question. The question of fraud, by which it must stand or fall, is made on the deed itself, without reference to extrinsic proof, to show the intent of the parties.

Although fraud must consist in intention, yet it is certain, that it may, in particular cases, from the manner in which it is presented, be a pure question of law, for the decision of the court. A deed, unexceptionable on its face, may be made with intent to delay and hinder creditors of their rights: such a deed would be void, but the intention would have to be proved, and being found by a jury, the law would pronounce the deed fraudulent and void. But if the fraudulent intent were apparent on the deed itself, the fact being thus admitted, the question would be one of pure law.

This is supposed by the counsel for the plaintiff in error, to be the predicament of this case, and he has therefore assumed the burden of shewing, that by the admissions of the makers of the deed, they contemplated a fraud on their creditors.

It will be proper, in the first place, to consider the legal effect of the deed of assignment. It purports to be a conveyance of all the estate of the debtors, real and personal, except their wearing apparel, in trust, to pay, first, certain creditors, who are described in a schedule marked A ; secondly, to pay, pari passu, such creditors described in schedule B, as shall, within one hundred and fifty days from the date of the deed, execute the same, and release and discharge the debtors from future liability, and thereby to pay all other debts not previously provided for.

It was insisted by the counsel for the plaintiffs, that the creditors named in schedule B, who did not accept the terms offered in the deed, were excluded from any participation in its benefit. But we think the true construction of the deed is, that by refusing to execute the release, exacted as the price of being put in the second class, they were merely postponed to the third class, among whom the residue, if any, was to be distributed. The great bulk of the creditors are placed in the second class, and it was doubtless supposed, that the fear that the second class would consume all the effects, would operate as a strong inducement td execute the release. But this is entirely consistent with a willingness on the part of the debtors, to divide among their creditors, what they actually possessed. It is not, we think, a fair presumption, that it was intended, in the possible event that so many of the creditors of the second class should refuse to execute the deed, and comply with the terms offered, as to leave a residue, that it should revert, as a resulting trust, to the debtors.

A similar exposition was made of a deed like the present, by the Supreme court of New York, in the case of Green and others vs. Wakeman, (11 Wendell’s Rep. 187.)

It is settled, beyond controversy, that a debtor, in failing circumstances, may convey all his property, in trust, to be equally divided among his creditors, if the property be fairly and honestly devoted to this purpose, untrammeled by onerous conditions on the creditor, and without stipulating for any pecuniary benefit to himself, as the consideration on which the creditor shall be allowed to participate in the assignment.

It would seem that even this would be an invasion of the statute of frauds; as, to some extent, all assignments of this character must delay and hinder creditors of their just actions, by preventing a resort to the ordinary tribunals of the country. It was originally sustained on the principle, that equality is equity, and that the creditors could not, in a just sense, be delayed or hindered, when all the debtor’s effects were given up, to be divided among them, in the mode best calculated to yield the largest sum, by preventing a scramble among them.

It is as well settled, that the debtor may give a preference to particular creditors, and dpclare that such shall be paid their entire demand — but it is not so easy to determine, on what principle of equity, or fair dealing, the right can be sustained. Cases may be supposed, in which the debtor might be justified in making such a distinction, but it too often happens, that the preference is given capriciously ; in most cases, to those confidential creditors, so called, who have furnished the insolvent with the means of obtaining a delusive credit, to the injury of the fair trader; and if the question could be considered open, it might well be doubted, whether the principles of morality and fair-dealing, and the interest of commerce, would not demand a different decision.

It may, then, be considered as settled law, that a debt- or may convey his property, in trust, to pay one or more creditors their debts in full, or to pay his creditors in unequal portions, provided he relinquish all control over it, and stipulates for no pecuniary benefit to himself, but fairly and bona fide appropriates it to the payment of his debts. Can he proceed one step further, and require from his creditors, as the condition on which they may receive a benefit from the deed, that they shall release all claims on his- future acquisitions?

If this question could be considered open in this State, we should not hesitate to decide, on principle, that such a stipulation in a deed of assignment, would be a manifest violation of the statute of frauds; and such, too, we consider at the present day, to be the weight of authority, on an examination of the adjudged cases. But we think the question foreclosed in this State, by the decision of this court, in the case of Robinson vs. Rapalye and Smith, (2 Stewart’s Rep. 86.) In that case, this point arose directly in judgment, and after full argument, such a stipulation was declared valid. That decision was made in eighteen hundred and twenty-nine, and has not since been called in question in this court, until the present case. After so long an acquiescence, in which the principle then settled has become a rule of propriety, and, in all probability, a vast number of assignments been made on the faith of it, it would, in our opinion, do more harm to reverse, than to adhere to it. We are nevertheless satisfied, that the great objects of enforcing the public morals, and sustaining the interests of commerce, demand that the law should be settled differently,

In justice to our predecessors, whose, decision we are here calling in question, it is proper we should say, that the decision was made upon what then appeared to them, to be the weight of authority. Since then, the alarming increase of conveyances of this character, and their effects on the community, has directed attention more particularly to them, and finally, in the great case already referred to, of Green vs. Wakeman, (11 Wendell, 187,) in which all the decisions, both in England and the United States, are examined and reviewed, — such a stipulation was declared invalid. But, although for the reasons given, we feel constrained to adhere to the de-cisión already made, we cannot extend the principle, nor go beyond the letter of that case.

There are other objections raised to the deed in this pase, which we will now examine.

It is insisted, that the time within which the creditors were to come in and assent to the deed, (one hundred ¡and fifty days,) was too short. It is true, that the insei'tion jn the deed, of too long or too short a period, for the jC0i)Cij.rrance of the creditors, after notice of the deed, would bp eyidence of fraud, as the utmost good faith should be observed ; and the time might be so short, as not to afford opportunity for enquiry, and therefore, be merely illusory — or so long, as to keep the creditors from collecting their debts, an unreasonable length of time. The sufficiency of the time allowed, must, in all cases, be a fact depending on the situation and number of the creditors. What would be sufficient, where the creditors all resided in the neighborhood, would be manifestly insufficient, where they were dispersed oyer a large space. The deed, in this case, does not show where the creditors resided, nor does the deed require notice to be given; but it is clear, that the time could not run against the creditor, until notice was given of the deed. How that fact is, does not appear in the case. Supposing notice to have been given, the time appears to have been reasonable — (See 4 Mason’s Rep. Halsey vs. Whiting, 208, and Fox vs. Adams, 5 Greenleaf.)

It was also objected, that the conditions annexed to the deed, rendered it void. The first is, that no dividend or debt should be paid by the trustee, unless the person entitled thereto, his agent, or some credible person, certh fy on oath, that the same is really due, and founded on lawful consideration.

We can see no objection to this provision. It was probably inserted for the security of the trustee, and to prevent suits on unliquidated claims. It could not operate prejudiciously on the bona fide creditor, and others have no right to complain.

The provision, that the trustee shall be responsible for his own acts and defaults only, and shall not be charged with, or for any sum or sums of money, other than what shall actually come to his hands, or with any thing that shall happen, without his wilful default, deserves a more serious consideration.

It has been argued by the plaintiffs’ counsel, that this provision is a full immunity to the trustee, and that he is responsible in no case, but where the money comes to' his hands. It could not be tolerated, that a trustee should* by virtue of this provision, shelter himself, in a case where the property entrusted to his charge was wasted by his agents, if by a proper supervision and control over' them, such a result could have been prevented, or if they were improperly selected — such conduct would be a wilful default in the trustee. By voluntarily becoming a trustee, he subjects himself to the responsibility which that office imports — as such, if agents are necessary to the transaction of the matters confided to him, or to aid him in the execution of the trust, and they are selected in good faith, with a due regard to their fitness, and a proper supervision over them be exercised, he would not be responsible for their malversations.

The selection of the debtor as the agent, in connection with the ifrespoftsibility of the trustee, for his acts, would, so far as the debtor is concerned, deprive an assignment of all its terrors, and virtually give him the control of his property, in defiance of his creditors.

The provision must, then, on its face, be understood to import, that the trustee shall not be liable for the acts of his agents — such agents being necessary to enable him to execute the trust — selected in good, faith, with a due regard to their fitness, and a proper supervision exercised over them.

' That the trustee should be invested with a discretionary power in the sale of the property, is necessary to enable him to execute the trust. This power, however, like all others with which he is invested, must be exercised in reference to the objects of the trust, and the interest of the creditors, in good faith. The question here, is not as to the abuse of the power, which cannot be presumed, and is not insisted on.

From this examination, it does not appear that there is any thing on the face of the deed, showing an intention to delay, hinder or defraud creditors — and the court below, therefore, did not err in refusing to permit it to be read to the jurythe judgment Of the court below is therefore affirmed.


author: COLLIER* C* J.

text:
    THE MAYOR & ALDERMEN OF THE CITY OF MOBILE vs. ESLAVA.

    1. Where land lying upon navigable water,has other fixed metes and bounds than the shore, the owner of such land is not entitled to reclamations by alluvian, as a riparian proprietor;
    2. According to the common law, it was competent for the sovereign to grant the shore, where the jus publicum was not to be di turbad. Such a grant conferred upon its grantee, the right (if no other) of appropriating the shore, alter it had become derelict.
    3. The King of Spain, in virtue of the bulls of Pope Alexander VI, became the proprietor of the Spanish possessions in America, and could grant the shore of the navigable waters in his American colonies. And the power possessed by the King,- id this particular, might be exercised by his Viceroys, and other' subordinates, wit/tin their respective jurisdictions.
    4. Where a grant is made by a public and responsible officer; claiming and exercising the right of disposing of the public; domain,'"it will be presumed that he did it by the order and consent of the government he professes to represent,- or iri ■ whose name he acts; and, in the absence of proof to the contrary, it will be intended,- that he disposed of no more property of his sovereign, than'tae laws oí Spain authorised.-
    5. The act of Congress, of the 26th of May, Í824,- entitled “ an act granting certain lots of ground to the corporation of the city of Mobile, and to ecrfain individuals of said city,” does not assert a tit'e on the pad of the United States, but is only a renunciation of whatever title the government has, or may be supposed to have, to so much of the shore as is described in it.
    6. The navigable waters of this State, having, by express stipulation, been declared “ public highways, free to the citizens of said State, and the United States, without any tax, duty,-impost or toll therefor, imposed by the State,”- — it is not competent fox' Congress to grant the shore;

      7. By the act of 1819, “ to enable the people of the Alabama Territory to form a constitution,” &c. it is provided, that “ said territory, when formed into a State, shall be admitted into the Union, upon the same footing with the original States, in all fespeets whatever.” Now, as the original States have the exclusive right of property over the tide waters within their ’ limits, subject to the jus publicum, it follows, that this State possesses a similar right; and no grant of property in the shore, to an individual, by Congress, is authorised by its constitutional powers.
    8. By the acts of Congress, regulating the survey and disposal of the publie lands, the Federal government has renounced the title to the navigable waters within this State, and the soil covered by them; consequently, the proceedings under the act of April, 1818, “ authorising the disposal of certain, lots of public ground in the city of New Orleans and town of Mobile”— cannot be considered as a dedication of the shore to the uses of the city of Mobile.
    9. By the admission of Alabama into the Union, without a reservation of the right of property in its navigable waters, the State succeeded to all the right of the United States, except so far as it was reserved by the Federal constitution, in some of its grants, or its retention was necessary to enable Congress to exercise its delegated powers.
    10. The navigable waters extend not only to low, but embrace the soil even to high water mark.
    Error to Mobile Circuit court.
    Trespass to try title — before Pickens, J.
    The plaintiffs in error brought an action of trespass, against the defendant, in the Circuit court of Mobile, to try the title to, and recover the possession of, a certain lot or tract of land, situate in the city of Mobile. On the trial, the presiding judge sealed and certified a bill of exceptions, from which, among other things, it appears that “by an act of Congress, passed in the year eighteen hundred and eighteen,” the President was authorised to. cause the ground whereon Fort Charlotte, in the town of Mobile, was then situated, to be laid off into lots, with suitable streets and avenues, conforming, as near as might be, to the original plan of that town. When the survey was completed, one plat thereof, was directed by the act to be returned to the Secretary of the Treasury, and another, to such officer or agendas the President should au-thorise, to dispose of the lots thus surveyed: and the lots were required to be offered at public sale, in the town of Mobile, in the same manner, and on the same terms, as vyas provided on the sale of the public lands. Pursuant to the provisions of this act of Congress, a survey was made by §ilas Dinsmore, and approved by the Surveyor General of the United States — the plats made out, and one of them returned to the Secretary of the Treasury. The site of Fort Charlotte was laid off, into ten squares and parts of squares, all of which were sub-divided into lots, and streets were laid off over the ground on which the fort was situated, conforming, as near as practicable, to the original plan of the town. By the original plan of the town, a street known as Water street, was run on the margin of the Mobile river, continuous with, and inp mediately fronting on the same. By the survey of Mr, Dinsmore, Water street was extended over a part of the site of the fort, conforming in width and course, to its original location. This street was laid off in the margin of the river, contained within the limits of the fort, and running nearly north and south with the river, on its eastern side.
    Another street, known as Church street, was extended over the site of the fort, from the west, to Water street, on the east, in conformity to the original plan of the town, so that Church and Water streets met each other at nearly right angles at the margin of the river, and within the limits of the fort.
    The lots were sold by the United States, agreeably to the plat returned to the Secretary of the Treasury, and none were either laid off or sold to the east of Water Street.
    The lot nowin controversy, is situated on the east side of Water street, directly in front of the lots 10, 11, 12 and 13) in square 1, (as designated in the survey of Mr. Dins-inore,) and runs eastwardly, across Commerce street, into the river. The lots number 10, 11,12 and 13, are situate on the site of Fort Charlotte; and the lot in dispute, is situated on the open space, between high and low Water mark, in front of the fort, and between it and the river, and within the limits of the picket fence that once surrounded the fort. The sale of the Fort Charlotte lots, took place on the-day of-, eighteen hundred and twenty, and were purchased by a company,known as the Lot Company of Mobile. The company caused another survey of the premises, by Mr. Hubhora, including a larger quantity of ground than was embraced in the survey and plat of Dinsmore. They altered the position of Church street, by placing that part of it adjoining Water street, about thirty feet south of where Dinsmore had located it — Water street was continued in the same place, and was represented as sixty feet wide. The streets laid off by Dinsmore, as altered by the lot compa-have since that time beep recognised as the proper streets of the city. On the-day of -, eighteen hundred and twenty-two, the lot company made a sale of the Fort Charlotte lots.
    It was shown by the proof, that there is a regular oceanic tide in the river Mobile, the flow and ebb of which, vary about eighteen inches, or two feet. In eighteen hundred and twenty-two, Water street, and the property now in dispute, were between high and low water mark. In eighteen hundred and twenty-three, the corporation of the city of Mobile, appropriated and expended four hundred dollars, in filling up of Water street, between Church and Government streets — and by the improvement, confined the water, at high tide, to the eastern edge of Water street. The lot in controversy, from Water to Commerce streets, and the ground now forming the latter street, on the east, was between high and low water marks. No evidence was offered-to show, that the lots on the site of Fort Charlotte, immediately west of the property claimed by the plaintiff's, were known under the Spanish government, as water lots, whereon improvements had been made.
    The plaintiffs read to the jury, as evidence of title, an act of Congress, entitled “ an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city,” passed 20th May, 1824.
    The defendant, on his part, then read to the jury, the act of Congress authorising the sale of Fort Charlotte— the patents from the United States, to William Barnett, John B. Hogan, Francis W. Armstrong, Edward Hall and Addin Lewis, to each of the lots nearest the water, which were surveyed under the authority of the United States, on the site of Fort Charlotte. These patents recite, that the grantees were the purchasers at the government sale of the lots, and had made full payment therefor, — in consideration of all which, the United States conveys the title to the grantees.
    The defendant then gave in evidence, deeds from the grantees to Charles Mathews, for a portion of the land sued for, and for another portion to Addin Lewis, and from. Addin Lewis, to Charles Mathews: — -all these deeds were dated in eighteen hundred and twenty-two, a period subsequent to the issuance of the patents.
    The premises in question, is ih front of lots 10, 11, 12, 13, 14 and 15, in square 1. At the time of Dinmore’s survey, it was in proof, that the eastern lines of these lots, were below high water mark. One of the witnesses stated, that in order to reclaim, one of the lots in square 2, he had to fill up seven feet; and that he could not pass along Water street, at that time, without the aid of logs and timbers, “Another witness testified, that he purchased the lot right west of the lots aforesaid — that he had to fill up his lot before it could be employed; and other evidence was given by defendant, conducing to prove that the eastern lines of the lots, at the date of the sale, was below. high water mark.” It was further shewn by the defendant, that the lot company, after their purchase, expended about three thousand dollars in the improvement of their property, and to exclude the water from it — and that shortly after the purchase of the premises in dispute, by Addin Lewis, he caused dirt to be hauled upon it — and that he leased it to one Cox, who laid down timbers, in order to force out the water, and fit it for a lumber yard. This took place in eighteen hundred and twenty-two, or eighteen hundred and twem ty-three.
    It was also proved, that Charles Mathews, in eighteen hundred and twenty-fhree, or eighteen hundred and twenty-four, expended one thousand dollars, in filling up his lot. With ths view of showing improvements, prevb ous to eighteen hundred and twenty-four, the defendant read from the book of the corporation, the following minute, dated in eighteen hundred and twenty-three: “ Charles L. Mathews having improved his lot, by filling it up, and a stagnant pond being occasioned thereby, at the end of Church street,” &c. In eighteen hundred and twenty-four, it appeared that about one-half the space between Water and Commerce streets, was subject to be covered by water, at the ordinary tides.
    All the witnesses stated, that the eastern boundary of the lots on the site of Fort Charlotte, was about the western line of Water street, as indicated by the stakes placed there. It was in evidence, that Water street was not opened as far south as Church street, until eighteen hundred and twenty-four, when it was extended, by an act of the corporation of the city of Mobile.
    The defendant offered evidence, to prove that in eighteen hundred and twenty-three, and for every year since, till eighteen hundred and thirty-six, (excepting intervals of four years, about which no testimony was given,) that he or they, under whom he claimed, had paid taxes on the property in question, to the corporation, upon the assessment of its officers — and further, that in eighteen hundred and twenty-four, or eighteen hundred and twenty-five, Charles Mathews had been required to pay for side-walks around it, by the corporation — that the mayor of the city, in eighteen hundred and thirty three, required him,to fill up the low places upon it, with earth or shells —and that about the time last mentioned, it was advertised for sale, as the property of the defendant, for unpaid taxes assessed upon it; which taxes, together with the expenses of the advertisement, were afterwards paid to the corporation.
    It further appears from the bill of exceptions, that the defendant, Miguel D. Eslava, was in possession of the premises, as the tenant of Charles L. Mathews, at the commencement of the suit, and service of the writ — and that Mathews was permitted to defend, instead of his tenant, by an order of the court.
    We are further informed, that it was agreed by the parties, that the map of the survey made by Dinsmore, should be made a part of the bill of exceptions — and, in conformity to that agreement, a copy of the map accompanies the record.
    The presiding judge charged the jury as follows: “If the lots specified in the patents, (10, 11, 12, See.) were proved to have been bounded by high water mark, at the time purchased, then they came within the terms of lots known under the Spanish government, as water lots,” as used in the act of Congress; and if proved that the lot claimed, was east of Water street, and in front of the lots covered by the patents, and that they had been improved, before the passage of the act, it was vested in the proprietors and occupants of the lots, held under the patents — and this, although Water street did intervene between the lots claimed; and those held tinder the patents.”
    The jdry were further instructed; “ that if the proof satisfied them, that in August, eighteen hundred and twenty-three, the mayor and aldermen; in refererice to this lot, had on their minutes, used this language, viz.,- ‘ whereás,- Charles Mathews has commenced to improve his lot, by filling up,-’ &c. — and that a committee was or-ganised to enquire into a nuisance connected with the lot; and that for eighteen hundred and twenty-four, and for four or five of the years between that and the commencement of the suit, the city taxes had been assessed on this property, and collected from Mathews; and that Mathews, in eighteen hundred and twenty-four, or eighteen hundred and twenty-five, had been required by an ordinance of the mayor and aldermen, to make side' walks along the lot, and had so done.; and that Mathews had, by a written notice issued by the mayor,- been required to fill up some low places on said lot, to abate a nuisance thereon; and that this property was advertised for sale, as the property of Mathews, in one of the city papers, for the non-payment of city taxes assessed there-r on; and that subsequently, Mathews had paid such taxes, and the expences of the advertisement, into the city treasury, — then such facts would estop the plaintiffs to assert any pre-existing title, they may have had under the act of Congress, if any.
    “The plaintiffs’ counsel requested the judge to charge the jury, that if they believed the facts were proved.-.as contended for by them, that the plaintiffs were entitled to a verdict in their favor: which instruction the judge declined to give.” A verdict being found for defendant, and judgment rendered in favor of Eslava, the plaintiffs have prosecuted a writ of error to this court.

      James Martin & Hale, for plaintiffs in error.

      J. A: Campbell, contra.
   COLLIER* C* J.

It will be premised, that the property In controversy, is situated directly east of the site on which Fort Charlotte stood, in the city of Mobile. The lots laid off on the area covered by the fort, at the time of their survey and sale, extended east, to the margin of the shore, and at some points, even included a part of the shore, while still farther east, and immediately adjoining, was laid down on the plat, “ water street,” then almost, if not entirely unreclaimed* East of Water street, and west of the channel of the river, is situated the premises, the title to which is now controverted.

The plaintiffs insist upon their right to recover, because of a dedication by the United States, to the use of the city. And the plaintiffs and defendant respectively contend, that the title,of each is complete, under an act of Congress passed on the twenty-sixth of May, eighteen hundred and twenty-four, “granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city.”

By an act of Congress, of the twentieth of April, eighteen hundred and eighteen, the President of the United States was authorised, whenever, in his opinion, it should be consistent with the public interest to abandon the use of Fort Charlotte, at Mobile, and to cause the lot of ground whereon it then stood, to be surveyed, and laid off into lots, with suitable streets and avenues, conforming, as near as practicable, to the original plan of the town. The act further directs, when the survey is completed, one plat thereof shall be returned to the Secretary of the Treasury, and another to such officer or agent as the President shall have authorised to dispose of the lots; and the lots shall be offered at public sale at Mobile, on such day as the President, by his proclamation, shall designate, in the same manner, and on the same conditions and terms of credit, as is provided by law, for the sale of the public lands by the United States — (6 vol. Laws of the U. S.; 1 vol. Land Laws, (ed. 18J8,) 303.)

In obedience to this law, a survey was made of the site of Fort Charlotte, and the lots there laid off, were sold in eighteen hundred and twenty, and the landlord of the defendant became the proprietor, under a conveyance from the purchasers at that sale, of the lots lying west of the property now sought to be recovered.

The defendant does not rely upon his riparian proprietorship, as entitling him to the land east of Water street, nor indeed could he insist on it with success, as the Fort Charlotte lots were not bounded by the river, but had other fixed metes and bounds.

The act of Congress of eighteen hundred and twenty-four, on which the parties mainly rest their pretensions, enacts, 1. « that all the right and claim of the United States, to the lots known as the hospital and bake-house lots, containing about three-fourths of an acre of land, in the city of Mobile, in the State of Alabama; and also all the right and claim of the United States, to all the lots not sold of confirmed to individuals, either by this or any former act, and to which no equitable title exists in favor of any individual, under this or any former act, between high water mark and the channel of th.e fiver, and between Church street and North Boundary street, in front of the said city, be, and the same are hereby yested in the mayor and aldermen of the said city of Mobile, for the time being, and their successors in office, for the sole use and benefit of the said city forever.

2 “ That ail the right and claim of the United States, to so many of the lots of ground east of Water street, and between Church street and North Boundary street, (now known as water lots,) as are situate between the channel of the river, and the front of the lots, known under the Spanish government, as water lots, in the said city of Mobile, whereon improvements have been made, — be, and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile, except in cases where such proprietor pr occupant lias alienated his right to any such lot now designated as a water lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same; in which case,'the right and claim of the United States shall be, and is hereby vested in the person to whom such alienation, grant, or order of survey was made, or in his legal representative: Provided, that nothing in this act contained, shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate”— (7 vol. Laws of the U, S. 318; J vol. Land Laws, (ed, 1838,) 398.)

Though the city of Mobile existed as a town long an-> terior to the treaties of St. Ildefonso and Paris, yet even since the latter period, extensive reclamations have beep made of the shore of the river which bounds it on the east, as well by alluvion, as by'the employment of artificial agents. In this way, several streets have been ad-r ded in the eastern part of the city, running north and south,-so that at this time, the principal seat of commercial business is on ground rescued from a bed of water, since the Spanish authorities yielded the possession to the United States. Among these new streets, is Water street — in eighteen hundred and twenty-four, it was probably the most eastern street throughout the entire front of the city, — at any rate, there was none east of it in front of Fort Charlotte.

Waiving a particular examination of the act of eighteen hundred and twenty four, we proceed to consider an argument made for the defendant, which, if well founded, will render unnecessary an analysis of the act. It was argued for the defendant, that even if the act of eighteen hundred and twenty-four, according to a just interpretation of its terms, conferred upon the plaintiffs the interest of the United States in the property in question, yet the act was wholly inoperative, because no title was vested in the'United States, which could be granted by Congress — That the act of eighteen hundred arid nineteen, to enable the people of the Alabama Territory, to form a constitution, for the purpose of admission into the Union, on an equal footing with the original States, dedicated, in express terms, to the free use of the citizens of this State and the United States, the navigable waters within the limits of the former. That this dedication embraced so much of the soil as was covered by water, not only at low, but at high tide, so as to place it beyond the just powers of the Federal government to grant the same — (1 vol. Land Laws, (ed. of 1838,) 310; Toulmin’s Ala. Dig. 913.) And further — that as the sovereign power of the State, is the proprietor of the tide-waters, intrust, for a public, it is incompetent, even by an act of legislation, to grant the space intervening between high and low water marks.

One of the learned counsel for the defendant, supposing the case of Hagan et al. vs. Campbell et al. (8 Porte,r’s Rep. 9,) to be a decision adverse to the latter argument, has insisted that it is opposed by the best authority, and should be overruled by the court. Before we consider the first argument, we will briefly review the case of Hagan et al. vs. Campbell et al., so far as it has been drawn in question. We do not propose to consider the general power of the sovereign over the tide waters, because such an enquiry is wholly unnecessary; but we will undertake to show, that the conclusion of the court in the case referred to, is defensible both in principle and upon authority, whether the rule of decision is. drawn from -the English common law, or the laws and usages of Spain.

According to the common law, not only the dominion over the sea adjoining the coasts, and over arms of the sea and navigable rivers, but the right of property in the soil thereof, is also vested in the King. This proceeds from the policy of the common law, to assign to every thing capable of occupancy, or susceptible of ownership, a legal and certain proprietor. Notwithstanding the property in the tidewaters, is vested in the sovereign to high water mark, yet the people are entitled to their use, for the purpose of navigation and fishing. Thus far, the King may be regarded as a trustee for the public, and, upon principle, it would seem, might make such disposition of the soil, as would not impair or destroy the public right.

The King may grant the soil of tide waters to an individual, yet the grantee cannot so exercise his right of property, as to injure the paramount right of navigation. The interest of the grantee,' has been aptly compared to that of a person who owns the fee simple of a road, who, when the road is discontinued, may appropriate the ground to his own purposes, but until then, he cannot obstruct its passage. Lord Hale says, that the jus priva-tum of the proprietor, is subject to the jus publicum of the community. How far the grantee of the soil may make reclamations, so that he does not disturb navigation, is an interesting question, about which there is a want of entire harmony in the dicta and decisions on this branch of the law. All, however, agree, that as the shore becomes derelict by the receding of the waters, /he may ap'-propiate it to private purposes — (Angell on Tide Waters, 29, 33, 34, 135 to 143; Rex vs. Lord Grosvenor et al. 2 Starkie’s R. 511; Blundell vs. Catterall, 5 Barn. & Ald. R. 268; Harg. Tracts, 32; The Attorney General vs. Richards, 1 Anstruther’s R. 603.)

In Hagan et al. vs. Campbell et al. the confirmatory grant made by the authorities of Spain, extended the title of the grantees, across the shore to the channel of the river. According' to the common law, such grant was Unobjectionable — it neither expressly or impliedly au-thorised any interference with the public right of navigation, nor did it appear that it had produced such a result. But if it had been attempted to be made the instrument of injury to the public, the grant would not thereby have been rendered void — the preventive power Uf the iaw, by its interposition, might have restrained it to a legitimate purpose. For any thing disclosed by the record in that case, it may have been the intention to convey a title to the soil, without conferring an authority to occupy it, until it had ceased to be covered by the water, nor did it appear that it was occupied at an earlier period. It is, then, clear, that the grant, on its face, -if tested by the rules of the common law, is valid.

We will now consider the grant in reference to the laws and usages of Spain, touching her colonial possessions. The power of Spain, at the time its'earliest establishments in America were made, had perhaps far outstripped any kingdom in Europe. Itsmonarchs having extended their powers far beyond the limits which Unce circumscribed the regal authority, were hardly subject to control in concerting or executing their measures. They acknowledged no constitutional restraint, but as independent masters of their own resolves, they issued the 'edicts requisite for modelling the government of the new colonies, by a mere act of prerogative.

The early interposition of the Spanish crown, in order to regulate the policy and trade of its colonies, is a peculiarity which distinguishes their progress from that of the colonies of any other European nation. The Portuguese, the English, and French, considered the advantages promised by the regions occupied by them in America, as so remote' and uncertain, that their colonies were suffered to struggle through a hard infancy,- almost without aid or protection from the parent state.- But gold and silver, the first productions of the Spanish settlements in the New World, were more alluring, and immediately attracted the attention of their monarch.- Though they had contributed little to the discovery, and almost nothing to the conquest, of the New World, they instantly assumed the function of its legislators; and having' acquired- a species of dominion formerly unknown, formed-a plan for exercising it, to which nothing similar occürs; in the history of human affairs.-

It was a fundamental maxim of Spanish jurisprudence,with respect to'America, to consider its acquisitions there,as vested in- the crown, rather than the state.- By the-bulls- of Alexander VI, on which, as its magna charta,-Spain founded its right; all the regions which had been,- or should be discovered, were bestowed as a free' giff upon Ferdinand and Isabella. They, and their successors, were uniformly held to be the universal proprietors of the vast territories acquired by conquest in the NeW World. From them, all grants of land flowed. It is-true, that when towns were built, and formed into bodies corporate, the citizens were allowed to elect their own magistrates, who were authorised to adopt measures-for the regulation of their own interior commerce and police. But no political power originated from the people — all centred in the crown, and the officers of its nomination.- The Viceroys, who represented the person of their sovereign, possessed his regal prerogátives within the precincts of their own governments, in their utmost extent. Like'him, they exercised supreme authority in every department of government, civil, military and criminal. And, as their dominions were too extensive for their personal supervision, they, in turn, were represented by various orders of magistrates, — some appointed by the King, others by the Viceroys, — all of whom were amenable to the jurisdiction of the latter; unless they Were required to execute their duties, without the limits of eith'eir of the viceroyalties — (Robinson’s Am. 350, 351, 352; 2 vol. Prescott’s Ferdinand and Isabella, 172, 173, 174, 486, 493, 494, 495.)

Thus we discover, that the Spanish monarch possessed an unlimited control over his American colonies, and that his viceroys, and other subordinate officers, exercised an extensive power — that he, and not the state, was .the proprietor of the territories there acquired. Being vested with the property, surely it was competent for him to make such disposition of his foreign possessions, as caprice, or a sense of justice might dictate. The canons of the civil law, or the legislative regulations of Spain, were not recognised by its monarch, as operating to. restrain him in making grants of land in the New World. And it must therefore be immaterial, whether, according to the civil law, rivers, the sea, and its shores, are destined by nature to the common use of man, and thus withdrawn from commerce.

The territory which had, or should be discovered in America, being vested in the Spanish monarchs, it followed, that they might create a political power there, or retain the reins of government in their own hands, and parcel out the lands to such individuals as they might, from time to time, select: and the power created, might be invested with all the incidents of property in the tide waters, of which the subject was susceptible; or the King might confer upon his grantee, a proprietorship quite as ample.

It is no answer to this conclusion, to say, that the right to the acquisitions of Spain, whether by conquest or discovery, vested in the State, and not in the King; and that the bulls of Alexander TI, could not give to the title a different destination. Soon after the return of Columbus to Spain, Ferdinand and Isabella applied to the Court of Rome, to confirm them in the possession of their recent discoveries, and invest them with an extent of jurisdiction, similar to that previously conferred on the Kings of Portugal. It was an opinion, perhaps as ancient as the crusades, that the Pope, as the head of the church on earth, had competent authority to dispose of all countries inhabited by heathen nations, in favor of Christian potentates. Although Ferdinand and Isabella do not seem to have been fully satisfied of this right, yet they were willing to acquiesce in its assumption, from the conviction, that the papal sanction would most effectually exclude the- pretensions of all others, and especially, their Portuguese rivals — -(2 vol. Prescott’s Ferdinand and Isabella, 172.) This high power being accorded to the Pope, by the catholic states of Europe, and especially, by Spain, titles acquired upon the supposition that it was rightful, cannot now be disturbed — and acquiescence, for centuries, in its legitimacy, must be held to operate as an estoppel.

Again: it has been held to be a legal presumption, !! that public and responsible officers, claiming and exercising the right of disposing of the public domain, did it by the order and consent of the government, in whose name the acts were done.” And consequently, grants by them of the public lands, “ by color or claim of public authority, are evidence thereof, until the contrary appears by the showing of those who oppose the title set up under it, and deny the power by which it is professed to be granted.” True, “ a grant is void, unless the grantor has the power to make it — but it is not void, because the grantee does not prove or produce it. The law supplies this proof by legal presumption, arising from the full, legal and complete execution of the official grant, under all the solemnities known or proved to exist, or to be required by the law of the country where it is made, and the land is situated” — (United States vs. Arredondo and others, 6 Peters’ Rep. 727, 728; New Orleans vs. The U. States, 10 Peters’ Rep. 727; see also 9 Cranch’s Rep. 99, and 5 Wheaton’s Rep. 303.) As, then, in the absence of all proof, every proper intendment is to be made in favor of a grant, bearing on its face the evidences of regularity and authenticity, we must suppose that the officer making it, was duly accredited by his government; and that he undertook to dispose of no more of the property of his sovereign, than the laws of Spain authorised.

We are now brought to consider, whether the act of eighteen hundred and twenty-four, vested a title to the premises in dispute in the plaintiffs; and in entering upon the examination of this question, it may be well to premise, that the act of Congress cannot be held to assert a title on the part of the United States, but is nothing more than a renunciation of whatever title the government may have, or be supposed to have had, to so much of the shore, as is described in it.

The shore of the sea, and its arms, is that space of land, which is alternately covered and left dry by the rising and falling of the tide; or, in other words, that space of land which is between high and low water marks. It is this space, to which the United States quit claim, by the act of eighteen hundred and twenty-four.

By the act of Congress, of March, eighteen hundred and three, “ regulating the grants of land, and providing for the disposal of the lands of the United States, south of the State of Tennessee,” it is enacted, that all navigable rivers, within the territory of the United States, south of the State of Tennessee, shall be deemed to be, and remain public highways” — (1 vol. Land Laws, (ed. 1838,) p. 98, sec. 17.) And all the laws in regard to the establishment of territorial governments by Congress, and the survey and disposal of the public lands, whether of an earlier or later date, contain similar provisions — (Ibid. pp. 23, 56, 107, 195, 216, 365.)

The several acts of Congress, regulating the survey of the public lands, all provide for surveys which border on navigable streams, to be so made, as not to include within its lines, any part of the shore — (1 vol. Land Laws, (ed. 1838,) pp. 50, 96, 104, 191.)

In the Iasi proviso of the 6th section of the act of eighteen hundred and nineteen, “ to enable the people of the Alabama territory to form a constitution and State government, and for the admission of such State into the Union, on an equal footing with the original States,”— among the propositions submitted by Congress to the convention, for their acceptance or rejection, it is declared, that “ all navigable waters within the said State, shall forever remain public highways, free to the citizens of said State, and of the United States, without any tax, duty, impost or toll therefor, imposed by the State” — (1 vol. Land Laws, (ed. 1838,) 310.) By the ordinance which make's a part of the constitution of Alabama, the “convention for, and in behalf of the people inhabiting this State, do accept the propositions offered by the act of Congress, under which they are assembled.”

The act of Congress of eighteen hundred and nineteen, seems to suppose, that by the admission of Alabama into the Union, the jurisdiction of the State over its navigable waters, might have been exercised, so as to exclude from their navigation, the citizens of the United States; or else the proposition we are considering, was inserted ex majore cautela, that collision between state and federal jurisdiction might be avoided ; — but it is perhaps needless to enquire, under what influence it may have been made a matter of stipulation.

We And it also enacted, in the territorial ordinance, and the laws regulating the survey and sale of lands, in Mississippi and Alabama, that the “ navigable waters ” shall be and remain public highways. Here were express avowals by Congress, that they should not be surveyed and sold, but should be withdrawn from commerce. For what purpose were such avowals made? was it, in the first instance, to prevent the local legislature from authorising an obstruction of the navigation of the waters within the territory — or was it intended, in the last instance, to furnish a pledge to those who might purchase l$nds of the United States, that the navigable waters should remain common property,-free to the use of all ? If the latter was the object proposed, it would not have been consistent with good faith, for Congress to make a grant of the navigable waters, by making that private property, which before was dedicated to the common use of all men. Without speculating further upon the intention of Congress, to be' gathered from its enactments previous to eighteen hundred and nineteen, we think it sufficiently appears from the act of that year* authorising the formation of a State constitution, that the United States proposed to relinquish its right to the “navigable waters ” within this State, upon an agreement .by the convention, that they should “ forever remain public highways, free to the citizens of said State, and of the United States-, without any tax, duty, impost or toll therefor, imposed by the said State.” The proposition for that purpose, is thus introduced by Congress: See. 6. That the following be, and the same are hereby offered to the convention of the said Territory of Alabama, when formed, for their free acceptance or rejection, which, if accepted by the convention, shall be obligatory upon the United States”

The convention, we have already .shown, accepted all the propositions submitted to it, and thus perfected the stipulation between the state and federal governments.

It is, then, considered clear, that the “ navigable waters” of this State have been dedicated to the common use of the people of the United States; but perhaps it may be considered as questionable, what extent of soil is embraced by the dedication. We think it must be so much ground as is covered with the water, rjot only at low. but at high tide. The government surveys extend thus far, and the shore is regarded rather as a part of the water, than as land. It is believed, that there is no instance in which the United States, after having sold •the land to high water, has afterwards asserted a right to dispose of the space intervening between that and low water mark.

There is another view which may be taken of the act of eighteen hundred and twenty-four, going very satisfactorily to show that, that act does not vest in the plaintiffs the title they assert. By the first section of the act “to enable the people of Alabama Territory to form a constitution,” &c. it is enacted, “ that the inhabitants of the Territory of Alabama be, and they are hereby au-thorised to form for themselves a constitution and State government, and to assume such name as they may deem proper; and that the said territory, when formed into a State, shall be admitted into the Union, upon the same footing with the original States, in all respects whatever” — (Introduction to Aik. Dig. xxv.) There is no reservation by the United States, of a property in the navigable waters of this State, or of the soil covered by them, further than we have already seen; and in order to ascertain their rights over the subject, it may be well to enquire what rights are conceded to them in the “ original States.” The original States, we are to understand to be those which united in forming the Federal constitution. These States held their territorial rights from the British crown. The King, in virtue of his prerogative, was authorised to create a political power in all the' countries newly discovered and possessed by his subjects —(Campbell vs. Hall, 1 Cowp. Rep. 204. The royal charters invested the colonies with a political character,by which they succeeded to all the territorial interests Which had previously belonged to the sovereign power of the parent country. These charters created government^’ and were not construed as other grants from the crown Were — that is, they did not exclude,- but actually included arms of the sea, «fee. The colonial governments thus had ample authority to alter the established law, with regard to their tide waters; so that the exclusive control of the-subject, was vested in them — (Commonwealth vs. The Inhabitants of Charlestown, 1 Pick. Rep. 180; Angell on Tide Waters, 37 to 60.)

The' right of property in the navigable waters, conferred upon the colonies by the royal charters, have never been1 .relinquished to the United States.- True, the power “to regulate' commerce with foreign nations', and among the .several States, and with the Indian tribes,” invests Congress with the right of empire and jurisdiction over the-navigable waters of the country, so far as the exercise of this constitutional power may render it necessary. But-the right of property, which was given to the “ original States,”' by the King of Great Britain, when they were his colonies, is still retained, and can only be interfered with by the Federal government, to preserve a free navigation. The United States, then, may be said to claim for the public an easement for the transportation of merchandise, &c. in the navigable waters” of the “ original States,” while the right of property remains in the States.

The “ original States ” possessing this interest in the waters within their jurisdictional limits, the new States cannot stand upon an equal footing with them as members of the Union, if the United States still retain over their navigable waters, any other right than is necessary to -the exercise of its constitutional powers.

In New Orleans vs. The United States, (10 Peters’ R. 736,) the court were of opinion, that though the property in dispute was dedicated to the public use, so that the King had not the power rightfully to alien it; yet he had a limited power over it for certain purposes. But they say the treaty by which Louisiana was ceded to the United States could not, and the constitution did not, transfer to the Federal government the'right to exercise the power which, previous to the treaty, was vested in the King.

“Special provision,” say the court, “is made in the constitution, for the cession of jurisdiction from the States, over places where the Federal government shall establish forts, or other military works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction.

“ The State of Louisiana was admitted into the Union, on the same footing as the original States. Her rights of sovereignty are the same — and, by consequence, no jurisdiction of the Federal government, either for purposes of police or otherwise, can be exercised over this public ground, which is not common to the United States. It belongs to the local authority to enforce the trust, and prevent .what they shall deem' a violation of it by the city authorities.

“All powers which properly appertain to sovereignty, which have not been delegated to the Federal government, belong to the people.”

Here, we think, is a clear concession, that the rights o.f sovereignty of the new, are quite as extensive as those possessed by the original States — and that the powers pertaining to sovereignty, which have not been delegated, belong to the States, or the people. The constitution does not, in express terms, delegate an interest in the navigable waters of the States, to the Federal government; and as the power to regulate commerce, by implication, gives only an easement, — it will follow, that the right of property belongs to the States.

Further: the act of eighteen hundred and nineteen, submits to the convention several propositions for their acceptance or rejection, which are intended to operate when .accepted, as reservations in favor of the Federal government. None of these propositions reserve a right of property in the navigable waters; this right must, then, be understood to have been yielded to the State, upon the maxim of expressio unius est exclusio alter ins, \

To recapitulate, we are of opinion—

1. That the “ navigable waters ” within this State,

have been' dedicated to the use of the citizens of the United'States, so that it is not competent for’Congress to grant a right of property in the same. .1

2. The navigable waters extend not only to low water, but embrace all the soil that is within the limits of high water mark.

3. By the acts o.f Congress regulating the survey and disposal of the public lands, the Federal government has renounced the title to the navigable waters, and the soil covered by them; consequently, the plaintiffs cannot recover on the ground of a dedication to the uses of the city, under the act of eighteen hundred and eighteen, which is an enactment of a later date.

4, The original States, in virtue of their royal charters, are entitled to the right of property in the navigable waters within their territory, while the public are only entitled to an easement, to be provided for under that provision of the Federal constitution, which authorises Congress, to regulate commerce, <fcc. Alabama is admittéd into the Union, on an equal footing with the original States,” and of consequence, is entitled to the right of property in the tide waters within its limits.

5.. By the admission of Alabama into the Union, without a reservation of the right of property in the navigable waters, the State succeeded to all the right of the United States, except so far as it was reserved by the Federal constitution in some of its grants, or its retention was necessary to enable the Federal government to exercise its delegated powers.

Having attained these conclusions, it will follow, that the act Qf eighteen hundred and twenty-four is inoperative, and confers no title upon the plaintiffs. It is, then, unnecessary to examine the questions of law raised upon th.e bill of exceptions; inasmuch as the plaintiffs showed no right to recover, it is clear, that they wer,e not prejudiced by the several decisions of the Circuit judge, adverse to their pretensions.

Many other interesting questions were discussed at the bar, which (as they are not material to a decision of the case,) we will decline considering.

The judgment of the Circuit court is affirmed.