text:
    No. 03-6661 (03A284).
    Hartman v. North Carolina.
   Sup. Ct. N. C. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied.


source: Caselaw Access Project

author: Justice Stevens, Circuit Justice.

license: Public Domain

text:
    PRATO v. VALLAS et al.
    No. 02A1042 (02-9753).
    Decided June 9, 2003
   Justice Stevens, Circuit Justice.

Petitioner filed a petition for a writ of certiorari and a motion for leave to proceed informa pauperis in this Court on December 20, 2002. On May 19, 2003, over my unpublished dissent, the Court issued an order denying petitioner leave to proceed in forma pauperis and giving petitioner until June 9, 2003, to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33.1 of the Rules of this Court. Petitioner now seeks an extension of time within which to comply with the May 19 order, explaining that she needs additional time to raise money to pay the docketing fee and printing costs. Having reviewed petitioner’s petition for a writ of certiorari, I am satisfied that there are no grounds upon which this Court would grant certiorari, and I therefore deny petitioner’s request for an extension of time.


author: Mr.'Justice NELSON

text:
    The United States, Appellants, v. Joseph Hughes.
    Where a grant of land, in Iiouisiána, was made by the Spanish governor, in Febrn ary 1799, 'but no possession was ever taken by the grantee, during the existence of the Spanish government, or since' the cession to the United States; and no proof of the existence of the grant until 1835, when the grantee sold his interest to a third person; the presumption Arising from this neglect is,' that the grant, if made, had been abandoned. ’
    The regulations of Gayoso, who made the grant,.were, that the settlér should forfeit the land, if .he failed to establish himself upon it within one year; and put under labor ten arpents in every hundred within three years.
    This was a land case, arising'Under the acts of 1824 and 1844, and brought up by appeal from the District Court of the United. States, for the Eastern District of Louisiana.
    The' petition in this case' was filed in the District Court of the United States, for the Eastern District of. Louisiana, on the 16th day of June, 1846.
    Hughes, the petitioner, represented therein that, on the petition of Joseph Guidry, the Spanish governor of Louisiana, Gayoso granted to him, (said Guidry,) on the 1st of February,. 1799, a tract of land, .having a. front of 40 árpénts on. the Atchafalaya, with a depth of 40 arpents..; adjoining^the land of André -Martin, on .the west bank of the said river, near where the Point Coupee trace from Opelousas, crosses said river. Petitioner further alleges that the said claim was presented to the board of commissioners, under the act of Congress of 6th of February, 1835, and repotted (on favorably, but never acted on by Congress ; that the United States have sold none of said land, except a small part to John L. Daniel; and that he, Hughes, has become owner of one thousand arpénts of said grant by a chain of conveyances, &c.; he therefore prays for a decree confirming his title, &c;
    The answer of the United States denies all the allegations of tho petitiop.
    ' Depositions to prove the genuineness of Gayoso’s signature were given in evidence.
    The chain of title to the petition was a conveyance from Guidry to André Martin, on the 19th of April, 1837, and conveyance by Martin to Hughes, on the 1st of March, 1846.
    . The'District Court confirmed the claim, and the United States appealed.
    It was argued by Mr. Crittenden, (Attorney-General,) for the ■ United States, and by Messrs. Jcmin and Taylor, for the appellee.
   Mr.'Justice NELSON

delivered the opinion of the court.

-This is an appeal from the decree of thé District Court of the • Eastern District of Louisiana.

The -plaintiff, Hughes, in the court below, filed a petition, founded upon a Spanish .claim,' under the act of 17th of June, 1844, which revived the act of 26th of May, 1824, for the purpose of recovering a tract of sixteen hundred arpents of land, situate-in Louisiana, on the Atchafalaya river, near where the Point Coupée road crosses the said river.

The petition states that the concession was made to one Joseph Guidry, on the 1st of February, 1799, by Governor Gay-' -oso, under whom the plaintiff derives title.

The proofs in the case show, that the grant was made on the application of Guidry at the date mentioned; that he sold and assigned his interest in the same to one André Martin, at the risk ofthe purchaser, 19th of April, 183.5, who assigned the same to the plaintiff, 1st of March, 1846, in pursuance of a . contract made with his agent in 1840. The latter purchase was also made at the risk of the purchaser.

This concession was an incomplete grant, and did not vest a perfect title to the property in the grantee, according to the Spanish usages and regulations, until a survey was made by the proper official authority, and the party thus put in possession, together, also, with a compliance with other conditions, if contained in the grant, or in any general regulations respecting the disposition of the public domain. Possession, with definite and fixed boundaries, was essential-to enable him to procure from the proper Spanish authority a complete, title. If, however,.the concession itself contained a description of the land sufficient to enable the grántee to locate the same without the aid of a survey, the incipient grant, and possession thus taken, have always been regarded as such a severance of the tract from the public domain, as to entitle the grantee to a confirmation of the grant within the provisions of the act of 1824.

In such a case, there would be no discretion to be exercised by the public surveyor in putting the party in possession, which-,. under the Spanish usages, in disposing of the public land, was regarded as essential, in case of grants indefinite as to the location. The survey would be rather matter of form, than of substance, and might, therefore, very well be dispensed with.

In this case, the description- in the grant is, perhaps, sufficiently specific to have enabled the grantee to take possession without the necessity of a survey; and, if possession had been taken in pursuance of the grant, he, or those claiming under him, would have presented a proper case for confirming the title under the act; arid the decree of the court below in favor of the claim might well be sustained.

But no possession of the land was ever taken under this imperfect and incomplete grant, either during the existence of the Spanish government, or since the cession to the United States. Not only .has no possession been taken, but, for aught that appears in the record, no action has been had, or claim set up, under the grant, during the whole of the period, from its date down to the institution of the suit, 16th of May, 1847.

Nor have we any proof of the actual existence of the grant, at all, until the 19th of April, 1835, when the grantee sold and quitclaimed. his interest to Martin, under whom the plaintiff claims. No account has been given of it for the period of some thirty-six- years. The plaintiff rests his claim exclusively upon the evidence of the signature of the governor to the "concession, under date of 1st of February, 1779, and its production, 16th of May, 1846, before the court when the suit was commenced, together Tjrith the transfer from Guidry, the grantee, to Martin, in 1835, and from the latter to himself, in 1846; and this unconnected with any possession of the premises, or claim of right of possession to the same, in the mean time.

In view of .this state of facts, it is impossible to deny, but that.-the claim comes before us under circumstances of very great suspicion; or to resist the conclusion that the grant, if made, had been abandoned. It is difficult to account for the neglect to take possession, or to set up any right or claim to the land for so long a period, upon any other supposition; especially,' when we see that the description of the premises in the' concession is sufficiently specific to-have enabled the grantee to take possession under.it without the aid of a previous survey.

This conclusion is strengthened, when we take into view the regulations of Governor Gayoso himself, who made the grant in question, respecting the disposition of public lands, published, at New Orleans, 9th of September, 1797, about a year and a half before it was made. According to the 14th article, it is declared, that the settler shall forfeit the lands, if he fails to establish himself upon them within one year; and shall have put under labor ten arpents in every hundred, within three years. And in the regulations of the Intendant, Morales, pub-, lished at the same place, July 17, 1799, some six months after the date of this grant, possession and cultivation, within a limited time after the concession, are expressly enjoined, under the penalty of forfeiture.

The neglect to comply with these regulations, thus positively enjoined, within the three years that the Spanish government continued after the date of the -grant, together with the absence of claim or assertion of right to the land, and absence even of any proof of the actual existencejif the grant for the period of more than thirty-six years, we are of opinion, lay a foundation for the inference or presumption of abandonment of the original concession made by Gayoso, too strong to be resisted; at least, á presumption of abandonment that called for explanation on the-parf of the plaintiff, accounting for the neglect to take the possession, for the great delay in the assertion of' the claim, and for the absence of any evidence of even the existence of the grant itself for so long a period of time.

On these grounds, we think, the decree of the court, below erroneous, and should be reversed, proceedings remitted to the court below, and petition be dismissed. -'

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana, 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 District Court in this cause be, and the same is hereby, reversed and annulled; and that this cause be, and the same is hereby, remanded to the .said District Court, with directions to dismiss the petition of the claimant.


author: Mr. Justice NELSON

text:
    The United States, Appellants, v. Joseph Hughes.
    The court again decides, as in the preceding ease, that where a Spanish grant was made in 1798, and no evidence was offered that possession was taken under the grant, nor any claim of right or title made under it until 1837, nor any evidence given to account for the neglect, the presumption is that the claim had, been abandoned.
    In this case, also, there was no proof that the persons who purported to. convey as ' heirs, were actually the heirs of the party whom they professed to represent.
    This was a land case, prising under' the acts of 1824 and 1844, and came up by appeal: from the District Court of the United States for Louisiana.
    The parties were the same as in the preceding case:
    ■The petition in this case was filed in the District Court, for the Eastern District of Louisiana, on the 16th of June, 1846.
    The petitioner, Hughes, claims under a grant alleged to have been made by Governor Gayoso to André Martin, on the 10th of October, 1798, of a tract of land of twenty-eight arpents front, with a depth of one hundred arpents, situated on'the west bank of' the Atchafalaya, about one league above where the trace or road from Opelousas to Point Coupee crosses the said river. The petitioner alleges further, that said Martin took immediate possession, &c., and that the board of commissioner^, made a favorable report on the claim in the year 1840, but that Congress never acted on it, and that he holds a title to one thousand arpents thereof, &c. He thereupon prays that his title may be decreed to be good.
    The answer of the United States is a general denial of the. allegations of the petition. "
    The evidence of the original title is the petition of André Martin to the governor for the said tract of lipid, and the governor’s decree thereon, signed by him in these words: “ Granted forever, that he may establish it,” and dated “New Orleans, October 10th, 1798.”
    Hughes claimed title under a deed from certain persons who represented themselves to be the heirs of Martin, dated 14th of July, 1848.
    The District Court decided in favor of the petitioner, and the United States appealed.
    It was argued by Mr. Crittenden, (Attorney-General,) for the United States, and by Messrs. Janin and Taylor for the appellee.
   Mr. Justice NELSON

delivered the opinion of the court.

This is an appeal from a decree of the District Court for the Eastern District of Louisiana.

The plaintiff, Hughes,, claimed in the court below 3800 arpents of land situate in Louisiana, on the west bank of the Atchafalaya river, about one league above where the road from Opelousas to Point Coupée crosses said river under a concession from Governor Gayoso to one André Martin, 10th of October, 1798.

The petition was presented to the District Court on the 16th of June, 1846, under the act of 17th June, 1844, reviving the .act of 26th May, 1824, praying for a confirmation of the grant in pursuance of the provisions of the act.

Evidence was given of the handwriting of Martin to the application to the governor for the grant of the tract in question • and of .the handwriting of the governor to the grant. '

The plaintiff, also, gave in evidence a conveyance by notarial act under date of 14th of July, 1848, purporting to be made by the heirs of André. Martin, the original grantee, to himself, conveying one thousand arpents, part of the tract of 3800 arpents, to be taken' off the front part of the tract.

Evidence was also given of a notice to the registers and receivers- of the land-office at Opelousas, in Louisiana, of a claim on behalf of the heirs of Martin by their, attorney, f ir .confirmation of the claim under date' 1st of February, 1837. What action took place before these officers on the application, if aiiy, does not appear on the record, nor have we .been referred to any proceedings therein.

There is no evidence that possession was ever taken of the land by the. grantee, or any person claiming under him; nor of any claim of right to the possession; or of any right or title under the concession, or of the actual existence even of the concession itself, until the application to the register and receiver in 1837, a period of over thirty-eight years from its date.

Nor is there any evidence in the record accounting for the neglect i o take possession, or for the absence of evidence of an assertion of right under the grant, or of even the existence of the grant itself for so long a period of time.

The plaintiff rests his claim exclusively upon the production, arid proof of this incomplete grant by Governor Gayoso-in 1798, of, his title as derived from the grantee in 1848, and of the application to. the officers of the land-office at Opelousas in 1837,

We have already held, in a previous case of this plaintiff and the United States, that the neglect-to take possession, and the absence of any claim under the grant, and- of any evidence even of the existence "of the grant itself, for so long a period of time, afford such a violent presumption of abandonment of the claim, that unless explained to the satisfaction of the court, it is impossible, consistent with any sound principles of law or of equity, to uphold it. We refer to the opinion given in that case ori this point as decisive of the present one.

There- is also an additional objection to a recovery in fhis case, that did -not exist-, in the one referred to. The plaintiff shows no 'title to the land in question. There is no proof in the record that the persons joining in the conveyance to him of the premises in July, 1848^ were the heirs of Martin, the' original grantee. The recital in the instrument is no evidence of the fact. The proper proof should have been furnished of the heirship.

For these reasons we are of opinion that the decree of the court below is erroneous, and should be reversed, and remit the proceedings' to the court below, with directions to dismiss the petition.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana, 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 District Court in this cause be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said District Court, with directions to dismiss the petition 'of the claimant.


text:
    The United States, Appellants, v. Joseph Hughes.
    The decision in the two preceding cases again affirmed.
    This was a land case arising under the acts of 1824 and 1844, and came up by appeal from the. District Court of the United States for Louisiana.
    The parties were the same as in the two preceding cases.
    Joseph Hughes filed his petition on the 16th June, 1846, claiming 3200 arpents of land, as having been granted by the governor of Louisiana, Gayoso, on the 26th April, 1798, to André Martin. He alleges that said Martin took immediate possession, and held it till his death. That in the year 1840, the board of commissioners reported favorably on said claim, but that Congress had never acted upon it; and that he will, on the trial produce good and legal sales 'and transfers of the said tract of land from the heirs of the said Martin to himself.
    The answer put in, on the part of the United States, consists of a general denial of the statements in the petition..
    The evidences of title exhibited on the part of the petitioner were,
    1st. The petition of André Martin to the governor for a grant of 3200 arpents, &c., dated March 28, 1798.

      2d. The concession and order of survey made by Governor Gayoso, and dated 26th April, 1798.
    3d. The sales and deeds of conveyance by the heirs of André Martin, under which the petitioner, Hughes, claims, dated, respectively the 13th and 14th of July, 1848.
    Testimony was offered to prove the genuineness of. Gayoso’s signature to the order of survey.
    The District Court decided in favor of the petitioner and the United States appealed.
    It was argued by Mr. Crittenden, (Attorney-General,), for the United States, and by Messrs. Janin and Taylor for the appellee.
   Mr. Justice NELSON

delivered the opinion of the court.

This is an appeal from a decree of the District .Court of the Eastern District of Louisiana.

The plaintiff claimed three thousand arpents of land situate in Louisiana, and fronting on the back part of lands of Oliver Thibocleaux, Theodore Thibodeaux, and Claude Martin, under a concession to André Martin from Governor Gayoso, 26. April, 1798. The proceedings-were under the act of 17th June, 1844, reviving the act of 26th May, 1824.

Evidence was given of the handwriting of Martin to the application for the land, and of Governor Gayoso to the concession.

The plaintiff also produced evidence of a conveyance of the' premises to himself by an instrument bearing date 14th July, 1848, purporting to have been executed by the heirs of André Martin the original grantee. And, also, notice to the register and receiver of the land-office at Opelousas, Louisiana, of an application on behalf of the heirs, by their attorney, for confirmation of the grant under date of 2.3d December, 1836.

The concession was an inchoate and incomplete grant; and there is no evidence that any possession was ever taken of the land, nor of any claim set up under the grant to the same, from its date down to 1836, when notice was given to the officers of the land-office; nor any evidence of- the x existence- óf the grant during the whole of this period.. The case falls directly within the principle^ of the two previous case's just decided.

There is,- also, no proof of any title in the plaintiff derived from the original grantee. The conveyance, purporting to be executed by the heirs notwithstanding the recitals to that effect, furnishes' no evidence of the fact of heirship.

We think the decree of the court below erroneous, and should be. reversed; and that- the proceedings be remitted to the court below, and the petition be.dismissed.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States, for the Eastern District of Louisiana, 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 District Court in this cause, be, and the same is hereby .revérsed and annulled, and this cause be, and the same is hereby* remanded to the said District Court, with directions to dismiss the petition of the claimant.


author: Mr. Chief Justice TANEY

text:
    The United States, Appellants, v. Armand Pillerin and others ; The United States, Appellants, v. A. B. Roman ; The United States, Appellants, v. Carlos de Villemont’s heirs and others ; The United States, Appellants, v. Jean B. Labranche’s heirs.
    This court again decides, as in 9 How. 127, and 10-How. 609, that French grants-of land in Louisiana, made after the treaty of Fontainbleau, by which Louisiana was ceded to Spain, are void, unless confirmed by the Spanish authorities before the cession to the United States. .
    But if there has been continued possession under the grants so as to lay the foundation for presuming a confirmation by Spain, then the cases are not included within the acts of 1824 and 1844, which look only to inchoate.and equitable titles. The District Court of the United States has therefore no jurisdiction.
    These four cases were land cases, arising under the acts of 1824 and 1844, and were appeals from the District Court of the United States, for Louisiana.
    " They were cases of French grants made after the treaty of Fontainbleau by which Louisiana was ceded to Spain.
    They were argued by Mr. Crittenden, (Attorney-General,) for the United States, and by Messrs. Janin and Taylor, for the appellees, except the second which was argued' by 'Mr. Soule.

   Mr. Chief Justice TANEY

delivered the opinion of the court.

These four cases are all French grants made after the treaty of Fontainbleau by which Louisiana was ceded to Spain. We have already decided in the cases of The United States v. Reynes, 9 How. 127, and The United States v. D’Auterive, 10 How. 607, that grants of this description are void, unless confirmed by the Spanish' authorities before the cession to the United States. In some of these cases evidence-has been offered .of continued possession by the grantees of those claiming under them, ever since the grants were made. But if there has been such a continued possession, and acts of ownership over the land as would lay the foundation for presuming a confirmation by Spain of these grants, or of either of them or any portion of either of them, such confirmation would amount to an absolute title, and not an inchoate or imperfect one. For all of the grants are absolute, or upon conditions subsequent; and if they had been originally madé by competent authority, would have passed the legal title at the-time, subject only to be divested by a breach of the condition, in the cases, where a condition subsequent is annexed. Such a title, if afterwards recognized by the Spanish authorities, is protected by the treaty, and is independent of any legislation by Congress, and requires no proceeding in a court of the United States to give it validity.

Titles of this description were not therefore embraced in the acts of 1824 arid 1844, under which these proceedings were had. These laws were passed to enable persons who had only an inchoate and equitable title, to obtain an absolute and legal' one, by proceeding in the District Court in the manner prescribed. And when the title under which the party claims, would be a complete and absolute one, if grafted by competent authority or established by proof, the District Courts have no jurisdiction under the acts of Congress above mentioned to decide upon its validity. The act of 1824 is very clear upon this point; and it has always been so construed by this court.

Upon this ground the decree of the District Court in each of these cases is erroneous and must be reversed and a mandate issued directing the petitions to be dismissed for want of jurisdiction.

But this decision is not to prejudice the rights of the respective petitioners or either of them in any suit where the absolute and legal title to these lands or any portion of them may be in question, or prevent them from showing if they. can that the French grant was recognized as valid or confirmed by the Spanish authorities Before the treaty of St. Ildefonso.

Order.

These causes came on to be heard on the transcript of the record from the District Court of the United States,' for the Eastern District of Louisiana, and were argued by counsel. .On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in these causes, be, and the same is hereby reversed and annulled, and that these causes be, and the same are hereby remanded to the said District Court with directions to dismiss the petitions of the claimants for want of jurisdiction.


text:
    Alexander Crawford, Appellant, v. James Points, Assignee in Bankruptcy of Henry Hottle.
    An appeal does not lie to this court, from the decision of a District Court in a ease of bankruptcy.
    Even if it would, the decree of the District Court in this case is not a final decree.
    This was an appeal from the District Court of the United States for the Western District of Virginia.
    The facts in the case are stated in the opinion of the court so far as they bear, upon the question of jurisdiction; and it is unnecessary to state the other facts.
    It was argued in this court by Mr. Fultz for the appellant, and by Mr. Stuart for the appellee.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case may be disposed of in a few words.

James Points, the appellee, was appointed assignee of Henry Hottle who had been declared a bankrupt, by the District Court of the United States for the Western District of Virginia. And, upon the petition of the assignee and the hearing of the parties concerned, certain settlements and transfers of property made between the bankrupt and the appellant, were declared to be fraudulent, and set aside by the court. From this decree Crawford appealed to this court.

It is very clear that the appeal cannot be sustained. • The appellant endeavors to support it, upon the ground that there is ho act of Congress now in force establishing a Circuit Court for .the Western District of Virginia. • But, assuming this to be the case, it does not follow that an appeal to this court can be taken from the decree of the District Court. For we can exercise' no appellate power, unless it is conferred by law; and there is no act of Congress authorizing an appeal to this court from the decision of a District Court in a case of bankruptcy. It was so held in Nelson v. Carland, 1 How. 265, and in the case Ex parte Christy, 3 How. 314, 315.

Indeed, if an appeal would lie from a final decree of the District Court, this appeal .cannot be maintained. For the decree is not final. An account is directed to be taken of the rents and profits of certain lands, with an option to the appellant to purchase- them at a price named in the decree; and in that event he is to be discharged from the account for rents and profits. And, moreover, he is permitted to retain possession of certain slaves, until it should be ascertained whether the other assets of the ba-nkrupt’s estate would not be sufficient to pay his debts; and an order to account for their hire and the profits of their labor is suspended in the mean time. While these things remain to be done, the decree is not final, and no appeal from it would lie to this court, even if it had been the decreé of a Circuit Court exercising its ordinary equity jurisdiction.

Upon either ground, therefore, this .appeal cannot be main- ■ tained, and is, therefore, dismissed for want of jurisdiction.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Western District of Virginia, and was argued by counsel. Oh consideration whereof, it is how here ordered, adjudged, and decreed by this court, that this cause be, and the same is hereby dismissed for the want of jurisdiction.


author: Mr. Justice McLEAN

text:
    John Darrington, Lorenzo James, and Robert D. James, Plaintiffs in error, v. The Branch of the Bank of the State of Alabama. John Darrington and Lorenzo James, v. Same.
    The bills of a banking corporation, which has corporate property, are not bills of credit within the meaning of the Constitution, although the State .which created the bank is the only stockholder, an,d pledges its faith for the ultimate redemption of the bills.
    These cases were brought up from the Supreme Court of Alabama, by a writ of error issued under the 25 th section of the Judiciary Act. . The facts and pleadings are stated in the opinion of the court.
    It was argued by Mr. Campbell for the plaintiffs in error, and and Mr. Hopkins for the defendants.

      Mr. Campbell

    contended that the transactions as described by the pleas, fell within the prohibitory clause of the Constitution' of the United States, “ that no State shall issue a bill of credit,” and cited 4 Peters, 410 ; 11 Peters, 313; 7 Alab. Rep. 18.

      Mr. Hopkins for the defendants in error.
    In the case of Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Peters, 257, this court decided that the notes issued by such a bank as the. one which is the defendant in error, were not bills of credit within the prohibition of the Constitution of the United States. In the case of Owen v. The Branch Bank at Mobile, which is the defendant in error, the Supreme Court of Alabama decided that the notes issued by this- bank were not bills of credit. 3 Ala. Rep. 258.
    The charter of this bank is a public statute of the State of Alabama. 6 Ala. Rep. 289, 294. This court takes notice judicially of such statutes, as it does of the acts of Congress. 9 Petersj 607, 625, 626.
    This bank had a large capital, and it is not denied in the pleas, as it was in the,case of the Kentucky bank, that the capital was paidi Its notes were received in payment of taxes and debts due to The State of Alabama. As a corporation the bank .'incurred responsibility, and gave credit to its paper. It was liable for the notes and bills it issued, and its capital.was bound, "like that of stock banks, for-the payment of its notes in gold and silver. All its property, including its capital, was a fund for the payment of. the debts of the bank. The notes of the bank were circulated upon its own 'credit, and every holder of the notes had the power to enforce' payment, as the bank could be sued. The notes were not issued by the State, but by the bank in its corporate name, and the bank was not controlled by the State, but by a president and directors appointed by the legislature. For the capital and powers of the bank, see 3 Ala. Rep. 267. According to a previous judgment of this court, the issuance and circulation of its notes as money by such a bank is’no violation of the Constitution of the United States. 11 Pet. 311, 315, 318, 320, 321, 322.
   Mr. Justice McLEAN

delivered the opinion of the court.

This is a writ of error to the Supreme Coürt of Alabama,, under the 25th section of the act of 1789.

An action was brought in the Circuit Court of Mobile county against the plaintiffs in error, by jhe commissioners and trustees of the banks of Alabama, under an act of the State, by serving a notice on them in behalf of the Branch of the Bank of the State of Alabama, at Mobile, as the makers of a promissory .note expressly made payable and negotiable at the said branch bank, dated 2d of December, 1843, and in which they promised, twelve months after date, to pay the said branch Bank by the name and description of Henry B. Halcomb, cashier, or bearer, the sum of four thousand dollars, with interest thereon from date, for value received, which said promissory note is regularly due and unpaid, and is the property of the bank.

The defendants below first pleaded nil debet, on which issue was joined.

In their second plea, they aver, that the consideration of the note sued for consisted of certain bills of credit issued by the State of Alabama, under the name and style of the Branch of the Bank of the State of Alabama, at Mobile, by which the State, under that name, promised to pay the bearer of the same on. demand. That these bills of credit were for such sums as showed they were intended to be circulated as money. And that the object of the State was to circulate them as money, through the agency of the bank, for a profit.

The third plea avers that the note, on which suit is brought, was made and delivered- to the plaintiff as a trustee for the State, and that the bills were received of the bank by the defendants, to put them into circulation as money for the profit of the-State; that the bank was controlled by the State, and that it was alone liable for the issues made by the bank in the transaction stated.

The plaintiff below demurred to the defendant’s pleas except the first one, which.„.demurrer was sustained. And on a-jury being called to try the issue they found' the amount of the note and interest for the plaintiff, on which judgment was entered. This judgment was taken by writ of error before the Supreme Court of Alabama, which affirmed the judgment. And this writ of error is now proseeutéd in this court to reverse the judgment of affirmance.

It is argued that this case should be dismissed, as there was no-special assignment of error in the Supreme Court of Alabama, as required by the law and the- practice of that court.

The Supreme Court of Alabama exercised jurisdiction in the case, and affirmed the judgment of the Circuit Court. This court cannot look behind that judgment, and dismiss the cause here on the ground of a supposed violation of a rule of practice in the State court. Whether there was an assignment of error or not in that court, can be of no importance, as we look to the judgment only and its effects But it may be proper to say there' was an assignment óf error in the Supreme Court of Alabama, that the court sustained the demurrer to' the pleas, and gave judgment thereon in favor of the plaintiffs, whereas, by the law, of the land it should have been for- the defendants.”

The judgment on the démurrer in the Gircuit Court was not formally entered, but the record states, “ and the plaintiffs moved the court for judgment against the defendants, which was resistecUby the defendants, and the plaintiff demurred to all the defendants’ pleas except the first one, which demurrer, was by the court sustained,” &c.

The writ of error brought before the Supreme Court of Alabama the judgment of the Circuit. Court as well on the demurrer as on the verdict of the jury, and the affirmance of the judgment extended to both. . The pleas demurred to raised the question whether the bills of the bank were bills' of credit.

Under certain restrictions, the Constitution of Alabama authorized the General .Assembly to establish a State bank, with such .number of branches as they should from time to time deem expedient.

In 1823 the State Bank was established on the funds of the State, then in the treasury, and a loan obtained by an issue of State bonds. The preamble to the charter states, “whereas it is deemed highly important to provide for the safe and profitable investment of such public funds as may now or hereafter be in possession of the State, and to secure to the community the benefits, as far as may be, of an extended and undepreciating currency; Be it enacted,” &c.

In 1832, the bank at Mobile was established with a capital stock of two millions of dollars, procured from the sale of bonds of the State, created for that purpose.

By the charter a president and' fourteen directors were to be annually elected by the legislature, who.were required to make a report to each session of the legislature. The corporation was authorized to issue notes of a denomination not less than one dollar, to discount notes and deal in bills of exchange, not exceeding certain amounts. The ordinary powers of a banking corporation were conferred, with a prohibition against owing debts exceeding twice the amount of the capital; and the directors were made personally, responsible for any excess of indebtment of the bank assented to by them. Until one half of the capital stock was deposited in specie, in its vaults, the corporation was not authorized to commence operations. The remedy for collecting debts was reciprocal for and against the bank. And the credit of the State was pledged for the ultimate redemption of the notes of the bank.

The State of Alabama was the only stockholder of the bank; but it was placed under the control of directors elected by the legislature, and one half of the capital, amounting to the sum of one million of dollars, was in its vault for the redemption of its .bills. With the means possessed by the bank when it commenced business, is required only prudent management to sustain its credit, and effectuate the objects for which it was established.

The bills issued by the bank were made payable on presentatmn to it, and they were signed by its president and cashier; The bills issued being convertible into specie by the holder, were current, and in all transactions were received and paid out, as equal in value to. specie. .

It is impossible to say that bills thus issued come within the definition of bills of credit. The agency constituted, not only managed the bank, but were made .personally liable under cer-' tain circumstances. The directors, though elected by the legislature, performed their duties under the charter, and, like all other directors of banks, derived their powers and incurred their responsibilities from the law under which they acted.

It is not perceived that their action was not as free as those of directors who are elected, by individual stockholders.

The promise to pay was made by the bank, and its credit gave to its bills circulation: they were in no respect, therefore, like a bill of credit. • That must issue on the credit of the State. The principles laid down by this court in the case of Briscoe v. The Bank of the Commonwealth of Kentucky, apply to this case. 11 Bet. 331. In that case it is said, “ to constitute a bill of credit within the Constitution, it must be issued by a State, on the faith of the State, and be designed to circulate as money. It must be a. paper which circulates on the credit of the State; and is so received and used in the ordinary business of life.

The individual or committee who issue the bill must have the power to bind the State; they must act as agents, and of course do not incur any personal responsibility, nor impart, as individuals, any credit to the paper.

Did the pledge of the credit of the State in the charter of the bank, ultimately to redeem the notes of the bank, make them bills, of credit?

The charter is a public law, and this court consider it as before them, the same as it was before the court of Alabama.

Upon the face of the bills there is no promise to pay, by the State, but an express promise by the, bank. In this there is an important difference between the notes of the bank and bills of - credit. Whatever agency has been employed to issue a bill of credit,- the State promises to pay the bill, or to receive it in payment of public dues. And when a particular fund was designated out of which the bill si mid be paid, it depended upon the faith of the State, whether such fund should be so appro-' priated.

The bank had not only an ample fund for the redemption of its paper, but a summary mode was provided by which the payment of its bills could be legally enforced! And the-directors were personally liable, if the issues of the bank exceeded twice the amount of its capital paid In. And besides the notes and bills of exchange taken on its discounts, enlarged the means of the bank, and increased the security of the billholders.'

The charter of the bank gave to it all the means of credit with the public that banks usually have or could desire. . That some reliance may have been placed on the guaranty, of the' eventual payment of the notes of the bank by the State may be admitted. But this was a liability altogether different from that of a State on a bill of credit. It was remote and contingent. And it could have been nothing more than a formal responsibility, if the bank had been properly conducted. No one received a bill of this bank with the expectation of its being paid by the State.

But it is said the State employed the bank as an agency, through which its bills should be circulated, for the profit of the State.

The State, as a stockholder, received a profit, if any profit was realized through the operations of the bank. But this is the condition of individual stockholders in all banks. And as well might it be said that the individual stockholders of a bank issue its notes, as that the State of Alabama issued the notes of the branch bank at Mobile.

A bank in either case acts under its corporate powers, and the directors derive their powers and incur' their responsibilities under the law which governs them. The directors of the Mobile bank, in the discharge of their duties, it would seeni, were as independent as the directors of other banks.

A bill of credit emanates from the sovereignty of the State. It rests for its currency on' the faith of the State pledged by a public law. The State cannot be sued ordinarily on such bill, nor its payment exacted against its will. There is no fund or property which the holder of the bill can reach by judicial process. Such'an instrument is altogether different, in form and in substance, from the notes issued by the branch bank at Mobile. The fact that the State of Alabama may be sued by one of its citizens does not alter the cáse. Such law may be repealed at pleasure, and if judgment could be obtained, the payment of it .could not be enforced.

The State, as a stockholder, held its property as a corporation or individual could hold it, in the Mobile bank. The specie in its vaults, notes taken on discounts, and every description of property, managed by the directors of the bank, were subject to judicial process by its creditors. And in such a procedure the State, in its sovereign capacity, could not interfere. Its powers would be no greater than the powers of individual stockholders of a bank, under similar circumstances.

The affirmance of the judgment of the Circuit Court which sustained the demurrer to the pleas by the Supreme Court of Alabama was right, and its judgment is therefore affirmed.

Mr. Justice GRIER dissented.

Order.

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


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    Charles Ballance, Plaintiff in error, v. Robert Forsyth, Lucien Dumain, and Anthony R. Bovis.
    On the 15th of May, 1820, Congress passed an act (3 Stat. at . Large, 605,) for the benefit of the inhabitants of the village of Peoria, by which evevy person claiming a lot in the village, was to give notice to the register of the land-office, whose report was to be laid before Congress.
    On the 3d of 'March, 1823, Congress passed another act, (3 Stat. at Large, 786,) granting to each of the French and Canadian inhabitants, and other settlers according to the report, the lot upon which they had settled; and directed the surveyor of the public lands to make a plat-of the lots, for which patents were to bo issued to' the claimants.
    This survey and plat were not made until April and May, 1837.
    In November, 1837, a person who was not a settler, purchased at the land-office at private entry, the fractional quarter, of land which included some of the above lots, and soon afterwards obtained a patent. Both the certificate and patent reserved the rights of the claimant under the acts of Congress above mentioned.
    In-1845 and 1847, these claimants obtained patents.
    They were entitled to recover in ejectment from the persons who held under the private entry and patent.
    The title of the plaintiffs was not divested by a tax sale in 1843. The whole fractional quarter section was taxed and one acre off of the east side sold. This sale was irregular.
    This case was brought up, by writ of error, from the Circuit. Court of the United States for the District of Illinois.
    It was an ejectment brought by Forsyth, Dumain, and Bovis, to recover two lots of ground, viz.,. Nos. 47 and 65, in che town of Peoria. .The bills of exceptions extended over thirty-sevenpageá of the printed record, and included deeds and depositions and proceedings under a tax sale, &c. See. It is, therefore, impossible to insert them. The following is a. summary notice of the evidence .offered oh the trial by plaintiffs and defendant.

      Plaintiff's Evidence.

    -1. The act' of Congress passed on the 15th of May, 1820, (3 Stat at Large, 605.) It directed that every person whe claimed a lot in the village of Peoria, should give notice of his claim to the register of the land-office, whose report should be laid before Congress.
    2. An act of Congress passed on. the 3d of March, 1823, (3 Stat. at Large, 786,) after the report of the register had been received. It granted to such of the French and Canadian inhabitants and other settlers in the village, as had settled there, priof to the 1st of January, 1813, the lot so settled upon and improved. The second section of the act required the surveyor of the public lands to cause a survey to be made of the several lots, and to designate on a plat thereof the lot confirmed and set apart to each claimant, and to forward the same to the Secretary of the Treasury, who should cause patents to be issued in favor of. such claimants, as in other cases.
    This survey and plat were, not made until April and May, 1837.
    3. A patent to Boushier for lot No. 47, issued on the 27th of March, 1847.
    4. A plat of the village.
    5. A plat of lot No. 47.
    6. Testimony taken under a commission relative to the settlement of the lots.
    7. Deed to plaintiffs, 11th December, 1836.
    8. Patent for lot No. 66, Depember 16, 1845.
    9. Plat of lot No. 65.
    10. Deed to plaintiffs, September 16,1836.
    11 ) - 0' V Plats of an addition to the town.
    13. An agreed statement of certain facts.

      Defendant's Evidence.

    1. A certificate from the register, showing, that on the 15th of November, 1837, John L. Bogardus entered and .purchased the south-east fractional quarter of section, No. 9, containing 23 ^ acres. This included the lots in question.
    2. Deed from Bogardus to Underhill of the whole south-east fractional quarter.
    3.1 Two deeds from Underhill to Ballance, the plaintiff in error;
    4. Proceedings relative to a tax sale. The taxes were assessed on the fractional quarter, and an “ acre off east side ” was sold to Ballance.
    . 5. Deed under the sale from the sheriff conveying the land in dispute.
    6. An award between Ballance, Bigelow, and Underhill, whereby the lots in dispute were assigned to Ballance.

      7. Copies of certificates relative to Bogardus’s preemption.
    8. Patent to Bogardus, January 5,1888.
    The plaintiffs then offered in evidence a copy of the certificate of entry which the register gave to Bogardus, and which contained the following'reservation:
    “ Now therefore be it known, that, on presentation of this cer- , tificate to the Commissioner of the General Land-Office, the said John L. Bogardus shall be entitled to receive a patent for the lot above described, subject, however, to the right of any and all persons claiming under the act of Congress of 3d March, 1823, entitled ‘ An Act to confirm claims to lots in the village of Peoria, in the State of Illinois.’ Samuel Leech,

      Register.”

    The patent contained a similar reservation.
    The above was all the material evidence given in the casé. Each party saved the right on the argument of the cause to object to any of said evidence on the ground of the incompetency or effect of the evidence, but not to make merely formal objections, such as proof of authenticity of papers offered.
    It was further agreed that the property in controversy was worth more than two thousand dollars ;• whereupon the court instructed the jury to bring in a verdict for the plaintiffs, as by law they were entitled to recover on the' above facts. To all of.which opinions of the court the defendant excepted, and prayed this, his bill of exceptions, be sealed, signed, and made of record,- which is accordingly done, &c.
    Nath’l Pope, [seal.]
    Upon this bill of exception, the case came up to this court.
    It was argued by Mr. Ballance, for the plaintiff in error, and Mr. Gamble, for the defendants in error.
   Mr. Justice McLEAN

delivered the opinion oi the court.

This cause is brought before us, from the District of Illinois, by a writ of error.

It is an action of ejectment to recover the possession of three lots, numbered 47, 65, and 68, in the town of Peoria, under the act of Congress of the 3d of March, 1823?,entitled “An act to confirm certain claims to lots in the village of Peoria.” The claim 47 contains twenty-seven thousand four hundred and fórty-ñine square feet and seven hundreths; surveyed and designated as covered by claim 47, in the south-east fractional quarter of fractional section nine, in township 8, north of range eight, and east of the fourth principal meridian, &e.

Lots 65 and 68 contain the same number of square feet, and, in fact, constitute but one lot, situated in the same fractional quarter section. Separate suits were brought for these lots, but, being consolidated, they are included in one. The defendant below pleaded not guilty.

At the trial exceptions were taken to the rulings of the court, which present the points of law to be decided.

The whole of the evidence' was copied into the bill of exceptions, on which -the court instructed the jury to find a verdict for the plaintiffs, as by law they were entitled to recover on the facts, to which instruction the defendant excepted.

The parties must have considered this case as a demurrer to the evidence, or as a special verdict. As there was evidence on both sides, some of which was conflicting, it could not be considered as strictly a demurr&r to evidence. Nor was it strictly a special verdict, as the instruction was given before the jury found the facts.

From the whole of the evidence- being set out in the bill of exceptions, we may suppose it to have been the intention of the parties to treat the facts as agreed or undisputed, in order that the law applicable to them might be pronounced by the court.

In sustaining the jurisdiction of this case, it is not to be considered as a precedent. It imposes a labor on the court which they.are not bound to incur. But, as there, seems to be not much difficulty in the facts, the court will decide the questions of law, as far as it shall be necessary to examine them.

By the. act of the 15th of May, 1820, Congress provided that every person, or the legal representative of every person, who claims a lot or lots in the village of Peoria, shall, on or before the first day of October next,' deliver to the register of the land-office^ for the district of Edwardsville, a notice of his claim, and'the register was required to examine the evidence in support of the same, and report to the Secretary of the Treasury such as in his opinion should be confirmed; and the secretary was required to lay the same- before Congress for its determination.' - ■ ~

On the 3d of March, 1823, an act was passed granting to each of the French and Canadian inhabitants, and other settlers in the village of Peoria, whose claims are ascertained in a report made by the register of the land-office at Edwardsville, in pursuance of the act of 1820, and who had settled a lot in the village prior to the 1st of January, 1813, &e., where the same shall not exceed two acres; and when the same shall exceed two acres, more than four acres shall not be confirmed. “ Provided nothing in this act contained shall be so construed as to affect the right, if any such there be, of any other person or persons to the said lots, or any part of them, derived from the United States or any other source whatever, or as á pledge on the part of the United States to make good any deficiency,” &e.

And the surveyor of the public lands was required to survey the lots, designating those confirmed, which survey and plat were to be returned to the secretary, who was required to issue patents to the claim,ants. The surveys, it appears, were not executed for several years; but, at length, having been made and forwarded to Washington, a patent was issued to the legal representatives of Louis. Le Boushier for lot No. 47, the 27th of March, 1847. The proviso in the act of 1823 was' copied into the patent.

A plat was in-evidence showing that lot No. 47 was situated in the south-east fractional quarter,-section 9.

Testimony was introdued to show that this lot was inhabit sd by Le Boushier prior to 1813. On the 11th of December, 1836, Joseph Touchette and Madeline, his wife, who was the daughter of Le Boushier, and his only living child and heir, executed a deed to plaintiff for the above lot.'

A patent was also read to Antoine Bourbonne, or to his legal representatives, dated the 16th of December, 1845, for lot 65, also covered by claim 68. By the recitals in this patent, it appeared that this claim had been presented to the register, at Edwardsville, and recommended by him for confirmation, bn which the grant was issued under the act of 1823. A plat was introduced, showing the locality of this lot to be in the same fractional quarter section as No. 47, and also a description of its boundary.

A deed from Bourbonne to the plaintiffs was in evidence for the above lot, dated 16th September, 1836.

Charles Ballance was admitted to defend in the place-of Lincoln, that suit having been consclidated with the one brought by the plaintiffs against Goudy fo ■ the other lot. Ballance admits himself - to. be in possession of lots No. 47 and 65 — 68, described in the declaration.

It was agreed that Ballance was in possession of that portion of said-premises covered by lots one and two in block 51, more than seven years before the commencement of this suit, by actual residence with his family thereon, ■ up to 1845, and from that time by his tenants; and that portion of said premises, north-west of Water Street, in Bigelow and Underhill’s addition to Peoria, was possessed more than seven years by the inclosure and cultivation of the same as a garden.

It was agreed that J. L. Bogardus, in 1832, was in possession of the south-east fractional quarter of section 9,. township 8, north of range 8, east of the, 4th principal meridian, and continued in possession. until 1834, when Isaac Underhill went into possession under Bogardus, and that Ballance was in possession of the premises in dispute under title from Bogardus; neither of +hem resided on the premises, but had tenants.

On the 15th of November,, 1837, Bogardus purchased- the south-east fractional" quarter of section No. 9. A deed for the same was made by Bogardus to Isaac- Underhill, dated the 5th of August, 1834. On the 7th of July, 1841, Underhill and wife conveyed to Ballance, lots Nos. 8, 9, and 7, in block No. 34, and lots 5 and 6, in block No. 38, in the above addition to the town. And, on the 1st of February, 1842, Underhill and wife conveyed to Ballance lot No. 3, in block 51, in the above addition to the town.

A record and "proceeding of the county commissioners of Peoria county, showing that a tax was laid upon real property in the county, for 1843, and that such tax was imposed on the south-west and south-east quarters of said section, and that, on a return of the collector, that the owner had no personal property in the county out of which the taxes could be made, a judgment was rendered against- the land by the Circuit Court, under the statute of Illinois, and an order was issued to the sheriff, directing him to sell the delinquent land to such person as -should pay the tax for the smallest quantity of the tract.

And the defendant offered to read a deed from the sheriff on said tax sale to Charles Ballance, covering a part of lot No. 65, which was objected to by the plaintiffs, and the court sustained the objection, on the ground that the sale was contrary to law, to which decision the defendant excepted.

As there appears to have been no specific exception taken, and as we have not the opinion of the court, except that the evidence was défective, and could not sustain the tax-title, we are' left to conjecture as to the particular ground of the decision.

One acre of land was sold by the sheriff, “ off of the east side of the south-west and south-east fractional quarters of section number nine,” &c. ' In these two fractional quarters there appear. to have been about one hundred and fifty acres. It is not said in what form the acre was to be surveyed. Certainty, in such a case, is necessary to male. the sale valid, for on the form of the acre its value may chiefly depend. And there is nothing on the face of the deed or in the proceeding previous to the sale which supplies this defect.

It is singular that the land should, be sold in the name of Ballance, and that he should become the purchaser; especially as he appears to have been in possession of the land as owner.

Although the right of Bourbonne to lot 65 was recognized by the government, by the act of Congress of 1823, yet, until the public surveyor marked the lines, its position and extent could not be ascertained. And it appears that this duty was neglected by the public surveyor for many years. The patent was not issued until in 1845, two years after the tax was ássessed. And it is not perceived how the specific lot could be taxed when its boundaries were not known. It seems to have been included in the south-east fractional quarter section, but it was not taxable as a part of that tract. Both the entry and the patent of Bogardus for the fractional quarter section contained an exception of the rights of all persons claiming under the act of Congress of the 3d of March, 1823. So that' the whole or any part of the lots claimed by the plaintiffs, which may have been included in .either of the fractional quarter sections, both having the same exception, the claim to such lots was riot affected by the patent. And, consequently, neither of the lots were liable tp be sold for the taxes on the tracts which, included them.

The court will not, unless fraud be shown, look behind the patents for the lots in controversy. That the patents cover the lots, as surveyed,' seems not to be disputed. We cannot, therefore, in an action at law, inquire whether the lots, as originally claimed, are accurately described in the. patents. The survey having been made by a public officer and'sanctioned by the government, the legal title must be held to be in the patentee.

If the patent to Bogardus be of prior date, the reservation in the patent, and also in his entry was sufficient noticé, that the title to those lots did not pass. And this exception is sufficiently shown by the acts of the government.

These lots were surveyed before the taxes were assessed for 1843 ; but the assessments were made on the fractional quarter section, without regard to the tots reserved. Such tots - were neither, assessed nor sold for the taxes due o.i them, and they were not liable for the taxes due on the quarter section.

That Ballanee, being -liable for the tax, should permit his own land to be sold, and purchase one of the lots, or a part of it, to pay the taxes on the larger tract would seem to require explanation. Had a stranger purchased at this sale a part of the quarter sections, from the irregularity of the procedure, it is not-perceived how the tax-title could'have been sustained. But, however this-may be, we are clear that the sale of lot sixty-five, or a part of it, finder the circumstances, is void, and, consequently, that the sheriff’s deed on such sale was properly rejected. As the whole law of the case seemed to have been submit-led to the court, the deed, if admitted as primd facie evidence, could not have changed the result.

The statute did not protect the possession of the defendant below. His patent excepted these lots; of course he had no title under it, for the lots excepted.

The judgment of the Circuit Court is affirmed with costs.

Order.

This-cause came on to be heard on the transcript of the record from the Circuit Court of the. United States for the District of Illinois, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this- court,, that the judgment of the said Circuit Cdurt in this cause be, and the same is hereby, affirmed with costs.


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    John Doe, Ex. Dem. Hallett & Walker, Executors of Joshua Kennedy, deceased, Plaintiffs in Error, v. Alfred R. Beebe, George W. Hilliard, Alexander M. Carr, Charles T. Ketchum and John Horsfeldt.
    The principles established in the eases of 3 How. 212, and 9 How. 477, again affirmed, viz., that after the admission of Alabama into the Uniijn as a State, Congress could make no grant of land situated, between high and low water marks.
    This case was brought up from the Supreme Court of Alabama'by a writ of error issued under the 25th section of the Judiciary Act.
    The plaintiff in error brought an ejectment in- the Circuit Court of Mobile county, under the circumstances stated in the opinion of the court. The judgment of that court was against them, and they then appealed to the Supreme Court of Alabama,, where the judgment was affirmed. They then brought the case up to this court.
    It was argued-by Mr. Campbell, for the plaintiffs in error.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This is an action of ejectment; and the plaintiffs in error claim title1 to the premises- under a contract of sale made by Morales, the Spanish Intendant at .Pensacola, with a.1 certain William .McVoy, for twenty arpents of land on the1 west side of the River Mobile, bounding on the river; which contract was afterwards confirmed by an act of Congress.-

The contract with McVoy was made in 1806. ■ He subsequently assigned his interest to William J. - Kennédy and Joshua Ken-nedy, and the latter became the sole owner by an assignment from the former. An act of Congress was passed in 1832, confirming the title of Joshua Kennedy upon two conditions : 1st. That the confirmation should amount to nothing more than the relinquishment of the right of the United States at that time in the land; and, 2dly, That the lands before that time sold by the United States, should not be comprehended within the act. of confirmation. And in 1837, a patent was issued to Joshua Kennedy, reciting in full this act. of Congress under which it was granted.

It is admitted in the record, that the land in question was below high-water mark when lhe United States.sold the land on which Fort Charlotte stood, in the town of Mobile.- These lands were divided into lots and sold in 1820 and-1821, and patents were issued to the purchasers in the year last mentioned. The defendants made title to three of these lots, which bounded on the river, and it was admitted that at the time of the sale high water extended over their eastern limits; and that the land now in controversy was reclaimed from the water and filled up by those under whom the defendants claimed.

The question, therefore, to be decided in this case is, whether the title obtained under McVoy’s contract, confirmed'by the act of Congress in 1832; or the title obtained under -the sale of the lots in 1820 and 1821, is the superior and better title.

The principles of law on which this question depends, have already been decided in this court in Pollard v. Hagan, 3 How. 212, and in Goodtitle v. Kibbe, 9 How. 477, 478. And, according to the decisions in these two cases, the title under the sale of the lots is the superior one.

The judgment of the Supreme Court of'the State of Alabama must, therefore, be affirmed.

Order.

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