source: Caselaw Access Project

author: Mr. Justice CURTIS

license: Public Domain

text:
    Henry Webster, Plaintiff in error, v. Peter Cooper.
    A will, executed in 1777, which devised certain lands in Maine, to trustees Sind their heirs to the use of Richard (the son of the testator) for life, remainder, for his life in case of forfeiture, to the trustees to preserve contingent remainders; remainder ■ to the sons of Richard, if any, as tenants in common in tail, with cross remainders ¡ remainder to Richard’s daughter Elizabeth, for life ; remainder to trustees to preserve contingentremaindprs during her life.; remainder to the sons of Elizabeth in tail, — did not vest the legal estate in foe simple in the’trustees. The life estate' of Richard, anil the contingent remainders limited thereon, were legal estates.
    No duties were imposed on the trustees which could prevent the legal estate in these lands from vesting in the ceítuis que use; and although such duties might have been required of’them relating to other lands in-the devise, yet this circumstance would not control the construction of the devise as to these lands.
    The devise to Elizabeth for life, remainder to her sons as tenants in common, share and share alike, and to the heirs of their bodies, did not give an estate tail to Elizabeth, under the rule in Shelly’s case. But upon her death, her son (the party to the suit) took as a .purchaser, an estate tail in one moiety of the land, as a tenant in common with his brother.
    One-of the conditions of the devise was, that this party, as soon as he should come into possession of the lands, should take the name of the testator. But as he had not yet come into possession, and it was a condition subsequent, of which only the person to whom the lands were devised oyer, coitld take advantage, a• non-compliance with it was no defence, in an action brought to recover possession of the land.
    The son, taking an estate tail,at the death of Elizabeth, in 1845, could maintain a writ of, entry, a,nd until that tinre had no right of possession. Consequently, the adverse possession of the occupant only began then.
    In 1848, the Legislature of Maine passed an ’act declaring that no real or mixed action should be-commenced or maintained against any person in possession of lands, • where such person had been in actual possession for more than forty years, claiming to hold the same in his own right, and which possession should have been adverse, open, peaceable, notorious, and exclusive. This act was passed two years after the suit was commenced.
    The effect of-this act was to jjiake the seisin of the occupant during the lifetime of Elizabeth, adverse against her son, when he had no right of possession.
    This act. which thus purported to take away property from one man and vest it in ■ another, was contrary to the constitution of the State of Maine, as expounded by the highest courts of law in that State. And as this court looks to the decisions of the courts of a State to explain its statutes, there is no reason why it should not also look to them to expound its constitution.
    This- case was brought up, by writ -of error, from the Circuit Court of the United States for the District of Maine.
    The facts are set forth in the opinion of the court.
    Upon the trial in the Circuit Court, the demandant’s (Webster’s) counsel, prayed the court to instruct the jury as follows :,
    1. ’ That the act of the Legislature of Maine, of the year 1848, ch. 87, is not applicable to any case in which the title of the demandant had accrued before the passage of said act.
    2. That said act is not applicable to the '.present action, the same having been commenced before the passage of said act.
    3. That said act is void, because it is in violation of the constitution of the State of Maine, (Art. 1, § 21,) and because it is retrospective in its operation upon vested rights of the demandant. .
    4. That said act is void, because it. is in violation of the Constitution of the United States, as being a law impairing the obligation of contracts.
    ■5. That by the true and legal construction of the will of Florentius Vassall, said Elizabeth Vassall took only an estate for life in the demanded premises.
    6. That' by the true and legal construction of the will of Florentius Vassall, the demandant took a remainder in tail male, as tenant in common with said Henry Edward Fox, in the demanded premises expectant on the life estate of said Elizabeth Vassall.
    7. That the demandant is not barred from recovering one ufldivided half of the demanded premises by the statutes of limitation of the States of Maine or Massachusetts,, or any of them.
    5. That if the demandant-shows a right to recover one undivided half of the demanded premises, he may recover the same under the writ in this case, although he therein demands the whole of said demanded premises'.
    9. That it is not' necessary, for the purpose of enabling the demandant to recover in this action, that he'should have taken the name of Vassall. F. Dexter and E. H. Daveis,

      Counsel for-Henry Webster.

      But the honorable Judges, who presided at the said trial, declined to give to the jury any of the said instructions so prayed for by the demandant’s counsel; but, on the contrary thereof, did instruct the jury, that by the true and lawful construction of the said will of Florentius Vassall, no legal estate in the demanded premises, or any part thereof, was ever vested in the demandant, but that, if the legal estate in the demanded premises was, and by force and effect of the said will, vested in any1 person or persons, it was thereby vested and continued to be in the trustees named in said will, viz., Lord Viscount Falmouth, Lord Viscount Barrington, and Charles Spooner, Esq., the survivors and survivor of them, and the heirs of such survivor; and that, therefore, the demandant could not maintain the present action to recover the same, and that it was, therefore, unnecessary to instruct the jury upon the other points mentioned in the demandant’s prayer for instructions; whereas the said counsel for the demandant respectfully insist that the said Judges ought not so to have instructed the jury, but ought to have instructed them upon the matters and in the manner prayed for by the said counsel as aforesaid; and they did, therefore, except in law to the said instruction and said refusal of the said Judges; and, inasmuch as the several matters aforesaid do not appehr by the record of said verdict] the said counsel have made and tendered to the said Judges this, their bill of exceptions, and pray that the same may be allowed.
    - All which being considered, and found conformable to the truth of the case, the presiding Judge has allowed this bill of exceptions, and hath’ thereto put his seal, this 28th day of April, in the year pne thousand eight hundred and fifty-one.
    [seal.] Levi Woodbury,

      Ass. Jus. Snp. Court.

    The case was argued in this court by Mr. Daveis, with whom was Mr. Dexter, for the plaintiff in error, and by Mr. Allen, for the defendant in error.
    The. counsel for the plaintiff in error, made the following points:
    1. A devise to A^ and his heirs, to the use of, or in trust for B, vests the legal-estate immediately in B. 2 Jarm. on Wills, 196, 198, 199; Hill on Trustees, Part 2, ch. 1, p; 229; 1 Greenl. Cruise, 346-7, note; Webster v. Gilman, 1 Story’s R. 499, 515.
    2; Where duties are imposed on the trustees which make necessary that they should take the legal estate, the extent and duration of-that estate are limited to exactly that quantity of interest which the purposes of the trust require. 2 Jarm. 213; Hill on Trustees, Part 2, ch. 2; 1 Greenl. Cruise, 348, note; Doe v. Ironmonger, 3 East, 533; Robinson v. Grey, 9 East, 1; Curtis v. Price, 12 Ves. 89; Doe v. Hicks, 7 T. R. 433; Doe v. Barthorp, 5 Taunt. 382, 385; Doe v. Simpson, 5 East, 163; 1 Hill. Real Prop. ch. 22, § 21, and §§ 27 to 31.
    3. There are no duties imposed on the trustees by the will- in this case, in relation to the demanded premises, nor is there any other expression of the intention of the testator to give them the legal estate.
    4. The only duties imposed are, by the terms of the will, expressly confined to other lands, viz., to the Friendship and Greenwich plantations. ' And the purposes of those duties have been fully performed and discharged. . Whether the trustees took a legal estate in those plantations at any time, may depend on the local law in Jamaica. Under our laws they would take but a chattel interest, as they were only to apply the rents and profits. Hill on Trustees, 240, 241, and cases cited to the second point.
    5. The successive remainders limited to the use of the same trustees, to preserve contingent remainders in case of forfeiture, show that it was not the intention of the testator that the legal estate should vest in them originally. Curtis v. Price, 12 Ves. 100; Doe v. Hicks, 7 T. R. 433, 437; Fearne, Cont. Rem. 177, 178; Hill on Trustees, 240-1.
    6. The act of Maine, 1848, ch. 87, is void as impairing the obligation of contracts. Fletcher v. Peck, 6 Cranch, 87, 137; 3 Story on Const. § 1385.
    7. It is void, as it takes away vested rights. Wilkinson v. Leland, 2 Pet. S. C. R. 657, 658, Story, J.; Society, & c. v. Wheeler, 2 Gall. 105, 141; Ham v. McClaws, 1 Bay, 93; Bowman v. Middleton, 1 Bay, 252; Dash v. Van Kleek, 7 Johns. 502, Kent, Ch. J.; Call v. Hagger, 8 Mass. 423; 1 Kent, 455.
    Taking away all remedy, is taking away the right. Bronson Kinzie, 1 How. 317, 318; Bruce v. Schuyler, 4 Gilman, R. 221, 277; Story on Const. § 1379; Sturges v. Crowninshield, 4 Wheat. 207; Gilmer v. Shooter, 2 Mod. R. 310.
    ■ 8. It is void as against the constitution of Maine. Proprietors, &c. v. Laboree, 2 Greenl. 275, 294; Oriental Bank v. Freeze, 18’ Me. R. 109,112; Austin v. Stevens, 11 Shepley, 520; Constitution of Maine, Art. l, §§ 1, 19,.21.
    - 9. The will in this case gave a life estate only in the demanded premises to Elizabeth Vassall, with remainder to her sons as tenants in common. ■ Willis v. Hiscox, 4 Myl. & Cr. 197; Right v. Creber, 5 Barn. & Cres. 860; Doe v. Laming, 2 Burrow, 1100; Backhouse v. Wells, 1 Eq. Abr. 184; White.v. Collins, 1 Com. 289; Sisson v. ■ Seabury, 1 Sumn. 235; Dingley v. Dingley, 5 Mass. 535; Webster v. Gilman,. 1 Story, 499,-514; 2 Jarm. 235, 315; Fearne, Cont. Rem. 150.

      10. “-Sons” arid, “children”.are words of purchase, and not of limitation. 2 Jarm. 343, 344, 352 to 356; 1 Rolle’s Abridg. 837, pl. 13; Buffar v. Bradford, 2 Atk. 220; Lowe v. Davis, 2 Ld. Raym. 1561; Goodtitle v. Herring, 1 East, 264; Walker v. Snow, Palm. 359; Archer’s case, 1 Coke, 66; Lisle v. Gray, 2 Lev. 223; Dingley v. Dingley, 5 Mass. R. 535; 1 Fearne, Cont. R. 150, 151, &c.; 2 Jarm. 301, 302, &c.; Doe v. Simpson, 5 Scott, 770; Doe v. Webber, 1 B. & Ald. 713; Sisson v. Seabury, 1 Sumn. 235.
    The word “ sons ” has been held to control the words “ heirs of the body,” to make themwords of purchase. Lowe v. Davies, 2 Ld. Raym. 1561; Lisle v. Gray, 2 Lev. 223; Goodtitle v. Herring, 1 East, 264; cited 2 Jarm. 301, 302; and also “ issue male; ” Mandeville v. Lackey, 3 Ridgw. P. C. 352.
    The word “ son” in the singular,' can create an estate tail only when used as nomen collectivum, and where it is the manifest intention of .the testator to give such an estate. Mellish v. Mellish, 2 B. & C. 520; cited 2 Jarm. 320.
    11. The devise-to the sons of Elizabeth Vassal as tenants in common, shows that it was not the testator’s intention to give her an estate tail; ' These words control even the words “ issue of the body,” so that they take as purchasers. Doe v. Burnsall, 6 D. & E. 30; Burnsall v. Davy, 1 Bos. & P. 215; Doe v. Collins. 4 D. & E. 294.
    ■ 12.’ The plaintiff’s right of entry accrued at the death" of Elizabeth, in 1845, and is not barred by adverse possession. Wells v. Prince, 9 Mass. 508; Wallingford v. Hearl, 15 Mass. 47Í; Angelí on Liml 42; 2 Sugd. Vend. 216, 323, 324.
    13. The condition of taking the name of Vassal, is subsequent, and no one but the devisee over can take advantage, of iff. Gulliver v. Ashby, 4 Burrows, 1929; Taylor v. Mason, 9 Wheat 325, 349; Finlay v. King’s Lessee, 3 Pet. 347, 374; 1 Jarm. 805.
    14. The plaintiff. can recover a moiety in this action. 6 Dane's Abr. 61; Dewey v. Brown, 2 Pick. 387; Somes v. Skinner, 3 Id. 52; Holyoke v. Haskins, 9 Id. 259; Rev. Stat. Maine, p. 610, §§ 12, 13.
    ' Mr.. Alien,. for the defendant in error,
    made , the following points:
    1. That there is no error in the District Court in declining to give the instructions requested.by said plaintiffs in error, as contained in the assignment of errors,, from No. 11© No. 9, both inclusive. Because,-if there is no error in .the tenth assignment, but the instruction therein given-, was correct, plaintiff in error wa'S n.ot prejudiced by therwithholding the instructions in. the preceding nine requests. Greenleaf v. Birth, 5 Pet. R. 132; Binney v. Chas. & Ohio Canal Co. 8. Pet. R. 214; U. S. Bank v. Planters Bank, Gill & Johns. R. 439; Watts & Serg. 391.
    2. But if.the instructions in first four assignments of errors had been material and injurious to plaintiff in error, they Were correct and not erroneous,; that the act of the Legislature of Maine of the year 1848, ch. 87, is valid and not liable to any .legal objection, and is not in violation of the constitution of Maine, Art. 1, § 21, or of the Constitution of the United States. Phalen v. Virginia, 8 How. U. S. 168. “ Such acts (Lim.) giving peace and quiet, may be said to effect or complete divesture or transfer of rights, yet as reasons have led to their validity, cannot be questioned.” Id. S.P. 585, Mills v. St. Clair County. “ Such laws do not impair the obligation of contracts within the sense of the Const. U. S.” Townsend v. Jemison, 9 How. U. S. 407, 419, 420; and cases cited 10 How. U. S., 395, 401, 402, Bal. & Susquehannah R. R. v. Nesbit.
    “ No real or mixed action for the recovery of ány lands in this State, shall be commenced or maintained against any person in possession of such lands, Where such person or those under whom he claims, have been in actual possession for more than forty years, and. claiming to hold the same in his, her, or their own right, and which possession shall have been adverse, open, peaceable, notorious, and exclusive. To take effect in one day after approval.” Act of Maine, Aug. 11, 1848.
    3. The said act may apply tó actions then pending. Thayer v. Seavey, 11 Maine Rep. 284; Bacon v. Callender, 6 Mass. Rep. 309; 2 Gall. Rep. 315, 319. Stat. Lim. Rhode Island, no objection that it went into immediate operation. Story, J.
    4. There was no error in the Circuit Court in refusing to give the instructions'in the ,5th and 6th-assignment. They were properly declined; and cannot be assigned for error if the instruction in the 10th assignment was properly given.
    5. There is no error in withholding the instructions requested' in the 7th and 8th assignment. They were rightly withheld; and plaintiff was not injured thereby. The same may be said of ’the 9th instruction, contained .in 9th assignment of errors.
    6. No error in the Circuit Court in giving the instruction in the 10th assignment of errors.
    1st, The fee-simple and whole legal estate in the premises was by -the will of F. Vassal dé vised to Lord Falmouth and others and their heirs, as trustees; this action cannot be maintained, not being in their names or that of their heirs. Sanders, Uses & Trusts, 190-1, 197, 202, 3-4. 2 Jar. on Wills, 198-9, 202; Leicester v. Biggs, 2 Taunt. Rep. 109; Biscoe v. Perkins, 1 Ves. & Bea. 485; White v. Parker, 1 Scott, 542; Harton v.
      Harton, 7 D. & E. 652; Gregory v. Henderson, 4 Taunt. 772; Cursham v. Newland, 2 Moo. & Scott, 113; Tompkins v. Willon, 2 Barn. & Ald. 84; Brewster v. Striker, 2 Comstock’s Rep. 19, and note, 581-2.
    2d. The ' purposes for which the legal estate was originally devised to the trustees, still continue to exist, viz., to preserve the remainders; viz., to “same trustees” for George Barrington in tail and his issue male and his issue female. In same' manner to Richard Barrington and issue— same manner to William Barrington and issue ; then to testator’s granddaughter, Louisa Barrington and her fourth son and 'daughters, then to Rose Hening May and her issue; the words “ same trustees ” prior to each devise in remainder. On failure of all these to the use of the ministers and- wardens of Westmoreland. 2 Jar. on Wills, 200,202,203-228. It was the intention of. the testator that the legal estate should remain in the trustees Until all the remainders should be executed. It is so expressed in the will.
    3d. It is agreed that the persons named in said will, or devises in remainder, after the failure of issue of Elizabeth Vassal, or their lineal descendants, are- now living.
    4th.- Trustees must hold the .legal estate, as long as any of the remainders are outstanding; repetition of devise to same trustees to preserve six now unexecuted remainders, Jar. 222.
    5th. Necessary that the trustees should hold the legal estate for other purposes, viz., out of the rents and profits &c., they were to purchase negroes, cattle and stock, and other utensils.
    They were to appoint agents, attorneys, and managers. 2 Barn. & Ald. 84; Id. 554; 2 Jar. 223 — 5; 6 Barn. & Cress. 420; Morton v. Barrett, 22 Maine Rep. 257. Testator recommends that trustees should appoint his son Richard manager, at their discretion. They are to approve marriage jointures — assumes that money will pass through their hands — they may deduct and retain; discretion as to time of paying ¿610,000 — gives L. Falmouth 100 -guineas for a ring; the other ¿650 cash for same purpose. Record,'29.
    6th. The imbecility of testator’s son Richard and the infancy of his granddaughter Elizabeth is a sufficient reason why he should devise the legal estate to trustees; still less, could he anticipate, with any certainty, the existence of unborn sons of his granddaughter. All the estates were over 3000 miles distant. Not named in the will in what State in New England his lands were situate. Trustees most competent to look' them up. .The cestui que trusts most incompetent.
    7th. Another object of testator in giving the legal estate to. trustees, would be to prevent cestui que trusts' from .docking the' entailment and defeating subsequent remainders by common recovery, without the legal estate, they could make no legal tenant to the precipe.
    8th. It is competent for defendant to urge and maintain this objection. And to show the legal title in others, and thereby disprove plaintiff’s seisin. Cutler v. Lincoln, 3 Cush. Rep. 128.
    Tenant may give in evidence, title of a third person, without claiming under said third person for the purpose of disproving plaintiff’s seisin in a writ of entry. Jack, on Real Actions, 157; Stearns on Real Actions, 365, 380-9; Hall v. Stevens, 9 Met. Rep. 418.
    9th. In this case, defendant has no need of invoking that principle; for plaintiff himself introduces the will, by which it is seen that the legal title is in other persons than tire plaintiff.
    10th. The acquiescence of Lady Holland, the mother of plaintiff, in the open, exclusive, and adverse possession of defendant, and those under whom he claims from the time of her divorce from her first husband, till her. decease, (a period., of about fifty years) tends to prove that neither she nor her second husband ever claimed the legal estate to be in her.
    No error in four first assignments. See brief, 2d point.
    1. If the court should decide that there is error in the tenth assignment, and that the legal estate is not in the trustees, it is then contended that there is no error in withholding the instructions from the 5th and 9fh requests; for if the legal estate was in the cestui que trusts, Elizabeth, mother of plaintiff, took an estate tail, and not for life only, and she is barred by the Statute .of Limitations of Massachusetts and Maine, and so Is the plaintiff. Shelly’s case, 1 Coke, R. 93; 2 Jar. 241 to 249; Doug. 321, 324; Soule v. Soule, 5 Mass. R. 61; 19 Ves. 175; Malcom v. Malcom, 3 Cush. 472.
    2. Plaintiff takes, by limitation under the will, an estate tail. Co. R. lib. 6, fol. 17, Wyld’s case; Robinson v. Robinson, 1 Burr. R. 38; 2 Jar. 271, 272, 287; Chandler v. Smith, 7 D. & E. 532; Pearson v. Vickers, 5 East, R. 548; Jesson v. Wright, 2 Bligh, R. 258; Coulson v. Coulson, 2 Strange, R. 1125; Brook v. Astley, 3 Burr. R. 1570; 4 Barn. & Cress. 610; 1 Barn. & Ald. R. 944; Parkman v. Bowdoin, 1 Sumn. R. 359; Fearne on Remain. 118, 124; 4 Kent’s Com. 214 to 232.
    3. Sons, at time of will unborn, words of limitation. Wharton v. Graham, 2 W. Black. R. 1083; 1 Vent. 231, cited by Hale, C. J., in King v. Snelling; Byfield’s case, 1 East, R. 229; Doe dem Cook v. Cooper, 2 Barn. & Cress. 524; 2 Barn. & Adol. R. 87; 4 Id. 43; 5 Id. 421; 2 Jar. 394 to 470; 4 Barn. & Cress. 610; 1 Moore, 682, pl. 939; Sondy’s case, 9 Co. R. 127; Inman v. Barnes, 2 Gall. 315; 15 Ves. R. 546.
    Rule in Shelly’s case in force in Massachusetts till March 8th, 1792, 14 years after probate of this will. Davis v. Hayden, 9 Mass. 514; 4 Pick. 206; 15 Pick. 104; 7 Met. R. 172; Id. 425; Jones v. Morgan, 1 Brown, C. C. 206, Lord Thurlow. Plaintiff sues as tenant in tail. Shoemaker v. Sheely, 2 Den. 485.
   Mr. Justice CURTIS

delivered the opinion of the court.

Henry Webster, an alien, and subject of Great Britain, brought his writ of entry in the Circuit Court of the United States for the District of Maine, to recover possession of a parcel of land described in the count. He claims title under a will ■of Florentius Vassall. At the trial, the parties agreed on the following facts:

“ It is agreed, by the parties, that the following statement of facts is true, namely, that the demanded premises belonged to the proprietors of the Kennebec Purchase, and were by them duly granted and assigned to Florentius Vassall, one of the proprietors in fee, in the year 1756, being included in the grant recorded in the records of the proprietary.

“ That Florentius Vassall made his will September 20th, 1777, and died at London, 1778, seised of the lands in question, they then being unoccupied wild lands. The will was afterwards •duly proved in the Prerogative Court of Canterbury, September 14, 1778, a copy of which will, with its exemplifications, ’ has been duly filed and'recorded in the Probate Office for the county :of Kennebec; which will was offered in evidence, as copied, and makes a part of this case. (C.)

“ Richard Vassall, named in the will, died about 1795, leaving only one .child, Elizabeth Vassall,1 who married Sir Godfrey Webster, deceased,’ about the first day. of January, 1793, by whom she had issue, two sons, namely, Sir Godfrey Vassall Wtebster, who died ip the lifetime of said Elizabeth, without issue, and Henry Webster, the demandant. 1 Said Elizabeth, afterwards, namely, in January, 1796, waS legally divorced from her husband, the said Sir Godfrey Webster, and on the first day of July, 1797, she was legally joined in marriage with Richard Henry Fox, afterwards Lord Holland, by whom she had issue, one son, Henry Edward Fox, who is now living. All charges upon the land devised have been satisfied, and they are not now subject to apy life estate, estate for years, or outstanding terms, under the'will. Said Lord Holland died on the-1841; said Lady Holland died in' the fall, of the year 1845. The'persons named in said will as devisees in remainder, after the failure of -the issue of said Elizabeth, or their lineal descendants, are now living in England, as is the said. Henry Edward P'ox, son of said ’Elizabeth; That said. Florentius Vassall, was, at the time of said grant, a resident in Boston, State of Massachusetts; that he, on or before the year 1775, left his said residence, went to England, and never returned; and that neither he, nor any of the devisees named in said will, have ever resided within the limit's of the United States since that time. The premises demanded, being the matter in dispute, are of greater value than two thousand dollars.

“ The tenant, and those from whom he legally derives title xo said demanded premises, have been in the quiet, undisturbed, open, notorious, and • exclusive possession and occupation of said premises for and during the term of fifty years next preceding the. commencement of this action, he and they claiming to hold the same adversely to any claim of said demandant, 'or any other person, as his and' their own property in fee-simple.”

These facts, together with the will of Florentius-Vassal], made the case. By this will the testator devised three plantations in Jamaica, and all his lands in New England, (which included the demanded premises,) to Lord Falmouth, Lord Barr rington, and Mr. Charles Spooner, and their heirs, to the uses, upon the trusts, and for. the intents and purposes, and with and subject to the powers and provisos therein expressed. The will then proceeds to declare, in respect to all the lands in New England, as follows: To the use of my son, Richard Vassall, for and during his life, and from and after the determination of that estate by forfeiture, qr otherwise, during his life, to the use of the three trustees during the life of Richard Vassall, in trust to preserve the contingent uses and estates thereinafter mentioned, and for that purpose to make entries and bring actions as occasion shall require, but nevertheless to permit Richard Vassall to take the rents of the premises to his own use during his life. The testator then declares ■ the remainder, after the death of Richard, to be to the use of the son and sons of Richard, to be equally divided between them, share and share alike, as tenants in common, and not as joint tenants, and to the several and respective heirs male of the bodies of such sons, with cross remainders among them; and in default of such issue male of Richard, subject to a term of years, which it is agreed is not outstanding, to the use of Elizabeth Vassall, the daughtér of Richard, for her life, with remainder as before stated to the trustees for the life of Elizabeth to preserve contingent remainders, in case of forfeiture of her life estate; and then-follows .the provision under which the demandant claims title, which is therefore given in tne words of the will. “And from and-immediately after the decease of the said Elizabeth Vassall, to the one or all and every the son and sons of-the said Elizabeth Vassall, to be.heaotter to be divided between or amongst' such sons, if more tiian one, share and, share alike, and they to take as tenants in common, and not as joint tenants, and thé severa and respective heirs male of the body and bodies of all anc every such son and sons issuing.” Then follow remainders to the other daughters of Richard, as tenants in common in tail general, with cross remainders; remainder to the daughters of Elizabeth Vassall, as tenants in common in tail general, with cross remainders, —- with successive remainders to George and Richard, and William Barrington, testator’s grandsons, for life; remainder to their sons, as tenants in common-in tail male; remainder to testdtor’s granddaughter, Louisa Barrington, for life, and her sons in common in tail male ; remainder to her daughters, as tenants in common in tail general; remainder to testator’s daughter, Elizabeth Barrington, for life ; remainder to -her other sons “ in tail male successively;” remainder to her future daughters, as tenants in common in tail; remainder to testator’s nephew May, for life ; remainder to his sons in common in tail male; remainder to his daughters in common in tail; remainder to the minister and wardens- of Westmoreland, &e.

These are the most material provisions of the will of these lands, and are sufficient to show its- general structure, -in reference to the questions which have been made concerning its legal effect.

The first of these question is, whether, by force of the will, the demandant took any, and if any, what legal estate in these lands on the decease of his mother, Elizabeth Vassall.

It is'insisted, by the tenant’s counsel, that the '.trustees took the legal estate in fee simple, and that the estates limited to Richard Vassall for life', and to the others, byway of remainder, were only equitable estates, and consequently the demandant cannot maintain this action.

But whether we look to the evident intent of the testator, or to the settled technical meaning of the language he has employed, we think it clearly appears that the life estate of Richard Vassall and the contingent remainders limited thereon were legal estates, and that the trustees did not hold the fee-simple under this will. The instrument was drawn in England, evidently by a skilful draughtsman, and is in .strict conformity with well-known precedents'. It employs technical' language with accuracy, and all the various provisions of the will, though numerous and complicated, compared with the usually, simple testamentary dispositions of property in this country, .are capable of' being clearly understood and fully executed. The. substance of the devises of these lands, may be stated to be: to tbe trustees and their heirs to the use of Richard for life, remainder, for his life in case of forfeiture, to the trustees to preserve contingent' remainders ; remainder to the sons of Richard, if any, as tenants in common in tail, with cross remainders; remainder to Richard’s daughter Elizabeth for life; remainder to trustees to preserve contingent remainders during her life; remainder to the sons of Elizabeth in tail, the demandant being the elder of her two sons.

A devise to the trustees and their heirs to the uses mentioned, carries the legal estate to the cestuis que úse, unless the will has imposed on'the trustees-some duty, the performance of which requires the legal estate to be vested in them. And in that case they would take an estate exactly commensurate with the exigencies of their trust. Morrant in Gough, 7 B. & C. 206; Kenrick v. Lord Beauclerck, 3 B. & P. 178; 10 Bythewood on Con. 214; Jarm. on Wills, 198-9; Nielson v. Lagow, 12 How. 110, 111; 1 Greenl. Cruise, 346-7, note.

The testator has not imposed on the trustees any duties, connected with these lands, which in any way interfere with the existence of legal estates in the different beneficiaries named in the will. On the "contrary, the sole duties to be performed by them, in reference to these lands, are to take the life' estates, in case of forfeiture, and hold them, so that the future remainder-men may not be -deprived of the legal estates limited fo them by way of contingent remainders, which require the preservation of the particular estates .to support them.

Whether the trustees took and held any legal estate in either of the plantations in Jamaica, it is not necessary to determine. It was arguéd that .they did, because they have some duties to perform concerning two of them, and that the testator employs the same language in devising these two plantations to the trustees, as he does in devising the lands in New England. But it by no means follows that the same words devising to trustees two parcels of' land, must necessarily vest the legal estates in both parcels in the trustees, because they take a legal estate in one of those parcels. They may take a. legal estate in one, because subsequent parts of the will require them to do -acts in reference to it, which can be done only by the holder of the legal estate, and then the law assigns to them such an estate as the' due execution of their trust demands; while at the same time, by force of the statute of uses, or of wills, the other land, as to which no duties are required-'of the trustees* goes to the cestuis que use..

So far as this will operates on the lands in New England, there-is nothing, to prevent the usual and settled operation of ,a devise to uses, which is, to vest the legal estate in the cestuis que use;. and it is placed beyond all doubt that it was not intended the trustees should hold the fee, because there are express limitations of life estates to them to preserve contingent remainders, which would be wholly-inoperative if they took the fee, and is sufficient of itself to control any doubtful intent, according to Doe v. Hicks, 7 T. R. 433; Curtis v. Price, 12 Ves. 100.

Oar conclusion is that the legal estates in the New England lands, were'to go to the beneficiaries named in the will.

It is further urged by the tenant’s counsel, that the legal effect of the devise to Elizabeth Vassall for life, remainder to her sons, as tenants in common, share and share alike, and-to the heirs, of their bodies, gave an estate tail to Elizabeth Vassall, under the rule in Shelly’s case, whiih was in force in Massachusetts, within whose limits these lands lay at the time this will took effect. There is no doubt this rule made part of the law of Massachusetts until the 8th of March, 1792, when it was abolished by statute, so far as it respeets wills. Bowers v. Porter, 4 Pick. 198; Steel v. Cook, 1 Met. 282. But in our opinion, the rule in Shelly’s case is not applicable to this devise. That rule is, that when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance. an estate is limited, either immediately or mediately, to his heirs in fee or in tail, that the words heirs, &c., are words of-limitation, and not of purchase.

Here the life estate is limited to Elizabeth Vassall, and the remainder to her sons as tenants in common, share and share alike, and the heirs of their bodies. The fee tail is not limited to the heirs in tail of the first taker. The heir in tail was this .demandant; and the remainder is not limited to him, but to him' and his brother, as tenants in common. It is not a question, therefore, whether the same persons shall .take by descent or purchase, which alone is the matter determined by the rule in Shelly’s case; for the two sons could not take an estate tail from their mother as tenants in common. They must take as purchasers, or not take-at all; and there is no rule of law which forbids such a devise, nor can the rule in Shelly’s case be applied to it. On the contrary, it is well settled that a limitation by way of remainder to the sons of the first taker, as tenants in common, manifests the intent of the testator that the ancestor should not take an estate in fee or in tail, and that, the sons may and do take as purchasers; Doe v. Burnsall, 6 T. R. 30; Burnsall v. Davy, 1 B. & P. 215; Gilman v. Elvy, 4 East, 313, Doe v. Collins, 4 T. R. 294; 4 Greenl. Cruise, 389.

Our opinion is, that upon the decease of his mother, this demandant took, as a purchaser, an estate tail in one moiety of these lands, as a tenant in common with his brother.

It was objected that the devise to him was upon the condition chaj; as soon as he should come into the actual possession of the lands devised, he should take and use the surname of Vassail; but it is enough to.say that he'does not appear'to have yet come into such actual possession, and that if this condition subsequent were broken, only the person to whom the lands are devised over can by an entra take advantage of it.. Taylor v. Mason, 9 Wheat. 325; Finley v. King, 3 Pet. 347

Under the Revised Statutes of -Maine, c. 145, § 13, the demandant may recover according to his title, provided he has a right of entry; and this raises the only remaining question, whether he has such a right, or whether it is barred by an act of the Legislature of Maine, passed on the-eleventh day of August,-1848, which is as follows:

.An act, in addition to the one hundred and forty-seventh chapter of the Revised Statutes.

See. 1. No real or mixed action for the recovery oí any lands in this Tstate shall be commenced or maintained against any person in possession of such lands, where such person, or those under whom he claims, have been ■ in actual possession for more than forty years; and 'claiming to hold the same in his or their own right, and which possession shall have been adverse, open, peaceable, notorious, ahd exclusive.

Sec.. 2. This act shall take effect at the end of one day, from and after its approval by the governor.

This action was commenced on the fourteenth of April,' 1846, and, consequently, had been pending' upwards of two years, when the above act was passed. The inquiry is, what is its effect upon this action, and- the title of the demandant ? That •it was intended to. be retrospective, and to- bar a recovery in actions then pending, upon proof of such, seisin by the tenant as the act describes, is plainly indicated. Under the constitution of the State of Maine, can it so operate ? To determine this question, it is necessary to take into view the legal rights of the demandant“ and tenant, when this act was passed, and the change in those rights attempted by the act.

The dernandant, on the decease of his mother, in 1845, became constructively seised of- an • estate tail, and had a right of entry into these lands. The actual seisin of the tenant and those under whom he claims, though adverse to all persons having estates in possession under the will of Florentius Vassall, for a period óf time sufficient to bar their right of entry, did not become adverse as against the demandant, until he acquired an estate-in possession, by the decease of his mother; and, consequently, when he brought this action, he was lawfully entitled to one- moiety of the land, as .tenant in tail, having an estate of inheritance which he could convey by deed, and upon which, being disseised, he could maintain a writ of entry. In other words, the land was his property, and, as such, he had a right to recover and hold it. Rev. Stat. c. 147, § 3.

Thé effect of the act is, to make the seisin of the .tenant, and of those under whom he claims* adverse as against.thé demand-ant, during the time he had no right of possession, and thus to deprive him of his right of entry, and destroy his estate in the •land. The actual operation of this law upon the demandant’s title, would have been expressed in words, if it had been said in the statute that, whereas, up to that time an actual wrongful, seisin had been by law adverse only against those having estates ’in possession, and so, those coming’ in by way of remaindér, were.well entitled to theland, however long that actual ’wrongful seisin might have been continued; yet, thereafter, those who have come in by way ...of remainder, shall, not be deemed entitled to the land, because such actual seisin shall be taken to be adverse as against them, and they, shall not be allowed to maintain an action for the recovery of the land to which they had lawful title when the action was brought. It is only by” giving this construction to the law, that it can.be made to operate at all, on the demandant’s title.. It requires a possession for forty years, “adverse, open, peaceable, notorious, and exclusive.” Adverse to whom ? Exclusive of whom ? If adverse to, and exclusive of, the demandant, who came into the title by way of remainder, less than three years before the act was passed, then, according to the’ law of the State existing down to the passage .of the act, no aptual wrongful seisin could be adverse to him until he had an e,state in the land entitling him to its possession. But we cannot suppose this law meant to enact, merely, that forty years’ exclusive and actual seisin should bar an action by one having title to the possession during the' whole of that period, because, by the Revised Statutes, (c. 147, § 1,) twenty years yvas^ sufficient; and, therefore, we are forced to conclude, that the intention of the legislature was, to make an actual seisin, for forty years, sufficient to destroy a title which had become vested, by way of remainder, before the act was passed, and which'was a valid'title by the .then existing law.

Under the constitution of the State of Maine, as expounded by the - highest court of thar State, is it in the-power of the legislature to pass a retrospective law, thus operating to destroy ati.estaté in lands ?

Wfe think this case not distinguishable from the case .of the Proprietors of the Kennebec Purchase, v. Laboree et al. 2 Greenl. Rep. 275. That was a writ of -entry to recover a tract of land. The. principal question was, whether an act of the legislature concerning disseisin, was valid in its retrospective operation. Prior to the passage of this act an entry under a deed, duly registered, which described a tract of land by rhetes and-bounds, and actual possession of a .part of that tract, operated, by the law of Maine, as a disseisin of the true owner of the whole tract described in the deed.. But- an entry, without such a deed, gave seisin, as again ét the owner, only of so much of the land as was actually occupied; and this occupation was required to be equivalent to what'is figuratively described in the common law as pedis possessio; that is, open, notorious, and exclusive, such as at once to give notice to all, of the nature and extent of the possession and claim," and show the exercise of the exclusive dominion over the land, and the appropriation of it to the use and benefit of the possessor. This being the state. of the law w.hen the action was brought, a law was passed, one section of which was in these words:

“ Be it further enacted; that, iu any writ or action which has" been, or may hereafter be brought, for the recovery of any lands, &c., it shall not be necessary for limiting the demandant and bar-' ring his right of. recovery, that the premises defended shall have-been surrounded by fences, or rendered inaccessible by other ob-. structions; but it shall be sufficient if the possession, occupancy, and improvement thereof, by the defendant, or those under whom he claims, shall have been open, notorious, and exclusive, comporting with the ordinary managements of similar estates in the possession and occupancy of those who have title thereunto, or satisfactorily indicative of such exercise of ownérship as is usual in the .imprcvement of a farm by its owner; and no part of the premises demanded and defended shall be excluded from the operation of the aforesaid limitation, because, such part may be woodland or without cultivation.”-

The Supreme Court of Maine held, chat so far as this, act attempted to change the law of disseisin in respect to titles ex-isting when.it was passed, the act was inoperative and void, because in conflict with the constitution of that State. The opinion of the court, delivered by Mellen, Chief Justice, contains an elaborate arid searching analysis of the subject, and it is evident, that learned court considered it with all the care, demanded by a question of so much delicacy and importance, and brought to its adjudication sound principles of constitutional jurisprudence The principles of this decision have been “recognized in subsequent cases, (Oriental Bank v. Freeze, 18 MainRep. 109; Austin v. Stevens, 24 Maine Rep. 520; Preston v. Drew, 5 Law Reporter, 189,) and we are not aware that it has ever been questioned, or denied to be a just exposition of the constitutional law of that State. The result of the decision is, that the constitution of “the State has secured to every citizen the right of “ acquiring, possessing, and enjoying property j ” and that, by "the true intent and meaning, of this section, property cannot, by a mere act of the legislature, be taken from, one man and vested in another directly; nor can it, by the retrospective Operation of law, be' indirectly transferred from one to another, or be subjected to the government of principles in a court of justice, which must necessarily produce that effect:

According to this decision, .the act now in question is inoperative, as respects this action, and the demandant’s title, on, which it is founded. For, unless by a retrospective operation it subjects his title to the government of a new law of disseisin, which, in effect, transfers his property to the tenant, it can have no operation; and whether such an effect can be produced, by an act of the Legislature of Maine, under the constitution of that State, was the precise question adjudicated by the Supreme Court in the case referred to, which adjudication we understand to contain amestablished principle in the fundamental law of that State.

The thirty-fourth'section of the Judiciary Act, (1 Statute at Large, 92,) as well as the rule sf general jurisprudence, as to the operation of the lex loci upon titles to land, requires us to determine this case according to the law of the State of Maine. In ascertaining what that law is, this court looks to the decisions of- the -highest court of that State; and where the question turps upon the construction to be given to the constitution of the State, and we find a construction made by the highest State Court very soon after the constitution was formed, acquiesced- in by the people of the State for nearly thirty years, and xepeatedly confirmed by subsequent judicial decisions of that court, we cannot hesitate to adopt it, and apply it to this case, to which, in-our judgment, it is justly applicable. Such has been the uniform course of this court. McKeen v. Delancy’s Lessee, 5 Cr. 22; Polk’s Lessee v. Wendall, 9 Cr. 87; Gardner v. Collins, 2 Pet. 58; Shelly v. Guy, 11 Wheat. 351; Green v. Neal, 6 Pet. 291, are some of the cases in which this coúrse has been followed, and its reasons explained. The question has usually been concerning Jhe construction of a statute of a State.- But we think there is no sound distinction between the construction .of a law enacted by the legislature of a State, and the construction of the organic law, ordained by the people themselves. The exposition of both belongs to the judicial department- of the government of the State, and' its decision is final, and binding upon all other departments of that- government, and upon the people themselves, until they see fit to change1 their constitution; and this court receives such a settled construction as part of the fundamental law of the State. '

In conformity with these principles, we are constrained- to. hold the law now in question to be inoperative upon the demand-ant’s title, and consequently, that he is not barred by it from maintaining this action.

The judgment of the Circuit Court must be reversed, and a venire de novo awarded.

Order.

This cause came on to be heard on the transcript of the re» cord from the Circuit Court of the United States for the District of Maine,- 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 Court in this cause, be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.


author: Mr. Justice DANIEL

text:
    Abram Sheppard and John Duncan, Plaintiffs in error, v. Peyton S. Graves.
    It is a- bad mode of pleading, to unite pleas in abatement -and pleas to the merits. And if after pleas in abatement, a defence be interposed, going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial and áre waived.
    When a plea is filed to the jurisdiction of the court, upon the ground that the plaintiff is a resident of the same State with the defendant, it is incumbent on the defendant to prove the allegation.
    It is of no consequence whether the date of a promissory note be 'at the beginning or end of it.
    This case was brought up, by writ of error, from the District Court of the United States for the District of Texas.
    The facts are all set forth in the opinion of the court.
    It was argued by Mr. V. E. Howard and Mr. Ballinger, in a' printed argument, for the plaintiffs in error, and Mr. Davidge and Mr. O. F. Johnson, for the defendant in error.
    The points made by the counsel for the plaintiffs in error, were the following:
    1. The court erred in admitting the notes in evidence, because there was a variance betw ?en the notes offered and those described in the petitions.
    The petitions alleged, that the notes'were “ executed and delivered at Matagorda,” but did not allege that they bore date at Matagorda, as was found to be the fact on their being produced.

      It was the plaintiff’s dutjr to give a perfect description of his notes, so as to prevent the possibility of the defendants being ever sued upon them again, and if so, that this record should be a bar.
    The place at which the notes bore date on their face, was essential to their description. When the objection was made, the plaintiff could have amended, and given an accurate description; but. refusing to do this, it was error in the court to admit the notes.
    • Thus, the words “ value received,” are material in a description of the. note; and if omitted, the variance will be fatal. 1 Chitty’s Pleadings, 339, note 1, ed. 1833; Saxon v. Johnson, 10 Johns. R. 418.
    2. The court erred in refusing to instruct the jury, “that, upon the issue as to the citizenship of plaintiff, the burden of proof was on the plaintiff to show such citizenship as entitled him-to sue;” and in giving the instruction, “that the plaintff was to be considered a citizen of Louisiana, as alleged in his petition, unless it was pleaded and proved that he was a citizen of Texas.”
    There was a proper plea to the jurisdiction of the court, presenting the issue as' to the citizenship of plaintiff.
    It was hot necessary that the plea should be verified by affidavit. Hartley’s Digest, art. 690, § 31, Practice, act 1846.
    Besides, there was no demurrer or exception táken to the plea for want of an affidavit; and if one had been necessary, it was waived by the plaintiff taking issue on the fact.
    The rule which at first prevailed in the courts of the United States, required the plaintiff, on the general issue, to prove citizenship as alleged. Catlett & Keith v. Pacific Insurance Company, Paine’s C. C. R. 594.
    It was afterwards-decided, however, tiiat a plea in abatement was qecessary to raise the question of citizenship. D’Wolf v. Rabaud et al. 1 Peters, 476. See 498.
    The courts of the United States are courts of limited jurisdiction ; and although a plea to the merits admits the jurisdiction, yet when jurisdiction is denied by a proper plea, it must be shown by* the plaintiff. See 1 Cowen & Hill’s Notes to Phillips’s Ev. p. 487, note 376, and authorities referred to; Maples v. Wightman, 4 Conn. R. 376; Wooster v. Parsons, Kirby’s R. 27.
    The counsel for the defendant in error contended, that there was no variance between (he note alleged in the petition of defendant in error, (R. 1 and 2,) and that offered in evidence.
    1. The petkion alleged the place where the note bore date, in the usual form, even'under fhe'English practice, and with greater certainty than is required by the law of Texas. But, had there been no such allegation, the omission would have been immaterial. 1 Saund. Pl. and Ev. 260.
    2. That there was no error in the refusal of the court below to grant the first prayer of the-plaintiffs in error, which plainly tended to mislead the jury, is manifest, and, indeed, is.conceded by the brief filed by their counsel.
    3. The court was right in refusing to instruct the jury, “that upon the issue as to the citizenship of plaintiff, the burden of proof was on the plaintiff to show such citizenship as entitles him to sue .and' in giving the instruction, “that the plaintiff was to be considered a citizen of Louisiana, as alleged in his petition, unless it was pleaded and proved that he was a citizen of Texas.”
    Exception to the capacity of the plaintiff below to sue iff 'the District Court, could only be taken by plea in abatement. Conard v. The Atlantic Ins. Co. 1 Pet. 386, 450; D’Wolf v. Rabaud et al. Id. 476, 498; Evans v. Gee, 11 Pet. 80, 83; Sims v. Hundley, 6 How. 1, 5; Smith v. Kernochen, 7 How. 198, 216.
    ■ Such being the case, and as the obligation of proving any fact lies upon the party who .substantially asserts the affirmative of the issue, the burden of proof was necessarily upon the defendants below.
    The plea is strictly affirmative in its character, alleging, in terms and substance, that the plaintiff was not' entitled to sue in the District Court, because he “ is, and was at the commencement of this suit, a citizen of the State of Texas.” Being introductive of new matter, and^ concluding, as it very properly does, with a verification, the defendants below, Who pleaded it, held the affirmative, inseparably connected with which was the onus probandi. 1 Saund. Pl. and Ev. 8, 13, 16, 22; Union Bank of Maryland v. Ridgeley, 1 Harris & Gill, 415-419; Smith v. Dovers, 2 Doug. 428; Jackson on Pleading in Real Actions, 62, 65; Fowler v. Coster, 1 Moo. & Malk. 241; S. C. 3 C. & P. 463; Colstone v. Hiscolls, 6 C. & P. 666.
    Indeed, the definition of a plea in abatement, (in the nature of which is a plea to the jurisdiction, or to the person of the plaintiff,) is, that by it the defendant “shows cause why he should not be impleaded, or if impleaded, not in the manner and form he now is.” Bac. Abr., Abatement.
    Whenever the plea is to the jurisdiction, it must state another jurisdiction. Id.
    4. Tfte, plea in abatement was a nullity, not having been filed in time. Act of May 13, 1846, §§ 23, 24, 26, 27; Laws of Texas, 1846, pp. 369, 370.
    Process was regularly served on one of the defendants below, May 31, 1850; on the other, October 12, 1850. The court met on the first Monday of December, 1850. The plea was not filed until January 6, 1851.
   Mr. Justice DANIEL

delivered the opinion ot the court.

The defendant in error, in conformity with a mode of practice in the State of Texas, instituted an action at law against the plaintiffs in error upon their. promissory note. That note was iii the words following:

“ On the first day of January, 1850, we jointly and severally promise to pay to Peyton S. Graves, or order, at the counting house of R. & D. G. Mills, in Brazoria County, the sum of $1,845.94, for value received, with eight per cent, interest thereon, from the first day of January» till paid.

Abm. Sheppard.

John Duncan.

Matagorda) Sept’r 23d, 1844.”

The petition» sets forth, that Peyton S. Graves, a citizen and inhabitant of Louisiana, represents, that Abram Sheppard and John Dunean, both citizens and residents of the county of Matagorda, in the State of Texas, are jointly and severally indebted to the petitioner in the sum of $1,845.94, with interest thereon, at eight per cent, per annum, .from the first day ;of January, 1844, until paidt-for that heretofore, to wit, at Matagorda, in -the State' of Texas, on the 23d day of September, 1844, the said Sheppard, who signs Ms name Abm. Sheppard, and the said Duncan, executed and delivered to the petitioner, their joint and several promissory note, dated September 23d, 1844, and signed Abhi. Sheppard and John Duncan, by which, &c.

'Upon the summons issued against each of the defendants, the marshal returns, that he had executed, the summons on the 12tfi °f October, 185Q, serving each of them with a certified copy of the petition and summons, and with regard to Duncan, .the return farther states that the original summons, was also exhibited.to him. The plaintiffs in error appeared to the action, andi attempted to interpose several defences in the nature of pleas in abatement. They first allege jointly, that' the court could not take cognizance of the cause, because the plaintiff below, was not, at the commencement of the suit, a citizen of Louisiana, but of the State of Texas.

The defendant. Sheppard, then pleads separately, that the marshal’s return upon the summons was not legal, and should be quashed,"because it does not state, that the marshal had delivered to the defendant in person; a copy of the citation, and of the petition, accompanying-it; and that the return was not made and signed by the deputy purporting' to make and sign the same.

The defendant Duncan also pleads separately in abatement, that the citation calls upon him to answer the complaint against him and Abraham Sheppard, whereas the true name of said Sheppard is Abram, and not Abraham; and he also insists upon the insufficiency'of the return to the summons, because, as he alleges, that return does not state that tfie marshal delivered to him in person, a copy of the citation, or of the petition accom-. panying it.

In addition to these-pleas in abatement, the defendants below interposed a defence upon the merits in the nature of the general issue,' by which they deny all and singular the matters stated in the petition, and say that they are not indebted to the plaintiff as he has alleged, and in this defence they conclude to the country, whilst in the introduction thereto, they declare that they do not waive their several pleas in abatement, but fully rely upon the same. After this series, of heterogeneous defences, the plaintiff moved the court to strike out the plea to the jurisdiction and all the other pleas in abatement tendered by the defendants, assigning, as the grounds of this motion, that those pleas were not filed within the time required by law. .

Upon the trial of the cause, the court seems to have considered the case as standing before it upon all the defences attempted, but ruled out the several pleas in abatement, though whether for the insufficiency of those pleas in point of law, for the want of proof to sustain :them, or for then irregularity in the order of pleading, does not certainly appear from this record. The jury upon the issue joined upon the merits, rendered a verdict for the plaintiff for the sum of $>2,788.89, for which j udgment was given' with costs.

The incongruities in practice, which' mark the progress of this case in the court-below, are much to be' regretted, as having a tendency to confound the proceedings in .courts of justice;, proceedings calculated to define and distinguish the rights of parties litigant, and to conduct the courts to a correct adjudication upon those rights; proceedings indeed founded upon, and as it were sanctified by, an experience of their usefulness, and even of their necessity. Thus it has ever been received as a canon' of pleading, that matters which appertain solely to the jurisdiction of a court, or to the disabilities of the. suitor, should never be blended with questions which enter essentially into the subject-matter of the controversy.; and that all defences involving inquiries into that subject-matter imply, nay'admit, the competency of the parties to institute such inquiries, and the authority of the court to adjudicate upon them. Hence it is, that pleas to the jurisdiction or in abatement, are deemed inconsistent with those which appertain to the merits of a cause; they are tried upon different views as to the relations of the parties,' and result in different conclusions. A striking illustration of the mischiefs flowing from the departure from the rule just stated, is seen in the practice attempted in the case before us. If it could be imagined that the plea to the jurisdiction and the plea to the merits, could be regularly committed to the jury at the same time, the verdict might involve the following absurdities.' Should the finding be for the plaintiff, the judgment would, as to the defendant, be upon one issue, that of respondeas ouster, and upon the other, that he pay the debt, as to the justice - of which he was commanded to answer over. Should the finding be for the defendant, the judgment upon one issue must be that the debt was not due, and upon the other, that the court called upon so to pronounce, had no authority over the case. ■ So that in either aspect there must, under this proceeding, be made and determined one issue, which is incongruous with and immaterial tó the other. A practice, thus fraught with confusion and perplexity,'and one endangering the rights of suitors, it is exceedingly desirable should be reformed, and we are aware of no. standard of reformation and improvement more safe or more conveniénij than that which is supplied by the time-tested rules of .the common law. And by one of those rules, believed to be without an exception, it is ordained, that objections to the jurisdiction of the court, or to the competency of the parties, are matters'pleadable in abatement only, and that if after such matters relied on, a defence be interposed in bar and- going to the merits of the. controversy, the grounds allpged in abatement become thereby immaterial, and are waived.

"With respect to the exception taken to the ruling of the- District Court, as to the obligation of the defendant to prove his averment of the plaintiff’s residence in the State of Texas, and pot of Louisiana, as set forth in the petition, were the decision of this question deemed .requisite here, we should say that the true doctrine applicable to the question is this: that although in the courts of the United States it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in eonforxhity with the laws creating those courts, it must be taken primá facie as existing, and that it is incumbent on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes; that the necessity for the Allegation and the burden of sustaining it by proof, both rest upon the party taking the exception. Such, we think, would be the proper rule resulting from the intrinsic character of the exception, and such we consider the doctrine enunciated in- the cases of. Conrad v. The Atlantic Insurance Company, in 1 Pet. 386, and D’Wolf v. Rabaud et al. Id. 476.

This doctrine we are unwilling to disturb. The cases just referred to, as well as those of Sims v. Hundley, in 6 Howard, and Smith v. Kernochen, (7 Id. 198,) expressly affirm the common-law principle of pleading, herein before mentioned, that the question of the residence or of the right of the parties' to sue, as incident, to residence, cannot be inquired into under the general issue.

The plea of a misnomer of the' defendant Sheppard, by the insertion of two superfluous letters in his Christian name, and the still more captious and unmeaning distinction attempted between serving the defendants with a certified copy of the petition and summons in this suit, and a delivery of that petition and summons to the defendants in person, is disposed of by the same rule which displaces, as irrelevant and immaterial, the exception taken to the jurisdiction.

The question of variance between the note and the description of it in the ' petition,' it is not easy to comprehend, unless indeed it is intended by the defendants to insist, that a note should have its date inserted at its beginning only, and cannot be dated at the termination of it; for the note at the bottom bears upon it the date as well as the place of its execution, viz. Matagorda, September 23, 1844, and the description and the petition accord with both these facts. It is true, the petition contains a recital that Matagorda is within the State of Texas, but by no extreme of cavil can this recital be converted into a misdescription of the note. Upon the whole case, we think the judgment of the District Court was correct, and we accordingly order it to be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with costs and interest, until the same is paid, at the same rate per annum that similar judgments bear in the courts of the State of Texas.


text:
    Abram Sheppard and John Duncan, Plaintiffs in error, v. Peyton S. Graves.
    In this case, as in the preceding, it is decided, that where the plaintiff averred enough to show the jurisdiction of the court and the defendant pleaded in abatement that the plaintiff was disabled from bringing the suit, on account of residence, it was incumbent upon the defendant to sustain the allegation by proof.
    Until that was done, it was not necessary for the plaintiff to offer any evidence upon the subject.
    This case was brought up by writ of errors from the District Court of the United States for the District of Texas.
    The parties were the same as those in the preceding case, and the point upon which the decision of the court turned was the same as one of those decided in the preceding ease.
    It was argued, in conjunction with the other, by the same counsel.
   Mr. Justice DANIEL

delivered .the opinion of the court.

This is a suit between the parties to the case No. 65, and is in all its features essentially the same with the former case with one exception,, which will be pointed out.,

■ In this suit, as in No. 65, the defendants below demurred to the petition, pleaded in abatement fo the'regularity of the service of process, to the disability of the plaintiff on the score of residence, and then interposed a defence-in the nature of the general issue, but tendered no proofs in support of their defences, either in abatement, or in bar. The plaintiff, to sustain the jurisdiction of the court upon the question of residence, and to meet the pleas in abatement, offered to read the deposition of two witnesses Hugely and Blair, residents of the' city of New Orleans, in the State of Louisiana, taken de bene esse before a Commissioner-in the city of New Orleans, under the act of Congress of 1789. The reading of these depositions was objected to by the defendants, because the Commissioner did not certify that the witnesses resided at a. greater distance than one hundred, miles from the place of' trial, but stated ■ only that they were residents of the city of New Órleáns, within the Eastern District of the State of Louisiana, and beyond the jurisdiction of. the District' Court of Texas. The court permitted the introduction of oral evidence to prove that the city of New Orleans was at a greater distance than,- one hundred miles from Galveston, the plac'e of trial; and ruling also that the'court itself knew-judicially the mail, routes and distances thereof, and that New Orleans, tjie place of taking said depositions, was more than one hundred' miles from Galveston, the jilace of trial, permitted -the depositions to be read in evidence.

Whether the District Court erred in allowing an omission in the certificate ©f the Commissioner to be supplied by. oral evidence, or could regularly act upon knowledge assumed to be within its judicial cognizance, we do not.consider it necessary to examine, in order to dispose of the case before us. It must be recollected that the defendants below, attempted no proof whatsoever in support of any of their pleas. The plaintiff. having averred enough to show the jurisdiction of the court, and nothing having been adduced to impeach it, that jurisdiction remained as stated, and the plaintiff could lose nothing by. adducing either imperfect, evidence, or no evidence at all, in support of that which clearly existed, and which he, under the circumstances, could not be called on to sustain. Even then had the case in the District Court stood upon an issue regularly formed upon the pleas in abatement, the evidence of the. depositions was wholly unnecessary — the ruling of the court upon that evidence was immaterial, and should not impair the strength- of the plaintiff’s case, which was perfect without it. But the exception to the ruling of the court on this point, must be unavailable upon another view, as given in our consideration of the preceding case. By interposing, the plea of the general issue after their several pleas in abatement, the defendants have effectually waived those pleas, and surrendered the positions covered by them. The judgment of the Circuit Court must in this case also be affirmed.

Order.

This cau.se came on to be heard on the transcript of the re-, cord from the District Court of the United1 States for the District of Texas and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said District Court m this cause be, and the same is hereby, affirmed, with costs, and interest'until the same is paid, at the same rate per annum that similar judg- ■ ments bear in the courts of the State of Texas.


author: Mr. Justice CATRON

text:
    Samuel Marsh, William E. Lee, and Edward C. Delavan, Plaintiffs in error, v. Edward Brooks, and Virginia C. his wife, Charles P. Billon, and Francis E. his wife, Walter G. Reddick, and Dabney C. Reddick.
    This court decided, in 8. Howard, 223, that the recitals in A patent for land, referring to titles of anterior date, were not of themselves sufficient to establish the titles thus recited. , •

      The titles themselves being now produced, it is decidid, that a permit, given by the Lieutenant-Governor of Upper Louisiana, in 1799, to a person to form an establish- . ment on the Mississippi, followed by actual possession and improvement, entitled the occupant to 640 acres, including his improvements, although the Indian title was not then extinguished.
    It was not the practice of the Spanish government to make treaties with the Indian tribes, defining their boundaries ; but to prevent settlements upon their lands without special permits. Such permits, however, were usual.
    The construction of the treaty between the United States and the Sac and Box Indians, must be that the latter assented to an-occupancy which was as notorious as their own.
    The act of Congress, approved April 29, 1816, (3 Stat. at Large, 328,) confirming certain claims to land, confirmed this one, altho'ugh thp Becordor of Land Titles, in his report, made in 1815, had added these words, “if Indian title extinguished.” These words were surplusage.
    This case was brpuglit up, by writ of error, from the District Court of the United States for the Southern’ District of Iowa.
    It was before this court at January term, 1850, and is reported in 8 Howard, 223.
    The children and heirs of Thomas F. Reddick, (the defendants in error,) were the plaintiffs in the- court below, having brought their action by writ of right, according to the practice ' of the courts in Iowa, tó recover 640 acres of land upon the right bank of the Mississippi River. ■
    The acts of Congress and the patent to Reddick are set forth in 8 Howard, to which the reader is referred. But the plaintiffs having offered additional evidence, it may be proper,to bring the whole into one view. In the former trial the plaintiffs relied on the recitals in the patent to.Reddick to prove the title of Tesson : but this court having decided that those recitals were insufficient, the evidence produced upon the. trial of the present suit in-the District Court was the following:

      Plaintiffs' Evidence.

    1. The plaintiffs' proved, that Louis Honoré Tesson settled on the land in controversy, in 1798, and on the 30th of March, 1799, obtained from the'Spanish government, a written permit to settle thereon, which is recited at length inthe record.
    2. That Tesson had possession, and -inhabited, cultivated, and had houses and orchards and fields on said lands, in 1798, 1799, 1800, and until 1805; and that all his right, under the permit and settlement, passed, by mesne conveyances,- to said Thomas F Reddick.
    3. That said Reddick duly presented and proved ■ before the Recorder of Land Titles at St. Louis, his claim, and claim of ' title from Tesson to said land; and that said Recorder, by fiis report, dated November 1st, 1815, reported on said claim his opinion, as follows: “Granted 640 ácres, if Indian rights extinguished.”

      4. The act of Congress, approved April 29th, 1816, (3.U. S. Stat. at Large, p. 328, ch. 155,) “ for the confirmation of certain claims to land in the Western District of the State of Louisiana, and in the Territory of Missouri.”

      5. That on the 17th of May, 1838, a patent certificate, (No. 1157,) was delivered,by the Recorder of Land Titles at St.-Louis, to Edward Brooks, (one of the original plaintiffs,) for the land referred to in the report of November 1st, 1815.
    6. A patent of the United States, issued to Thomas F. Red-dick:, described as assignee of Joseph Robidoux, assignee of Louis Honoré Tesson, for the lands in controversy, dated the 7th February, 1839.
    7. They also proved, that they, the plaintiffs, were the heirs and legal representatives of said Reddick; and that the defendants were in possession of the- land in controversy, at the commencement of the suit, and rested their case.

      Defendants’ Evidence.

    The defendants then gave in evidence:
    1. The treaty between the United States and the Sac and Fox Indians, (7 U.-S. Stat. at Large, 229,) made,at Washington on the 4th of August, 1824, by the first article whereof, these Indians ceded to the United States all their right and title to the lands claimed by.them between the Mississippi and the Missouri rivers; anda northerly line, running from the Missouri, at the entrance of the Kansas River, north 100 miles, to the northwest corner of the State of Missouri, and thence east to the Mississippi ; but with the understanding “ that the small tract of land lyin'g between the rivers Des Moines and Mississippi, and the section of the above' line between the Mississippi and the Des Moines, is intended for the use of the half-breeds belonging to the Sac and Fox nations; they holding it, however, by the same title, and in the same manner, that other Indian titles are held.”
    2. The act of Congress, approved June 30th, 1834, (4 U. S. Stat. at Large, ch. 167, p. 740,) “ to relinquish the.reversionary, interest of the United States in a certain Indian' reservation lying between the rivers Mississippi and Des Moines.”
    3. That the land in controversy is included within the interior boundary lines of the Sac and Fox half-breed reservation, referred to in the treaty of 1824, and act of Congress of 1834.
    4. The act of Congress' of July 1st, 1836, (6 U. S. Stat. at Large, p. 661,) by which the United States relinquished to the heirs of said Thomas F. Reddick, their right in the lands embraced in said patent — but reserving any older or better claim not emanating from the United States,, and providing, that in case said lands should be included in any reservation therétofore niade under treaty with any Indian tribe, Reddick should be authorized to make another location on unappropriated lands.
    5. That the 640 acres of land referred to in said act of Congress, of July 1st, 1836, lie within the exterior boundary lines of said Sac and Fox half-breed reservation, made by the treaty of August 4th, 1834.
    6. That the land in controversy is worth more than $2000.
    The defendants then rested their case.
    The plaintiffs then prayed the com to instruct the jury—
    1. That under the treaty with Fra ce,.of the 30th April, 1803, and the several acts of Congress passed in pursuance thereof, for settlement of titles in the Territory of Missouri, Tessor. and Reddick, as his assignee, had a valid subsisting interest in he land in controversy, -at the date of the report made by the Recorder, which was not divested by the reservation in the treaty with the Sac and Fox Indians, or the act of Congress of the 30th June, 1834..
    2. That the claim of Tesson, and of Reddick, as his assignee, as reported, was substantially confirmed by the act of Congress,' approved April 27th, 1816.
    3. That the patent, taken in connection with other, evidence, conveyed to the plaintiffs a fee-simple title to the land in controversy, and overrides the title set up by defendants.
    These instructions were given by the Court.
    The defendants then prayed the court to instruct the jury —
    • 1. That under the report of the Recorder of Land Titles, given in evidence by' the plaintiffs, they are not entitled to recover the land, unless their title thereto has been confirmed by an act of Congress. This instruction was given by the court.
    2. That the. true construction of the act .of Congress of the 29th of April, 1816, given in evidence by the plaintiffs, does not confirm their title to the lands sued for, if the Indian title to the same was not at that time extinguished.
    ' 3. That the treaty of August 4th, 1824, with the Sac and Fox Indians, is a .recognition by the United States, at the date of said treaty, of the Indian right to the lands in controversy ; the same being within the Sac and Fox half-breed reservation.
    4. That the Indian title to the land in controversy was not extinguished prior to the 4th of August, 1824.
    . 5.. That the plaintiffs have shown no right to recover the land in controversy in this"suit.
    The first of these instructions, prayed for by the defendants, was given'by the court; but the second, third, fourth, and fifth, instructions,, as prayed, were refused to be given.
    The defendants, by'their counsel, excepted to the rulings and decisions of the court in giving the instructions prayed for by the plaintiffs, and in refusing to give the second, third, fourth, and fifth instructions, prayed for by the defendants.
    The jury, under these instructions, found a verdict for the plaintiffs, and a bill of exceptions brought these several rulings before this court for review.
    It was argued by Mr. Butler, for the plaintiffs in error, and Mr. Geyér, for the defendants in error.

      Mr. Butler, for the plaintiffs in error,
    made several points. The one upon which the decision of the court chiefly turned, was the following:
    II. The District Court erred, in giving to the jury the several instructions prayed for by the counsel for the plaintiffs below.
    1, The instruction, “that under the treaty with Franpe of the 30th of April, 1803, and the acts of Congress, Tesson, and Reddick as his assignee, had a valid subsisting interest in the land in controversy, at the date of the report made by the Recorder, which was not divested by the reservation in the treaty with the Sac and Fox Indians, or the act of Congress of the 30th of June, 1834,” was erroneous.
    '(After analyzing the treaty, and the several acts of Congress from that time to 1815, Mr. Butler came to the following conclusion :)
    Neither under the, treaty, nor under any one of the above-cited acts, or all of -them combined, had Reddick, as the'assignee of Tesson, a valid subsisting interest in the- land in controversy, at the date of the Recorder’s report, November 1, 1815.
    -1. Under the treaty, every species of title to lands in Louisiana, emanating from the French or Spanish governments— whether perfect and complete, or inchoate and incomplete — was recognized and protected as “property;” but mere permits to. .make settlements on such lands, even when lawfully granted by such authorities, conferred no right of property within the meaning of the treaty. Les Bois v. Bramell, 4 How. 463; Soulard & Smith v. United States, 4 Pet. 511; Smith v. United States, 10 Id. 326; Wherry v. United States, 10 Id. 328; Chouteau v. Eckhart, 2 How. 344; Menard’s heirs v. Massey, 8 Id. 293, 308, 806; Bissell v. Penrose, 8 Id. 317; Landes v. Brant, 10 Id. 348; Glenn v. United States, 13 Id. 250; Heirs of Vilemont v. United States, 13 Id. 261.
    2. The equitable claim of settlers under such permits, upon the justice or bounty of the, government, to complete their titles,devolved, after the treaty of cession, on Congress, who, by the several statutes above cited, have acted upon and regulated the subject. ‘ Cases above cited.

      3. No specific quantity,,and no definite location, are mentioned in the -written permit to Tesson; he is merely permitted to establish himself, for the purpose of trade with the Indians, at the head of the rapid of the River Des Moines. No survey could have be'en made, nor was any made -or contemplated, under this permit; nor did any interest, in any particular tract, pass by it. to Tesson. United States v. Forbes, 15 Peters, 173; Same v. Buyck, Id. 215; Same v. O’Hara, id. 275; Same v. Delespine, Id. 319; Same v. Miranda, Id. 153; Same v. King, 3 How. 773; Same v. Lawton, 5 Id. 10; Same v. Villalobos, 10 Id. 541; Same v. Boisdore, 11 Id. 62; Same v. Lecompte, Id. 115; Same v. Vilemont, 13 Id. 261; Bissell v. Penrose, 8 Id. 317.
    4. Tesson, after making his establishment, was to apply to the Governor-General, to obtain a grant of a convenient space for the use of his establishment; and, until the obtaining of such grant, Tesson neither had, nor could equitably clairn, any interest whatever in any specific tract or lot. •
    5. This permit to' Tesson was, therefore, a mere license to‘ reside and trade in the Indian country ; it was wholly insufficient- to extinguish the Indian title in any particular tract, or to sever any particular tract from the public domain; and, unless confirmed by'Congress, and duly located by their authority, Tesson had, and. could have no standing, under said permit, in a court of justice. Cases above cited.
    See, as to the Indian title, and the proceedings necessary to extinguish'it, the.following cases: — United States v. Arredondo, 6 Pet. 691, 741; Mitchell v. United States, 9 Id. 711; S. C. 15 Id. 52, 83, 88; United States v. Fernandez, 10 Id. 303; Marsh v. Brooks, 8 How. 223; Gaines v. Nicholson, 9 Id. 356; United States v. D’Auterive, 10 Id. 624.
    ■ 6. Whatever power, under the acts of Congress passed prior to the date of the Receiver’s report, that affair might have to grant or confirm to Tesson’s assignee, as a donation, the land claimed by him, neither of said acts had; by itself, confirmed his claim.
    The first branch of the instruction now under review — that Tesson, and his' assignee, on the 1st of November, 1815, had a subsisting interest’in the land in controversy — was, therefore, erroneous.

      Mr. Geyer, for the defendants in error,
    divided his points as follows:'
    That a complete' title to the land in controversy was vested in Thomas F„ Reddick, on the 29th' of April, 1816, whether the “Indian rights” had, or had not, then been extinguished; and the title so vested has not been divested or impaired, by any subsequent treaty or act of Congress.
    A confirmation of a title by act of Congress^not only renders it a legal title, but furnishes higher evidence' of that fact than a patent, inasmuch as it is a direct grant of the fee by the government itself, whereas a patent is only an act of its ministerial officer. Grignon’s Lessee v. Astor, 2 How. 319, S. P.; Simms’s Lessee v. Irvine, 3 Dal. 405; Strother v. Lucas, 12 Pet. 410.
    The grant to the half-breeds by the act of 30th of June, 1834; does not affect the grant to Reddick, by the act of 29th of April, 1816. It is a principle applicable to every grant, that it cannot affect preexisting titles. Polk’s Lessee v. Wendall, 5 Wheat. 293; 9 Cr. 87; Patterson v. Loinn, 11 Wheat. 380; Stoddard et al. v. Chambers, 2 How. 284.
    II. The confirmation by the act of 29th April, 1816, ¡vested in Reddick the title, subject only to the Indian right of - occupancy, if not then extinguished. All grants by the government are subject to such rights, whether expressly reserved or not, but as soon as they are extinguished by cession or otherwise, the grantee of the government acquires full dominion over the property. Fletcher v. Peck, 6 Cranch, 87, 137, 143; Mitchell v. United States, 9 Pet. 711; United States v. Hernandez, 10 Pet. 304.
    III. The report of the Recorder of Land Titles is an approval of the claim of Reddick, and a recommendation that six hundred and forty acres of land be granted to him, “ if Indian rights extinguished.” Referring it to Congress to determiné the whole question. Congress must therefore be understood to have decided that the Indian rights were extinguished, or to have made the grant subject to- such rights, and in either case the title of the defendants in error is complete; all such rights having been extinguished before the commencement of the suit.'
    IV. Although the grantee of the government takes, subject to the Indian right of occupancy, the existence of such right is not-presumed, nor is the grantee bound to prove its extinguishment in an action against a mere intruder, especially where, as in this -case, the grant is by an act of Congress.
    . V. If the Indian right of occupancy could be set up as a bar to a recovery under a grant by act of Congress, which is denied, it was incumbent on the defendants below to prove the existence of such right at the time of the commencement of the suit-. No such proof was made;' on the contrary, so far as the evidence discloses the existence of any claim by any Indian.tribe, that claim appears to' have been extinguished in 1824, so that .at that time, if not before, Reddick acquired the absolute dominion and right of possession.

      VI, The permit granted by the Spanish Government to Louis Honoré Tesson, to settle upon, occupy, and cultivate the land in controversy, as-his property, excluded all Indian rights. The grants of the Spanish goverhment were -not subject to Indian rights,- but operated as extinguishments of such rights on the lands granted. At the date of the treaty by which Louisiana was acquired, the title of Tesson, though incomplete, was property protected by the treaty; that title, with all its incidents, was recognized by the laws of the United States,’ and confirmed by the- act of 29th April, 1816; so that according to the record, no Indian right of occupancy existed since 1798,
    YÍI. If the existence of an Indian right had been recognized by the treaty of 4th August, 1824, as asserted in the third refused instruction, such recognition would not have affected the - title of Reddick, granted in 1816. But that treaty recognizes no such right; it is merely a relinquishment of a claim by the Sacs and Foxes, a quitclaim by the Indians, and not a recognition of their title by the United States.
    The Sacs and Foxes, by a treaty of 3d November, 1804, (Stat. at Large, vbl. 7, p. 84,) ceded to the United States all their claim to the lands east of a line drawn from a point on the Missouri River, opposite the mouth of Gasconade, to a point on the River Jeffreon, thirty miles above its mouth, thence down that river to the Mississippi River, and up the same to the mouth of Wisconsin River, &c.
    The Great and Little Osages, by a treaty of 10th November, 180$, ceded to the United States all. lands “-northwardly of the Missouri Riven” A survey of the boundary was provided for in the seventh article, and was made in 1816; the north boundary being coincident with the north boundary of the now State of Missouri.
    The Osages, as well as the Sacs and Foxes, had set up claims to lands north of the Missouri, and both relinquished to the United States. But in 1824, the Sacs and Foxes still pretended to have a claim -within the bounds of the State of Missouri, which is relinquished by the treaty of 1824.
    ',It caftnot be assumed that the title to-the country, embracing the land in controversy, Was in the Sacs and Foxes at any time; nor can the party claiming under a grant of the Spanish Government,. confirmed by act of Congress, be required to prove that it was not, or that their treaty of 1804 included the land granted. ■The party who undertakes to maintain a possession against such a'titlb, by. showing an -outstanding title or right of occupancy, takes upon himself the burden of proving it.
   Mr. Justice CATRON

delivered the opinion of the court.

This case was before us in .1850, and is reported in 8 Howard. We then'held that as the patent to Reddick’s heirs of 1839 was younger than the treaty of 1824, and the confirming act of 1836, by which the title of the United States was primd facie vested in the Sac and Fox half-breeds, the patent could not prevail. Nor could its recitals be relied on to give it legal effect from an earlier date than it had on its face.

The judgment was then reversed, and the cause remanded. for another trial, and an intimation given, that probably additional evidence might be adduced on a subsequent trial, which would establish an earlier and better title in the plaintiffs, than that of the half-breéds. That trial has taken place, and the case is now before us, with the evidence to which the recitals in the'patent of Reddick’s heirs, to some extent,-refer. This evidence consists of a- permit given by the Lieutenant-Governor of Upper Louisiana to Louis Honoré Tesson, to establish himself at the head of the rapids of the River Des Moines, (being a-great rapid in the River Mississippi,) and having formed his establishment, he was assured that then it would be the duty .of the Governor-General of Louisiana, residing at .New Orleans, to procure for said Honoré, a concession of sufficient space to render the establishment available and useful to the trade of the country in peltries, and so that said Honoré might exercise an oversight of the Indians, and keep them in the fidelity which they owed to His Catholic Majesty; the object being to increase the trade with the Indians on that border; and in which •said Honoré was permitted to. be a participant, and to trade with the Indians in that part of His Majesty’s dominions; nor . were any rival traders to be allowed- to deal with the Indians^ except such as had a passport .for that purpose, signed by the Lieutenant-Governor. This stipulation. was made in March, 1799. Honoré was then in possession, óf the land in dispute, and had improvements on it; and he, improved it further under the permit of 1799, and continued there until 1805. He had houses, orchards, and- fields.

Thos. F. Reddick’s claim was regularly derived by assignments from Honbré. Reddick’s heirs, claimed a league square,on the assumption that the permit to. settle and inhabit, entitled Honoré to this quantity. But the Recorder at St. Louis, acting as Commissioner, rejected the claim for a league square; and properly, as we think; there being only a promise of title in future, but no concession of land; in the, Lieutenant-Governor’s permission to Honoré.to establish himself, and occupy the premises, and trade with the Indians. As,’however, Honoré held actual possession, and had improved the land in afi expensive and substantial manner, he was-beyond question entitled to six hundred and forty acres,; including his improvements, under our acts of Congress securing this quantity to actual settlers, had the land laid .within that part of Louisiana to .which the Indian title was extinguished, at the time when the occupancy existed. Being ui certain whether Honoré was entitled, by reason of his inhabitation and cultivation within territory to which the Indian title was not extinguished, the Recorder, in his tabular statement, granted the six hundred and forty acres, “ if Indian rights extinguished.” And this expression has embarrassed the' title for more than thirty years.- There were many claims in the Recorder’s report and tabular statement, in which this one is found; and by the act of April 29, 1816, all of them were confirmed without exception, and without any notice-having bem taken pf the Recorder’s remark, referring to ' an existing Indian title to the land. That the Sacs and Foxes did claim the colmtry generally, where this land lies, is not controverted; nor was their claim ceded to the United States till 1824. A nd this raises the question whether, according to Spanish usage, whilst that power governed Louisiana, an existing Indian claim to territory'precluded inhabitation and cultivation under a permit to inhabit and cultivate a particular place designated in the permit, and which was in the Indian country. Spain had no treaties with any bf the Indian tribes in Louisiana, fixing limits to their claims, so far as we are informed. The Indians were kept quiet, and at peace with Spanish subjects, by kind treatment and due precautions, which did not allow obtrusion on lands claimed by them, without written 'permits from the Governor ; but that such permits were usual, cannot be doubted. The county of St. Charles lies in the fork of the Mississippi and Missouri rivers; it was settled, and the village of St. Charles established there, twenty- years and more before we acquired Louisiana; and yet, by the' treaty of November 3d, 1804, this section of country was ceded to the United States, by the Sac and Fox tribes, extending from the Missouri River, opposite -to the mouth of the Gasconade, to' the Janfilione, ór “ North 2 rivers,” as now known; .which empties into the Mississippi, in the county of Marion, in the State of Missouri. This country .was as solemnly ceded, as was the country north of that cession; by the treaty of 1824; and. which treaty is here set up in opposition to Reddick’s title. The treaty of 1804 was- duly ratified by the Senate of the' United States, and apparently sanctioned, retrospectively, the Sac and Fox claim to the old county of St. Charles, in like' manner that the treaty of 1824 recognized an existing Indian claim to the half-breed tract, where the land in .dispute lies. ■

And again in 1808, the Osages ceded to the United States all the lands east of a line running from Fort Clark on the Missouri River, situate a few miles below the mouth" of the Kansas; thence, due south to the River Arkansas, qnd down the same to the Mississippi; up the same to Sullivan’s line; then west to the north-west corner, being a point one hundred miles due north of the 'mouth of the Kansas Riffer; and with this line south to the north bank of the Missouri opposite the mouth of the Kansas. Sullivan’s line was run in 1816, in execution of the Osage treaty of 1808, and is the northern boundary of the half-breed tract, and the line referred to in the treaty off 1824 with the Sacs and Foxes, and which the Osage treaty of 1808, included.

This treaty had every sanction that a ratification by our Senate could give it, and is a recognition of an ‘Indian title in the Osages to nearly all the territory now embraced in the State of Missouri, and the greater part of Arkansas; and of an Osage right to the land claimed by Reddick up to November, 1808; and yet the county and town of St. Louis, the seat of government in Upper-Louisiana during the existence of the Spanish colonial government there, the post'of New Madrid, the county, town, and post of St. Charles, —were all within the cession made by the Osages; and within which cession, lay a great mass, of Spanish orders of survey and grants, in regard to which this country has been legislating and adjudicating for nearly fifty years, without any one ever supposing that such concessions were affected by these loose Indian pretensions set üp to the country at a time when the concessions were made ; pretensions that the Spanish government notoriously disregarded, further" than "a cautious policy required. If permits to inhabit and cultivate were given in so many other instances, regardless of Indian claims, no reason exists why Honoré Tesson, could not lawfully improve the land in dispute under his .permit; and in view of this notorious state of facts, the treaty of 1804 with the Sacs and Foxes, by an additional article, declared that' nothing in that treaty ■contained should affect the claim of any individual (or individuals, if more than one) who had- obtained grants oinland from the Spanish government b.eyond the boundary lines of the country then ceded to the United States, on lands claimed by 'the Sacs and Foxes, but not ceded by that treaty; provided, that such grants had at any time been made known to the said Indian tribes, and recognized 'by them.' 'IPhat the large, valuable, and notorious '-improvements were made by Honoré, at a place where the-Sacs and Foxes themselves resided at the time, is a histbrical fact. He resided there as notoriously as they did. His claim to this property was transferred to Reddick, and was 'occupied for twenty-five years under Tesson and Reddick, and his heirs before the treaty of 1824 was made. It was held and improved by authority of the Spanish government, and claimed as individual property, to which the Indian right of .possession did not extend; of this the* Indians never complained, nor do they now complain; no half-breed owner and Indian descendant is defending this suit; it is defended by trespassers, showing no color of claim under the half-breeds, or any one else; shelter is' sought under the assumption that Honoré’s permit and inhabitation were neither known or recognized by the Sacs and Foxes, and that therefore, the additional, article of the «treaty of 1804, cannot protect the title of Reddick. We concur with the opinion of Mr. Attorney-General Grundy, in his report of 1839 .on Reddick’s title, to the Secretary of the Treasury, (Opinions of Attorney-Gen'., 1230.) that it must be presumed that the Indians both had knowledge and assented to Honoré’s claim; and we are furthermore of opinion, that the Indian tribes, and the half-breeds, who claim under them, must beheld to knowledge, and to consent, that Honoré took and held, rightful possessions, from the fact of his open and notorious actual occupancy,' and holding for himself, in their midst. This is the settled rule in other cases, and no reason is seen why it should not apply in this case. The reasons are quite as strong, and the rulé quite as necessary in its application here, as it was in the case of Landes v. Brant, (10 How. 375,) where we enforced the rule. We are therefore of opinion that the' supposed Indian right of occupancy did not affect the confirmation by Congress in this case, and that the remark of the recorder, “ If Indian rights extinguished,” was surplusage, and which remark Congress properly disregarded.

That-the confirmation of 1816 earned the title with it, if the confirmation was valid, has so often been decided by this court, that -it is- not open to discussion; nor is it disputed here on be;half of the defendants below. The confirming act of 1816, 'however, ordered, that a patent should issue according, to a survey afterwards to be made, in all cases' confirmed by the act. This has been done. The patent recites the necesshry facts to connect-the’ confirmation with the patent, and gives date to it by relation, as a legal title, from the 29th of April, 1816, accord-, ing-.to the boundaries set forth in the patent; and as this ruling covers all,the instructions that were given i,n the court -.below, and all such as were refused, we order that the judgment be affirmed.

Order,

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