author: Mr. Justice CATRON

text:
    Lessee of John Pollard, William Pollard, John Fowler and Harriet his wife, Henry P. Ensign and Phebe his wife, George Huggins and Louisa his wife, Joseph Case and Eliza his wife, Plaintiff in error, v. Joseph F. Files, Defendant.
    Tt is the settled doctrine of the judicial department of the' government, that the treaty of 1819 with Spain ceded to the United States no territory west of the river Perdido. It had already been acquired-under the Louisiana treaty.
    In the interval between the Louisiana treaty and the time when the United Slates took possession of the country west of the Perdido, the Spanish government had the right to grant permits to settle and improve by cultivation, or to authorize the erection of establishments for mechanical purposes.
    These incipient concessions were not disregarded by Congress, but are recognised in the acts of 1804, 1812 and 1819 ; and, as claims, are within the act of 1824.
    That act (of 1824) gave a title to the owners of old water-lots, in Mobile, only where an improvement was made on the east side of Water street, and made by the proprietor of the lot on the west side of that street. Such person could not claim as riparian proprietor, or where his lot had a definite limit on • the east.
    This case was brought, by writ of error under the 25th section of the Judiciary act, from the Supreme Court of the state of Alabama.
    • It Was an ejectment, brought by the plaintiff in error, in the Circuit Court of the state of Alabama for Mobile county, to recover a lot in the city of Mobile, on the east side of Water street.
    By the original plan of the town, a street was laid off, called Water street, on thé margin of the river, running nearly north and south, which was afterwards filled up; and by the improvement, the water, at. high tide, was confined to-the eastern edge of the street.
    .Pollard’s heirs claimed under a Spanish grant from Perez, in 1809, to Pollard the ancestor, which grant, as they alleged, was saved in the act of Congress of Í824, and expressly admitted in an act of 1836, entitled “ An act for the relief, of William Pollard’s heirs,” under which a patent issued, embracing the premises in question.
    The defendant, Files, connected himself with three different branches’ of title;
    1. That of Forbes and Company.
    2. That of Curtis Lewis.
    3. That of the corporation of the city óf Mobile.
    1. The title of Forbes and Company.
    They held a grant from' the Spanish government for a lot fronting upon Royal street (which is the next on the west to Water street) and running back 304 feet to the east, to a water-lot. It was' alleged that the act of Congress of 1824 (cited at large' in the report of the case of the City of Mobile v. Emanuel et al., 1 Howard, 95, vested a title in the water-lot to them as proprietors and occupants of the lot fronting on the fiver Mobile..
    2. The title of Curtis Lewis.
    It was alleged that he had made an improvement upon the waterlot, and thus brought himself within another clause of the act of 1824.

      3. The title of the city of Mobile.
    It-was alleged that Congress, by the act of 1824,-had granted to the city of Mobile “ all the right and claim of the United States to all the lots' not sold or confirmed to individuals, either by this or any former act, and to which no equitable title exists in favour of any individual, under this or any former act, between high water-mark and the channel of the river,” &c.; and that Pollard’s claim not coming within any. of the exceptions, the title of the United States passed to the city of Mobile. In this view, the United States ip. 1836, of course, had no title which they could transfer to Pollard’s heirs.
    The case was tried in the Circuit Court of the state, and the opinion of the court upon the law was in favour of tire defendant, Files: it was carried by .Pollard to the Supreme Court of the state, by which the judgment was affirmed, and to review this opinion-the present writ of error was brought.
    The facts are set forth in the bill of exceptions taken in the court below, which is as follows: • ■
    Bill of Exceptions.
    Be it remembered, that in the term of the Circuit Court begun and held in and for the county of Mobile and state of Alabama, on the fifth day of May, in the year of our Lord one thousand eight hundred and forty-one, before the Honourable E. S. Dargan, judge of the tenth judicial district, came John Doe, by his attorney, George F. Sallé, and impleaded Bernard De Sylva, in whose stead the landlord, Files, was admitted to defend in a pjea of trespass in ejectment, upon the demise of John Pollard, William Pollard, John Fowler and Harriet his. wife, late Harriet Pollard, Henry P. Ensign and Phebe his wife, late Phebe Pollard, George Huggins and Louisa his wife, late Louisa Pollard, Joseph Case and Eliza his wife, late Eliza . Pollard, for a term- of -years not yet expired, to a certain lot or parcel of land lying in the city of Mobile, between Church street and North Boundary street, and bounded on the north by the. south side of what was formerly called John Forbes and Co.’s canal, on the south' by what was called the King’s wharf, oh the west by Wafer street, and on the east by the channel of the river; and thereupon issue was joined between the said lessors of the plaintiffs and the said Files, who, at the trial, in pursuance of an. act of the legislature of Alabama, passed on the eighth day of January, one thousand eight hundred and thirty-six, entitled “ An act for the relief of tenants in possession, against, ' dormant titles,” suggested to the court that he and. those whose estate he'has in the lands or tenements sued for. have had adverse possession of the same for three years next before the commencement of such suit, and have made valuable improvements on the lands, so on which suggestion issue was joined; also, on the day and year aforesaid, the said issues so .joined, between the said parties as aforesaid, came to be tried , by a jury for that purpose duly empannelled and sworn ; at which- day came there as well the said plaintiffs as the said defendant, by their respective attorneys ;■ and the plaintiffs,, in'order to maintain the issue on their part, gave in evidence an act of Congress passed on the twenty-sixth day of May, one thousand eight hundred and twenty-four, entitled «An act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city.” They further gave in evidence an act of Congress passed July 2, 1836, entitled “An act. for the relief of Wm. Pollard’s' heirs.” They further gave in evidence a patent issued on the fourteenth day of March, one thousand eight hundred and thirty-seven, in pursuance of said act of Congress of Juy 2, 1836, which patent embraced the premises in question. They further gave in evidence a Spanish grant, of which, the following is a translation :
    Mr. Commandant : — William -Pollard, an inhabitant, of. this district, before you, with all respect represents: that he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof, and that, having found a vacant piece.at the river side, between the canal which is called John Forbes and Co.’s and the wharf at this place, he petitions you to grant him said lot on the river-bank, to give more facility to his trading; a favour he hopes to obtain of you.
    Mobile, 11th December, 1809. William Pollard.
    Mobile, 12th December, 1809.
    I grant the petition ;. the lot or piece of ground he prays for, on the river bank, provided it be vacant. Cayetano Perez.
    The plaintiff then proved the genuineness of the signature of Cayetano Perez, and referred- to the state papers relating to the public lands to show the different periods-during which Perez was in command.
    .The plaintiff then gave in evidence that the premises sued for were situated between Church street and North Boundary street and immediately in front of lots known under the Spanish government as water-lots, and that the said lot now sued for was, in the year one thousand eight hundred and- twenty-four, and is now, known as a water-lot; that it lies on the east side of 'Water street; that what is now Water street was, under the Spanish government, and at the date of the grant to Forbes and -Co., hereafter attached, a natural ridge, and that the' ordinary tides did not overflow said ridge, and very high tides entirely covered said ridge; that .to the north of the lots lying immediately west of the lot sued for, near Conti street, there was a depression in said ridge, where the water, at high tide, flowed around upon the eastern part of the lots lying, as before stated, immediately west of the lot sued for, and which were known as water-lots under thé Spanish government.'
    The plaintiffs then gave in evidence that John Forbes and Cq. applied for and obtained pennission, from the Spanish government, to open or cut the canal which was called John Forbes and Co.’s canal, after they had obtained a grant for the lot lying immediately west of said canal.
    The defendant, in order to maintain the issue on his part, gave in evidence a Spanish grant to John Forbes and Company, for a lot of Aground eighty feet front on Royal street', with a depth of three hundred and foiir feet to the east, which is hereto attached and marked A, together with the plat or survey thereto attached, which is made part of this bill of exceptions; and proved that the said lot was situated immediately west of the lot sued for, and was separated from it now only by Water street; but that Water street was riot known at the date of this grant, and that said street was laid off in 1820 and 1821. The defendant further'gave in evidence a Certificate of confirmation for the said lot to John Forbes and Company,- who were the successors of Pantoh, Leslie and Company, the original grantees; which is also made a part of this bill of exceptions, and marked B, by which it will appear that 304 feet were confirmed to Forbes and Company.
    The defendant also proved that one Curtis Lewis, some time in 1822 or 1823, sunk some flat boats in the canal called Forbes and Company’s, and proceeded to fill up the lots now sued for, but ttat one James Inerarily, one-of the firm of Forbes and Company, dispossessed him in the night, and erected a smith’s-shop, and continued in possession about nine months, when Curtis Lewis regained possession by writ of forcible entry arid detainer.

      It further appeared in evidence that the ridge-in Water street was .about fifteen or twenty feet in width, and that it was covered by the ordinary .tides for about one-third of its width, up to the year 1822, and that all the land east of Water street, as at present laid out, up to 1813, was below the ordinary high-water-mark.- It further appeared that the firm of Forbes and Company entered upon the lot granted to-them as aforesaid, and-made valuable improvements on it, and fulfilled the conditions of the grant, and on the 25th May, 1824, held the land to the west of Water street without dispute.
    It further appeared that the first improvements on the lot east of Water street were made by Curtis Lewis, except the -canal, and improvements along it, of John Forbes and Company; but it was also in evidence that, in 1811, a witness had seen the servants of Wm. Pol lard removing some drift wood and piling some lumber on the lot in question.
    Tlje-nature and extent of Curtis Lewis’s improvements are before stated. The reports of commissioner Crawford, upon the titles before referred to, were read from 3d volume of the State Papers, and they are understood to form a part of this bill of exceptions.
    ' E. S. ■ Largan, [l. s.]
    The defendant then connected himself with the title of Curtis Lewis, Forbes and Company, and the corporation of the city of Mobile, which® claimed the same by virtue of the act'of 1824 above referred to.
    In the progress of the trial, when the plaintiffs offered in evidence the Spanish grant to'Pollard, the defendant’s counsel offered evidence, the object of which was to prove that the date of the grant had been altered; the plaintiffs objectéd to the introduction of the evidence for that object, but w.as overruled by the court, to which he excepted. The deferidant then passed.the grant to the witnesses, who, upon an inspection -of the same, were of opinion that the -figures 09, in the date of 1809, on the face of the grant, had been altered.
    The plaintiff then offered witnesses who proved, that having inspected it with a spy-glass, the alteration was from 1810 to 1809. Plaintiffs also proved that Cayetano Perez was commandant at Mobile in 1810.
    The defendant further gave in evidence that he had made valuable improvements on the lot sued for since the 8th day of January. 1836,-to the value of $7000; whereupon the plaintiffs, by their counsel, prayed the court to charge the jury, First, that the said Spanish grant made to William Pollard -was ratified and confirmed by the 8th article of the- treaty of amity, settlements and limits, between the United States and his Catholic Majesty, dated 22d February, 1819; which charge the court refused to give; to which the plaintiffs, by their counsel,: excepted.
    The plaintiffs theh, by their counsel, prayed the court to charge the jury that the act of Congress pf-26th May,-1836, confirmed the'said Spanish grant to Pollard;, which charge the court refused to give, but on the contrary, charged the jury, .if they believed the evidence to be • true, the fee-simple to .the. premises sued for were vested in Forbes and'Company, and that thé acts of Congress of 1824 and 1836, and the patent in pursuance thereof, were utterly void, so. far as relates to the-premises in question, and that no title vested in the lessors of plaintiff by virtue of said acts off Congress and said patent; to which charge the plaintiffs excepted.
    The plaintiffs, by their counsel, then prayed the court to charge the jury, that if they should.find that an alteration had been made in the date of Pollard’s Spanish grant,.advantage could'not be taken.of.it in an action of ejectment, but by a sd. fa. in the name of the general government, or a bill in equity ; which charge the court refused to give, but, on the contrary, charged, that if they should believe that the date, had been altered, that they should find for the defendant, unless they were satisfied from the evidence-'that, though' altered, it was made in fact whilst Perez was' commandant; that the alteration pf the. date would not affect the .grant.-if Perez'was commandant at the time .of. the execution; but that if-altered, the law would not presume that the grant was made while Cayetano .Perez-, was. commandant, but that this must be shown by the evidence; to which charge, so given, and the refusal to charge as prayed,, thé'plaintiffs .excepted.
    . The plaintiffs then prayed the court-to charge the jury,.that the act of 'January 8th, 1836, passed .by the .legislature of Alabama, entitled “An act for the relief of tenants in possession, against dormant titles,” is contrary to the tenth section pf the first article of the Constitution of the United States, and is therefore'void; which charge the court réfused-ío give, b.ut, on the contrary, charged that it is constitutional;. to all which the plaintiff excepted, and prayed-the court to.sign and seal this his bill óf exceptions, which, is done.
    E. S., Dargan, Judge, [l, s.]
    . It has been before stated, that this 'opinion of the court was affirmed by the Supreme Court of the staté of Alabama. The following extract from the opinion of the latter court, is given, in order that the remarks made by the Supreme Court of the United States may be fully understood.
    “ If the law, as laid down by a majority of the court, in the lessee of Pollard’s heirs v. Kibbe, 14 Peters, 353, is to be regarded as decisive of the law applicable to the plaintiff’s title, and as excluding all objection to it, then the answer given by the Circuit Court to the second charge prayed is confessedly' erroneous. Of the authority of that case we have nothing to say. We may, however, be permitted to remark, with- all deference, that we should yield to it more willingly, if it had the sanction of a majority of the -Supreme Court. We are aware that, as reported, the judgment seems to have been concurred in by five of the justices; but we have in our possession a manuscript copy of the opinions of Justice Thompson, McLean, Barbour, and .Catron, and the judgment that was rendered; at-the foot of which is the following memorandum:' ‘Dissenting justices, Ca-tron, Barbour, and Wayne. Mr. Chief Justice Taney did not sit in this case.’ Attested as follows, ‘True copy, test. Wm. Thos. Carroll, C. S. C., U. S.’ That Mr.- Justice McKinley was absent during the- entire term, appears from a note of the reporter. If the attestation of the clerk be correct, then but four' of the justices concurred in reversing the judgment of-this court. And to all this, it may be added, that Mr. Justice M.cLeari did not agree to the judgment of reversal, so far as We are informed by his opinion, upon the ground that the- grant to William Pollard in 1809 was a ‘ new .grant’ within the meaning of the .act of the 26th of Máy, 1824. But he .yielded his assent to the conclusion of Mr. Justice Thompson, (as we understand it,) because the. second section of that statute required the improvement to be made on the lot east of Water street, and to entitle the proprietor of the lot, immediately -west of the water-lot, the improvement should have been made by himself. These were ques.¡tions, which, it seemed to us, were wholly unimportant to.be considered, unless Pollard’s, was a ‘new grant,’ since it is an undisputed principle, that the plaintiff must recover upon the strength of his own title, and'not upon the weakness of his adversaries.
    “ We have taken this view of the case referred to, with the most profound respect for the Supreme Court of thé United States, and have only to say, that we hope art opportunity may soon be afforded for a re-examination of the act of 18,24. ”
    Coare, for the plaintiff in error.;
    . Sergeant, for the defendant.

      Coxe. contended,
    1. That the judgment below was erroneous, and ought" not tobe reversed.
    2. That the Circuit Court erred in refusing to give the instructions as prayed by the plaintiff.
    3. That it erred in giving the instructions which were given to the jui7-
    He considered the principle of the present case as decided in Pollard’s heirs v. Kibbie, 14 Peters, 353. The same grant was there brought under review; and it was decided that the act of 1836 >yas a private act which Congress had power to pass; that the claim of Pollard was excepted in the 2d section of the act of 1824, and that the term “new” applied to grants made after the cession of Louisiana. Pages 360, 362, 364.
    He referred also to 16 Peters, 234, where the question came up again, and quoted passages from pages 247, 251, 257, 265, 422, 427; from all which he inferred that the question had been decided and the rights under it settled.
    Sergeant, for the defendant in error,
    said he did not mean to question any point decided, in 14 Peters, but argued,
    I. The plaintiff below had no right.
    1. He derived no right from the act of 1824, because he was not within the act; and, also, because Hie United States had nothing in the premises to grant.
    2, He derived no right from the act of 1836, and die patent .under it, as well for the reasons already stated, as becemse the right of the. United - States, if any they had, wa's already granted by the act of 1824 to those under whom the defendant claims.
    II. The court did not err in refusing to give-the instructions asked for by the plaintiffs, nor in giving the instructions which they did give.
    IIL The court did not err in refusing to instruct the jury that the act of 8th January, 1836, is contrary to the Constitution of the United States; and, if they did, it is immaterial, as the plaintiff, were barred on other grounds.
    This is a different case from Kibbie’s, and not covered by that decisión. There was an error in-fact there which misled Hie court, and wdiich was not discovered until this case was tried. The claim is to a, place between high and low water-marks, and the grant called for fast land, The grant was not surveyed or recorded.

      1. The plaintiff derived no right from the act of 1824, because he was not within it. He- cannot bring himself within any of the exceptions. He never owned a water-lot, nor made any improvements. 7 Laws United States, 318, act of 26th May, 1824.
    If it be said that the plaintiff claims under a new and valid grant, the answer is, that if there was any grant at all,- it was issued when Spain had no power to make one. In Pollard’s lessee v. Kibbie; the paper was said to have been executed on December 12, 1809, and the court took this for granted. It was the foundation of the opinion. 14 Peters, 351. But this record shows that the date was altered, arid that 1809 was not the trufe one. The. jury found the fact of the alteration from 1810 to 1809, and if issued in 1810, Perez had no authority to make the grant.
    The alteration must be presumed to be made after execution. Peters C. C. R. 369. And the materiality of the alteration is a question for the court. 1 Peters, 552.
    Perez, in 1810, having no power to grant, the basis of the plaintiff’s title is gone, and the case infected with fraud.
    The act. pf 1824, says the “ Spanish government must have made a new grant or order of survey for "the same, during the time at which they had the power to grant the sameand although the judges differed as to the precise time when Spanish authority ceased, all agreed that if was extinct on the 12th December, 1810. Opinion of Judge Baldwin, page 368, 369, 370 ; of Judge McLean, 366; of Judge Catron and Barbour, 426, 428; Thompson, 355.
    The proclamation of the President was in October, 1810. The point decided in Kibbie’s case was that the'grant was issued when the Spanish government had a right to do it, and the case stood upon that. At page 361, Judge Thompson says the grant was dated 12th December, 1809, and was rejected by the commissioner because there were tío improvements on the lot.
    But possession is required to create a title. 1 Howard, 95.
    2. The plaintiff derived -no right from the act of 1836, or the patent under it. That act is .only a quit claim on the part of. the-United States, but they had nothing to grant. All their title had previously been granted to Forbes and Company, or to the city of Mobile, and the defendant unites those titles. The grant to Forbes and Company ran to the water; they had fulfilled all the conditions, had entered and made improvements before the act of 1824 passed. There was no Water street; nothing to divide them from the river. The act of 1824 vested a title per se, and the parties had nothing to dp but go into court and show the facts in evidence. If the act of 1836 be considered as explanatoryof that of 1824, it is dangerous to construe a general act by a private one, obtained by a party for his own benefit. The true construction of that of 1824 is that the improvement must be made on the old loi; that every one who went to the water should not be cut off from it. It supposes an inchoate right to the lot in front, because an exception is, if a party has alienated the lot in front. He must, therefore, have had a right to alienate.
    In Esclava’s case, the record showed that the party who owned the old lot had improved both the old and new.. The question, therefore, did not come up.
    [The arguments of both counsel as to the right of the state of Alabama over navigable water in virtue of her sovereignty, are omitted, because the opinion of the court does not touch upon that point.]

      Coxe, in reply.
    It is said that the improvement must be upon the old lot, but, in 14- Peters, three of the judges dissented on this ground, and in 16 Peters, the court confirmed the dissent, and said it must be on the new lot. 16 Peters, 247.
    It has been said that Forbes and Company were riparian proprietors, running down to the water. But their grant calls only for a certain number of feet; and it was confirmed by the commissioner just in that way.
    It has also been said, that the grant of 1809 was void. But the plaintiff has a patent under the act of 1836. If the plaintiff had recovered below, and the defendant had excepted to instructions, the question about the grant would have come up. The President’s proclamation was in 1810, but no act of Congress was passed until 1811, and the country was not taken possession of until after that act. The record shows that evidence was given on the trial that Perez was commandant in 1810.
    The volume of State Papers referred to, shows that Perez issued a grant in May, 1811, and" even as late as November, 1811. Vol. 3, Public Lands, 450, 454.
   Mr. Justice CATRON

delivered the .opinion of the court.

For the facts of the case, we refer to the report of it. It presents the same titles, and, substantially, the same facts, that were before this court in Pollard’s heirs v. Kibbie, 14 Peters, 353.

The first'instruction asked by the plaintiff of the state Circuit Court is, that the Spanish grant made to William Pollard was ratified and confirmed by the eighth article, of the treaty with Spain of 1819, by which the Florida’s were acquired. This the court refused to give; and correctly.

It is the settled doctrine of the judicial department of this government, that, the treaty of 18Í9 ceded' no territory west of the river Perdido, but only that east of it: and therefore all grants made by Spain after the United States acquired.^ the country from France, in 1803, are void, if the lands granted lay west of that river; because made on territory acquired by the treaty of 1803; which extended to the Perdido east. It was thus held in Foster and Elam v. Neilson, 2 Peters, 254, and again in Garcia v. Lee, 12 Peters, 515, and is not now open to controversy in this court.

2. Tire plaintiffs then, by their counsel, prayed the court to charge the jury that the act of Congress of 26th May, 1836, confirmed the said Spanish grant to Pollard; which charge the court refused to give, but, on the contrary, charged the jury, if they believed the evidence to be true, the fee-simple to the premises sued for were vested in Forbes and Co., and that the act of Congress of 1824, and 1836, and the patent in pursuance thereof, were utterly, void, so far as relates to the premises in question, and that no title vested in the lessors of plaintiff by virtue of said acts of Congress and said patent; to which charge the plaintiffs excepted.

The questions raised by the -instruction asked and refusedand .that given, will be .examined so far only as to decide the present case.

This court held, when-Pollard’s title was before it, formerly, that Congress had the power to grant the land to him by the act of 1836: on this point there was no difference of opinion at that time among the judges. The difference to which the Supreme Court of Alabama, in .the prese'nt case refers-, (in its opinion in the record',) grew out of the construction given by a majority of the court to the act of 1824, by which the vacant lands east of Water street, were granted to the city- of Mobile. That grant excepted out of it,, all lots to which, “ the Spanish government had made a new grant, or order of survey for the same, during the time at which they had the power to grant the. same.” If Pollard’s was such “ a new grant,” then the land covered by it was.excepted and did not pass to the city; and the act of 1836, and the patent founded on it, passed the title to Pollard.

After the country west of the Perdido had been acquired by the treaty of 1803, the Spanish government continued to exercise jurisdiction over the country, including the city of Mobile, for some -nine years; the United States not seeing proper to take possession, and Spain refusing to surrender it, on the assumption that the country had not been ceded by that kingdom to France in the treaty of 1800; and of course that it did not pass to this country by our treaty with France. That Spain had no power to grant the soil, during the time she thus wrongfully held the possession, is settled by the cases cited of Foster and Elam v. Neilsoh; and Garcia v. Lee. But the right necessarily incident to the exeróise of jurisdiction over the country and people rendered it proper that permits to settle and improve, by cultivation; or to authorize the erection of establishments for mechanical purposes, should be granted. And to this end the concession to Pollard, of December, 1809, was made. He set forth in his petition to the commandant, that he had a mill established on his plantation, and often came to Mobile with planks and property from it; and that he wished a place propitious and suitable for the landing and safety thereof; and havifig found a vacant piece at the river side, between the canal of Forbes and Co. and the public wharf, he solicits the commandant to grant him said lot on the river bank, to give more facility to his trading. This lot, the governor granted to. Pollard for the purpose set forth by him.

The use, for the purpose solicited, during the time the Spanish ahthprities were exercised, could be properly grantéd: of this there can be no doubt.

Very many permits to settle on the public domain and cultivate, ' were also granted about the same time; which were in form incipient concessions of the land, and intended by the governor to give .title, and to receive confirmation afterwards from the king’s deputy, so as to perfect them into a complete title. Pollard’s was also of this description. Although the United States disavowed that any right to the soil, passed by such concessions; still they were not disregarded as giving no equity to the claimant: on the contrary, the first act of Congress passed (of April 25, 1812) after we got possession of the country, appointed a commissioner to report to Congress on them in common with all others originating before the treaty of 1803 took effect. The third section orders all persons, claiming lands, in the previously disputed territory “ by virtue of any grant, order of survey, or other evidence of claim, whatsoever derived from the French, British, or Spanish governments, to be laid before the commissioner, with a notice in writing, stating the nature, &c., of the claim.” On these, (by sec. 5,) the commissioner had power given him to inquire into the justice, and validity of the claims; and in every case it was his duty to ascertain whether the lands claimed had been inhabited and cultivated; at what time the inhabitation and cultivation commenced ;• when surveyed and by whom; and by what authority — and into every matter affecting their justice and validity.

By sec. 6, abstracts were to be furnished to the secretary of the treasury, of the claims, arranged in classes, according to their respective merits; and these abstracts, &c., were to be laid before Congress, for their determination thereon, &c.

By. sec. 8, the commissioner was ordered to report to Congress at its next session, a list of all actual settlers on the land in his district, who had no claims derived from either the French, British,’ or Spanish governments, and the time such settlements were made.

In January, 1816, the report of commissioner (Crawford) was laid before Congress. 3 Am. State Papers, 6, “Public Lands.”

The 14th sec. of the act of March 26th, 1804, declares all grants void if made for lands within the territories ceded by the French republic to the United States, by the treaty of the 13th of April, 1803, (and which had been acquired by France from Spain,) that had been made after the date above. Provided, that the law should not be construed to make void any bona fide grant made by the Spanish government, to an actual settler on the lands granted, for himself, and for his wife and family, &e. On Pollard’s claim the commissioner reported unfavourably, because it had not been inhabited nor cultivated.” 3 State Papers, 18. The bill of exceptions refers to this report as it stands-in the book, as part of the bill of exceptions, and as such it is treated by us.

In April, 1818, by a resolution of the senate, it was referred to the secretary of. the treasury to furnish a plan, for an adjustment of the claims reported on by the commissioners east and west of Pearl river: and on the 7th of December, 1818, the secretary made his report'in the form of a bill. 3 State Papers, 391. On all the imperfect claims favourably reported on, by the commissioners, derived from the authorities of Spain before the 20th of December,. 1803, a confirmation was recommended: And the land that had been cultivated on or before that day, should be confirmed also, as if the titles had been completed. And as to all the other claims favourably recommended to Congress by the commissioners, the claimant should be entitled to a grant therefor, as a donation — not to exceed to any one person more than six hundred and forty acres: That all settlers before the 15th of April, 1813, shall receive a grant for the land claimed, not exceeding six hundred and forty acres, if actually inhabited and cultivated.

On this report the act of March 3d, 1819, was founded — and by sec. 2, each settler with title-papers, had confirmed to him his habitation as a donation, not to exceed one thousand two hundred and eighty acres; and this irrespective of the time when the settlement was made, if previous to the 15th of April, 1813; but the grant not to exceed six hundred and forty acres to such settlers as had presented no written evidences of title.

By the 7th, 8th, and 9th sections, those who had filed their notices of claim before the commissioner, and which had not been recommended for confirmation, were allowed to the 1st of July, 1820, to file additional evidence in support of the claim with the register and receiver, of the land-offices respectively established by that act, in the country divided by Pearl river; who had the samé powers conferred on them that the commissioner previously had. New claims might also be filed. On these the register and receiver were to report ; of course, after the 20th of July, 1820. The land-office for the country including Mobile was at Jackson court-house. Thus the matter stood for eight years.

By thé act of March 3d, 1827, further time was given to the first of September, 1827, to claimants whose evidences of claim had been previously filed with the commissioner, to produce further evidence and “ to present their titles and claims, and the evidence in support of the same, to the register and receiver, of the land-office at St. Stevens.” By sec. 2, they were ordered to hold their sessions at the city of Mobile, and there examine the suspended claims on the same principles the commissioner had done.

Thus suspended and protected, stood the title of Pollard when the act of-1824 was passed granting to the city of Mobile the river front. And from any thing appearing to the contrary, it stood equally protected until confirmed by the act of 1836., It was for the sovereign power to judge of its merits; it had never been rejected, and was awaiting the final action 'of Congress. Furthermore; it was from its situation as a city lot not subject to entry in a land-office, being in no survey of the public lands: and it is a fair construction' of the exception to the act of 1824, to hold Pollard’s claim was intended to be within the following exception; as- well as the one commented on in Pollard v. Kibbie: That is—“Provided, that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, , of any individual, or of any body politic or corporate.”

We think Pollard’s was a claim of an individual within the exception, and-was so deemed by Congress; as the United States, by the first section, only profess to grant' their right to the city front: and except all lots confirmed by Congress by that, or any previous act — and also such “ to which an equitable title existed in favour of any individual under this, or any former act.” Then in the second section, the provision examined in th** case of Pollard v. Kibbie has direct reference to protection by excepting lots — “to which'the Spanish government had made a new grant or order of survey,” &c. It is obvious the previous obscurity and confusion were intended to be explained by the proviso : simply expressed, that nothing'which preceded should affect any individual claim — regardless of the fact whether it was good or bad, so it was a recognised claim by the United States'. That Pollard’s was so, is most apparent by the protection afforded to it: and such is the unanimous opinion of this court, for the reasons formerly and now given, taken together. •

Pollard’s patent is therefore valid, unless the second instruction given be true — that the act of Congress of 1836, and the patent founded on it be void, as relates to the subject in .controversy; and therefore the lessors of the plaintiff derived no title from these sources, because the fee-simple of the premises was in John Forbes and Co.,, when Pollard took his title.

It was held in the City of Mobile v. Elava, 16 Peters, 247, that the improvements referred to in the act of 1824, by virtue of which a title was given to the owner of the old water-lot west of Water street, to the lot immediately east of it, must have been made on the new, and eastern water-lot: second, that such improvement must have, been made, by the proprietor of the old lot.

Forbes and Co. had none such, and therefore took no benefit under the act of 1824.

If the instruction intended to maintain that Forbes and Co., as riparian proprietors of the lot west of Water street, could claim all the land east of it, to the channel of the river, then we think the court erred: and we take it for granted the court so intended; as by no other means could the land sued for be claimed by Forbes and Co. from any evidence in the record. Their lot was a grant of 1802, for 80 feet fiymt, by 304 feet deep, west of what is now Water street; and bounded on the east by the street as it now exists. High tide formerly reached it; low tide did not: But we deem this an immaterial circumstance. Forbes and Co.’s grant was a specific town lot bounded by streets, then existing or expected to exist; it fronted to the east on a contemplated street, reserved to the public use, as ungranted property; and it never was contemplated by the grant to give any right to the soil beyond its fixed boundary east, as actually surveyed. It does conform, and must conform, to .the city arrangement of lots : if it was held otherwise, then every other proprietor of an old front lot could claim over the mud-flat to the channel of the river, as a riparian owner; sweeping through the city property as it now exists by filling up, and raising the flat, to the extent east of probably a thousand feet, or more. We deem such an assumption entirely inadmissible : and therefore think the court also erred in the second instruction given, as well as in refusing that asked on part of the plaintiffs.

With the third instruction this court cannot interfere : and the jury having found for the defendant, no question arises on the fourth instruction.

For the reasons assigned, we order the judgment of the Supreme Court of Alabama to be reversed.

ORDER.

This cause came on to be heard on the transcript'of the record from the Supreme Court of the state of Alabama, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court that the judgment of the said Supreme Cpurt of the state of Alabama be, and the same is hereby reversed'with costs; and that this cause be, and the same is hereby remanded to the said Supreme Court, that further proceedings may be had therein, in conformity to the opinion of this court, and as to law and justice shall appertain.


source: Caselaw Access Project

author: Mr. Justice BALDWIN Mr. Justice. CATRON.

license: Public Domain

text:
    John L. McCracken, Plaintiff in error, v. Charles Hayward.
    A law of the state of Illinois, providing that a sale shall not be made of property levied on under an execution, unless'it will bring two-thirds of its valuation/ according to the opinion of three householders, is unconstitutional and void.
    The case of Bronsda v. Kenzie, I Howard, 311, reviewed and confirmed.
    Where the Circuit Court-, by a rule, adopts the process pointed out by á state law, there must be no essential variance between them. Such a variance is a new rule, unknown to any act of Congress or the state law professedly adopted.
    This case came up on a certificate of division in opinion from the Circuit Court of the United States for the district of Illinois.
    Thé case'was this: In 1840, McCracken, the plaintiff in error, recovered a judgment' in the Circuit Court against Hayward for the sum of $3986 67 cent's and cqsts. .
    In February, 1841, the state of Illinois parsed the following law:
    “ An act regulating the sale of property.
    “ Sect. 1. Be it enacted by the people of the state of Illinois, represented in the general Assembly, That when any execution shall be issued out of any of the courts of this state, whether -of record or not, and shall be levied on any real or personal property, or both, it shall be the duty of the officer levying such execution, to summon three householders of the proper county, one of whom shall be chosen by such officer, one by the plaintiff, and one by the defendant in the execution; or, in default of the parties making such choice, the officer shall choose for them: which householders, after being duly sworn by such officer so’to.-do, shall fairly and impartially value the property upon which such execution is levied, having reference to its cash value, and they shall endorse the valuation thereof upon the-execution, or upon a piece of paper thereunto attached, signed by them; and when such property shall be offered for sale, it shall not be struck off unless two-thirds of the amount of such valuation shall be bid therefor: Provided, always, that the plaintiff in any execution issued from any court of record of this state, may elect, on what property he will have the same levied, except the land on which the defendant resides, and his personal property, which shall be last taken in execution. And-in all other executions issued from any of the courts of this state not being courts of record, the plaintiff in execution may elect on what personal property he will have the- same levied; excepting and reserving, however, to the defendant in execution, in all cases, such an amount and quantity of property as-is now exempt from execution by the laws of this state: And provided, further, that all sales of mortgaged property shall be made according to the provisions of this act, whether the foreclosure of said mortgage be by judgment at law, or decree' in chancery. The provisions of this act shall extend to judgments rendered prior to the first day of May, eighteen hundred and forty-one, and to all judgments that may be rendered on apy contract or cause of action accruing prior to the first day of May, eighteen hundred and forty-one, and not to any other judgments than as before specified.
    “ Sect. 2. When any property shall be levied on and appraised in the manner required by'this act, and the. same shall be susceptible of a division, no greater quantity thereof than will be sufficient to pay the amount of the execution or .executions thereon levied, together with the proper costs, at two-thirds of the valuation, thereof,• shall be offered for sale by-the officer in whose hands such execution or executions may have been placed for collection.
    “ Sect. 3. This act shall be in force from and after its passage, and the secretary of state is hereby required to have a thousand copies thereof printed immediately after its approval, and transmit them to the clerks of the county commissioners’ courts of the several counties in this state for distribution among the proper officers thereof. Approved, February 27, 1841.”
    In June, 1841, the Circuit Court of the United States adopted the following rule:
    “ When the marshal shall levy an execution upon real estate he shall have it appraised and sold under the provisions of the law of this state, entitled An act regulating the sale of property-,’ approved 27th February, 1841, if the case come within the provisions of that law; and any two of the three householders selected under the law agreeing, may make the valuation of the premises required.”
    In May, 1842, a pluries execution was issued on the judgment, under which the marshal levied upon real estate, and advertised it for sale in the ensuing August. It was appraised by three householders, and no person bid ding two-thirds of the valuation, it was not sold.
    In March, 1843, the plaintiff sued out a venditioni exponas to sell the property levied upon as above stated; and in May served a written notice on the marshal, directing him not to have the property valued, but to sell it to the highest bidder, regardless of the statute of Illinois. The marshal replied that, he conceived it-to be his duty to be governed by the rule of court.
    In June, 1843, the plaintiff, by his counsel, made the .following motion to the court:
    “ 1. The plaintiff, by Arnold, his attorney, comes arid moves the court to set aside the return to the pluries execution issuéd in this cause, dated 16th day of May, 1842, under which the property levied upon was appraised, and not sold, because no one would bid two-thirds of appraised value.

      “ 2. That the court direct the marshal to sell said property to the highest bidder, without regard to the valuation already made, and without having it valued again.
    “ 3. That the marshal proceed to sell said property without regard to the provisions of the laws regulating the sale of property, passed since the rendition of the judgment,..but. that he execute the process of the court, enforcing the judgment according to the remedy existing at the time of the rendition of'the judgment, arid the making of the contract between the parties.

      “ 4. That the marshal be directed to proceed' and sell the property levied upon, without regard to the provisions of the act of February, 1841, of the legislature of Illinois, and of January, 1843, regulating the sale of property, above referred to.”
    This motion was sustained by an affidavit, setting forth the facts in the case.-
    Upon the argument of the motion, the judges were divided in opinion upon the following point's.

      “ 1st. Whether the said inotion shall - be granted in manner and form as the. same is asked or refused, or any part thereof.

      “ 2d. Whether the return of the marshal on the execution above set forth, dated May 16, 1842, under which the property was appraised and not sold, because two-thirds' of appraised value was not bid therefor, shall or shall.not be set aside as insufficient.

      “ 3d. Whether the court shall or shall not' make an order directing the marshal to.sell the property levied on in the usual mode at public auction to the.highest bidder, without having the same valued by three householders, and without regard to valuation which has been made, and without requiring two-thirds of said valuation to be bid therefor.
    “ 4th. Whether .the court shall or shall not direct the marshal to proceed and sell the property levied uppn without regard to the provisions of the act of February 27,1841, of the legislature of Illinois, and the rule adopting said law at the June term, 1841.
    “ 5th. Whether the court will or will'not direct the enforcement of said judgment according to the laws regulating the remedy when said judgment was entered and the contract made.”
    Upon which' certificate of division the cause came up to this.court..
    The case was submitted upon a printed argument by Isaac N. Arnold, counsel for the plaintiff, which the reporter regrets his limits will not allow him to re-publish.
   Mr. Justice BALDWIN

delivered the opinion of the court.

It appears from the record in this case, that the plaintiff obtained a judgment against the defendant, in June, 1840, on which a pturies ji.fa. issued at May term, 1842; real property was levied on; appraised according to the provisions of a law of Illinois, passed on the 27th February, 1841, and the rule of the Circuit Court of that state,' adopted in June of the samé year, which law and rule are inserted in'the statement of the case by. the reporter.

The property levied on was advertised for sale by the marshal, in August, 1842, but was not sold, as no one bid two-thirds of the appraised value. In March, 1843, the plaintiff sued out a venditioni exponas, with directions to the marshal to sell the property, regardless of the state law, which the marshal refused to obey, conceiving himself bound by the aforesaid rule of court. Whereupon the plaintiff moved the court for an order directing the marshal to sell to the highest bidder, without valuation, or any' regard to the state law

“ 1. The plaintiff, by Arnold, his attorney, comes and moves the court to set aside the return to the pluries execution issued, in this cause, dated 16th day of May, 1842, under which the property levied upon was appraised, and not sold, because no one would bid two-thirds of appraised value.
“ 2. That the court direct the marshal to sell said property to the highest bidder, without regard to the valuation already-made, and without having valued it again.
3. That the marshal proceed to sell said property without regard. to the provisions of the laws regulating the sale of property, passed since the rendition of the judgment, but that he execute the process of the court, enforcing the judgment according to the remedy existing at the time of the rendition of-the judgment, and the making of the contract between the parties.
“ 4. That the marshal be directed to proceed and sell the property levied upon, without regard to the provisions of the act of February, 1841, of the legislature of Illinois, and of January, 1843, regulating the sale of property above referred to.”

On the argument of this motion, the court were divided in opinion on the points mentioned in the statement. These questions must be considered in two aspects, 1. In reference to the Constitution. 2. The laws of the United States, as the tests of the validity of the law of Illinois and the rule of court, which, it is said, affect only the remedy, but not the right of the plaintiff arising on the contract between the parties, and-the judgment rendered upon it.

In placing the obligation of contracts under the 'protection of the Constitution, its framers fooked to the essentials of the contract more than to the forms and modes of proceeding by which it was to be carried into execution; annulling all state legislation which impaired the obligation, it was left to the states to prescribe and shape the remedy to enforce it. The obligation of a contract consists in its ' binding forcé on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all contracts, and farming a part of them as the measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract, in favour of one party, to the injury of the other; hence any law, which in its operation amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious ’to the prohibition’ of the Constitution.

This, principle is so clearly stated and fully settled in the case of Bronson v. Kinzie, decided at the last term, 1 How. 311, that nothing remains to be added to the reasoning of the court, or requires a reference to any other authority, than what is therein referred to; it is, however* not to be understood that by that, or any former decision of this court, all state legislation on existing contracts is repugnant to the Constitution.

“ It is within the undoubted power of state legislatures to pass recording acts, by which the' elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time, and the power is the same whether the deed is dated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent and void as against a subsequent. purchaser, it is not a law impairing the obligation of contracts ; such, too, is the power to pass acts of limitation, and their effect. Reasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned. The time and manner of their operation, the exceptions to- them, and the acts from which the . time limited shall begin to run, will generally depend on the sound discretion of the legislature, according .to the nature of the titles* the situation of the country, and the emergency which leads to their enactment. Cases may occur where the provisions of a law may be so unreasonable as to amount to the.denial of a.right, and call for the interposition of .the court.” 3 Peters, -290.

The obligation of the contract between the parties, in this case,was to perform the promises and undertakings contained therein; the right of the plaintiff was to damages for the breach thereof, to bring suit and obtain, a judgment, to take out and prosecute an execution against the defendant till the' judgment was satisfied, pursuant to the existing laws of Illinois. These laws giving'these rights were as perfectly binding on the defendant, and as much a part of the. contract, as if they had been set forth' in its stipulations in the very words of the law relating to judgments and executions. If the defendant ■had made such an agreement as to authorize a sale of his property, which should be levied on by the sheriff, for such price as should be bid for it at a fair public sale on- reasonable notice, it would have conferred a .right on th'e plaintiff, which the Constitution made inviolable ; .and it Can make no difference whether such right is conferred by the terms or law of the contract. Any subsequent law which denies, obstructs, or impairs this right, by superadding a condition that there shall be no sale for any sum less than the value of the property levied on, to be ascertained by appraisement, .or any other mode of valuation than a public sale, affects the obligation of the contract, as much in the one case, as the other, for it can be enforced only by a sale of the defendant’s property, and the prevention of such sale is the denial of a right. The same power in a state legislature may be carried to any extent, if it exists at all; it may prohibit a sale for less than the whole appraised, value, or for three-fourths, or nine-tenths, as well as for two-thirds, for if the power can be exercised to any extent, its exercise must be a matter of uncontrollable discretion; in passing laws relating to the remedy which are regardless of the effect on the right of the plaintiff. This was the ruling principle of the case of Bronson v. Kinzie, which arose' on a mortgage containing a covenant, that, in default of payment, the mortgagee might enter upon, sell, and convey the mortgaged premises, as the attorney of the mortgagor; yet the case was not decided on the effect and obligation of that covenant, but on the broad and general principle, that a state law, which professedly provided' a remedy for enforcing the contract of mortgage, effectually impaired the rights incident to, and attached to it by the laws in force at its date; was void. Ño agreement or contract can create more binding obligations than those fastened by the law, which the law creates and attaches to contracts; the expréss pbwer which a-mortgagor confers on the mortgagee to sell as his agent is not more potent than that which the law delegates to the marshal, to sell and convey the property levied on, under an execution. He is the consti-' tuted agent of the defendant, invested with all his powers for these purposes. The marshal can dp under the. authority of the law whatever he could do under the fullest power of attorney from the execution debtor; and no state law can prohibit it. It follows that the law of Illinois now under consideration, so far as it prohibits a sale for less than two-thirds of the appraised value of the property levied on, is unconstitutional and void.

The second aspect in which this case must be considered, is with reference to. the acts of Congress relating to process and proceedings in the courts of the United States in cases at common law. All the early laws on this subject were carefully and most ably reviewed by this court, in Wayman and Southard, and the Bank of the United States V; Halstead in which it was held, that the proceedings in the courts of the United States should be the same as they-were in the several states at the time of passing the acts of Congress, subject to be altered by the Circuit Courts, or regulations of the Supreme Court. That the proceedings on executions were to be governed by such laws until final satisfaction was obtained, regardless of any subsequent changes by state legislation. 10 Wheat. 20, 51.

Prior to 1828, Congress had passed no process acts applicable to the states admitted into the Union after 1789. To remedy this defect, and to confirm the decisions in the above cases, the act of May, 1828, directed that writs of execution and other final process issued on judgments and decrees, and the proceedings thereupon, shall be the same in each state as are now used in the courts of such state, &c.; thus adopting the same principles which had been established by this court in the construction of the acts of 1789 and 1792. Consequently no state law passed since May, 1828, can have any effect on the proceedings on executions issued from the courts of the United States, unless such laws are adopted by those courts under the proviso in the third section of the act.

The rule adopted by the Circuit Court of Illinois does not fall within this proviso, which declares, that it shall be in the power of the courts, if they see fit in their discretion, so far to alter final process in said courts as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.”

This authorizes the court to adopt the change so made by a state law, but not to adopt it only in part, or alter it in any respect. The law directs the appraisement to be made by three householders, one to be selected by the defendant, one by the officer, and one by the plaintiff", without any authority to any two to make it, and, consequently, requiring the concurrence of all. The rule of court adopting this law provides, that any two of thé three householders selected under the law agreeing, may make the valuation required,” — such an adoption is not warranted. by the act of 1828; it is legislation in effect, by prescribing a new rule unknown to any act of Congress, or the state law professedly adopted. But had the adoption been in the terms of the law, it could not be recognised, inasmuch as the appraisement therein directed, with the prohibition to sell at less than two-thirds of the valuation,' is repugnant to the Constitution of the United States. It also conflicts with the process acts, as construed in Wayman v. Southard, and the Bank of the United States v. Halstead, and the repeated decisions of this court in later cases — that no state law can be adopted under the áct of 1828, which is in collision with any act of Congress. 16 Peters, 94, 312-314.

It must therefore be certified to the Circuit'Court, that the motion made by the plaintiff’s counsel ought to be granted, and that the directions to the marshal prayed for by the plaintiff, ought to be given in the manner stated in the second," third, fourth, and fifth points certified.

Mr. Justice. CATRON.

The third section of the act. of 1828, provides, “ that writs of exetion, and other final process', issued on (judgments and decrees rendered in any of- the courts of the United States, and the proceedings thereupon, shall be the same, (except their style,) in each state, respectively, as are now used in the courts of such state.”

A system of rules has- been adopted in the Circuit Court of the Kentucky district, regulating final process, and giving a widely different effect to such- process from what it had by the laws of Kentucky'; a. violent-controversy was the consequence in that state, and which, gave rise to the cases of Wayman v. Southard, and United States Bank v. Halstead, reported in 10 Wheat. The agitation it is understood, was one prominent reason for the introduction of the act of Congress of 1828. It repealed all rules made by the courts of the United States regulating final, process, in all the districts, and adopted the execution laws.of the.respeetive.states, as they then stood; and if nothing more had been done, future legislation on the subject, by the states, would have,been cut off; Congress, however, foreseeing new states might come into the Union, to which the act-would not apply; ancTthat it might be proper to adopt futurestate.laws, in the existing states, provided — “that it should be in the power of thé courts, if they see fit, in their discretion, by rules of court, so far .to alter final process in -said courts as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.”

An adoption of the state law, as the legislature had made that law, is the extent of the power conferred. If the courts cap. alter the law in one respect, it may be altered in all respects; this is not “ conformity,” but an exercise of. the same power the act of 1828, prohibited. The rule before us will illustrate it. The state law of Illinois enacts that, three valuers shall determine the value of the property levied on by the sheriff; one chosen by the plaintiff; one by the defendant, and the other by the sheriff; that the three -must agree in the valuation; and if the property does not bring two-thirds of such valuation, it shall not be sold

The rule provides, that if the appraisers disagree, the value fixed by any two of them shall be sufficient to authorize the marshal to sell. The debtor will naturally select onq, who he supposes, will set the highest value on the property ; the creditor one he supposes will fix the lowest value; the marshal may be favourably disposed to the one side or the other; most probably to the absent creditor — fibs appraiser of his selection, and the one selected' by the debtor, may agree, and usually would. This will cut out all the advantages the statute secured to the creditor, as his selection would have no effect: Take it the other way, and the operation will be th'e same.

If this change were sanctioned, then, in Pennsylvania and other states, where there are statutes by which lands' are directed to be valued by a jury of twelve, to ascertain whether the rents and-profits will pay the debt in a given number of years; in which case, the debtor is compelled to take the accruing profits in satisfaction as they arise; and if not, then the lands are to he sold to the highest bidder, could also be altered, and by a rule of court, a majority of two-thirds of the jury be authorized to assess the annual income. It is manifest, if amendments and alterations can be made by the courts, of the state statutes, they must, of necéssity, run info an unlimited discretion, if any one feature of the state law is retained. I therefore think the rule of court, adopting the statute of Illinois, with' the foregoing amendment, is merely void; and that no part of the state statute is in force in the Circuit Court of the United States in the district of Illinois.

And not having been adopted, it is not before this court for construction ; and that it is unnecessary and improper to inquire into the constitution alty of the state law, as the laws in force in 1828 must govern. In this respect, the opinion in the case of the United States Bank v. Halstead is followed, where the precise question arising in the case before us was presented, (the rule aside,) and in which this court then declined giving any opinion on the valuation law: of Kentucky. I have formed no opinion, whether the statute of Illinois is constitutional or otherwise. The question raised on it is one of the most delicate and difficult of any ever presented to this court; and as our decision affects the state courts throughout, in their practice, I feel unwilling to form or express any opinion on .so grave a question, unless it is presented in the most undoubted form, and argued at the bar.

On the questions propounded by the certificate of division, I agree in the answers given by my brethren, because the execution is governed by the laws of Illinois as they stood at the passing of the act of Congress of 1828, without going farther, as I know the constitutional question will affect other states beside Illinois; many, not to-say most of them have had, and some now have, valuation laws; in which no distinction is made between contracts made before the passing of the act, and those made afterwards, and that the decision against their validity as to' past contracts, will reach a great way farther than may be supposed on a slight examination.

ORDER,

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Illinois, and on the points and questions on which the jrfdges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel, on consideration whereof, it is the opinion of this court: 1st. That the motion made by the plaintiff’s counsel ought to be granted in manner and form as the same is asked; 2d. That the return of the marshal on the execution .as set forth, dated May 16, 1842, under which the property was appraised and not sold, because two-thirds of the appraised value was not bid therefor, should be set aside as insufficient; 3d. That the court' should direct the marshal to sell the property levied on in the usual mode at public auction to the highest bidder, without having the same valued^ by three householders, without regard to the valuation which has been made, and without requiring two-thirds of said valuation to be bid therefor; 4th. That the court should direct the marshal to proceed and sell the property levied upon without regard to the provisions of the act of February 27, 1841, of the legislature of Illinois, and the rule adopting said law at the June-term, 1841; and, 5thly and lastly, That the court should direct the enforcement of said judgment, according to the laws, regulating the remedy when said judgment was entered and the contract made. Whereupon, it is now here ordered and adjudged by this court, that it be so certified to the judges of the said Circuit Court.