source: Caselaw Access Project

author: Mr. Justice WAYNE

license: Public Domain

text:
    John Tyler, who is a Citizen of Virginia, President of the United States, and Successor in Office of Martin Van Buren, and Trustee for the Use of the Orphan Children provided for in. the Nineteenth Article of the Treaty with the Choctaws, of September, 1830, Plaintiff in error, v. John H. Hand, John Huddleston, and Thomas G. Blewett, Defendants in Error.
    A general demurrer by the defendant, assigning reasons why the plaintiff should not recover, must be considered and treated as a special demurrer, which is an objection for defects in form.
    In this case, none of the reasons are valid as objections to a matter of form, but the court, nevertheless, will examine them as if brought forward, to sustain a general demurrer.
    Where bonds were given to the President of the United States, and his successors in office, for the use of the orphan children of certain-Indians, and the deplaration so averred, it was not a good cause of demurrer to allege that they were taken without authority Of law.' They were valid instruments, though voluntarily given and not prescribed by law; and as the demurrer admitted the facts stated in the declaration, the defendant was estopped from contesting the right of the obligee, to sue.

      So, a&Oj'if was not a valid reason to say, in support of the demurrer, that the bonds were given without consideration; 'and if there was any illegality in the transaction,. it should have been pleaded in bar.
    Where the defendant demurred, and assigned as a reason that the place of abode of the plaintiff, or his fight to sue, was not set forth in the declaration, it was demurring in abatement,' and the judgment of the court, if the demurrer be overruled, ■will be final for the plaintiff.
    So, also, it is not a good ground for the defendant to say that the plaintiff has shown no title to the bonds. It is pot a good objection to a matter of form or substance.
    Nor was it a good ground of demurrer to say that the cestui que use was not named in the declaration. The demurrer admits that the recital of the use in the declaration was correct, and it was not necessary, for the plaintiff to set out the individual uses, when the uses were general in the bonds.
    This cause was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.
    The circumstances were these.
    By the treaty of Dancing Rabbit Creek, of the 27th Septem- ■ ber, 1830, the Choctaw nation ceded to the United States the entire country they owned and possessed east of the Mississippi ' River. The nineteenth article (7 Stat. at Large, '336, 337), allowing certain reservations to be made, by its sixth section provides as follows: —
    “ Sixthly.'Likewise, children of the Choctaw nation, residing in the nation, who! have neither father nor mother, a list of which, with satisfactory proof of parentage and orphanage,-. being filed with the agent" in six months, to be forwarded to the War Department, shall be entitled to a quarter-section of land, to be located under the .direction of the President; and with his consent the same may be sold, and the proceeds applied to some beneficial purpose for the benefit of said .orphans.”
    • The number of orphans. entitled to. the provision above recited was one hundred and thirty-four; and the lands having been selected, the same were sold in quarter-sections at public sale in- 1838, by Mr. Aaron V. Brown, under the direction of . President Van Burén, for a sum amounting to upwards of one hundred and thirty-five thousand dollars. 'The purchasers were entitled to a credit of two, four, and six years, were to give security for the payment of the purchase-money, with interest, and no title was to be given-until the whole amount of principal and interest was paid. Thomas G. Blewett became a purchaser of several piece's of the land, and, together wi.th John H. Hand and John Huddleston, executed joint and several bonds, to “ Martin Van Burén, President of the United States, and his successors in office, for the use- of the’ orphan children provided for in the nineteenth article of the treaty with the Choctaws of September, 1830.” The bonds bore the. following dates, and were for the following sums of money, viz.:—
    1838, May 28, “ June 6, tt tt a tt tt tt tt it u p o o o c »oo«no N co eo co ^ 4= o o o © © o © © © © CO CO CO CO © . to ■ 00 00 CO : 00
    The bonds were, given as security for the payment of the, interest upon certain notes for the principal, which last-mentioned notes were recited in the above ten bonds.
    In May, 1843, John Tyler j-as President of the Uhlied States, brought an action of debt upon these bonds in the District Court for the Northern District of Mississippi, which exercised the jurisdiction of a Circuit Court.
    The declaration contained a count for each separate bond, the first of which was as follows, viz.: —

      “ John Tyler, who is a citizen of Virginia, President of the United States, and successor in office of Martin Yan Bureri, and trustee for the use of the orphan children provided for in the nineteenth article of the íreáty with .the Choctaws of September, 1830, by attorney, complain? of ■ Thomas G. Blewett, John Huddleston, and John H. Hand, citizens of the State of Mississippi, being in the custody of the marshal, &c., of a plea that they render unto him the sum of thirty-four hundred and fifty dollars., which to him they owe, and from him unjustly detain; for that whereas the said defendants, by the way and style of Thomas G. Blewett, John Huddleston, and J. H. Hand, heretofore, to wit, on the 28th day of May, A. D. 1838j at, to wit, in the district aforesaid, by their certain writing obligatory,sealed with their seals, and now here to the court shown, the date whereof is a certain day and year therein mentioned, to wit, the day and year aforesaid, jointly and severally acknowledged themselves to be held and firmly bound to Martin Yan Burén, President of the United States, and his successors' in office, for the use of the orphan children provided for in the ’ nineteenth article of the treaty with the Choctaws of September, 1830, in the sum of three hundred dollars, to be paid to the said Martin Yan Burén,-President as aforesaid, and his successors in office, in good and lawful money of the United States ; and the said plaintiff avers that he is President of the United States, and a successor in office of Martin Yan Burén, which said writing obligatory was and is subject to a condition thereunder written, to wit, that whereas the said Thomas G. Blewett, on the 28th day of May, 1838, at a public sale of the Choctaw orphan lands, -had and held in the town of Columbus, became and -was the purchaser of northwest quarter of section thirty-two, township twenty-three, range, eight east, for which the said Thomas G. Blewett has executed his -three several notes with Thomas McGee, John Huddleston, and John H. Hand-, his security, tp Martin Van Burén, President of the United States, for the use of the Choctaw orphan children provided for in the nineteenth article of the treaty with the Choctaws of September, 1830, to wit, one note dated the 28th day óf May, 1838, and due the 28 th day of May, 1840, for two hundred and fourteen dollars and twenty-six'cents; one other note of same date and amount, due the 28th day of May, 1842; and one other note of the' same date and amount, due the 28th day of May, 1844. All of said several bonds or notes, by the terms' of said purchase, are to bear interest from their date at the rate-of six per cent, per annum. Now, if said Thomas G... Blewett shall pay or cause to be paid interest at the rate of. six per centum per annum on said several notes at the expiration of each and every year from the date of the same, in- good and lawful money of the United States, at the office of the Commissioner of Indian Affairs, in Washington city, then this obligation to be void, otherwise to be good and binding as by the said writing obligatory, and the condition thereof will more fully and at large appear.
    “ Nevertheless,” &c. (setting out the breach).
    To this declaration, the defendants filed the following demurrer, viz.: —
    “And said defendants, by attorney, come and defend the wrong and injury, when; &c., and say that the plaintiff ought not to have or maintain his aforesaid action thereof against them, because they say that the declaration and matter therein contained axe insufficient in law for the plaintiff to maintain his aforesaid action thereof against them,, and that they are not bound by law to answer the same, and this they are ready to verify; wherefore, they pray judgment, and that the plaintiff be barred from having or maintaining his aforesaid action thereof against them, and according to the statute they state and show the follow mg causes of demurrer, viz.: —
    “ 1st. That there is no sufficient averment in the proceedings or record showing the citizenship or place of abode of the plaintiff, or that he is, by reason of the nature of his place of abode and citizenship, entitled by law to maintain said suit.
    “ 2d. That the plaintiff shows no title to the bonds or obligations-sued on, nor such an interest in the suit as will authorize him to' maintain the same.
    “ 3d. That the parties for whose usethe suit is brought (who, by the laws of Mississippi, are the real, plaintiffs, and responsible for costs) are not, named in the record.
    4th. That said bonds sued on were taken without authority of law} the said Martin Van Burén, President of the United States, haVing.no such delegated power, and having no right to make the “ same payable to. himself and his Successors in office, or to assume to himself or his successors iii, office a legal perpetuity and succession Unknown to the said office and nojt given by- law.

      “ 5th. That said bonds in the declaration mentioned appear, from the face of the pleadings, to have been given without any actual consideration, .and -by virtue of an assumption of authority on the part of said Martin Van Burén to dispose of said orphan Indian lands af public sale,, without any legal right to sell the same. , And because the said declaration is in other respects informal ápd insufficiePt.”
    The plaintiffs joined in demurrer, and in December, 1844, the case was argued upon the'demurrer, .which was sustained by the court. ' '
    To review this judgment, a writ of error brought the case up to this court.
    It was argued at the preceding term, and held under a curia advisaré vult. .
    It was argued,, on-the part of the plaintiff in error, by Mr. Clifford, then . Attorney-General, and op the» part of the defendants in error, by Mr. Eaton and Mr. Foote, with whom were Mr.-13. Adams and Mr. Bibb.

    The- Attorney-General, for the plaintiff in error, stated-the facts in the .case, and proceeded as' follows.
    For error it is assigned, — ‘
    ■ 1st. That the suit was well brought in the name of John Tyler, á citizen of the State of Virginia.
    2d. That the plaintiff, as the successor of President Van Burén, had title to the bonds sued On,
    3d._vThat there was no necessity that the parties for whose use thé suit was broúght should be'námed in the record.
    4th. That the bonds sued on were lawfully taken to Mr. Van Burén, as President, and his successors in office.
    5t.h. That Mr. Van Burén had authority to dispose of the lands, and that there was no failure of consideration.
    I. The declaration avers, that John Tyler,, the plaintiff, is a citizen of the State of-Virginia, President of the United States, and successor in.'office of Martin' Van Burén. This is the usual mode of averring citizenship, and meets the requirements of the Constitution and the Judiciary Act on the subject.

      II. The declaration avers, that the bonds were taken payable to Martin Yan Burén, President of the United States, and his successors in office. If Mr. Yan Burén had any title to the bonds in question while President, and as President, then Mr. Tyler, as his successor, had the same title. The title was not •in Mr. Yan Burén individually, but in him as President. The bonds were executed to him as President of the United States, and his successors ; and the suit is well brought in the name of Mr. Tyler, who was in office at the time it was commenced. No principle is better settled than the one which asserts that no suit could be commenced in the name of Mr. Yan Burén after he had retired from the office of President, and of course it must be brought in the name of his,successor, according to the terms of the bond.' This is the law and the contract. The point is destitute of all merit, as it seems to me, and need not be further examined.
    III. There is no law requiring a plaintiff who sues as' trustee to name in the record the parties for whose use the suit is brought; and if there were, it could not apply to a case like the present. It is presumed the demurrer is based upon the thirtieth section of the process act of Mississippi, which falls far short of sustaining the position assumed by the defendants. It provides that, “ if any suit or action shall be commenced in any court of record in this State, in the name of any person for the use and benefit of another, the same shall not abate by the death of the nominal plaintiff, but shall progress to final judgment, and execution may be awarded thereon in like manner as if brought in the name of the person for whose use or benefit such suit or action was instituted, who shall be liable for the costs of suit as in other cases.” (H. & H. Miss. Laws, 584.)
    The act nowhere makes any such requirement as is supposed by the demurrer. It authorizes the suit to progress, notwithstanding the death of the nominal plaintiff; and in such cases costs are allowed.
    This action is therefore well brought in the name of the trustee, who must hold whatever may be recovered, subject to the disposition which the law authorizes and directs, for the benefit of the cestui que trust. The point, being unaffected by the Mississippi act, stands upon general principles, which are clearly against the defendants.
    The description given of the cestui que trusts in the declaration follows the language of the bond, and is therefore sufficient. It might, however,' have been wholly omitted, and, being entirely immaterial, may be- rejected as surplusage, and cannot embarrass the, suit.

      IV. That these bonds "were lawfully taken, and made payable to the President for the time being, and to -his successors in office, there can be no doubt.. To take securities for the lands sold, if it should be deemed most advantageous for the interests of the Indian orphans that they should be sold on credit, was not only an. incident to the power to make the sale, but an obvious duty incumbent on the President. It was no more than an aet of common prudence to see that the securities were executed in such form that payment could be enforced, if delayed beyond the period when he might expect to retire from office, and to leave the trust reposed in him in the hands of a successor. United States v. Tingey, 5 Peters, 115 ; Lord v. Dali, 12 Mass. 115; Dugan v. United States, 3 Wheat. 172; Commonwealth v. Wolbert, 6 Binney, 292.
    Y. The fifth grpund of demurrer raises the main question involved in the case. The defendants contend that the bonds were given without any actual consideration; the President having, as they allege, no authority to.dispose of the lands.
    The first question is, Can this point be raised on the record as it stands ? The declaration does not state of whom the purchase was made, or by what authority the sale took place. Until it otherwise appears, it must be presumed that it was made by virtue of a lawful authority. - A bend under seal imports a consideration without its being expressed ; and a want or failure of consideration is not sufficient at law to a'void a specialty. (Yrooman v. Phelps, 2 Johns. 177; Dorian v. Sammis, lb. 179; Dorr v. Munsell, 13 Johns. 430.) A note in PetersdorfPs Abridgment, Vol. IV. p. 613, cites a number of cases to the same effect, and defines the true rule on the subject.
    It is a very great error, as it seems to me, to suppose that there is any want of consideration in these bonds appearing on the face of the record and pleadings. It is a familiar principle that, the demurrer admits every thing that is well pleaded; and under this rule the point is net open to the defendants even by the Mississippi statute, which requires a special plea to authorize a party “ to impeach any writing under seal, or to go into the consideration of'the same.” (H. & H. Miss. Laws, 589.)
    But was it competent for the President to direct the sale, of these lands ? It is contended, on the part of the defendants, that he had no such authority, but that the Indian orphans . took a fee-simple estate under the treaty, as tenants in common, and that they were in all respects- competent to dispdse of the lands thus vested-in them, subject only to the consent , of-the President for the time being. . It is, however, insisted for the plaintiff, that the terms of the “provision do not in the-least degree countenance any such construction,of the treaty. It might, perhaps, be considered a sufficient answer to this proposition of the defendants, to ask the attention of the court to the fact, that no particular Indian, for whose benefit the lands were to be reserved and selected, is named in this provision.
    ■ Even the number entitled :was unknown, and had to be subsequently ascertained in virtue of the stipulation under which this pretension is set up.
    The true intent arid purpose of the provision seems to me to be apparent. It was to create a trust for the benefit , of the orphans, of which the President of the United States was declared to be the''trustee, and which he was to. execute. The objerit of the trust was to create a fund -for the benefit of the orphans, in which all were to participate equally.. This is the leading idea in the provision. The construction contended for on the other side would defeat the end intended to be accoin-plished.’ The language of the provision is not, it is admitted, precise, but its true meaning and intention cannot well be mistaken. When the number of orphans entitled had been ascertained in the manner prescribed, and the list of them forwarded to the War Department, the lands were to be located under the direction of the President, and with his consent sold, and, with the like, consent, the proceeds were to be applied for some beneficial purpose for the benefit of the orphans. The legal title to the lands in question was vested in the United States, and was’ held by them in subordination to this provision, giving authority to the President to sell and invest the proceeds for some beneficial object in accordance with the trust. That the legal title to the whole lands of. the .Choctaw nation east of the Mississippi became vested in the United States is clear, not only from the third article by which the cession is made, but from the fourteénth, which provides for reservations to such Choctaws as were desirous to become citizens of the United States, and especially from the provision which stipulates that grants in fee simple should issue from the United States to this class of Indians. The other reservations in the nineteenth article are to certain parties by name, and to certain classes of the Indians who had made improvements, and furnish no argument to illustrate this. case. These reservations stand’ on a very different footing from those of the orphans. They were ascertained and certain, and constituted the homes in which thé ' Indians lived. But in the case of the orphans, the lands had no identity, and,, when selected, were to be sold to raise a fund for their benefit.

      Mr. Eaton and Mr. Foote, for the defendants in error,
    rested their argument upon the point that .the President had no power to order the sale; that the treaty secured to him no such authority, and that if he could be considered in the character of trustee, even then he was incapable by law to delegate the trust to another, and being so delegated, the act. and every thing under it were void. This point was illustrated with great particularity.

      Mr. Adams contended that the court below did not err in sustaining the demurrer, .and that the judgment should be affirmed : • — 1st. For the reasons that the President had no authority to sell, had no title in himself, nor obligation upon others to-make title ;' that he was not a trustee w'ith power to sell for the benefit of the Indians, or otherwise ; and that the contract is void for the want of proper parties and consideration. 2d. That the. fee is still in the reservees, who cannot be deprived of it but by their own act, with the consent of the-President, or .the law. 3d. For the reasons assigned in the first, seeond, third, and fourth special causes of demurrer.
   Mr. Justice WAYNE

delivered the opinion of the court.

This suit is brought upon ten bonds payable to Martin Yan Burén, President of the United States, and his successors in office, for the use of the orphan children provided for in the nineteenth article of the treaty with the Choctaw Indians of September, 1830.

The principal and interest due upon t.he bonds are demanded, and the plaintiff in the action, John Tyler, sues as successor of Martin Van Burén and trustee for thé orphan children.

The defendants have demurred to the plaintiffs declaration, pursuing the usual form of a general demurrer, and have added thereto several special causes of demurrer. There is a joinder in demurrer. Upon these pleadings, the court below sustained the demurrer of-the defendants. It is that judgment which is now before this court by writ of error.

In our opinion, there is error in the judgment: We shall reverse it, with an order to the court below to enter up a final judgment for the plaintiff.

The cause is not before us on the grounds upon which it was placed in argument by the counsel of the defendants, except as to the insufficiency of the facts averred in the plaintiff’s declaration to entitle him to recover, or to enable the defendants to sustain their demurrer.

A demurrer is an objection made- by one party to his opponent’s pleading, alleging that he ought hot to answer it, for some defect in .law in the pleading. It admits the facts, and refers the law arising thereon to the court. (Co. Lit. 71. b; 5 Mod. 132.) The opposite party may demur when his opponents pleading is defective in substance or form, but there can ne' no demurrer for a defect not apparent in. the pleadings. This being so, the question now is, whether or not, notwithstanding the objections in substance and form which the defendants have . made to the plaintiff’s declaration, sufficient matter appear in the pleadings, upon which the court may give 'judgment according to .the very right of the case. Five special causes of demurrer are assigned; they were of course meant to be objections for defects in form, as .none other can be assigned in a.,, special demurrer. A general demurrer lies only for defects in substance, and excepts to the sufficiency of the pleading in general terms, without showing specially' the nature of the objection. A special demurrer is only for defects in form, and adds to the terms of a general demurrer a specification of the particular ground of exception.

Qur first remark, then, is, that neither of the special causes of demurrer alleged in this case is for a matter Of form. They are as follows : —

“ 1st. That there is no sufficient averment in the proceedings or record showing the citizenship or place of abode of the plaintiff, or that he- is, by reason of the nature of his place of abode and citizenship, entitled by law to maintain said suit.
“ 2d. That the plaintiff shows no title to the bonds or obligations shed'on, nor such an interest in the-.suit as will áuthorize him to maintain the same.
• “ 3d,' That the parties for. whose use the suit is brought (who, by the laws of Mississippi, are the real plaintiffs, and responsible for costs) are not named in the record.
“ 4th. That said bonds sued on were taken without authority of' law, the said Martin Yan Burén, President of the United States, having no such delegated power, and having no right to make the same payable to himself and his successors in office, or to assume to himself or his successors in office a legal perpetuity and succession unknown to the said office, and not given by law.
“ 5th. That said bonds in the declaration mentioned appear, from the face of the pleadings, to have been given without any actual consideration, and by .virtue of an assumption of authority on the part of said. Martin Yan Burén to dispose of said orphan Indian lands at public sale, without any legal right to sell the same. And because the said declaration is in other respecta informal and insufficient.”

The case, then, is before the court upon a general demurrer, in which must be considered the Avhole record, and judgment should, be given for the party who on the whole appears to be entitled to it. (Le Bret v. Papillon, 4 East, 502.) It cannot bé better shown in this case for whom the judgment should be, than by showing- that the special causes of objection assigned,. supposing them to have been made as matters of' substance, are not sufficient in law to prevent a recovery by the plaintiff. We will first speak of the fourth and fifth, because they are the chief reliance of the defendants to show that no judgment can be rendered against them.

The fourth is, that the bonds given by the defendants were taken without authority of law. The fifth is, that it appears from the face of the pleadings they were given without any actual consideration. Neither of these points can be raised in this case by a demurrer. As to the first of the two, it was not necessary to aver in the declaration that the bonds were taken with the authority of law, — nor is it so averred. The bonds are made to the President of the United States and his successors in office, for the use of the orphan children provided for in the ninoteenth article of the treaty with the Choctaw' Indians of September, 1830. They are so recited in the declaration, and are admitted by the defendants to háve been given by them. In point of law, then, they are valid instruments, though voluntarily given, and not prescribed by law*. (United States v. Tingey, 5 Peters, 115.) It is not the case of a bond given contrary to law, or' in violation of law, but that of bonds given voluntarily for a consideration expressed in' them to a public officer, but not happening to be prescribed by law. Nor does it matter that they are made to the President of the United States and his successors in office, if the political official character of the President is recognized, in them, and is so averred in the declaration. This cause of demurrer, whether well taken or not, admits'the fact that the bonds were given, and. estops the defendants from denying it as a matter of form, or from contesting by a demurrer the right of the obligee and his successors „in office to sue the ob-ligors at' law. As to the alleged want of consideration for these bonds, as stated in the fifth special cause of demurrer, that affords no ground for a demurrer, as a bond cannot be avoided at law either for a want or- failure of consideration, and any thing' illegal in the consideration can only be pleaded in bar to the action. (Fallowes v. Taylor, 7 T. R. 475.)

But it is said that these bonds were given without any actual consideration, the President, as it is alleged, having no authority to dispose of the land. What of that? The declaration does not state of whom the purchase was made, or by what authority the sale took place. The defendants admit that a sale did take place, that they were purchasers of the lands, and that they gave the bonds voluntarily, according to the terms of sale. Neither of these questions, then, can be raised under the demurrer of the defendants, and could not have. been the foundation of the judgment given in their favor.

Having disposed of the fourth and fifth special causes of demurrer, we will now inquire, in their order, whether or not the judgment which was given can be sustained upon either of the other alleged grounds.

The first is, “ That there is no sufficient averment in the proceedings showing the citizenship or place of abode of the plaintiff, or that he is, by reason of the nature of his place of abode and citizenship, entitled. by law to maintain this suit.” This cannot justify th'e judgment, because it is demurring in abatement., In such a case the plaintiff is entitled to final judgment. , If the matter of abatement be extrinsic, the defendant must plead it. If intrinsic, the court will act upon it upon motion, or notice it of themselves. (Dockminique v. Davenant, Salk. 220.) But it does not follow, because a demurrer in abatement cannot be available for the defendant, that it is to be rejected altogether from the. pleading, if tendered in proper time. It will be received, but being erroneously put in, it entitles the plaintiff to final judgment, so that for this reason the judgment of the court below would have to be reversed.

Perhaps the best exposition of this point of pleading anywhere to be found is that given in Furnisset al. v. Ellis and Allen, in 2 Brockenbrough’s Reports, 17, by Chief Justice Marshall. He says, “ The cases quoted to show that the demurrer is not good, do not show”that even in England it ought .not to be received, if tendered in proper time. In 5 Bac. Abr. 459, it is said, if a defendant 'demur in abatement, the court will, notwithstanding, give a final judgment, because there cannot be a demurrer in abatement.” This does not prove that the demurrer shall be rejected, but that it shall be received, and that the judgment upon it shall be final. A judgmen. on a plea in abatement, or on a demurrer to a plea in abatement, is. not final, but on a demurrer which contains matter in abatement it shall be final, because a demurrer cannot partake of the character of a plea in abatement. . Salk. 220) is quoted by Bacon, and is to the same purport, indeéd in the same words. These cases show that a demurrer, being in its own nature a plea to the action and being even in form a plea to the action, shall not be considered as a plea in abatement, though the speeial cause alleged for demurring be matter of abatement. This court will disregard thesé special causes, and, considering the demurrer independently of them, will decide upon it as if they had not been inserted in it.” And then the Chief Justice adds, in respect to the particular case then -in hand, that “these cases go far to show that the court would overrule the demurrer, and decide the cause against the party demurring, not that it should be expunged from the pleadings.”

The second ground of special demurrer is, that the plaintiff shows no title to the bonds or obligations sued on, nor such an interest in the suit, as will authorize him to maintain an action on the 'same. Neither fact stated is a matter of form, and cannot therefore be a cause for a special demurrer. But • taking them as matters of substance, the insertion of them in the plaintiff’s declaration is not necessary to show his right to sue and recover upon these bonds, or material for the defendants in their plea. This objection will not avail to sustain the judgment.

The remaining objection to be considered is the third in order stated, and may be as briefly and as satisfactorily disposed of as some of the rest have been. It is, that the parties for whose use the suit is brought are not named, who by the laws of Mississippi are the real plaintiffs, and responsible for costs. We remark, that for whose use the bonds were taken is- not recited as personal to any of the Choctaw orphans, but as an aggregate for all such as were entitled to lands under the nineteenth article pf the treaty. The demurrer admits that the bonds were so made by the defendants, and that the recital in the declaration is as the fact is expressed in the bonds. The inquiries, then, into who are individually the orphan children residing- in the Choctaw nation, or who by name are entitled to a quarter-section of land, or tiny such averments in the plaintiff’s declaration, were not necessary to entitle him to recover, and could not be shown either as a -cause of special deihurrer or be urged under a general demurrer, to prevent a recovery in this case.

All of us are of the opinion, that there is nothing in the causes of demurrer which were shown in argument, or in the special causes assigned, to sustain the demurrer, and thinking, as we all do, that nothing has "been shown to lessen the obligation of the defendants to pay these bonds, or their liability to be sued for them at law, we shall direct the judgment of the court below to be reversed, with costs, and shall order the cause to be remanded to the District Court, with directions to that court to enter judgment in this case (principal and interest) for the plaintiff in that court.

Order.

This cause came on to be heard on the transcript of the record from the District ■ Court of the United States for the Northern District of Mississippi, 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 reversed, with costs, and that this cause be and the same is hereby remanded to the said District Court; with directions to that court to enter judgment in this case for both principal and interest for the .plaintiff in that court. .


author: Mr. Justice CATRON

text:
    Joshua Kennedy’s Executors et al., Plaintiffs in error, v. Lessee of Jonathan Hunt, John Hagan et al., Defendants in error.
    Forbes and Company obtained a grant of land in 1807 from Morales, Intendant-General uijder the Spanish government, which land was adjacent to Mobile, in West Florida. This grant purported to be, in part, the confirmation of a concession granted in 1796 and surveyed in 1802. The survey terminated at high-water-mark upon the river.
    The grant of 1807 included the land between the then bank of the river and the high-water-mark of 1802.
    This grant of 1807 was excepted from the operation of the act of Congress passed on the 26th of March, 1804, which annulled all Spanish grants made after the 1st of October, 1800, and was recognized ás a valid grant by the act of 3d March, 1819.
    An act of March 2d, 1829, confirmed an incomplete Spanish concession which was alleged to draw after it, as a consequence, certain riparian rights conflicting with those claimed under the grant of 1807.
    A decision of a State court, giving the land covered by these riparian rights to the claimants under the grant of 1807, was only a construction of a perfected Spanish title, and cannot be reviewed by this court under the twenty-fifth section of the Judiciary Act. It did not draw in question an act of Congress or any authority-exerciséd under the Constitution or laws of the United States.
    This case was bi ought up from the Supreme Court of the • S-tate of Alabama, by a writ of error, issued under the twenty-fifth section of the Judiciary Act.
    The facts in the case áre sufficiently set forth in the opinion of .the court.
    - It was argued by Mr. John O. Sargent and Mr. Johnson,. for the' plaintiffs in error, and by Mr. Underwood and Mr. Sargeant, for the defendants in error.
    ' 'The points made by the counsel for the plaintiffs in error were the following.

      The action was ejectment brought by plaintiffs below in the Circuit Court for Mobile county, to recover a piece of ground and ground covered with water, on Mobile River.
    Plaintiffs gave in evidence the Spanish Orange Grove grant of 1807 to Forbes & Co., and the act of Congress entitled, “An act adjusting the claims to land,, and establishing land-offices in the districts east of the island of New Orleans,” passed 3d March, 1819. (3 Stat. at Large, 528.)
    Défendants gave in evidence a Spanish concession of 1798 to Thomas Price, and an act of Congress of 2d March, 1829, entitled, “ An act confirming the reports of the register and re-, ceiver of the land-offices for the district of St. Stephens, in the State of Alabama, and for other purposes,” confirming said title by United States with surveys, location, certificate, report, and patent by United States to Joshua Kennedy,.and the mesne conveyances from Price to defendants. (4 Stat. at Large, 358.)
    I. The right of the defendants to the land in controversy, was asserted under the act óf 1829, and the decision of the court below was against that right. This brings the case clearly within the twenty-fifth section of the Judiciary Act.
    In 1798, Price prayed Governor Gayoso to grant him a tract-of twenty arpens by thirty, bounded on the east by the lots in the town of Mobile, and the river of said town. The donation was ordered accordingly, November 10, 1796.
    In 1806, it was confirmed by the commandant, according to a- plan accompanying his petition, and the deputy surveyor was ordered to survey the tract and' make the boundaries, according to a “ copy, from the surrounding survey.”
    This tract, thus bounded, was confirmed by the act of 1829.
    The patent, plan, survey, &c., all show that the confirmation contemplated the original boundaries; one of which, on the east, was the River Mobile.
    Defendants insist thtit they are still entitled to go to the river, as one of their eastern boundaries; that the act of 1829 operated to confirm the title of Price to the tract described in the concession of 1798.
    The decision of the court below, was against the title or right set up under this act.
    II. The court below charged the jury that the' construction of the plaintiffs’ (Forbes & Co.-) granizas confirmed would authorize them to go to the channel bf t'he river; and that the boundaries of the plaintiffs- grant must be run and continued eastwardly till they reach the channel of the river.
    Defendants excepted.
    The grounds of exception are not specifically stated. ■ It is supposed that the exception lets in all legal ‘objections of which the defendants could have availed themselves below. They appear in the record certified from the Supreme Court, and are alluded to in the opinion of the court. They set up the act of March 2, 1819, entitled, “ An act to enable the people of the Alabama Territory to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States,” as a bar to the plaintiffs’ claim, by establishing an outstanding titlé to the land in controversy in the State of Alabama. This is supposed to be a perfect defence. . If the United States, on the 2d of March, 1819, dedicated the shore of Mobile River to Alabama, they could not grant it subsequently to an individual, or confirm an invalid Spanish grant to make it so operate. The .court below decided, in effect, that the act in question did not vest the shore in Alabama, and that Congress could grant it to an individual. It is apparent on the record,, that the construction of- this statute was- called in question, and that the judgment of the State court would not have been w-hat it is, if there had not been a misconstruction of this statute to the injury of the defendants below, or a decision against the validity of the right, title, privilege, or exception set up under it; or, in other words, the question is nécessarily involved in' the decision, and’the State court could not have given.the judgment or decree which they passed without deciding it. (3 Pet. 398; 16 Pet. 285.)
    , III. The court below refused to charge, that, if the jury believed the line of division between the Forbes and Price grants was drawn by authority of the United States-, and surveyed and patented to Price’s assigns, and being a United States survey and location of both tracts, such survey was Rinding on the plaintiffs, and the said two titles would cease where such survey ceased to the east, and the riparious rights would commence where such survey ceased, according to the front of each.
    Defendants excepted.
    The court below charged that the grant of the plaiptiffs, being confirmed by the act of 1819 as a complete title, it could not be affected or limited • by any survey made by the authority of the United States, and that the jury should find without any regard to any such survey.
    Defendants excepted.
    Defendants, insist that the surveys in evidence were made by authority of the United States, under the acts of 1819 and 1829, and of other acts providing for the survey and location of claims to land in the township of Mobile'.'

      They further insist, that, by their charge, and their refusal to charge as requested, and their rejection of the United States súrveys, the court ruled against the validity of an authority exercised under the United States.
    IV. Both parties claim undér acts of Congress; the defendants below under that of 1829, confirming the concession to Price; the plaintiffs under that of 1819, confirming the invalid Spanish grant to Forbes & Co.. The decision could not but be against the rigjit set up by the defendants- un'der the one statute, if it was in favor of the right set up by the plaintiffs under the other.
    i. The record sets out the title on each side, together with the facts and the charge of the court; from which it appears, that the decision of the State court of Alabama was opposed to the right of the plaintiffs in error, the judgment of the Circuit Court having been affirmed. The construction and application are called for of the acts of Congress on which the controversy depends.
    In the'City of Mobile v. Eslava, 16 Peters, 249, Mr. Justice Catron cites Matthews v. Zane, 4. Cranch, 382; Ross v. Barland, 1 Peters, 664; Wilcox v. Jackson, 13 Peters, 509; Pollard’s Lessee v. Kibbe, 14 Peters, 353, as establishing the doctrine, that where both sides claim under acts of Congress, and come to this court under the twenty-fifth section for their construction, the court proceed upon the whole case, and for either side.
    On the whole, it' is manifest from the record. that the judgment of the court below could not have been whát it is, if there had not been a decision against the right and title set up by the defendants below under- the act of 1829; or against the defence they, set up under the act of the 2d of March, 1819 ; ■ or against the validity of an authority exercised under the laws providing for the survey and location of claims in the township where the land in controversy lies.
    The counsel cited the following authorities in support of the jurisdiction of the court.
    Pollard’s Lessee v. Kibbe, 14 Peters, 360.; Wallace v. Parker, 6 Peters, 687; Owings v. Norwood’s Lessee, 5 Cranch, 344; Harris v. Dennie, 3 Peters, 298; Davis v. Packard, 6 Peters, 48; Wilson v. Blackbird Creek Marsh Company, 2 Peters, 250; Martin v. Hunter’s Lessee, 1 Wheat. 355; Miller v. Ñicholls, 4 Wheat. 311; Williams v. Norris, 12 Wheat. 117; Mobile v. Eslava, 16 Peters, 249; Craig v. State of Missouri, 4 Peters, 427; Chouteau v. Eckhart, 2 How. 372; Matthews v. Zane, 4 Cranch, 382; Ross v. Barland. 1 Peters, 664; Wilcox v. Jackson, 13 Peters, 509.
   Mr. Justice CATRON

delivered the opinion of the court.

This case comes here by writ of error to the Supreme Court of Alabama, under the twenty-fifth section of - the Judiciary Act of 1789, and the first question made by the defendants in error is, whether any matter presented by the record will authorize .this court to exercise jurisdiction under the twenty-fifth section. And to ascertain how far, if at all, the powers of this court can be called into exercise, the facts and the laws bearing on them must be stated in -something of detail ; as in this case, in common with many others, it is found much more difficult to settle the question of jurisdiction,' and how . far it extends, than it would have been to decide the merits of the controversy had the cause been brought here by writ of error, to a court of the .United States.

Hunt, Hagan, and others, sued in ejectment Kennedy’s- executors and ..other tenants in possession, for about ten acres of land lying in the city-nf Mobile, in the State Circuit Court. The plaintiffs claimed title to the premises sued for under a grant made to John Forbes & Co. in 1807, by Morales, Intend-ant-General under the Spanish government in the province of West Florida, Spain being then in possession of the province and exercising jurisdiction. The grant, by its recitals, purports to be, in part, the confirmation- of a concession, and' survey founded on it, of earlier dates; say 1796 and 1802, in favor of Panton, Leslie, &• Co., to which firm Forbes & Co. were successors. • The' concession' was surveyed in 1802 by Collins, an authorized surveyor under the Spanish government, and its eastern boundary terminated on the bank of the Mobile River, at high-water-mark ; the survey contained two hundred and sixty-three acres, equal to about three hundred arpens. To the extent óf Collins’s survey there is no controversy, but Forbes & Co. solicited the Intendant-General in 1807 to grant them the flowed land lying east of the eastern boundary of the survey, and between the same and the channel of the river, and which the Intendant proceeded to do, in the following terms :.— “ And as the distance that is observed in the map from the river-to the boundary-lines of the land, which was left vacant at that time in consequence of its having been impassable, has since become of great use to the claimants, having constructed levels and the necessary drains, in consideration of which it has been granted to them as a compensation for their labor thereon invested, with- the. reserve such as necessary to allow a free passage along the bank, of t.he river, without altering the figure of the tract on either of the other sides. Wherefore, using and exercising the'powers which the king our lord — God preserve him! — has conferred on me, I do in his royal name confirm and ratify to the aforesaid John Forbes & Co. the possession of the three hundred, and ten ar-pens, seventy-seven perches and one eighth, already mentioned, and! which .< e contained in the map (No. 1809), with the corrections made by the surveyor-general, in order that they'may own and riossess the same, sell and alienate the land at their own and entire pleasure, without prejudice to any third person who may have a better right, on condition that they should observe and fulfil the requisitions of the land regulations formed and published by the intendancy on the seventeenth of July, 1799, as far as the local situation and quality of the land will permit.”-

According to Spanish usages and regulations, the grant to Forbes & Co. was a perfect title,'bad as such binding'on the government of Spain, although made in 1807, after that government had parted with its power to grant, according to our construction of the treaty of 1803, the limits of which were claimed by this government to extend east to the River Perdi-do, and which claim has .been upheld and established by- the political and judicial departments of the United’S tates. The first conclusive step was taken by Congress as early as 1804, when, by the act of March '26th of that year, it was declared that all grants-.made by the Spanish .authorities after the 1st day of October, 1800, (the date of the treaty of St. Ildefonso,) should-be held and deemed to be void. But the act excepted from its operation • “ any bona fide grant made agreeably to the laws, usages, and customs of the Spanish government, to an actual settler on the lands so granted for himself and for his wife and family ”; and also excepted “ any boná fide act or proceeding done by an actual' settler agreeably to the laws, usages, and customs of the-'Spanish government, to obtain a grant for lands actually settled on by the person or persons claiming title thereto, if such settlement, in either case, was actually made prior to the 20th day of December, 1803.” Some restrictions were imposed oh actual settlers in regard to quantity, that have no application to the grant of Forbes & Co; *

The Spanish grant recites that Forbes & Co. had been settled on .the land granted, and that it had. been occupied and cultivated by them since the year 1796, and up to the date of the grant, and such was the proof made before our commissioner, and therefore the proceeding ” by which the imperfect title of Forbes &, Co. was completed was within the second exception of the act of 1804. That the grant made by the Intendant-General Morales, in 1807, . was in itself, unaided by the sanction of Congress, a valid title, we do not assert; but being reported on by the commissioner as a title complete'.'in form, according to the usages and laws of Spain, and recognized and sanctioned by Congress as a perfect title by the act of 1819, the courts of justice are concluded by the action of the political department, and bound to pronounce the giant to Forbes & Co. a perfect title in substance as Well as form; because the claim was within the exclusive jurisdiction of the political department in 1819, when Congress acted on it. Such is the well-established doctrine of this court, as will be seen by the cases of Chouteau v. Eckhart, 2 How. 344; Mackay v. Dillon, 4 ib. 421; and especially that of Les Bois v. Bramell, 4 ib. 461.

Nor did the grant of Forbes & Co. require any further step to perfect its boundary. This being the prima, facie condition of Forbes & Co.’s grant, the next inquiry is whether those claiming under Kennedy’s title were in a condition, on the- trial in the State court, to call the plaintiffs’ title in question.

The defendants below claimed by virtue of an act of Congress,' passed March 2, 1829, confirming an incomplete Spanish concession made to Thomas Price. ByU" ’ h section of the confirming act of 1829, it is pro-.; ' the confirmations of all the claims provided i - act- shall amount only to. a relinquishment for ever, rt of the United States, of any claim whatever to tin of land and town lots so confirmed, and that nothing he ntained shall be construed to affect the claim or claims of any individual or body politic or corporate, if any such there be.”

And by the fifth section of .said act, the register and receiver of the land-office at St. Stephens were invested with power, within their district, to direct’ the manner in which all claims to lands and town lots which had been confirmed by that act should be located and surveyed ; having reference to the laws, usages, and cústoms of the Spanish government on the subject, and also to the mode adopted by the government of the United States, pursuant to the act of March 3, 1803. And by section sixth, certificates of confirmation and-patents were ordered to be granted for all lands and town lots com firmed by the act. - •

According to the act, the claim of Joshua Kennedy (representative of Thomas Price) was duly surveyed on the 2d of February, 1836, and in May, 1837, a patent was taken out by Kennedy for the land described in the survey. The calls in the patent, having any connection with the present controversy, áre as follows: — “ Thence north, 69° 5' east, 15 chains 44 links, to the ancient margin of the River. Mobile, being

34| links west of the south angle of St. Louis and Water Streets; thence north, 66° west, nine chains and seventy-six links, to the,southeast corner of the Orange Grove tract granted to John Forces & Co.” The next line runs north, 82° west, with the southern boundary of Forbes & Co.’s tract.

The southeast corner of the Orange Grove tract is an iron-bound stake, well known, and from which the Spanish survey made by Collins runs due north, and from that line east to- the channel of the river the land was added by the grant of the Intendant-General Morales, in 1807.

The line' of Kennedy’s grant fronting towards the river runs 66° west of north, and it is contended that Kennedy, as a front proprietor, is entitled to claim a' riparian right to the channel of the river, according to lines drawn at right angles to the front line and from each terminus- thereof, unless some other claim shall interfere; and it is insisted that the addition made to Forbes & Co.’s grant in 1807 cannot hinder the assertion of Kennedy’s riparian right, because the addition was made after Spanish authority ceased, and for so much the grant of 1807 is void, and being out of the way, Forbes & Co. can ■only claim as front proprietors, riparian rights in like manner that Kennedy himself claims; and to ext- nd Forbes’s southern line east, and Kennedy’s lines at right angles, as above stated, would produce a conflict of riparian rights incident to the respective grants,, the lines crossing each other at the iron-bound stake, forming an acute angle at the stake, and widening towards the channel of the river; and this angle., it is assumed by those claiming- under Kennedy’s grant, should be divided between the two grants, but in what proportions we are not informed. This assumption- the State- court rejected, and held that Forbes & Co.’s grant took all the land .to the channel of the river north of a direct eKfension of its, southern boundary, and thereby cut off the pretension of Kennedy to the incident of alluvion.

Suppose it to be true that the addition made to'Forbes & Co.’s grant in 1807 was void, for want of authority in the Spanish government, or for any other reason, and that Kennedy’s grant was entitled to divide the alluvion as an incident to it, and that the State court improperly rejected his claim, and wrongfully adjudged the land to Forbes & Co.;, — conceding all these assumptions, can this court' revise and reverse the decision of the State court?-' The controversy respecting the alluvion drew iri question no act of Congress, nor any authority exercised under the Constitution or laws of the-United States, and therefore the decision of the State court could, not be opposed either to the laws, or to any authority exercised under the laws, of the United States. For the established construction- and application- of the twenty-fifth' section of the Judiciary Act, we refer to the cases of Crowell v. Randell, 10 Peters, 391, 398; McKinney v. Carroll, 12 Peters, 68; and Armstrong v. Treasurer of Athens County, 16 Peters, 284. In this case, as in that of McDonogh v. Millaudon, 3 How. 693, the State courts were called dn to construe a perfected Spanish title, and to settle its limits by applying the local law, and having done so,’ this court has- no authority to revise the judgment; nor can we see how the case w;ould have been different had Forbes & Co.’s grant been an elder patent emanating from the United States directly; as in such a case a controversy concerning the incidents of alluvion would not have drawn in question an act of Congress, or a survey made according to an act of Congress.

We deem it useless to examine in detail the instructions proposed by the defendants below, and rejected by the court. 'The only one worthy of notice was that which rejected Weakly’s survey of Forbes & Co.’s grant, made and approved iin 1835. It could not change the grant, nor affect its validity in any degree, and could only be read to establish boundary as a matter of fact; and neither its admission nor rejection, when •offered for such purpose, could give this court jurisdiction, no ■matter which side should be injured; and so this coitrt, in effect, held in the case of Mackay v. Dillon, 4 How. 447. The survey was an ex f arte proceeding for the purposes of the land-office, and immaterial to Forbes & Co.’s title.

On careful examination, we are of opinion that no one question was raised and decided in the State courts that gives this court jurisdiction to revise such decision ; and that, therefore, •the case must be dismissed for want of jurisdiction.

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 this cause be and the same is hereby dismissed, for want of jurisdiction.