source: Caselaw Access Project

author: Mr. Justice DANIEL

license: Public Domain

text:
    The United States, Appellants, v. Jean Baptiste D’Auterive and others, Heirs and Representatives of the late Jean Antoine Bernard D’Ahterive.
    Following out the principles applied to the construction of treaties in the cases of United States v. Reynes, and Davis v. The Police Jury of Concordia, in 8 Howard, •this court now decides that a grant of land in Louisiana, issued by the representative of the king of France in 1765, was void; the Province of Louisiana having been ceded by the king of France to the king of Spain in 1762.
    The title to the land described in this void grant was vested, therefore, in the king of Spain, and remained in him until the treaty of St. Ildefonso. It then passed to • France, and by the treaty of Paris became vested in the United States.
    None of die acts of Congress have confirmed this grant.
    The act of 1805 (2 Stat. at Large, 324) required three things in order to effect a confirmation. 1st. That the parties should be residents. 2d. That the Indian title . should have been extinguished. 3d. That the land should have been actually inhabited and cultivated by the grantees, or for their use. In the present case these conditions were not complied with.
    The act of May 26, 1824, in part reenacted by the act of June 17, 1844 (5 Stat. at Large, 676), did not create any new rights, or enlarge those previously existing ; but only allowed claims to be presented to the court which would otherwise’ have been barred.
    This was an appeal from the District Court of the United States for the District of Louisiana.
    It was a petition presented to the District Court under the act of 1824, relating to land titles in Missouri, as revived and made applicable to Louisiana by the act of 1844.
    The history of the title claimed by the heirs of D’Auterive, so far as it may be necessary to explain the opinion of the court, was as follows.
    A copy of the following grant, issued in 1765, was certified by the register of the land-office at New'Orleans to be found upon the records in his possession, and forming part of the ar-. chives of the office.
    “ Charles Philippe Aubry, Chevalier of the Royal and Military Order of St. Louis, commanding for the King in Louisiana, and Denis Nicholas Foucault, being the Intendant Commissary of this Province of Louisiana.
    Upon the demand made by Messrs. D’Auterive and Masse, partners, to grant to them'a parcel of land named La Prairie du Vermilion, bounded east by the River Des Tortues and the Lake Du Tasse, north by the Mauvais Bois, west by the River Vermilion, and south by a muddy prairie, considering their petition above, and in other part, and for consideration of the cession made by them to the Acadian families, recently arrived in this Province, of the land occupied by them during a long period, in the Attakapas, and in consideration also of the advantages which may result for'this capital of the great establishment in vacheries that they propose themselves to do on the said land named La Prairie du Vermilion, by the quantity of cattle they may bring to market in a short period, we have conceded, and do concede, to them, by these presents, the said land, for them and their heirs, to enjoy and dispose of the same in full ownership and usufruct, as a thing belonging to them, except against titles or possession anterior to these to the contrary; provided that' said land lies on this side of the limits which have been established of the French and Spanish possessions in this part of the country; ánd provided, also, that they do deliver.-to us the titles of the land which they have ceded to the Acadian families, and also under the conditions that one year from this date they shall establish the said vacherie; in default whereof the said land shall become part of the king’s domain, who may dispose of the same as if the said concession had never been granted, and also with the burden by them to support and pay the seigneurial rights, if any hereafter be established in this colony. We also reserve for his Majesty all the timber necessary for the construction of forts, stores, and other public works that he has ordered, to be done, or may order in the future, even for the refitting and careening of his men-of-war, whenever the same will be necessary ; and also the necessary ground for the royal highways and fortifications.
    “ Given in New Orleans, under the seals of our arms and the countersign of our secretaries, the 2d of March, 1765.
    (Signed,) Aubry and Foucault.
    “ Countersigned, — Soubie & Duverge.”
    The decision of the court being that this grant was invalid when made, it is not. necessary to trace out the assignment of his share from Masse to D’Auterive, by which it was alleged that the latter became the sole proprietor.
    On the 6th of February, 1835, Congress passed an act (4 Stat. at Large, 749), entitled “ An Act for the final adjustment of claims to lands in the State of Louisiana.”
    By this act, claims recognized by former laws as valid, but which had not been confirmed, were to be presented to the register and receiver of the land-office where the lands lie, with the evidence in support of the same, who were to report the same to the Secretary of the Treasury, with their opinion of the validity of each claim, and which report was to be laid before Congress, with the opinion of the Commissioner of the General Land-Office touching.the validity of tN respective claims.
    This claim was presented to the register and receiver, together with a great mass of evidence in its support, which it is-not necessary here to. state. On account of the voluminous nature of the papers, the claim was not included in a report made by-the commissioner on the 15th of May, 1840. But in February, 1842, the then register and receiver took up the subject, and made á report thereon to the Secretary of the Treasury, from which the following is an extract: —
    “ The peculiar circumstances which seem to involve this claim, its unwarrantable neglect, firstly by the heirs themselves, and lastly by the former boards of this office, and the unsuccessful efforts of the Honorable Edward Livingston to obtain any action of Congress upon it, and the very heavy charges and expenses which the heirs have been at in the protection and prosecution of their rights, have induced us to examine with the greatest circumspection and attention all the documents of title filed in this claim. We have given it throughout a mature and deliberate investigation, and, seeing the pacific views of the claimants in their renouncement of their rights to any part of the said land, to which a title has been obtained, either by French or Spanish grant, private entry, or otherwise, that may fall within the limits of their grant, and from the fact that the patent mentioned in this claim corresponds with one on the abstract of patents certified by the register of New Orleans, for the use of this office, consequently making it a complete title in form; with no act of the sovereign remaining to be done that the title of the land might be fully vested in D’Autefive, think that a confirmation of such a title is scarcely necessa-' ry, though it may be useful. Congress never asserted the right to annul, restrict, or question any genuine complete grant.which has been made by the former governments; they were regarded as sacred documents, and respected by.the treaty of cession; it was not obligatory on the holders 'of complete patents to file them with the registers and the receivers. By the fifth section of the act of the 2d of March, 1805, the registers and receivers were requested to make a report on all complete French and Spanish grants, the evidence of which, though not thus filed, may be found on record in the public records of such, grants; it was evident the reports on such titles were required for the purpose of ascertaining what lands had ceased'to belong to the public domain.
    “ If the intention of .Congress had been to subject these claims to their scrutiny, they would have required of the owners to file them; if the board, on finding in the public records the evidence of a complete grant, would have made any other than a favorable report on it, Congress would never have permitted such a decision ; the boards were only to decide on-the simple recorded proof, that is, the official copy of the grant, and were to consider it as conclusive. evidence; it has accordingly been decided by the Supreme Court of this State, as well ás the United States court, that a complete grant is complete evidence of title without any confirmation; and viewing the grant of the claimants, in this report, as of a similar character, and perfectly satisfied as regards the sale from Masse to D’Auterive, the testimony in proof thereof being ample and complete, we cannot do otherwise than recommend this claim for confirmation to the full extent of land that may be found comprised within the boundaries laid down in the concession.”

      These proceedings were referred, in pursuance of the law, to the Commissioner of the General Land-Office, who gave his opinion.that the claim was not valid. A report was then made to Congress, but no action was there had upon the subject.
    Under the act of Congress passed on the 17th of June, 1844, entitled “ An Act to provide for the adjustment of land claim» in the States of Missouri, Arkansas, and Louisiana,” the heirs of D’Auterive filed a petition in the District Court of the.United States for the District of Louisiana, on the 16th of June, 1846. Attached to the petition was a copy of the. report of the commissioners above mentioned. The petition concluded as follows : —
    “ The petitioners show, that it appears from said, statement that the said Bernard D’Auterive occupied said land as a stock-farm, for which purpose it had been granted, up to the time of his death, which occurred in 1776; that the said D’Auterive left a widow and four small children; that in 1779 his widow married Jean Baptiste Degruy; that the said Degruy and his wife continued to occupy said land as a stock-farm, and to cultivate a small part, thereof, until 1784, when they removed to the Mississippi; that thereafter the said land, and even the stock kept thereon, were utterly neglected by said Degruy; that in consequence thereof,- and on account of their ignorance of said claim, the Spanish authorities in Louisiana granted a considerable, and the most valuable, part of said land to other persons; and that the petitioners, considering the good faith with which said titles were acquired,, and to prevent the delay» and expenses of litigation, claimed the confirmation of so much only of the aforesaid gránt as was not held by titles emanating from the Spanish government and confirmed by the United States, and had not been sold or otherwise disposed of by the United States.
    “ And the petitioners show, that they now again claim the confirmation of said grant with the same restrictions; that aa the petitioners do not intend to interfere with the rights of any persons holding portions of said grant under confirmed Spanish titles, or under purchases frbrn the United States, it is unnecessary to cite said persons; and that, besides them, there aTe no other persons in possession of portions of said grant except certain settlers, who occupy small parts thereof with the written consent of the petitioners.
    “ Wherefore the petitioners pray, that the United States of America, by their District Attorney for the District of Louisiana, be cited; that the aforesaid grant be declared valid and confirmed to the petitioners; that thereafter the Surveyor-General of the United States for the State of Louisiana be ordered to survey said lands; that he be further ordered to certify, on the plats and certificates of said survey, what parts of said grant are held under confirmed Spanish titles, and what part, if any, of said grant has been sold by the United States, together with the quantity thereof. And the petitioners further pray, that it may be decreed that they, their heirs and legal representatives, shall have the right to enter- the quantity of land so certified to have been sold or disposed of by the United States in any land-office in the State of Louisiana.
    (Signed,) L. Janin, of Counsel.”
    On the 10th of November, 1846, Thomas J. Durant, the District Attorney of the United States, filed an answer, denying all the allegations of the petition.
    In April, 1847, the depositions of sundry witnesses were taken by the plaintiffs before-N. R. Jennings, Commissioner, and in December, 1847, the cause came on for trial before the District Court.
    On the 13th of June, 1848, the District Court gave the following judgment: —
    “ The court having taken, this cause as above entitled Under consideration, and having maturely considered the same, doth now, for reasons set forth at length and on file, order, adjudge,, and decree, that the petitioners recover.the land claimed in- their petition, and described in the original grant or concession to them, as exhibited .on pages 180 and 181 of the record of French grants; the same having been delivered at the cession of Louisiana to the government of the United 'States, and deposited in the United States land-office in the city, of New Orleans.
    “ And the court doth further order and decree, that the Surveyor-Genera. of the State of Louisiana do survey the-land so decreed to petitioners as aforesaid, and certify on the plats and certificates of ’survey all s.uch parts of the said grant as may have been sold or otherwise disposed of by the United States.
    “ And the court doth further order and decree, that the petitioners, or their heirs or legal' representatives, shall have the right to enter the quantity of land that may be so certified to have been sold or otherwise disposed of by the United States, in any land-office of the State of Louisiana, according to the provisions of the eleventh section of the act of the 26th of May, 1824.
    “Judgment rendered June ISlth, 1848. Judgment signed June 17th, 1848.
    (Signed,) Theo. H. Me Caleb, [seal.]

      U. S. Judge”-

      From this decree the United States appealed to this court.
    It was argued by Mr. Crittenden (Attorney-General),.for the United States, and Mr. Janin, for the appellees.

      Mr. Crittenden made the following points.
    I. That the said alleged grant is void, having been made by the French authorities after the Province of Louisiana had been ceded by France to Spain.
    By the secret treaty of Fontainebleau, of the 3d of November, 1762, the Province of Louisiana was ceded by France to Spain, and on the 21st of April, 1764, Louis the Fifteenth communicated what had been done to D’Abadie, the director-general and commandant of the Province, ordering him to deliver it up to his Catholic Majesty. The treaty has never been' published, but the letter to D’Abadie will be found in the Appendix to 1 Clarke’s Land Laws, 976. This letter was printed in New Orleans, in October, 1764, and the intelligence of the cession of the Province caused great commotion and dissatisfaction among the people. D’Abadie having died, Aubrey,, who had been commandant of the troops and one of the council, assumed the administration of the government, and, it is alleged, made this grant to the ancestor of the petitioners on the 2d of March, 1765. Ulloa, the first Spanish governor, arrived at a subsequent period, but was compelled to retire from the country, and was succeeded by O’Bielly, under whose administration Spanish authority was secured. The history of the events of this period will be found in the fourteenth chapter of the first volume of Martin’s Louisiana.
    II. That Spain never acknowledged nor recognized as valid the alleged grant thus made in derogation of her rights and authority.
    This is sufficiently evidenced by the fact, that her authorities granted the greatest part of the same land to other person's. That such grants had been made is admitted by the petitioners, but the force of the conclusion thence arising is' sought to be evaded by saying that they were made in ignorance of this claim. There is, however, no pretence for such a supposition, for the very book of records on which the petitioners rely to establish the making of their grant must nave been in the hands of the Spanish authorities, and come from them into the possession' of the United States. The making of* so large a grant could not be concealed. The fact is further corroborated by D’Auterive having afterwards, in October, 1775, received a grant of a league of land from Governor Unzaga, in the neighborhood of the alleged grant. Besides, the acts of the parties show that all claim was abandoned.

      III. But if the alleged grano was made by competent authority, it-is void for uncertainty in the description of the land granted.
    IV. That there is no sufficient evidence of the making of the alleged grant, or of the conveyance by Masse to D’Auterive.
    V. That the court below had no jurisdiction in this case.

      Mr. Jcmin, for the appellees, made the following points.
    L. It is contended that the copy of the grant which is in evidence is. not sufficient proof of its genuineness. This copy was taken from the record of French grants in the land-office at New Orleans, and is attested by the Register of that office.
    The appellees could not expect this objection, since this copy was admitted in evidence by consent of parties, whereby they were relieved from the necessity either of producing the original or of proving its loss. But were the point open for discussion, it would be easily met by the evidence. The copy wás taken from the only record of ‘French grants known to exist in the land-office. This record was always considered as genuine by the successive registers of the land-office, and referred to by them in making their reports on claims to Congress. We have the testimony of an old citizen of New Orleans, who, under the. Spanish government, was the private secretary of Governor Gayoso, and occasionally was employed in the Spanish land-office, which was under the control of the Secretary of the government. He recognizes the .signature of Governor Gayoso, at the end of this and the oth°r French and Spanish records in the land-office, and presumes, with reason, that they were signed by the Governor when he delivered the land-office to the Intendant Morales, in obedience to the royal order of October 22, 1798 (2 White’s Rec. 497). This is beyond, doubt one of the records referred, to in Morales’s letters of October 16, 1797, and March 2, 1799 (2 Land Laws, 541, 550); in the letter of the Secretary of the Treasury of 1805 (2 Laws, Institutions, Opinions, &e. 669); and in the fifth section of the act of Congress of March 2,1805 (1 Land Laws, 520); and the authenticity of this record was fully recognized by the Supreme Court of Louisiana in the case of Lavergne’s Heirs v. Elkins, 17 La. Rep. 231.
    II. It is not objected that the description of the land in the grant is not sufficiently clear and definite. The land is described as follows: — A tract of land called the prairie of the Vermilion, bounded on the east by the River (now called Bayou) Tortue .and Lake Tasse; at the north by the “ mauvais bois” (low woodland); on the west by the River (now called Bayou) Vermilion; and at.the south by a soft prairie. These are all natural, well-known boundaries. Bayou Tortue and Bayou Vermilion are considerable watercourses, and are still known by the same names so is Lake Tasse. The land granted is a prairie; its northern boundary is the first woodland— a low swamp — to the north of the prairie, and its southern boundary is the soft or salt marsh which skirts the whole sea-shore of Western Louisiana. The inspection of any map of Louisiana can leave no doubt' that a surveyor would not experience the least difficulty in locating the grant.
    III. The third objection is, that, the grant being complete and perfect,, it requires no confirmation, and could not be made the subject of a suit against the United States under the act of June 17,1844, and the revived act of May 26,185 4.
    The act of 1824 refers in terms to lands claimed “ by virtue of any Freneh or Spanish grant, concession, warrant, or order of survey, ..... which might have been perfected into a complete title, under and in conformity to the laws, usages, and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the. United States.” This last phrase, contemplates evidently incomplete titles only, and refers therefore only to that part of the first phrase which speaks of incomplete titles, that is,'“ warrants and orders of survey.” It could not refer to the owners of grants, whose title was already complete. And' yet in the beginning of the section the holders of grants are permitted to file their claims for adjudication, though they might not be compelled to do so. This is not the only instance in the legislation of Congress which afforded to persons claiming under complete grants an opportunity of having their titles and possessions quieted by a decision of the officers of the federal government. The fourth, section of the act of March 2,1805 (1 Land Laws, 519), declares that persons claiming under complete grants may, and those claiming under incomplete grants shall, file them, &c.,n&c. Nor was this a work of supererogation. By the cession, the United States acquired the dominium, all lands not previously granted were considered and treated as public property, and the grantees were put upon proof of their titles. It is true, that, by the fifth section of the same act, the boards of commissioners were directed to “ decide in a summary way.....on all complete French or Spanish grants, the evidence of which, though not thus filed (by the claimants), may be found of record on the public records of such grants.” Had this law been obeyed, the claimants under complete grants would have been spared infinite losses and suffering. But it remained a dead letter in practice. The commissioners and their successors acted upon no claim, though found in these records, if it was not formally filed with a claim for adjudication,. and of claims exceeding a league square they were expressly prohibited to take cognizance. Holders of large grants were in reality remediless, until the later acts of Congress, reopening the land-offices for the adjudication of claims, without restriction as to quantity. And as the commissioners could only recommend their confirmation, and as Congress always discarded large claims in Louisiana in their confirmatory acts, the hopes of the claimants were still deferred. It is thus that large grants of land in Louisiana have uniformly proved a fatal inheritance to the descendants of the old colonists, consuming their lives and fortunes in unceasing and fruitless efforts to obtain a hearing, while the best portions of their land? fell a prey to the squatter. The only remedy left to them, a remedy worse than the evil, was to allow a portion of the land to be sold by the United States, and then to bring suit for it, a process which had to be repeated in the case of each.sale,'and which yet did not protect the portion of the claim not immediately' included in the decision. The officers of the land department uniformly treated as public land whatever had hot been recovered by a judgment. This crying evil, could not be unknown to Congress, and we submit that the acts of 1824 and 1844 were destined to remedy it, and that it could not be the intention of Congress to treat complete grants less favorably than incomplete ones.
    And again, may. it not be said that this grant requires a survey to perfect at least the possession of the grantee ? And the government surveyors would not make or sanction a survey, unless the claim was recognized by the government.
    This grant again required the grantees to abandon the lands they had previously owned; in compensation of which they obtained the new grant, and to establish a stock-farm. Was it then not incumbent upon them to show that they claimed nothing under the older grants, a negative proof, which they could only make by asserting the abandonment and challenging the contrary proof, and that they had established a large stock-farm ?
    It is obvious that the object of the appellees would be attained by a decision of this court, disclaiming jurisdiction, on the ground that the grant is complete, and not embraced in the act of 1824. A. decision of the federal courts, and nothing less, would be respected by the surveying department.
    IV. It is finally contended that this grant is invalid because it is dated the 2d of March, 1765, when Louisiana had been ceded to Spain in 1763. It is well known that Spain did not desire or attempt to take possession until 1769, up to which time all the functions of the government were carried on by the French^authorities. The French was the government de facto. “ Grants made by a government defacto are valid against the state which had the right.” *12 Peters, 748. The validity of. the acts of a government de facto has been acknowledged in. many decisions of this court. Delacroix v. Chamberlain, 12 Wheaton, 600; Pollock’s Lessee v. Kibbe, 14 Peters, 364; Keene v. McDonough, 8 Peters, 310; The Fama, 5. Rob. Adm. 113; 1 Kent’s Com., Lect. VIII. . To these familiar au-. thorities ú striking instance may be added, drawn from modern history. We quote from Lieber’s Manual of Political Ethics, Vol. I. p. 324: “ When the Elector of Hesse returned in 1813 to his- country, he declared the' king of Westphalia, having been a usurper, to have possessed no right of selling the domains, and therefore took possession of them without any restitution of the sums for which they had been purcliasecL Prussia acknowledged the sales which the same kingdom of Westphalia had made of her domains. The Germanic Diet, decided' against the Elector and for the purchasers, and when that prince for years declined to yield to the Diet and all the endeavors even of Austria were in vain, the Diet ordered the troops of the neighboring members of the. confederacy to make the Elector comply with its decision.”
    History affords, probably, no instance of acts of a government de facto less questionable than those of the French government jm Louisiana between 1763 and 1769. The French were ready to deliver the colony, the Spaniards were not ready to receive it; the French were not. usurpers, nor the antagonists of Spain, but depositaries of the power of Spain; the wheels of government could not be arrested, and it was one of its ordinary and legitimate functions to promote the settlement' of the Province, to develop her industry and to secure her peace, by exchanging D’Auterive’s lands on the Dpper Teche, where his stock had become troublesome to the new cqlonists from Acadia, for pasture lands in a more remote and still unsettled district. Neither this nor any other grant made by the French after 1763 resembled the questionable policy o.f the Spanish Intendant, who after 1803 sold lands in the disputed territory to replenish a suffering treasury. ' The history of the courts and'of the land department offers no instance of a grant made by the French after 1763 that was rejected for want of authority. The question was discussed by the Supreme Court in the case of Devall v. Chopin, 15 La. Rep. 575, and decided in favor of the power. Spain, after she took possession, never questioned any of these grants'; France held the sovereignty between 1800 and 1803, and could not, if. she had taken possession, have contested the validity of the grants of her former governors; the United States succeeded only to the rights of France, and the United States at an early period, in the important act of March 2d, 1805, distinctly recognized the validity of the grants anterior to the 1st of October, 1809, made by France and Spain, during the time those respective governments had the actual possession of the colony. Possession, and not the bare right of sovereignty, was made the test of authority.
    We quote from the act of March 2d, 1805,1 Land Laws, 518.
    See. 1st. “ Any person or persons, or the legal representatives of any person or persons, who, on the 1st of October, in the year 1800, were resident within' the territories ceded by the French Republic to the United States, by the treaty of the 30th of April, 1803, and who had pior to the said- 1st day of October, 1800, obtained from the Frtnch and Spanish governments, respectively, during the time either of said governments had the actual possession of said territories, any duly registered warrant or order of survey,” &c.
    Sec. 4th. “ Every person claiming lands in the above-mentioned territories, by virtue of any legal French and Spanish grants, made and completed before the 1st of October, 1800, and- during the time the government which made such grant had the actual possession of the territories,” &c.
   Mr. Justice DANIEL

delivered the opinion of the court.

The appellees, as heirs of Jean Antoine Bernard D’Auterive, claimed in the court below an extensive tract of land in the county of Attakapas, the quantity of which land is not given, though certain boundaries thereof are set forth in the instrument upon which these appellees prefer their claim. This instrument purports to be a grant from Charles Philippe Aubry, Knight of the Royal and Military Order of St. Louis', Commandant of the King in Louisiana, and Dionysius Nicholas Foucault, filling the functions of director in that Province, to Messrs. B’Auierive and Masse, and bearing date at New Orleans on the 2d day of March, 1765.

The proceedings for the establishment of this claim in the court below were instituted under the authority of an act of Congress of May 26th, 1824, entitled “ An Act to enable claimants to land wichin the State of Missouri and Territory of Arkansas, to institute proceedings -to try the validity of their claims ”; which law Was in part reenacted on the- 17th of June, 1844, and extended in its operation to' the State of Louisiana. ( Vide 5 Stat. at Large, 676.) The purposes and the effect of the. law of 1824, with reference both to the claims and the proceedings embraced within its provisions, have been heretofore examined by this court. They were especially considered at the last term, in the case of the United States v. Keynes, 9' Howard, 127, and the following conclusions were then distinctly enunciated as implied necessarily in a just interpretation of that statute. Thus (pp. 146, 147), in speaking of the statute of 1824, revived by the act of 1844, this court explicitly declare, that, “ with respect to that interpretation of these acts, of Congress which would expound them as conferring on- applicants new rights not previously existing, we would remark, that such an interpretation accords neither with the language .nor the obvious spirit of .these laws; for if we look to the language of the act of 1824, we find that the grant's, surveys, &e., which are authorized to be brought before the courts, are those only which had been legally made, granted, or issued, and which were also protected by treaty. The legal integrity of these claims (involving necessarily the competency of the authority which conferred them) was.a qualification inseparably associated by the law with that of their being protected by treaty. And as to the spirit and intention of the law, had it designed to create new rights, or to enlarge others previously existing, the natural and obvious means of so doing would have, been 'a direct declaration to that effect: certainly not a provision placing these alleged rights in an adversary position to the government, to be vindicated by mere dint of evidence not to be resisted. The provision of the second section of the act of. 1824, declaring that petitions presented under that act shall be conducted according to the rules of a court of equity; should be understood rather as excluding the technicalities of proceedings in courts, than as varying in any degree the rights of parties litigant; as designed to prevent delays in adjudicating upon titles, as- is farther shown in another part of the same sentence, where it is declared, that- these petitions - shall be tried without.continuance, unless for cause shown. The limitation, too, maintained as to the character of claims, and that imposed upon the courts in adjudicating upon them, is farther evinced in that part of the same section which says, that the court shall hear and determine-all questions relative to the title of the'claimants, the extent, locality, and boundaries of the claim, and by final decree shall settle and determine the question of the validity of the title according to the law of nations, the stipulations of any treaty, and proceedings under the same, the several acts of Congress, and the laws and ordinances of the government from which it is alleged to have been derived.”

By the meaning and directions of the statute of 1824, as thus expounded, the claim before us must be judged; and the next step in our investigation leads us to consider it as controlled by the law of nations, and the force of treaty stipulations construed in conformity with that law.

The land which is the subject of this controversy was, according to the terms of the instrument adduced by the appellees in the court below as the foundation of their title, granted to their ancestor on the 2d day of March, in the year 1765.

On the 3d day of November, 1762, by a treaty, or, as it is termed in the language of the king, by “ a special act ” done at Fontainebleau, Louis the Fifteenth ceded to the king of Spain the entire Province of Louisiana, including the island and city of New Orleans. The character and extent of this act of cession, as evinced by the instructions from the French king, dated at Versailles, April 21st, 1764, should be noted in this .place, as they are decisive of the relative positions of the parties to that act, and of the extent of their powers posterior thereto, over the territories or persons comprised within its provisions. Nothing surely can be more comprehensive or absolute than the transfer announced by the king of France, or the declaration of his relinquisnment of all power or rights in the .subject transferred. The language of the French king to D’Abadie, Director-General and Commandant of Louisiana, is as follows: — “Having ceded to my very dear and best-beloved cousin, the king of Spain, and to his successors, in full property, purely and simply and without exceptions, the whole country known by the name of Louisiana ” ; he proceeds to command his Director-General, that, on the receipt of his instructions, “ whether they come to your hands by the officers of his Catholic Majesty, or directly by such French vessels as may be charged with the same, you are to deliver up to the governor or officer appointed for that purpose by the king of Spain, the said country and colony of Louisiana, and the posts thereon depending, likewise the city and island of New Orleans, in such state and condition as .they shall be found to be in on the day of the said cession ; being willing in all time to come that they shall belong to his Catholic Majesty, to be governed and administered by his governors and officers, and be possessed by him in full property, and without exceptions.”

The cases of the United States v. Reynes, and of Davis v. The Police Jury of Concordia, decided at the last term of this court, devolved upon it the necessity for a particular examination of the rules arid principles applicable to the construction of treaties; and in the adjudication of the cases above mentioned, the following rules are either explicitly affirmed or necessarily implied: — That compacts between governments or nations, like those between individuals, should be interpreted according to the natural, fair, and received acceptation of the terms in which they are expressed. That the obligation of such compacts, unless suspended by some condition or stipulation therein contained, commences with their execution, by the authorized agents of the' contracting parties; and that their subsequent ratification by the principals themselves has relation to the period of signature. That any act or proceeding, therefore, between the signing and the ratification of a treaty, by either of the contracting parties, in contravention of the stipulations of the compact', would be a fraud upon the "other party, and could have no validity consistently with a- recognition of the compact itsplf. As a regular corollary from these principles, and as deductible from the law of reason and the law of nations, it was ruled in the cases just mentioned, that a nation which has ceded away her sovereignty and dominion over a territory could with respect to that territory rightfully exert no power by which the dominion and sovereignty so .ceded would be impaired or diminished. Vide 9 Howard, 148, 149, and 289, 290, 291.

In the cases just cited, and particularly in that of the United States v. Reynes, it became proper to examine the rights of a ceding and retiring government as a government de facto over the territory ceded. This examination was induced by the circumstance, that the claimant against the United States rested his.pretensions in a great degree upon the position, that after the treaty of St. Ildefonso, and anterior to an actual delivery to the French authorities,' the government of Spain as a government de facto retained the rights of sovereignty and dominion over the Territory of Louisiana, and, as incident thereto, the power of granting away the public domain. But this court distinguished between the proceedings of an adversary government, acting in the character and capacity of an independent perfect sovereignty, unaffected by any stipulation,. and acts doné in fraud or in violation of express concessions or compacts. It said that the former, as the acts of a government de facto, might be respected and sanctioned by a succeeding power; the latter could impose no obligation to respect them, because they would have been performed in bad faith, and in violation of acknowledged rights existing in others. Admitting the absolute verity of the document under which the appellees deduce their title, and about which no serious question appears to have been raised, can the validity of this title be sustained consistently with the rules ánd principles propounded above, and in the cases to which reference has been made? The grant from Aubry and Foucault, the commandant and the director of the Province of Louisiana, to the ancestor of the appellees, bears date on the 2d of March, 1765, between two and three years posterior in time to the cession of the Province by France to Spain; and rather more than ten months after, the Order from the French monarch for the actual delivery of the territory to the Spanish authorities. Under these circumstances, then, the act of the French officers must be regarded as wholly unauthorized and inoperative to vest any title in the ancestor of the appellees, those acts being inconsistent with the existing relations between the kingdoms of. France and Spain. It is true that Spain, during the continuance of her sovereignty and possession in Louisiana, might have adopted and confirmed this grant, but no such recognition thereof by Spain is shown or pretended; so far from there being proof, of such recognition, it appears that a large portion of the lands comprised .within this grant was bestowed by the Spanish government, upon other grantees. Neither is there in the record proof or allegation, that, during the short reign of the French republic under the treaty of retrocession, the claim of D’Auterive was sanctioned,- or even brought to the notice of that republic.

It follows, then, from the view of this case here taken, that the claim of the appellees cannot be sustained upon any general and controlling principle of the law of nations, nor upon any stipulation between' -the powers holding the Territory of Louisiana prior to its”transfer to the United States. The fate of this claim must depend exclusively upon the authority and the acts of the government of this country, and we will now' consider how far it is affected by those acts and that authority. It has been heretofore repeatedly ruled by this court, that the control and recognition of claims like that now before us were subjects belonging peculiarly to the political power of the government; and that, in the adjudication of those claims, the courts of the United States expound, and enforce the ordinances of the political power. Guided by these rules, and looking to the acts of the legislature, we find it declared by the act of Congress of March 26, 1804, § 14 (2 Stat. at Large, 287), that’ all grants for lands within the territories ceded by the French republic to the United States by the treaty of the 30th of April, 1803, the title whereof was, at the daté of the trecty of St. Ildefonso, in the crown or government of Spain,.and every act and proceeding subsequent thereto, of whatsoever nature, towards the obtaining any grant, title, or claim to such-lands, and under whatsoever authority transacted or pretended, be, and the same are hereby declared to be, and from the beginning to have been, null, void, and of no effect in law or in equity.” Within thp comprehensive language of this provision the case before us necessarily falls; as the inefficiency of the French concession, after the treaty of Fontainebleau, to convey any title, left the title in the government of Spain, where it remained up to, and at the date of, the treaty of St. Ildefonso. The reservation in the proviso to the section just quoted, in favor of actual settlers under the laws, customs, and usages of Spain, cannot include the ease under consideration, as this is not an instance of a title asserted upon any such laws or usages, or founded on mere settlement; but one professing to be founded upon the grant made by the French commandant, independently of the authority of Spain, and exceeding _ in extent the quantity of land awarded to settlers by the proviso above mentioned.. But it has been contended in the argument filed on behalf of the appellees, that, if any defect could have been alleged against their title by reason of the absence of power in either the French or Spanish governments to make, the grant, such defect has been cured by the legislation of Congress ; and in support of this provision we have been referred to the act of March 2, 1805 (2 Stat. at Large, 324). The first, and fourth sections of that act have not been fully quoted in the argument of the appellees, and it may be that an omission to examine them throughout has produced the strange misapprehension of those provisions which seems to have existed with those who rely upon their operation. Thus from the first section of the act of 1805 the following portion is quoted: “ Any person or persons, or the legal representatives of any person or p.ersons, who, on the 1st of October in the year 1800, were resident within the. territories ceded by the .French republic to the United States, by the treaty of the 30th of April, 1803, and who had, prior to the said 1st day of October, 1800, obtained from the French and Spanish governments, respectively, during the time either of said governments had the actual possession of said territories, any duly registered wárrant or order of survey,”- &e.; but this quotation omits the following terms, which essentially control every part of the section that precedes them; viz. “ for lands lying within the said territories to which the Indian title had been extinguished, and which were on that'day actually inhabited and cultivated by such person or persons, of for his or their use.”

The first requisite prescribed by this section of the law as necessary to give validity to titles resting upon the actual territorial occupation of the French or Spanish authorities is, that the grantees or their representatives should, on the 1st day of October, 1800, be residents within the territories ceded by the French republic to the United States. The next condition imposed by this statute is, that the Indian title to such lands should have been extinguished. And thirdly, that the lands thus granted should have been, on the 1st day of October, 1800, actually inhabited and cultivated by the grantees, or for their use.' Without inquiring into the fulfilment of the second of these conditions, or into the. necessity for its fulfilment, it will be seen that the first and the. third, made essential by the statute, have been entirely unperformed, Thus it is stated in the petition of the appellees, that as early as 1784 the family of D’Auterive removed from the State of Louisiana. It is nowhere proved, or even alleged, that at- any subsequent period they returned to this land, much less that in 1800, or at any other time posterior to 1784, they resided upon the same, or by themselves or by their agents, or through any instrumentality of theirs, cultivated this land. On the contrary, either of these inferences is irresistibly excluded by the statement in the petition, that, after the removal of the family of D’Auterive, much of this land was, by the Spanish government, during its possession of the country, granted to other persons. The alleged infancy of the children of D’Auterive in the year 1784, even if there had been a saving for the benefit of infants against the requisites of the statute, could scarcely authorize a presumption in their favor, after q lapse of more than half a century, viz. from 1784 to 1837, during which period this claim has been permitted to sleep.

The fourth section of the act of Congress, also quoted in the argument for the appellees, if applicable in any sense to their pretensions, certainly adds nothing to their intrinsic force. This section is a simple requisition, that persons claiming lands within the Territory of Louisiana, by virtue of any legal French, or Spanish grant made prior to the 1st day of October, 1800, may, and persons claiming lands in the said territories by virtue of any grant or incomplete title bearing date subsequently to the 1st day of October, 1800, shall, before the 1st day of March, 1806, deliver to the register of the land-office or recorder of land-titles within whose district the land may be, a notice in writing, stating the nature and extent of his claims, together with á plat of the tract or .tracts so claimed; and shall, also, on or before that day, deliver to the register or recorder, for the purpose of being recorded, every grant, order of survey, deed of conveyance, or other written evidence of his- claim. .This section then proceeds to declare, as a penalty for noncompliance with its directions, that all the rights of the claimant derived from the first two sections of the act (embracing ail grants -founded upon mere territorial occupation by France or Spain), shall become void, and for ever after be barrecl; and that .no incomplete grant, warrant, order of survey, deed of conveyance, or other written evidence, which shall not be so recorded, shall ever be considered or admitted as evidence in any court of the United States, against - any grant derived from the United States. But for the act of Congress of the 6th of February, 1835, entitled “ An Act for the final adjustment of claims to lands in the State of Louisiana,” the fourth section of the act of 1805 would have operated as a complete bar to the claim of the appellees from the 1st day of March, 1806. The act of 1835 removes that bar so far as to permit, within the space of two years from its date, the prosecution of claims similar to that of the appellees, but this act accomplishes nothing beyond this permission; It imparts no merit or strength to any claim which such- claim did not previously possess. Upon a view of this case, then, we think that the decision of the District Court should be reversed, and the petition of the appellees dismissed, and that decree is accordingly hereby reversed.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Louisiana, and wa argued by counsel. On consideration whereof, it is the oj lion of this court, that the title of the petitioners is null and void. "Whereupon, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said District Court, with directions to dismiss the petition of the claimants in this cause.


author: Mr. Justice McLEAN

text:
    Merritt M. Robinson and Marguerite his Wife, Aurore Gayoso, Fernando Gayoso, and Felicite Gayoso, Appellants, v. Wm. J. Minor, James C. Wilkins, and Henry Chotard, Executors of the Last Will and Testament of Katharine Minor, deceased, Frances Chotard, Katharine L. Wilkins, and Wm. J. Minor.
    By the treaty of 1795, between the United States and Spain, Spain admitted that she had no title to land north of the thirty-first degree of north latitude, and her previous grants of land so situated were of course void. The country, thus belonging to Georgia, was ceded to the United States in 1802, with a reservation that all persons who were actual settlers on the 27th of October, 1795, should have their grants confirmed. (See also 3 Howard, 750.)
    On the 3d of March, 1803, Congress passed an act (2 Stat. at Large, 229) establishing a board of commissioners to examine these grants, whose certificate in-favor of the claimant should amount to a relinquishment, for ever, on the part of the United States. "
    Without such confirmation by the United States, a grant- of land situated on the north side of the thirty-first degree of latitude, issued by the Governor-General of Louisiana in 1794, would have been void. But-it was confirmed by the board of commissioners, and is therefore valid.
    The original grantee indorsed upon the grant that he had conveyed it to a woman, whom he afterwards married, and referred to another instrument of conveyance: and m all subsequent transfers there was a reference to that same instrument^ reciting its date, and that it accompanied the deeds executed. The confirmation of the commissioners followed and adopted this chain of title.
    That instrument of conveyance being lost, it may be presumed, under the circumstances, that the original grantee intended to convey to his wife a greater estate than the law would have endowed her with upon the marriage.
    Even supposing that the confirmation of the commissioners was not conclusive, yet the facts of the case show a superior equity in the title of the wife over that of the child of the original grantee; viz. the motive which led to the conveyance; the fact that the widow sold the property for its full value, saw the premises occupied, by persons claiming them in fee for thirty years, and never informed her son that he had a right to the property after her decease.
    This was an appeal from the Circuit Court of the- United States for the Southern District of Mississippi, sitting as a court of equity.
    The circumstances of the case were these.
    On the 1st of July, 1794, Gayoso de Lemos presented the following petition to the Governor-General of Louisiana: —
    “ To the Govern or-General: — Col. Manuel Gayoso de Le-mos, governor of the town and district of Natchez, to your honor sayeth, that he owns at half a league from this town a tract of land which he has bought to build thereupon a house, and to raise the commodities that will do to his family; but being also in want of pasture for his horses and other quadrupeds, or animals, petitioner therefore begs of your honor to give order to the deputy-surveyor of this district to extend the boundaries of the said land to increase it to contain one thousand arpents; and petitioner will ever pray.
    (Signed,) Manuel Gayoso de Lemos.
    “ Natchez, July 1st, 1794 — say 1794”
    On- the 8th of August following the governor issued the following order to Carlos Trudeau, the surveyor: —¡
    “ New Orleans, 8th July, 1794.
    “ Granted. — The surveyor having to designate the limits in the notes of survey, which shall be exhibited'to me, so that a title in a due form may be extended to the party.
    (Signed,) • El Baron de Carondelet.”
    A plat was accordingly made out, and returned on the 3d of September, upon which a grant was issued. No translation of the grant being in the record, the original is not inserted.
    On the 12th of February, 1795, the following indorsement was made upon the grant.

      “ Recorded. Natchez, 12th day of February, 1795. This grant is transferred to Mrs. Margaretta Watts by a written instrument made on this day.
    “ Manuel Gayoso de Lemos.”
    Soon after this, either in the year 1795 or the early part of 1796, a private marriage took place between Gayoso and Margaret Watts. The reasons for its being private are thus explained in the deposition of Judge King, and in the letters of Gayoso himself to Mr. Wilcoff, the brother of Mrs. Watts.

      Judge King’s Testimony.

    “ To the first interrogatory he saith, he believes that Fernando Gayoso was born at Natchez, in the year 1796 or 1797, and that he was the legitimate son of Don Manuel Gayoso de Lemos and Margaret Watts; and witness will proceed to state, as he is requested in the interrogatory, some of the circumstances which induce his belief. Some time in the year 1797 or 1798, Don Manuel Gayoso was made governor of the Province of Louisiana, and arrived at New Orleans in one of those years to take charge of his government. He came to the city in a barge, and landed immediately opposite the store of witness. Witness, being acquainted with the governor, went on board the barge with others to welcome his arrival. Mrs. Gayoso (Margaret Watts) was with the governor, and had her son, the said Fernando Gayoso, then an infant, in her arms; witness, to the best of his recollection, took the child'from his niother’s .arms, and carried him on shore. Witness had known the said Mrs. Gayoso as Miss Margaret Watts, previous to her first marriage. Having been the bearer of a letter of introduction from General Wilkinson in 1793 to Governor Gayoso, then governor of Natchez, witness was invited to'his house, where he became acquainted with his family, then consisting of Mrs. Watts, the mother-in-law, and' Miss Margaret Watts, his sister-in-law.
    “ In the year 1796 or 1797 it was currently reported and believed in the city of New Orleans, where witness then resided, that Governor Gayoso had been privately married to Margaret Watts at Natchez, which marriage could not. be publicly acknowledged, because it had been contracted without the permission of the Icing of Spain, or perhaps the dispensation of the Pope was needed, as the former wife of Governor Gayoso had been a sister of Margaret Watts, or perhaps for both these reasons. Some time after the arrival of Governor-Gayoso at New Orleans, the Bishop-of Havana happening to be there, and the impediments to the marriage, whatever they were, having been removed, the nuptial ceremony was publicly solemnized by the bishop. Witness was not present at the marriage, but the fact that it was celebrated was one of general notoriety, and universally believed in the city of- New Orleans. Witness was frequently at the house of Governor Gayoso in the city of New Orleans, where he saw Mrs. Gayoso (Margaret Watts) and Fernando Gayoso, and on all occasions the former was treated as the wife of the governor, and the latter as the child of their marriage. Mrs. Gayoso, as' witness always understood, was, after the death of Governor Gayoso, treated by the Spanish government as his widow, and as such allowed during her widowhood a pension equal to half the annual salary of her deceased husband. Fernando Gayoso lived with his mother during his minority, except when at school, and was always spoken of by her as the issue of her. marriage with Don Manuel Gayoso de Lemos, Margaret Watts left at her death several other children, issue of a second marriage. At the settlement of her succession, Fernando Gayoso was treated as one of her legitimate heirs, and as such received his portion. From all these-circumstances, witness, who knew the parties from the dates already stated to those of their respective deaths, has always believed that Fernando Gayoso was the legitimate son of Don Manuel Gayoso de Lemos and Margaret Watts, his wife.”

      Letters of .Gayoso to Mr. Wikoff.

    (These letters were produced and proved by Eliza Parrott, the daughter of Mr. Wikoff.)
    “ New Orleans, 21 st February, 1796.
    “ My dear friend, — I suppose that by this you and my dear sister aré acquainted with my return from my long campaign,' by a letter “that our mamma wrote, as I arrived at the Natchez. Now 'this is to inform you that by the last packet I received my promotion as brigadier-general for my former services, and I still hope that the ensuing packet will bring me some other good news, in recompense of the successful campaign that I have finished. The lastwas-a general promotion, in which the Governor-General of this Province was made major-general, and several others promoted.
    “ A neighbor of yours is just going away, so this is just to repeat to you my affection, to give my love to my dear sister, and to embracé your sweet children. . Tell Manuel that he must come to see his godfather. Indeed, my friend, we must continue to make ourselves happy with an interview of our families; our dear mamma will look upon such an event as' the greatest blessing she could experience; therefore you must begin to think how to bring it about.
    “ As I am assured that you have been puzzled by the news mamma wrote of -our connection being brought to. an issue, I must explain it; that very day our contract was signed before many witnesses, and likewise an elegant country-house, with one hundred acres bordering th'e town that I settle on my dear Peggy, besides a very considerable allowance of my estate; however, for the public, I must wait for the king’s permission, which is important to Peggy to secure her the military pension; but this will be had by the latter end of this year, and perhaps by that time some considerable alteration in my public station, which I hope may enable me to serve you.
    “ I repeat my affectionate love to my dear sister and children, and I remain, sincerely, your truest'friend and humble servant.
    Manuel Gayoso de Lemos.”

      “Natchez, March 6th, 1797.
    “ My dear friend, — The American commissioner, Mr. Eli-cot, arrived here, and in a few days I shall set off with liim to have the first conference with the Baron near Clark’s. Perhaps we may fix the first point immediately, but it will be some time yet before we'proceed any further; therefore, I shad return to this place. In this situation I am overpowered with business.
    “ I wait with impatience for "the nécessary permission to publish my marriage, which, however, is as binding now; but the public sanction is necessary; I am in hopes that it will arrive by the first packet. General Former is lately arrived here with his daughter, married to Dr. Longstreet, whom I suppose you know, though he is very young — (I mean Mr. Longstreet). He thinks of paying you a visit; it seems that he is related to you.
    “ My kind, affectionate regard to my sister and children; and I remain, sincerely, your most humble, obedient servant and friend, Manuel Gayoso de Lemos.”

      “New Orleans, 18¿/¿ August, 1797.
    “ My dear friend, — Though as busy as you may suppose at my arrival here, I do not wish to let this opportunity pass without renewing to .you and to my dear sister the sincere assurances of my affection and attachment for you. I left our friends well at Concord, with the addition of a fine boy that four, days hence will be one month old. At the beginning of October I shall send my galiot for your sister, whom I did not bring down on account of the excessive heat, and because she would .find the house not conveniently furnished at our first arrival. The retard of the packet from Europe was the cause of the delay- of the king’s permission, as likewise, of my promotion to. the command of the province, signed by the'king the 20th of October last; however, they both arrived at the same time, and restored tranquillity to our friends.
    “ When we are fixed, at home, I shall insist on a visit from my dear. sister, &e., &c., one of these days. I shall prepare a summons, which I shall send up to Concord, to be signed by Lady Governante, as belonging to her department, to obtain the desirable end. The new governor of Texas is a friend of mine. I have already wrote to him an account of your negroes, but it would be necessary to have names and description, which, if you send to me, I’ll have circulated in all the outposts, &c.
    “ If I can be of any service to you, I need not add here complimentary expressions, I shall do it cheerfully. My love to rfty dear sister and all the little cohort. I hope she has been happily delivered, and that you all enjoy good health.
    . “ I am, sincerely, your most humble servant and friend,
    Manuel Gayoso de Lemos.”
    On the 14th of July, 1797, Fernando was born, as appears from the following certificate.:—
    “Manuel Gayoso de. Lemos, brigadier of the royal armies, military, and civil governor of the town and district of Natchez, &Ci, on this Friday, 14th July, 1797, at seven minutes to one o’clock in. the morning, my wife, Margaret.Watts Gayoso, was delivered of a robust and healthy child, to whom I determined to give the name of Fernando.
    Manuel Gayoso de Lemos.”
    On the 10th of December, 1797, the official ceremony of marriage was performed, as shown by the following certificate.
    “ No. 422. ■— On Sunday, 10th of December, of the year 1797, the most Christian Don LuÍ3 Tenalver y Cardenas, most worthy prime bishop of this diocese of Louisiana and Floridas, Marriage of Don of the Council of his Majesty, married and imL^Ste parted the nuptial benediction to Don Manuel MargaretWatm. Gayoso de Lemos, brigadier of the royal armies of lfis Catholic Majesty, civil and military governor of the aforesaid province, a native of the kingdom of Galicia, and Margaret Watts, his legitimate wife, native of Baton Rouge, district of this- same government. They performed confession and communion, and to certify the above, I sign.
    “Fe. Antonio' de Sedella.
    “ The above, is a true copy from the original, kept in the archives of the above church for reference. New Orleans, 23d August, 1844.
    “ Ant. Duluc,

      Secretary of the Yestry of the St. Louis Church.”
    In July, 1799, Gayoso died, and was buried in New Orleans, being then civil and military governor of the Province of Louisiana.
    On the 10th of August, 1799, Margaret Watts Gayoso conveyed to Daniel. Clark, Jr., for the consideration of. $ 5,000, a certain plantation or tract of land, “ known by the name of Concordia, situated, lying, and being in the Mississippi Territory, in the United States of America, about half a league northeast óf the fort of Natchez, containing one thousand acres, or arpents, be the same more or less, as is fully expressed in the grant and plan of said land, No. 632, accompanying this bill of sale ” ; and accompanied the sale with a general warranty.
    On the 15th of August, 1800, Daniel Clark conveyed the property to William Lintot for ten thousand dollars. The deed contained the following recital: —
    “ This indenture, made this 15th day of August, in the year 1800, between Daniel Clark, of the Mississippi Territory, of the one part, and William Lintot, of the Territory aforesaid, witnessed: That whereas, on the 10th.day.of September, in the yéar 1794, there was- granted by the Baron de Carondelet, Gbvernor of Louisiana, unto Don Manuel Gayoso de Lemos, a tract or parcel of .land, called Concord, containing, by estimation, one . thousand acres, with the appurtenances, situated in the district aforesaid, as per plat and grant accompanying this , will more fully appear. And whereas, by an instrument of writing! which also accompanies this, dated the 12th day of February, in the year 1795, the said Don Manuel Gayoso de Lemos did, for certain considerations therein recited, convey the said land, with all the appurtenances, to Margaret Watts; and whereas the said Margaret Watts, now the widow of the said Don Manuel Gayoso de Lemos, by her deed dated the . 10th day of August, 1799, whieh also accompanies this, did convey the said land with the appurtenances to Daniel Clark, then junior, for the valuable consideration of five thousand dollars,” &c.

      On the 15th of November, 1800, Lintot conveyed to Stephen Minor, the ancestor of the appellees.
    In 1802, a contract was madé between the United States and the State of Georgia, by which. Georgia, ceded to the United States all the territory in which the granted land was. But it was stipulated in the deed of cession, that “ all persons who, on the 27th of October, 1795, were actual settlers within the territory thus ceded, should be confirmed in all the grants legally arid fully executed prior to that day, by the former British government or the-government of Spain.” This agreement between the United States and Georgia will be found in 1 Land Laws, 588.
    On the 3d of'March, 1803, Congress passed an act (2 Stat. at Large, 229), entitled “ An Act for regulating the grants of land and providing for .the disposal of lands of the United States, south of the State of Tennessee.” This act established a board, before which all claims were to be brought, and the sixth section provided that, where it shall appear to the board that the claimant is entitled to a tract of land under the articles of .'agreement and cession, with Georgia aforesaid, in virtue of a British “ or Spanish grant legally and fully executed, they shall give a certificate thereof, describing the tract of land and the grant, and stating that the claimant is confirmed in his title thereto by virtue of the said articles; which certificate, being recorded by the register of the land-office, shall amount to a relinquishment for ever on the part of the United States.”
    In 1804, the. following proceedings took placé before-the board: —
    ■“ Monday, the 10th of September, 1804, the board met.
    “-'No. 1220. Stephen Minor claims one thousand arpents, Spanish patent to Manuel. Gayoso, dated the 12th of September, 1794, who assigned and transferred the same to Margaret Watts, afterwards Margaret Watts Gayoso,-the 12th of February, 1795, who conveyed the same- to Daniel "Clark by deed dated the 10th' of August, 1799, who conveyed the same to William Lintot, the 15th of August, 1800, who conveyed the same to the .present claimant on the 15th of September, 1800; the patent to Gayoso, assignment to Margaret Watts, deed from Margaret to Clark, deed from Clark to Lintot, and deed from Lintot to Stephen Minor, \vere. produced in evidence, filed with the Register...
    “ Witness William .Barland on oath says, that Margaret Watts Gayoso was an actual settler in the-Mississippi' Territory on the 27th of October, 1795.”
    And on the 18th of September, 1805, the following certificate was issued.:-—

      “ A No. 610. Mississippi Territory. Register 1220.
    “ Board of Commissioners west of Pearl River, established by a law of Congress regulating the grants of land, and providing for the disposal of lands of the United States south of the State of Tennessee.
    “ Stephen Minor claims a tract of seven hundred and fifty-six arpents of land, situated in Adams County, near the city of Natchez, by virtue of a grant under the authority of the Spanish government, to Manuel Gayoso de Lemos, for one thousand arpents, bearing date the T2th day of September, in the year 1794, having such shape, form, and marks, both natural and artificial, as are represented in the plat annexed to said grant, and legally conveyed to the claimant.
    “ We do certify, that the said Stephen Minor is confirmed in his title thereto by virtue of the articles of agreement and cession between the United States and Georgia.
    “ Given under our hands, at the town of Washington, m the county of Adams, this 18th day of September, in the year 1805, and in the thirtieth year of the independence of the United States. “Robert Williams,
    Thomas H. Williams,

      Co mmissioners.”

    It was admitted- that those who claimed under Minor had been in possession since the issuance of the certificate of confirmation.
    In December, 1805, Margaret Watts Gayoso married Captain Stelle of the United States army.
    Stelle died in 1819, and Margaret in 1829. •
    On the 9th of May, 1832, Fernando Gayoso de Lemos, a citizen of Louisiana, filed a bill in the Circuit Court of the United States for the Southern District.of Mississippi, against Job Routh, Katharine Minor, John Minor, executor of Stephen Minor, and John William Minor, of Mississippi..
    The bill charge's that the complainant is the lawful son and only heir of Manuel Gayoso de Lemos, deceased, and that the said Manuel was, on the 27th of October, 1795, an actual settler within the Territory, now the State', of Mississippi, ceded by Georgia to the' United States on the 14th of April, Í802; that he then held a- grant legally and fully executed prior to the 27th of October, 1795, by the government of Spain, for 1,000 arpents of land, now situated in Adams County, Mississippi; that he or his legal representatives were entitled to a confirmation of that grant by the articles of cession between the United States and Georgia, and that the said Manuel’s wife, Margaret, the complainant’s mother, survived her husband, married James St'elle in 1804 or 1805, and died in 1829, and that Stelle died in 1819.
    The bill further states, that Stephen Minor, deceased, late of Adams County, Mississippi, became possessed of the evidences of the said Manuel’s said title, and after the death of the’ said Manuel, and during the infancy of the complainant, and while he resided in Louisiana, procured from the board of commissioners, west of Pearl River, the issual to him, in his own name, of a certificate for 760 arpents of. said land, which certificate was so unlawfully, falsely, and by imposition procured to the said Minor in fraud of the complainant’s rights, and of right belonged and ought to have issued to the com-, plainant as sole legal heir of the .said Manuel; that Stephen .Minor died in 1815 or 1816, leaving his wife Katharine (one of the defendants) devisee and trustee of all his estate, and making her and John Minor (also a defendant), his executors; and that the executors on the 25th of January, 1829, conveyed the land to the .defendant William J. Minor, the son of Katharine Minor, who, on the same day, reconveyed to his rflpther, in whose possession it now is, with the Spanish grant, as- it was before in her husband’s possession, and that before these last-mentioned r. -nveyances the parties to them were aware of the complainant’s claim. , .
    The bill further states, that Job Routh, then and now a citizen of Adams County, Mississippi, procured from the same board of commissioners, in like manner as Minor, a certificate for 244 arpents of said tract, under and by virtue of the said evidence of the said title of the complainant’s father, and has long been in possession, and that said certificate belonged and ought to have issued to the complainant.
    The bill prays that Katharine Minor and Job. Routh may be decreed to convey the land to the complainant, and. deliver him the evidence of the title to it, and to account for the rents and profits, and for general relief.
    After sundry proceedings of demurrers, which were overruled, and bills of revivor, which it is not necessary to state, the defendants answered, in November, 1845.
    The-answer sets out the title at law'of the appellees, begin-: ning with the Spanish grant which lies at its foundation, tracing the assignment of. that grant through its several successive holders to. Stephen Minor, showing Minor’s application under it to the board of commissioners, west of Pearl River, appointed by virtue- of- the act' of. Congress of 3d March, 1803, “ for regulating the grants of land, and providing for the disposal of lands of' the United .States south of the State of Tennessee,” and the certificate of the board in his favor, and thence deducing their title regularly from him. It denies that the certificate was issued to Stephen Minor unlawfully, falsely, or by imposition or fraud; and avers that the Concord plantation has been in the possession of them, and those under whom they claim, since the 10th of August, 1799.
    The answer does not admit Fernando Gayoso to be the lawful son and heir of Manuel Gayoso, or that said Manuel married Margaret Watts, or that she left children, or the date of the death of the said Manuel or Margaret, or the age of the said Fernando at the time of the death of the said Manuel, and requires proof of the averment of the bill on these héads.
    The answer further denies that the said Manuel Gayoso was an actual settler, within the meaning of the act of Congress of 27th October, 1795, and that the appellees had any notice of the claim of the appellants prior to the commencement of the suit-; and, in addition, relies on the failure of the appellants to file their bill within twenty years after the accrual of the right in virtue of which they claim.
    To this a general replication was filed, and a large, mass of evidence was taken.
    In November,'1847, the cause was discontinued as to the heirs of Job Routh, and abated as to Austin Williams, Archibald' Williams, and Elias Ogden. It then came up for argument on the bill, answers, exhibits, and proof, when the Circuit Court dismissed the bill, with costs.
    The complainants appealed to this court.
    It was argued by Mr. Bullard, for the appellants, and Mr. J. Mason Campbell, for the appellees.

      Mr. Bullard, for the appellant,
    said, that, before stating the points of law in the case, it was proper to say, that the judge of the District of Mississippi gave as a reason for dismissing the bill, although no written opinion was delivered, the decision of this court in the case of the Lessee of Hickey and others v. Stewart and others, 3 Howard, 761. That case appears to be totally different from this. Starke claimed under an order of survey which had never been presented to the board of commissioners for confirmation, under the act of 1803, and this court held that the court of chancery, in taking cognizance of Starke’s claim, and establishing it by its own judgment and decree, transcended its jurisdiction. The Gayoso title, as exhibited in this case, was complete and fully executed, as contemplated by the compact with Georgia in 1802, and was presented to the commissioners and confirmed; but confirmed not in favor of the heir-at-law to whom the fee had descended, but to Minor, under a pretended right of Margaret Watts Gayoso, and we charge Minor as the trustee-of the infant heir of Don Manuel Gayoso de Lemos. There is no analogy between the two cases.
    He then stated the following points: — ■
    The-first, and indeed the principal, question in the case is, What degree of estate or interest did Clark, Lintot, and Minor, acquire under the conveyance of Mrs. Margaret Gayoso after the death of her first husband ? or, in other words, what was the extent of her right to or in the land ?
    I am willing to test,this question either by the Spanish law, which was, at least to a certain extent, in force in the district of Natchez, or by the common law; supposed to prevail in Georgia at that time. I say to a certain extent, because I freely'admit that Spain, not being the sovereign de jure, had ho right to dispose of any of the public domain; but being, until 1798, the sovereign de facto, having its governor, its tribunals of justice, and a body of laws or usages, in reference to which all contracts and donations were made, and which regulated all the civil-transactions of the people and the mutual relations and capacities of individuals, the Spanish law was the living law of the people; by it were regulated the transfers of all property once severed from the domain, whether by contract, or last will, or ab intestato; every question of marriage, of legitimacy, of donations, either mortis causa or inter vivos, which arose during the sovereignty de facto of Spain, ought to be tested by the Spanish law.
    I. What, then, was the Spanish- law applicable to this- case, as it relates-to the degree of estate acquired by Madame Gayoso 1 And here I assume, what is most favorable to the pretensions of the defendants, and rendered most probable by the ev lence, that the land in question was settled on Miss Watts as a donation in consideration of marriage, or a donatio propter nuptias.

    Upon that supposition she acquired the land in full property, defeasible on her-second marriage; in which event her-right would be reduced at .once to a usufruct during her natural life on a life estate, and on her decease the land would descend to the heir of the donor or first husband exclusively. I rely on the following authorities. 5 Partida, law 26, title 13; Commentary of Gregorio Lopes; 15 Law of Toro; Gomez ad Leges Tauri, (commentary,) mote 1st. Original Roman Law: — Justinian, Code, lib. 5, tit. 9, § 3; 2 Pothier’s Traite du Mariage, Nos. 605, 613, 614; Fibrero, part i, chap.'3.
    II. But supposing that the common law, or the law of Georgia, is to govern, as was contended by the defendants, what interest or estate did Madame Gayoso acquire in the tract of land according to the evidence in the record? It will be conceded that, according to both systems of* law, the only son is the heir of the father; and leaving out of view the transfer to Margaret Watts, Fernando Gayoso would have inherited the fee simple; and the title was perfect, according to the compact with the State of Georgia. I contend, then, that, according to the common law, Margaret Watts acquired at most a life estate, with remainder over in fee to the heir-at-law of Don Manuel Gayoso de Lemos, to wit, Fernando Gayoso, and that her vendee acquired no greater interest or estate.
    The indorsement of Gayoso on the patent is not a deed com veying the fee simple. It conveyed no interest which would go to her heirs; it contains no words or expressions to that-effect. Standing alone, it gave her a mere life estate, with remainder over to the heirs of Gayoso.
    Nor is it cured by any other part of the evidence. On the contrary, it being admitted that some conveyance from Gayo? so to his future wife accompanied the several mesne conveyances, and it not being produced as the highest evidence, the presumption is, it conveyed no higher interest than the indorsement itself. The recital in those deeds points to higher evidence than this mere indorsement On the patent, and cannot avail the party until he accounts for the original. Notes to Phillips on Evidence, Part 2,1236; 1 Greenleaf on Evid. 93.'
    III. The compact with Georgia confirms the title of Gayoso, without the necessity of any act on the part of the United States, except a mere certificate requiring no patent. See Act of 1803, § 6 (2 Stat. at Large, 231).
    This certificate adds nothing to the validity of the original patent. See Hickie et al. v. Starke et al., 1 Peters, 94.
    IV. Fernando Gayoso was the infant heir of Don Manuel Gayoso at the time Minor, having possessed himself of the patent, obtained the confirmation to himself, without showing any conveyance from the original grantee, which cut off his heir at law. He will then be held to be the trustee of the legal title of the infant heir, and condemned to convey the land, and account for the rents and profits. See Gaines et ux. v. Chew et al., 2 Howard, 650 — 655; Dormer v. Fortescue, 3 Atk. 130; Roberdeau v. Rous, 1 Atk. 543; Hutton v. Simpson, 2 Vern. 724; Townsend v. Ash, 3 Atk. 336; Mundy v. Mundy, 2 Ves. jr. 122.
    If it should be contended that Minor was an innocent pur-, chaser without notice, and to be protected, then we invoke the principle settled in the case of Biscoe v. the Earl of Banbury, 1 Cha. Cas. 287, and in Willis v. Bucher, 2 Binney, 466; to wit, that it Avas crassa negligenlia in him not to have examined into the extent of interest owned by Madame Gayoso, for he had at least fair notice that there was some conveyance to her, and it was in his poAver to ascertain the extent of her interests. Minor kept the patent safe, and exhibited it to the commissioners; but he carefully kept back, and yet keeps back, the deed or instrument of writing which accompanied the patént, and by which Gayoso is pretended to have divested himself of title in favor of Margaret Watts.
    V. Whether this be a proper case for chancery jurisdiction, or whether the demurrer ought to have been sustained, is a question which I could wish some other person, more conversant with the doctrines and practice of courts of equity than I am, could present to the court. But it does appear to me, that, although the plaintiff exhibits a legal title, on- which he might recover in an action of ejectment, yet the proceedings of Minor. during the infancy of Fernando were such, in procuring a certificate in his own name, as to raise;an implied trust; and that the show of title thus acquired by him throws such a shade over the title of the complainant, as on both grounds to authorize his appeal to a court of equity, and that-a court of law could not give him full and complete remedy. I rely on the principles settled in the case of Gaines et ux. v. Chew et al., 2 Howard, cited above.

      Mr. Campbell, for the appellees, relied upon the following points.
    1st. That the appellants’ claim, as the heirs of Manuel Gayoso through Fernando Gayoso, fails, because Fernando was not born in wedlock. His birth took place on the 14th of- July,. 1797, in Natchez, and his parents were not married till the 10th of December following, in another territory.
    2d. That even if Fernando be legitimate, his father, Manuel, was an alien, and could not transmit aught to his son by descent. Orr v. Hodgson, 4 Wheat. 460; Tnglis v. The Trustees, &c., 3 Pet. 121.
    3d. That even if legitimate, and capable to take by descent from his father, he is barred by limitations. Statute of Mississippi, 1818; Peyton v. Stith, 5 Pet. 494.
    4th. That even conceding all the foregoing points in favor of the appellants, the certificate of confirmation concludes all legal and equitable rights existing anterior to its date, and vests an indefeasible title at law and in equity in the appellees, which .has since been recognized by Congress. Grand Gulf Bank v. Bryan, 8 Smedes & Marsh. 234; Ross v. Barland, 1 Pet. 667; Hickey v. Stewart, 3 How, 760; United States v. King, 3 How, 787; Act of 1803, ch. 27, § 5 (2 Stat. at Large, 229); 9 How. 170.
    5th. That even if the certificate be not conclusive, and be impeachable for fraud, there is no proof of any fraud in obtaining it, or otherwise.
   Mr. Justice McLEAN

delivered the opinion of the court.

This case involves the title to a tract of one thousand arpents of land adjoining the city of Natchez.

On the 10th of September, 1794, a grant was obtained for this land from the Baron de Carondelet, Governor-General of Louisiana, by'Manuel Gayoso de Lemos, who resided in Natchez. He settled on Margaret Watts, his future wife, the .same tract of land, and indorsed upon the grant that it was transferred to her. They were afterwards married, and, with, the view to secure to his wife a military pension, the permission of the king of Spain was subsequently obtained. In .1797, some time after the marriage, the nuptial benediction was pronounced by the Bishop of Havana, in New Orleans. In 1797 Madame Gayoso had. a son, who was named Fernando. -In 1798 Gayoso succeeded the Baron de Carondelet as Governor-General of Louisiana, and removed to New Orleans, where he died in 1799, his wife and son surviving him.

On the 10th of August, 1799, for the consideration of five thousand dollars, Madame Gayoso conveyed the premises, .with all the improvements thereon,' to Daniel Clark, junior. And on the 15th of August, 1800, Daniel Clark; for the consideration of ten thousand dollars, conveyed the same to William Lintot. In this deed the original grant is referred to, and the plat. And it states, “ whereas by an instrument of writing, which accompanies this, dated the 12th of February, 1795, the said Don Manuel Gayoso de Lemos did, for certain considerations therein recited, convey the said land, with all the appurtenances, to Margaret Watts; and whereas the said Margaret Watts, now the widow of the said Don Manuel Gayoso de Lemos, by her deed dated the 10th of August, 1799, which accompanies this, did convey the said land to Daniel Clark,” &cs On the 15th of November, 1800, William' Lintgt, for the consideration of the sum of ten thou 'and dollars, conveyed the same land, with the same recitals, to Stephen Minor, the ancestor of the defendants.

In 1805, this title having been presented to the board of commissioners west of Pearl River, by, Minor, under the act of Congress of 1803, regulating the grants of land, &c.; south of the State of Tennessee, was confirmed for seven hundred and fifty-six arpents. The possession of the- land is shown from the original grant to Gayoso under the titles stated.

The complainant, Fernando Gayoso de Lemos, claims the land as the son and only heir of Don Manuel Gayoso de Lemos. In his bill he represents that, after the death of his father, his mother intermarried with one James Stelle, in 1805, and that she died in the year 1829. That the defendant Minor, being in possession of the evidences, of title, ir\ fraud of his rights, he being an infant, procured from the board of commissioners a certificate for the land. That in 1815 .Stephen Minor departed this, life, and left Katharine Minor, his wife, a devisee and trustee of all his estate, and also executrix, and John Minor executor of his last will and testament. That conveyances were executed to the defendants, all of whom had notice of the claim of the complainant. A decree for a conveyance of the land is prayed for, &e. Fernando. Gayoso having died, his heirs were made parties.

Qn the part of the. complainant, it is contended that, the original grant for the land under the Spanish government being unconditional, no confirmation of it was required by the United States. That the treaty protected such a title, and that Congress by the act of 1803 could not have intended to interfere with absolute grants, but such claims only as required confirmation by the Spanish authority. And it is urged that Spain, being in possession of the country, and exercising a government de facto over it, had the power to grant lands. That the civil law applies as well to the transfer of the land alleged to have been made by Dón Manuel Gayoso to Margaret "Watts, as to the original grant.

These positions were sustained in the argument by much research and ability, but we are precluded from taking this view by the political action of the government, and the decisions heretofore pronounced, by this tribunal.

On the 27th of October, 1795, a treaty was made with Spain, which acknowledged the southern limits of the United .States to extend to the thirty-first degree of north latitude. The territory belonged to the State of Georgia, but by deed bearing date the 24th of April, 1802, she ceded it to the United States. In the deed of cession it was stipulated “ that all persons who, on the 27th of October, 1795,“"Were actual settlers within the territory thus ceded, shall be confirmed in all the grants legally and fully executes prior to that day, by' the former British government, or the government of Spain,” &c. The land was in possession of Gayoso at the ’time specified, and the grant having been “ legally and fully executed,” under the government of Spain, it was included in the deed of .cession. By the fifth section of the act of the 3d of March, 1803, above referred to, it is provided, “ that every person claiming lands, by virtue of any British grant,” &c., “ or of the articles of, agreement and cession between the United States and the State- of Georgia, shall, before the last day of March, 1804, deliver to the register of the. land-office, within whose district the land may be, a notice in writing, stating the nature and extent of his claims, together with a plat of the tract or tracts claimed, and shall also, on or before that day, deliver to the said register, for the purpose of being recorded, every grant,” &c.; and on failure to do so, “ all his right, so far as the same is derived from the above-mentioned articles of agreement,” &c., “ shall become void, and for ever thereafter be barred ”; and it is' declared that such deed, &c., which shall not be recorded, shall not be evidence in any court of the United States against any grant under the same.

The sixth section provides, “ that, when it shall appear to the board that the claimant is entitled to a tract of land under the articles of agreement and cession with Georgia aforesaid,' in virtue of a British or Spanish grant legally and fully executed, they shall give a certificate thereof, describing the tract of land-arid the grant, and stating that the claimant is confirmed in his title thereto by virtue of the said articles;' which certificate, being-recorded by the register of the land-office,” who shall record -it,. “ shall amount to a relinquishment for ever on the part of tire United States.” An act supplementary to the above was passed on the 27th of March, 1804; providing for the survey of lands claimed by Spanish grants, but it has no direct bearing on the questions before us.

The treaty with Spain established a disputed boundary; there was no cession of territory. The jurisdiction exercised by Spain over the country north of the thirty-first degree of north latitude was not claimed or occupied by force of arms, aghinst an adversary power; but it was a naked possession, under a misapprehension of right. In such a case, Georgia, within whose sovereignty the country was situated,, was not bound to recognize the grants or other evidence of title by the Spanish government.

In the case of Pool v. Fleeger, 11 Peters, 210, where North Carolina,and Tennessee made grants for lands within the territory of Virginia, through a mistake of the boundary line, the court Say, “ It is- perfectly clear that the grants under which the defendants claim, being beyond the boundary of Tennessee, were inoperative.” The same doctrine has been held in relation to the Spanish grants north of the thirty-first degree of north latitude, in Henderson v. Poindexter, 12 Wheat. 530; Lessee of Hickey et al. v. Stewart et al., 3 How. 756; La Roche et al. v. Jones, 9 How. 170.

The title in question belongs to a class which was recognized and made valid in the cession of the territory by Georgia to the United States. This act of Georgia, though voluntary, was just. It secured to the Spanish claimant a title, which, so far as he was concerned, had been acquired in good faith, but which was void for want of authority in the granting power. In requiring the holders of complete grants to present them and the plats of survey before commissioners, under the act of 1803, Congress carried out the compact with Georgia. In reference to sueh titles the words of the cession were, they shall be confirmed.” And although the forfeiture of the title, if not presented and recorded, was a rigorous provision, yet.it was within the power of Congress; Until these titles were examined, and their boundaries ascertained^ the government could not make a survey and sale of the lands to which there were no valid claims. It was therefore important, that all titles to which validity was given by the cession and by acts of Congress should be placed upon the public records, under the sanction or rejection of a-competent board of commissioners.

The ground on which the complainants chiefly rely for a decree is a presumed defect in the conveyance from the'widow of Gayoso to Clark..

The indorsement upon the original grant by Don Manuel Gayoso, that he had conveyed the property to Margaret Watts, referred to an instrument other than that indorsed on the grant. And we find in the deed from Clark to Lintot, and also in the deed from Lintot to Minor, there is a reference to that instrument, reciting its date and that it accompanied! the deeds executed. And these conveyances were sanctioned by the solemn act of the commissioners .when they confirmed the title to Minor. Under this title there has been a continuous possession of fifty years. The consideration paid by Clark satisfactorily shows that he supposed himself to have acquired a complete title to the land. Under thése circumstances, if the decision of the case turned upon the legal title, such, title might well be presumed, whether the conveyances were executed under the laws' of Spain or of Georgia.

It may be presumed that in the conveyance to Miss Watts, which has by some means been lost, the forms of the civil law were pursued, as the common law was not adopted in any part of the Spanish dominions. But validity was imparted to such conveyance by the compact with Georgia, the act of 1803,' and the proceedings undér that act, the same as to the original grant. There is no probability that Gayoso by the conveyance vested no higher interest than might have been claimed by Miss Watts after her marriage with him under the civil law; The fact of his having executed to her a conveyance, of which there is proof, may well justify the inference, that he gave her an absolute title to the land.

But there is another and a more conclusive view of the case. If it be admitted that the complainants may go behind the confirmation of the title by the commissioners, there is nothing on which they can rest but a paramount equity. And what is the nature of that equity as made out in the proof? The heirship of the complainants may be admitted as proved, but there is no other proof of equity than a supposition unsustained by facts, and contradicted by strong circumstances, .that a life estate only in the premises was vested in Madame Gayoso. This supposition is jrefuted by the only rational motive which can be presumed to have induced Don Manuel Gayoso to make the conveyance to his intended wife; by the fact, that, after his death, the widow'sold the premises for a full consideration, and saw them occupied by persons claiming them in fee for thirty years, until her death, without setting up any claim thereto in behalf, of her son, or informing him that he had a right to the premises after her decease. Under such circumstances, equity can give no relief to the complainants. The decree of the Circuit Court dismissing the bill is affirmed.

Order.

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


author: Mr. Walker,

text:
    John McNulty, Plaintiff in error, v. John Batty and others.
    (See p. 72.)
   Mr. Walker,

of counsel for the defendants in error, moved the court to direct the clerk to what court the mandate, or other process prescribed by the forty-third rule of court, should be addressed. On consideration whereof, it is now here ordered-by the court, that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause;


text:
    Sylvester B. Preston and others, Plaintiffs in error, v. Charles Bracken.
    (See p. 81.)
   Mr. Walker,

of counsel for the defendant in error, moved the court to direct the olerk to what court the mandate, or other process prescribed by the forty-third rule, of court, should be addressed. On consideration whereof, it is now here ordered by the court, that the clerk do not issue any mandate or other, process in this case, but only a certified copy of the judgment this day rendered in this cause.


author: Mr. Attorney-General Crittenden

text:
    Jesse Hoyt, Plaintiff in error, v. The United States.
    (See p. 109.)
   Mr. Attorney-General Crittenden

moved the court to dismiss this cause for irregularity in the bill of exceptions, which was opposed by Messrs. Evans and Walker, of counsel for the plaintiff in error. Whereupon this court, not being now here sufficiently advised of and concerning what order to render in the premises, took time.to consider.

On consideration of the motion made in this cause by Mr. Attorney-General on the 6th instant, and of the arguments of counsel thereupon had, it' is now here ordered by the court, that the whole case be argued upon the bill of exceptions.