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December 1, 1850


THIS was an appeal from the District Court of the United States for the Southern District of Mississippi. It was the case of a petition, and amended petition, presented by the heirs of Thomas Power to the District Court for the Southern District of Mississippi, the first on the 15th of June, 1846, and the latter on the 11th of November, 1846, under the act of 1824, as revived and re enacted by that of 1844, claiming two very valuable islands, lying off the coast of the State of Mississippi, opposite the Bay of Biloxi. The petition and amended petition, in substance, set forth, that, before the year 1760, Deer Island was occupied, with the verbal consent of the provincial authorities, by Pierre Laclede and Pierre Songy, who, on the 11th of September, 1760, sold all their rights to Andr e Jung; that on the 7th of March, 1761, the said Jung made a similar sale to Ignace Brontin; and that, on the 8th of April, Brontin sold all his rights to Francisco Caminada. That afterwards, on the 1st of August, 1781, Caminada received a grant of the said island called Deer Island, and another called Ship Island, from Bernardo de Galvez, then Spanish governor of Louisiana, which, it is alleged, then extended to the east beyond the said islands, as follows, viz.:–– 'Don Bernardo de Galvez, Knight Pensioner of the royal and distinguished Spanish Order of Charles the Third, Colonel of the Royal Army, Governor, Intendant, and Inspector-General of the Province of Louisiana, &c., &c. 'Considering the foregoing acts performed by Don Francisco Caminada, which establish the right of possession which he has to the two islands, Deer and Ship, situated in front of the coast of Biloxi, recognizing them to have been made out agreeably to the order of survey, without causing prejudice to the neighbors adjoining, and without any opposition on their part; on the contrary, yielding, as it appears, their assistance to the said acts, approving them as we do approve them, therefor using the authority which the king has confided to us (otorgamos), we grant in his royal name, to the said Don Francisco Caminada, the possession of the aforesaid two islands, Deer and Ship; that as his own property he may dispose of them, and enjoy them, governing himself by said acts, and observing in every thing that which has been ordered for the settlement of the subject-matter. 'We give these presents, signed with our hand, sealed with the seal of our arms, and countersigned by the undersigned Secretary of his Majesty for this government. 'In New Orleans, on the 1st day of August, 1781. 'BERNARDO DE GALVEZ. 'By order of his Excellency. 'MANUEL ANDRES LOPEZ DE ARMESTO. 'Registered in book of records for said object, in the archives of my office, at folio 14. New Orleans, November 8th, 1781. 'LEONARD MARANGE, Notary.' The above, being a notarial copy, was the only evidence exhibited of the grant. The original was lost. The petition further stated, that on the 2d of December, 1806, Prosper Prieur, acting as the testamentary executor of Caminada, sold the two islands to Thomas Power, to whom the petitioners are heirs. The amended petition further stated, that Caminada was an inhabitant of Louisiana, where he lived and died; that the Surveyor-General of Mississippi, acting under instructions of the Treasury Department, was executing, by a deputy, a survey of the islands, which had not been completed; but Deer Island was estimated to contain about two thousand acres, and Ship Island three thousand acres; that the petitioners had no knowledge or information of any adverse claim of title, save and except transient and temporary squatters, who from time to time had occasionally occupied parts of each island; and that they had no knowledge or belief that the title was ever presented by their ancestor to any board of commissioners whatever. To this petition the district attorney filed his answer on the 13th of January, 1847, and insisted that the original petition was not filed within the time limited by the act of 1824 and the act of 1828 amendatory thereto; and that, the amended petition not having been filed until the 11th of November, 1846, the petitioners were barred and precluded from the institution of any suit against the United States, who relied upon the act of Congress of 1828 as limiting the right to one year. But if it should be decided that the limitation was two years, as provided in the act of 1824, they still insisted that the claim was barred, the amended petition not having been filed within two years from the passage of the act of 1844. The answer further denied the grant to Caminada in 1781, and the sale by his testamentary executor to Power. But if ever such a sale was made, they denied the right of the executor to make it, or to divest the rights of the heirs of Caminada, or pass any title to Power. They know nothing of the sale from Laclede and Songy to Jung, or of the sale to Caminada, and they required proof of the identity and rights of the parties claiming. They further denied that, at the time of the alleged grant in 1781, Caminada was an inhabitant of Louisiana, or that he lived and died there, or that any order of survey was executed for Caminada previous to the date of said alleged grant. The answer further stated, that the allegations in the petition and amendment were not sufficient, if true, to authorize a decree against the United States, and claimed the benefit of this objection in the same manner as if it had been relied upon by a demurrer. Documents were filed and evidence was taken, but it is not material to state the substance of either. In November, 1848, the District Court decreed, 'that the claim and title of the petitioners to the two islands or parcels of land as before described be, and the same are hereby, confirmed to them in full property, the said original grant or title, in the opinion of said court, being good and valid, in virtue of the patent therefor, and in virtue of the treaty of St. Ildefonso, between Spain and France, of date October, 1800, and of the treaty of Paris of 1803, for the cession of Louisiana to the United States, and by the laws of nations, and by the acts of Congress hereinbefore referred to, under which this court has cognizance of said case. 'And it is further adjudged and decreed, that, the two several islands aforesaid having each its natural boundary, a survey thereof is therefore dispensed with, and that the petitioners' title be confirmed to them in the whole extent of the natural boundaries of said islands respectively; and if, on investigation, it shall appear that the United States has heretofore made sale of all or any part of said islands, then, as to such sales, the title hereby confirmed shall stand qualified and inoperative as to the specific land so sold, and, in place and stead of the land so sold, the petitioners shall be permitted to enter a like quantity of land within the same land district, which may be subject to sale at private entry.' The United States appealed to this court. The appeal was argued by Mr. Crittenden (Attorney-General), for the appellants, and submitted upon printed argument by Mr. Henderson, for the appellees.

The opinion of the court was delivered by: Mr. Justice Catron delivered the opinion of the court.

Mr. Crittenden contended that the decree must be reversed, for the following reasons.

I. That on the 1st of August, 1781, the date of the alleged grant, Governor Galvez had no authority to make the grant of Ship Island and Deer Island to Caminada, the cession by Great Britain to Spain of that part of the country where they lie not having been made until the definitive treaty of peace of the 3d of September, 1783.

By the treaty of peace of 1763, between Great Britain, France, and Spain, it was agreed between France and Great Britain, 'that, for the future, the confines between the dominions of his Britannic Majesty and those of his most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Mississippi, from its source to the River Iberville, and from thence by a line drawn along the middle of this river and the Lakes Maurepas and Pontchartrain to the sea; and for this purpose the most Christian king cedes in full right, and guarantees to his Britannic Majesty, the river and port of Mobile, and every thing which he possesses, or ought to possess, on the left side of the River Mississippi, with the exception of the town of New Orleans, and of the island in which it is situated, which shall remain to France.' 2 Clark's Land Laws, Appendix, 258.

War having been declared by Spain against Great Britain, in 1779, Galvez proceeded with a considerable force to invade the British territory, and on the 14th of March, 1780, Fort Charlotte, on Mobile River, capitulated to him. Pensacola also afterwards capitulated to him, on the 9th of May, 1781.

The treaty by which Great Britain ceded the Floridas to Spain is dated the 20th of January, 1783.

The authorities to sustain the proposition are, 1 Kent, 169; Wheat. Elements, 572; Clark v. U. States, 3 Wash. 104; U. States v. Hayward, 2 Gallis. 501; Polk's Lessee v. Wendell, 9 Cranch, 99; Poole v. Fleeger, 11 Peters, 210; U. States v. Reynes, 9 Howard, 127; Davis v. Police Jury of Concordia, Ibid. 280; U. States v. Heirs of D'Auterive, 10 Howard, 609, decided the present term.

II. That there is no sufficient evidence of the execution of the alleged grant by Galvez, and, even if it were proved, the claim under it cannot be recognized, because the said alleged grant was not presented and recorded in pursuance of the fourth section of the act of the 25th of April, 1812, entitled 'An act for ascertaining the titles and claims to lands in that part of Louisiana which lies east of the River Mississippi and island of New Orleans.' 2 Stat. at Large, 715.

III. That if the grant to Caminada were valid, the petitioners have shown no title under it in Thomas Power, or in them as his heirs, as required by the act of 1824. The deed by Prieur to Power is not proved, and if it were, it is not shown that Prieur had any authority to make it.

IV. That the petitions were not filed within the time limited by law, and should have been dismissed.

Mr. Henderson, for the defendants in error, made the following points.

First Point. The title of petitioners rests on a full, complete, and perfect grant,–a patent, the original of which is filed in this case, and is sixty-nine years old. It was, and is, effective against all private persons, without further confirmation by the United States; and when, as now, rightfully exhibited against the United States, is equally valid against them, as perfect evidence of private property; and though a full legal title,–a 'Spanish grant,'–is within the direct cognizance of the first section of the act of 1824, and the proper subject of this statutory jurisdiction in equity. 9 Peters, 733.

Second Point. The title, out of the United States, being perfect, legal, and indefeasible, the only question remaining is the right of the petitioners to that title.

Our first position on this point is, that the United States have no right or jurisdiction to try the question of title between the heirs of Caminada, the grantee, and the heirs of Power, who claim as assignees of the grantee. That, while it may be a matter of judicial propriety that the United States should require a prim a facie showing by the petitioners that they properly represent the 'claim' in controversy, yet they have no right to demand an issue to try that question as between parties not before the court. It is for the United States, under the law of 1824, to test the validity of the claim, and ascertain if the land in controversy is private property. The State tribunals, where the lands lie, will adjudge the title between its citizens. This inquiry cannot be thus incidentally invoked. 13 Peters, 375; 17 Louisiana, 479.

But, as the attorney of the United States in the court below pressed this issue upon us, it may be necessary we should sustain it here. It involves the inquiry, that, as the petitioners claim title by a notarial act of conveyance, made to their ancestor in New Orleans, in 1806, by Prosper Prieur, as testamentary executor of Caminada, of the lands in question, is there proof enough in this case, in the absence of direct evidence of the last will of Caminada, and of Prieur's appointment to administer it, to sustain Prieur's act of sale to Power?

And on this point we assume, that this act, being notarial and authentic, is quasi judicial, and will be presumed to have been done by proper authority. 9 Pet. 625; 3 Har. & McHen. 594; 6 Greenleaf, 145; Civil Code of Louisiana, 2233. And at the date of this sale in 1806, the locus in quo formed part of the 'Territory of Orleans.'

And next, that this conveyance, being now forty-four years old, requires no proof to authenticate its due and proper execution, and that this rule of presumption of the due execution of the deed necessarily includes all the concomitant prerequisites to its execution. 1 Greenleaf's Ev. § 21, § 144; 14 Mass. 257; 6 Greenleaf, 145; 14 Johns. 182; 10 Ib. 475; 9 Ib. 169; 2 Hawks, 233; 3 Har. & McHen. 594; 7 La. 370; 2 How. Miss. 819; 5 Ib. 586; 6 Sm. & Mar. 284; 2 Rob. La. 84, 85; 1 Stark. Ev. 331, 332, note; 2 Stark. 924, notes 1, 2; 4 Wheat. 221; 7 Pet. 266; 2 How. U. S. 316; 7 Sm. & Mar. 159; 9 Pet. 674.

Third Point. But if the presumptions of law in favor of the deed, from its age, &c., were not sufficient, we have, by the testimony of Johnson and Janin, proved sufficient search for the mortuary proceedings on Caminada's estate, to lay the foundation of the secondary proof we have offered. 1 Greenl. Ev. § 84, and notes; 6 Greenl. 145; 14 Johns. 182. And we suppose the testimony of these witnesses, as to the lost record,–whereon the Spanish governor (the highest judicial officer of the province) had several times, by his signature, recognized the executorial capacity of Prieur, and the abstract of the record filed with Johnson's deposition, quite satisfactory, as secondary evidence, that Prieur was in verity the executor of Caminada.

And as between Caminada's heirs and the heirs of Power, the title of the latter is now good by prescription. Power's heirs claim title, with the original grant in possession. This claim of title of unimproved lands draws after it possession commensurate with the grant. 2 Lomax's Dig. 132; 7 Sm. & Mar. 130.

So that their possession, and that of their ancestor, is now of forty-four years' continuance, without contest or molestation.

For all these reasons, we conclude the title derived by Thomas Power from the estate of Caminada is good and valid in this respect, and hence good to the extent claimed.

In this case the petition sets forth that, before the year 1760, Deer Island was occupied, with the verbal consent of the provincial authorities, by Pierre Laclede and Pierre Songy, who on the 11th of September, 1760, sold their right of property thereof, and the improvements thereon, to Andre Jung; and that he made a similar sale to Ignace Brontin; that said Brontin sold the same to Francisco Caminada, who for a great length of time thereafter occupied said island; and that in 1806 Prosper Prieur, acting as the testamentary executor of Caminada, sold to Thomas Power, ancestor of complainants, two islands, known as Deer and Ship Islands, for which two islands Francisco Caminada received a complete grant, August 1st, 1781, from Bernardo de Galvez, then Spanish governor of the Province of Louisiana.

The answer denies all these facts, and requires proof.

This claim was presented to the District Court for the first time, never having been laid before a board of commissioners, or any step taken in regard to it, previously to its ...

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