Kennedy's Ex'r v. Doe ex dem. Rochon's Heirs

—As every plaintiff in ejectment must recover, if at all, upon the strength of his own title, our first inquiry will be, whether the heirs of Bochon exhibited such title in the court below as would support their action. If they failed to do so, and their failure results from an incurable defect, affirmatively shown by them in the proof which they submitted, it were needless for us to go further and discuss the other points raised in the. argument.

They exhibited in the court below their petition to the commissioner, under date the 25th April, 1814, by which they claim three lots of ground in virtue of a grant, lost by time or accident, in favor of B. F. Fievre and transferred to A. Bochon by bill of sale dated 2d February, A. D. 1175. Then a deed from Frances Fievre, Martha Dubroca, and Louise A. Bochon, to Augustin Bochon, dated 2d February, 1775, for a double lot and a single lot of ground, situate in the town of Mobile, bounded by streets and the lots of coterminous proprietors as therein shown. Next a will, made by Louise Fievre, dated 6th July, 1805, reciting that she was the widow of A. Bochon, and that she owned certain lots, — two with a house on Boyal street, and five others in the environs of the fort, which she purchased of different persons while the French and English governments held possession. In this will she also declares, that her children had already received the property of their father, agreeably to the writings which had been made at different epochs. Then follow two affidavits, one of Bartholomew Lorent, the other of William Mitchell, showing Madam Bochon’s possession during the British times, and the destruction of her house and improvements pending the siege by the Spanish authorities in 1780.

The foregoing was the evidence laid before the commissioner Crawford, as shown by the certified transcript from the land-office, introduced by the plaintiffs below. In the same transcript is set forth the report of the commissioner upon the claims as above propounded before him. In this report, it is stated by the commissioner that the lots were “ inhabited and cultivated about thirty-six years ago.” These, with two surveys by Willis Boberts, deputy surveyor, and transcripts from the registers of certificates and locations, constitute the documentary evidence adduced by the plaintiffs,

*3991. The first prominent objection urged by the counsel for Mr. Hallett against Rochon’s title, is, that it was never confirmed by the act of Congress of 8th May, 1822, (3 Statutes at Large of the U. States, pp. 699-100). Let us see whether this objection can be sustained.

The act provides, “ That all claims to lots in the town aforesaid (Mobile), reported as aforesaid, and contained in the reports of the commissioner, or of the register and receiver acting as commissioners, founded on private conveyances, which have passed through the office of the commandant, or other evidence, but founded, as the claimants allege, on grants lost by time and accident, and- which ought, in the opinion of the commissioner, to be confirmed, shall be confirmed, in the same manner as if the titles were in existence : provided, that in all such claims, where the quantity claimed is not ascertained, no one claim shall be confirmed for a quantity exceeding seven thousand two hundred square feet.” 3 Statutes at Large, 699-700.

Among the reports referred to by this act of Congress, is one by Commissioner Crawford, embracing a class of claims, numbered 11, the list of which is thus headed : — “ Register of claims to land in the district east of Pearl river in Louisiana, founded on private conveyances which passed through the office of the commandant, but founded, as the claimant supposes, on grants lost by time or accident.” This schedule embraces eighty-eight claims, and comprehends the claims of the heirs of Rochon. It is made out in the following form :—

The schedule is signed by the commissioner, and is accompanied by the following : — “ Remarks — Though the original grants, upon which the preceding claims are founded, have been lost, yet it is conceived that the claims to such lots as *400were inhabited and cultivated under the Spanish government, or such as were built upon by permission of the Spanish authorities, ought to be confirmed.” — (Signed) “William Crawford, Commissioner.”

We are referred by the counsel of the appellees to the 3d volume of the American State Papers, page 32, containing the report of Commissioner Crawford upon these and other claims, an extract from which report-is set out in the bill of exceptions, being certified _ from the land-office, and which corresponds, as respects these claims, with the facts set forth in the above tabular statement.

In the American State Papers, however, the word “ ago” is omitted, and ifiwe are to be governed by the printed report, as contained in this volume, it is very clear, the claim of the heirs of Rochon must be regarded as confirmed ; for it appears ■by it, that the lots were inhabited and cultivated from a period anterior to the conquest of Mobile by the Spanish from the British Government down to the period of the making of his report by the commissioner. The printed report, as contained in this volume reads “ Inhabited and cultivated about thirty-six years.” We are, however, unable to perceive upon what principle wc can receive evidence in this court to contradict the record in the court below, or to show a variance between the transcript of the report introduced by Rochon’s heirs in the primary court as a part of their evidence of title, and the report as contained in the State Papers. We must intend, that the act of 8th May, 1822, was passed with reference to the original report made by Mr. Crawford, and not to the printed copy of it as contained in the American State Papers. Indeed, the act of Congress could not have been based upon the report as printed in this volume, for it was not printed until 1834, about twelve years after the act was passed. Although these State Papers, having been published by authority of Congress, are evidence of high grade, yet we apprehend that it cannot be successfully maintained that the rights of parties in respect of private claims can be affected by the misprints which they may contain. In our opinion, the misprint may be shown by reference to the original report on file in the government archives. It is, however, unnecessary to dwell upon this *401point, as it was not raised in the court below. The plaintiffs, as we have said, by the certified copy from the land-office, showed to the court and jury upon the trial that the commissioner’s report was, that the land was “ cultivated and inhabited about thirty-six years ago” — that is, about thirty-six years before the making of his report; and as this corresponds fully with the] evidence accompanying his report, we doubt not it is correct, and that the word “ ago” is omitted through mistake in the printed report. We are inclined to the opinion, that the certified copy by the proper custodian of the report, as originally made by the commissioner, would control, and should be allowed to correct the printed report. See Marshall v. The State, 14 Ala. 411; also, 2 Salk. 566. But it is unnecessary now to decide that question.

Assuming the commissioner’s report to be as was shown by the plaintiffs themselves in the court below, let us consider its effect, in connection with the act of 8th May, 1822, as to whether it amounts to a confirmation of plaintiffs’ claim. This act of Congress is based upon the commissioner’s report, and operates only as a confirmation of such claims as, in the opinion of the commissioner, expressed in his report, ought to bo confirmed.

Turning to the report, in which are embraced the claims under consideration, we find none recommended by the commissioner for confirmation, except such lots as “ were inhabited and cultivated under the Spanish government, or such as were built upon by the permission of the Spanish authorities.” Does this claim fall within this category ?

The report containing it was made by the commissioner to the General Land-Office on the 2d January, 1816. The lots were inhabited and cultivated about thirty-six years before that time. Was this a habitation and cultivation under the Spanish government? Our first impression was, that it should be so considered ; but upon more mature consideration, we arc satisfied that impression was wrong. It is matter of public history that the Spanish took possession of Mobile, by conquest from Great Britain, on the 14th March, 1780, (2 Pickett’s History of Alabama, p. 41 ; Martin’s History of Louisiana, vol. 2, p. 52); and if we go back thirty-six years from the time the commissioner reported, we shall go beyond *402the time when Mobile was taken from the English. When, however, we recur to the proof exhibited to the commissioner in support of the claim, and submitted by him to the government, it is perfectly clear that these lots were neither built upon, inhabited, nor cultivated under the Spanish government. The only witnesses examined, Lorent and Mitchell, both concur that the English put fire to the house of Madam Rochon, during the siege of the fort by the Spanish ; and it, “with all her improvements’ was burned; since which time, there was no proof of inhabitation or cultivation under the Spanish government. When these improvements were destroyed, the English were in possession of the town; the Spanish authority had not been established, or recognized.— Indeed it may well be questioned, whether the place could be said to be under the Spanish government until it was so recognized by the treaty of peace. Mr. Yattel says (p. 386) that “Immovable possessions, lands, towns, provinces, &c., become the property of the enemy who makes himself master of them; but it is only by the treaty of peace, or the entire submission and extinction of 'the State to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect.” But dating the Spanish l'ule from the capitulation of the fort, until which time the English certainly held the actual possession and government of it, it is clear the inhabitation and cultivation did not then exist. The improvements had been destroyed, and although their destruction may have been (and probably was) one of the results of Avar between England and Spain, yet, we apprehend, the United States did not intend, by the acts providing for confirmation of title, to make compensation for such casualties. If, during the siege, the inhabitants, then being subject to the government of Great Britain, had destroyed all their improvements, and abandoned the place to the enemy, or capitulated, and had never re-possessed themselves of their respective lots — had never re-built, or cultivated in any way afterwards — it would be a contradiction in terms to say that they had inhabited and cultivated these lots under the Spanish government; and what would be true of them in the aggregate, is equally true when applied to each individual. Madam Rochon’s possession was under the British, *403not the Spanish, government; and this report, which certifies the facts, and does not give in terms the opinion of the commissioner as to whether the claims should be confirmed, fails to show that it falls within the class recommended for confirmation. Claims of this kind might well, we think, have constituted a distinct class, and no doubt would have been reported upon as such, had the commissioner, under, the powers vested in him, deemed them proper for confirmation. Doubtless there were a number of similar sufferers from the casualties of the war. But they were not recommended as proper to be confirmed, and it is not for the courts to speculate upon the justice or propriety of withholding the sanction of the government of their validity. We must take the act, with the report and the accompanying proof, as we find them; and if from the report, as explained and aided by the proof, we are unable to see that in the opinion of the commissioner they ought to be confirmed, it is our duty to hold that the act confers no title, or gives no validity to such claims.—Doe ex dem. Hall v. Root, 19 Ala. 378-395.

The appellees, however, insist that their confirmation is established by analogy to the case of Doe v. Eslava (9 How. Rep. 421), where the report was “ Cultivation and inhabitation : — A house built, in which R. Farmer lived for twenty years, and until the Spaniards took possession of the country.” The proof in that case, also, showed that the house was burned when the Spaniards took possession of the country, upon the treaty after the close of the American revolution.

We have looked into that case, and it appears that no question as to the fact of confirmation was raised, either in the Supreme Court of this State, or of the United States. This point appears to have passed unnoticed ; and while this, of itself, is persuasive to show that the report in the case before us may recommend the claim for confirmation, yet we do not esteem it in the light of a judicial determination of the question; for if it could be viewed in that light, it would be our duty, as well as our pleasure, to yield to the decision.

In conclusion, we feel quite confident that Madam Rochon’s residence upon the lot in question while the British held possession, and the burning of her house and improvements by the British pending the siege by the Spanish army, in the *404absence of any proof that she afterwards dwelt upon or cultivated the lots, do not show she inhabited and cultivated the lot under the Spanish government, as recommended by the report and required by the act of 8th May, 1822, in order to a confirmation. To meet the requisitions of the act, she must have lived upon the lot,' — inhabited it and cultivated it after Spain took possession of the place. Constructive possession, or the bare assertion of a claim, without an actual possession, is not sufficient. She must have dwelt upon, or inhabited the lot, — must have had such possession under the Spanish government as that the Spanish laws would have operated upon it as a present actual possession. If we depart from the plain, common-sense meaning of the terms used by the commissioner, all is uncertainty. We will be at sea without chart or compass. If an inhabitation one day, or two days, before the Spanish authority came in, may suffice, why may not one year, or two years? Where shall we stop ? and by what rule shall we be governed ? Tbe only safe rule is, to require inhabitation and cultivation after the place was subject to the dominion of Spain and governed by Spanish laws.

As the claim of the plaintiffs below was shown not to fall within this class of cases, we feel constrained to hold, that it was not confirmed by the act, and consequently, that they showed no title to the lot sued for. The view we have felt it our duty to take upon the question of confirmation is opposed to several of the charges given by the primary court; and as it will probably be conclusive of the case, so far as the State courts are concerned, we deem it unnecessary to notice the other points raised upon the argument.

Judgment reversed, and cause remanded.