JAMES M. GROOVER ET AL., APPELLANTS,
ANDREW J. COFFEE, APPELLEE.
Supreme Court of Florida
19 Fla. 61
June, A. D. 1882, Decided
Pasco & Palmer and C. W. Stevens for Appellants.
Angus Paterson for Appellee.
In the year A. D. 1839 John Coffee, a brother of the defendant, settled the land in controversy, the same not being in market, and afterwards sold his claim to the defendant. After the said land was patented to the State of Florida as swamp and over-flowed lands Stripling and McCall entered it from the State, making a part payment and receiving only a certificate, which certificate was transferred to the defendant for value, and in the year A. D. 1874 the defendant procured a deed from the State of Florida, that is, from the Trustees of the Internal Improvement Fund to himself. This land was patented to the State of Florida by the United States in the year A. D. 1850. The plaintiffs claim the land in controversy through a grant from the State of Georgia
The defendant and Charles A. Groover, the ancestor under whom the plaintiffs claim, were neighbors, and they agreed to let the matter stand until some action would be taken by Congress. And in the year A. D. 1872 Congress did take action in the matter, but did not ratify the Georgia grants, leaving the land as the property of the defendant as the government had conveyed it. Charles A. Groover died before he and the defendant had done anything about the said agreement. However, at the request of Mary J. Groover, his widow and executrix, the defendant sold the land to her, to be paid in annual installments of one hundred dollars each, the first to be made in one year--there was no deed nor writing. At the end of the time instead of making the payment for the land she informed the defendant that she would keep the land without paying for it, as she had been advised by friends. The defendant then (A. D. 1874) brought an action of ejectment against her in her own right and as executrix in the Circuit Court in Madison county, and on her application, she living in Georgia, the case was transferred to the United States Court at Tallahassee, and was tried A. D. 1876, and the verdict and judgment were in favor of Andrew J. Coffee, the defendant herein; and now the heirs at law of the said Charles A. Groover bring this suit, (the said widow not being a party.) It was commenced in Madison county, but on account of the disqualification of the Judge was transferred to Jefferson county. The verdict and judgment were in favor of the defendant, from which this appeal is taken by the plaintiffs.
If the plaintiffs had connected themselves with the chain of titles which they attempted to make, or had shown any title at all in themselves derived through the State of Georgia , then there would have been but one question involved in this case. That is: Which had a right to the land in controversy, the United States or the State of Georgia ?
If the land belonged to the United States in 1819, at the conclusion of the treaty with Spain , then the verdict of the jury is correct; if, on the other hand, the land belonged to the State of Georgia at that time, the verdict might have been different.
The dividing line between the States of Georgia and Florida was, at a very early period, recognized as a line running from the junction of the Flint and Chattahoochee rivers to the head of the St. Marys river . Hodgkiss' Statute Law of Georgia , 83; Code of Georgia (1861), 7 Sec., 21; Thomp. Dig., 4; also 584; Constitution of Florida, 1868, Art. 1; Brightly's Dig., 288, Sec. 2.
The line was not permanently marked until A. D. 1859. This was done by B. F. Whitner on the part of Florida and G. J. Orr on the part of Georgia , and is called the Whitner and Orr line.
There was also a line marked by McNeil known as the McNeil line, which has been noticed by both States. The State Legislature of Florida ratified all grants made by the State of Georgia that might fall south of the Whitner and Orr line, provided they did not come south of the McNeil line. Laws of Fla., 1859, Chap. 1017.
There is a neighborhood line called the Watson line, but it is not found in the statutes of either State, and is only referred to in the act of Congress passed to quiet titles along the line which the United States had not conveyed. Statutes at Large, 1872, page 52, Chap. 461.
There are none of these acts that give the State of Georgia a right to grant the land in controversy or to make a valid deed. This land lies not only south of the Whitner and Orr line, but also south of the McNeil line, and was a part of the land ceded to the United States by Spain A. D. 1819, and the United States had the right to grant this land to the State of Florida or otherwise.
The Whitner and Orr line is now the acknowledged line between the States of Georgia and Florida, so established and fixed by the States themselves. Laws of Fla. (1859), Chap. 1017; Laws of Fla. (1861), Resolution No. 16; McClellan's Dig. page 952, Secs. 8 and 11; Code of Georgia, 1861, pages 6 and 7, Secs. 17 and 21.
And it is the right of independent nations to establish and fix disputed boundaries between their respective territories, and this right belongs to the several States of the American Union with one exception, that is by consent of Congress, and persons claiming land under grants from the States are subject to the conditions of the compact made by the States. Poole vs. Fleeger, 4 Peters, 185; Rhode Island vs. Massachusetts, 12 Peters, 657; Garcia vs. Lee, 12 do. and 511.
But even if Georgia had the right to grant the land in controversy the plaintiffs have not made out such a case as entitles them to recover. First, they introduced two Georgia grants to James Groover; second, a deed from James Groover to Thomas J. Groover; and third, they attempt to introduce a deed from Thomas J. Groover to Charles A. Groover, the ancestor under whom the plaintiffs claim their right, but this last deed they failed to prove. One of the subscribing witnesses is alive, and his evidence could have been taken, and he is the only one that could prove the said deed. 1 Greenl. Evi., 569; 3 A. K. Marsh., 77; 13 Am. Dec., 136 and 139; Lewis' Heirs vs. Rings, 3 Marshall, 1109.
The want of the evidence of this witness has caused the plaintiff to fail to show any title whatever in their ancestor, or to connect them at all with the original grant, hence they are not entitled to recover even if the defendant had introduced no evidence, as plaintiffs must depend upon the strength of their own title and not upon the weakness of their adversaries. Hartly vs. Ferrill, 9 Fla., 374.
But the defendant did introduce evidence, and did show his title through the State of Florida from the United States , to-wit: a deed from the Trustees of the Internal Improvement Fund.
These Trustees held the land for the State, with power to sell, and while they had it the State owned it. Laws Fla., (1855) Chap. 610, Sec. 2; Laws Fla., (1856) Chap. 775; Laws Fla., (1870) Chap. 1784, sold to Peas Creek; Laws Fla., (1855) page 57, Resolution No. 3; Laws Fla., (1879) Chap. 3127, where their deed is declared to be evidence.
The land in controversy was patented by the United States to Florida A. D. 1850. Certificate of Hugh A. Corley, Com. L. & I.
This certificate is evidence, and of the same force as the patent itself would be. Laws Fla., (1875) Chap. 2063.
The land in controversy, as soon as it came into market, was entered by Stripling & McCall. Certificate of D. Eagan, Com. of L. & I.; Laws Fla., (1875) Chap. 2063.
But they received no deed, only a certificate, which they afterwards transferred to the defendant, who procured a deed to himself, and is therefore entitled to the land.
The Trustees of the Internal Improvement Fund had the same possession of the land in controversy that they have in all other internal improvement lands. The State is not to be deprived of its land by squatters.
The verdict of the jury is as it should be. The verbal testimony makes no change in the written evidence, and even if the defendant offered no evidence the verdict should be as it is. And if the verdict is sustained by the evidence it will not be disturbed. Doggett vs. Wiley, 6 Fla., 482.
The Judge's charge to the jury, taken as a whole, is fair and just. He charged the law in each of the three items.
What are boundaries is a question of law for the court. Where the boundaries are is a question of fact for the jury. 15 Am. Dec., 507; Tatum vs. Paine, 4 Hawks, 64, approved in Marshall vs. Fisher, 1 Jones, 111; Spruill vs. Davenport, id., 203; Clark vs. Wagner, 70 N. C., 707.
There was no dispute as to where the boundaries are in this case, but it is admitted that the land in controversy is south of the Whitner and Orr line; and far south of it, even south of the McNeil line, to-wit: in the State of Florida, hence Georgia could not make a valid title to the land in controversy, and the court had a right to charge as he did. Tolland vs. Sprague, 12 P., 300; 12 Curtis, 729.
The Judge did right in permitting the jury, at their request, to come into court, the counsel for both sides being present, and give them the instruction they asked.
For at the instance of the plaintiff's counsel the court did more than that: after the taking of the evidence was closed at noon plaintiff's counsel asked the court to adjourn until next day that he might examine some authorities before arguing the case, and by consent of defendant's counsel the court adjourned as requested for this purpose, but plaintiff's counsel instead of having authorities had sent to Georgia for a witness, and insisted on opening the evidence next morning after defendant and his witnesses had gone home; this was allowed by the court; and if this was right then certainly giving instructions to the jury afterwards was right; plaintiff's counsel is the last one that should complain at any rate.
THE CHIEF-JUSTICE delivered the opinion of the court.
This is an action of ejectment commenced by appellants in Madison county and moved to Jefferson for trial. The lands are in Madison county, and described as "about seventy-seven acres in fractional lot number 200 in originally Irwin county, Georgia, and about twenty acres in fractional lot number 199 in the southeast corner of said lot in originally Irwin county, Georgia, both now in Madison county, Fla., said lots being more particularly described as ninety-seven acres in the northern part of fractional section twenty-nine, township three, north, of range nine, east."
Appellants introduced in evidence two patents issued by Governor McDonald, under the seal of the State of Georgia, dated January 1, 1842, granting to James Groover, his heirs and assigns, (in pursuance of an act of the General Assembly passed 23d December, 1822, relating to lands in the territory lately acquired from the Creek and Cherokee Indians,) fractional lot number 199 containing two hundred and twenty-six 2-100 acres and fractional lot number 200 containing two hundred and fifty 2-10 acres "lying and being in the fifteenth district of Irwin county in the said State, * * * having such shape, form and marks as appear by the plat of the same hereunto annexed."
The plats annexed designate the southern line as "Florida line," and dimensions, area, monuments, courses and distances are duly certified by the Surveyor-General of the State of Georgia as being correct, and as having been surveyed on the second day of July, 1820, and the grants were duly registered by the Secretary of State January 1, 1842.
Plaintiff also put in evidence a deed of James Groover, of Thomas county, Ga., to Thomas A. Groover, of Lowndes county, dated 31st December, 1855, recorded in Lowndes county, conveying the same lands in fee. Also a deed of Thomas A. Groover to Charles A. Groover, of Brooks county, Ga. , dated 8th July, 1860, recorded in Brooks county, Ga. The plaintiffs are the heirs at law of Charles A. Groover now deceased.
It was proved that James Groover was in possession of the land in controversy when he conveyed it to Thomas A. Groover, and the latter was in possession when he conveyed it to Charles A. Groover, and that he and his family occupied and cultivated it until they were dispossessed by the defendant in 1876, and the defendant, A. J. Coffee, has been in possession since that year. All the land in question was cultivated by Thomas and by Charles A. Groover while they were in possession.
A plat made by a surveyor was introduced by plaintiffs, showing the location and boundaries, from which it appears that about 120 acres of the lots described as lots 199 and 200 in the Georgia patent and in the deeds falls south of a line called the "McNeill line," and north of the "Watson line." The plat also shows that the lands south of the McNeill line, including the land in controversy, are within the surveys made by the United States and designated by sections, bounded by the McNeill line on the north, so that the 97 acres claimed by plaintiff constitute a part of section 29 according to this plat of the U.S. surveys. It seems to be conceded by both parties that this tract is south of the present boundary line between Georgia and Florida, and hence is treated as a part of the present territory of Florida and within the county of Madison. Precisely where the State line is does not appear in the evidence.
One of the witnesses (Bentley) says the Watson line was considered the State line. Another (Lanier) says he considers the McNeill line the boundary, and he knows of an-another line "that runs between the two States still south of the Watson line." Both lines were distinctly marked.
On the part of the defendants there was introduced a deed executed by the Trustees of the Internal Improvement Fund conveying to the defendant the whole of fractional section twenty-nine, township three, north, range nine, east, containing 269.85-100 acres in the county of Madison, State of Florida. This is dated September 12, 1874. Defendant further introduced a certificate of Hugh A. Corley, Commissioner of Lands and Immigration for the State of Florida, dated May 6, 1880, "that the whole of fractional section twenty-nine in township three north, of range nine, east, was patented to the State of Florida as 'swamp and overflowed land' under act of Congress approved September 28th, 1850, as appears from Patent No. 9, dated July 6, 1857, which patent now remains on file in this office."
Defendant also offered a certificate of Dennis Eagan, Commissioner of Lands and Immigration of the State of Florida, dated January 20, 1874, certifying that "the records of this office show that fractional section twenty-nine in township three, north, of range nine, east, was sold to McCall and Stripling on the second day of September, A. D. 1857."
Defendant testified that his brother, John Coffee, had the land in controversy in 1839, had a "claim" and cleared part of it before it was in market. He bought his brother's claim, and after it was put in market Bryant Stripling and T. Fane McCall entered it and got a certificate which they transferred to defendant, and he had the title made to himself by the Trustees of the Internal Improvement Fund. Defendant further testified that "Charles A. Groover had a clearing on part of the land in controversy, and I had part of the land in cultivation that was included in my deed south of the Watson line, and as there was a dispute between Mr. Groover and myself about the land we agreed to let it remain as it was until Congress would settle it." Defendant and Mrs. Groover made a bargain for a sale of the land to her, but it was not consummated. Defendant says he then commenced suit and obtained judgment against her for the possession in the U.S. Court, and was thereby put in possession. Until that time defendant did not take actual possession of the land north of the Watson line or make crops on it.
Every document and paper introduced by either party was objected to by the opposing party, and was received by the court and given to the jury as evidence. Other testimony of witnesses was received or excluded upon objections being made, and these rulings will be noticed as they may be deemed material. The court refused to give certain instructions prayed by plaintiffs' counsel and charged the jury, (exceptions being taken to the refusal and to each paragraph of the charge) and the jury found a verdict for the defendant. The plaintiffs (a new trial having been denied) appealed from the judgment, assigning errors in the rulings and charge of the court and in the verdict as against the law and the evidence.
The grants of land by the Governor of Georgia to James Groover were objected to by defendant, "because they were not connected with the case."
Courts recognize, without other proof than inspection, the seals of other States and nations which have been recognized by their own sovereign. 1 Greenleaf's Ev., 479.
The land in question is claimed to have been formerly within the territorial jurisdiction of the State of Georgia , and the land is described in the grants as lying within the county of Irwin in that State. The grants were offered as parts of the history of the title to the land, and in view of the fact that a dispute existed for a long period as to the exact boundary line of the States, and that the law sometimes recognizes titles to property granted by the government exercising the powers of sovereignty for the time being, the documents were properly received as alleged links in the chain of title. Whether they were "connected with the case" depended upon the whole evidence offered. In this aspect the court properly received the documents in evidence.
The defendant objected to the deed of James Groover (grantee of the Georgia patents) to Thomas A. Groover and the deed of Thomas A. Groover to Charles A. Groover, the ancestor of the plaintiffs, on the ground that the execution of the deeds was not sufficiently proved, and that as to the last named deed one of the subscribing witnesses was living and should be called to prove the same.
As to the deed of James Groover, it was shown that he was dead, and the subscribing witnesses were also dead. The signatures of the grantor and of the subscribing witnesses were shown to be genuine. As to the deed of Thomas A. Groover to Charles A. Groover, it was shown that the grantor was living in Georgia , and one of the subscribing witnesses, James G. Groover, was living and was out of the State, residing in Georgia , and the other subscribing witness was dead. Thomas A. Groover was produced and testified to the genuineness of the signatures of both subscribing witnesses, and they were signed in his presence and at his request, and that the one now living was in Georgia .
In all cases there should be strict, diligent and honest inquiry made for the subscribing witnesses, satisfactory to the court under the circumstances of the case, before proof of their hand-writing will be received. And where the subscribing witness to a deed is out of the jurisdiction of the court proof of his hand-writing is sufficient evidence of the execution of the deed without any proof of the signatures of the parties to the deed. ( The People vs. Rowland, 5 Barb. 449; 1 Greenleaf Ev., 572, and notes.) This is the recognized rule. These deeds, having been duly proved, were competent evidence.
The grantee of the Governor of Georgia, and his grantees and successors under the same title, were in actual possession of the premises from the date of the Georgia grants (1842) to 1876, when the plaintiffs were dispossessed by the defendant under a judgment in his favor "against Mrs. Groover," as he testifies, up to which time he had never had possession of the land in controversy.
The first evidence on the part of the defendant was a deed from the Trustees of the Internal Improvement Fund of Florida, dated September 12, 1874, conveying to defendant fractional Section 29, T. 3, N., R. 9, E., in Madison county.
This was admitted against plaintiffs' objection that it should be first shown that the grantors had possession when they attempted to convey. Defendant's claim, however, is that the Trustees and the State (whose Trustees they are) derived title originally and direct from the United States , and that this title is superior to any other. As a link in the chain of proofs by which the defendant proposes to overcome the evidence of the plaintiffs' right of possession, the deed was admissible in the first instance. The character of the title held by the Trustees, though not original, is still of such a public character that their deed may be deemed prima facie evidence of title in the grantee, subject, however, to be overthrown by a former or superior grant or other evidence of superior title or right of possession.
In support of the objection the plaintiffs' counsel cite the ruling of this court in Doe ex dem. Magruder vs. Roe, 13 Fla. 602. It was there held that there was nothing in the nature of the title of the Trustees which should preclude a party against whom it may be introduced from showing a superior title in himself. In that case the opposing title which the court thought might be shown against the deed of the Trustees was a grant made by the Spanish government before the treaty of cession and actual possession under it, and this might be a better title than could be derived from the State, even though the State had a patent issued from the United States Land Office. The defendant was attempting to show a legal title. The question tried was, which was the better title; either, unopposed, may be prima facie a legal title.
The second error assigned by plaintiffs is the admission of the certificate of Corley, Commissioner of Lands, &c., to show a conveyance from the United States to the State. The act of the Legislature, approved February 20, 1875, Ch. 2063, (McC. Dig., 515, 10,) makes such certificate evidence prima facie "with respect to the ownership by the State or by the School, Seminary or Internal Improvement Funds of any lands in this State." The certificate offered is embraced in this act. It certifies that the land described was patented to the State as "swamp and overflowed lands" July 6, 1857, and is evidence of that fact.
The third error assigned is that the court admitted the certificate of Eagan, Commissioner of Lands, &c., that a sale of the lands to McCall and Stripling had been made in 1857.
We think this exception is well taken. This certificate is not one of the character recognized as evidence under the statutes or otherwise. It is not a certificate of ownership by the State or the Trustees, nor is it a deed, agreement or contract, or a copy of any document or record pertaining to the office of the Commissioner within the meaning of the act of February 20, 1875, Ch. 2063, or the act of February 20, 1879, Ch. 3127, McC. Dig., 515, Secs. 10, 11. We find no law making this certificate evidence.
The fourth error assigned relates to the testimony of defendant by which it was sought to prove by parol that McCall and Stripling had entered the land and procured a certificate of entry, which they transferred to defendant. There was no evidence that such certificate had been issued to McCall and Stripling. No copy was produced, and there was no evidence that a certificate had been lost or destroyed, or in the possession of the other party, in order to lay the foundation for parol evidence of its existence or of its transfer. If this proof was material as bearing upon the title or transfer of the right to a patent, parol testimony was not admissible until a foundation for it had been shown.
As to the fifth error assigned, the admission of proof of a parol bargain between the defendant and Mrs. Groover for the purchase of the land by her and its abandonment, though such evidence was not competent to affect the rights of the parties to this suit, yet it cannot be considered that the testimony alluded to had any influence with the court or jury.
Other grounds of error assigned by appellants are covered, so far as they seem to require notice in the present case, by the conclusions which follow.
The appellants proposed several instructions which they requested should be given to the jury, several of them assuming that the boundary line between the States of Florida and Georgia had never been settled.
The boundary between the two States is a straight line drawn from the junction of the Flint and Chattahoochee rivers to the head of St. Mary's river, thence down the middle of that river to the Atlantic Ocean . This was the boundary fixed by the treaty of 27th October, 1795, between the United States and Spain . (8 U.S. Statutes at Large, 138.) The exact point called the head of the St. Mary's river was a matter of controversy for a long time. Finally it was determined that "Ellicott's Mound" (as marked on the map) should be considered the eastern terminus of the straight line striking the St. Mary's river. Before the erection of this mound as the eastern terminus it had been variously contended on the part of Georgia and Florida that this terminus was northerly or southerly of the mound. Since then Ellicott's mound has been decided by agreement between the States to be the easterly point from which the line should be located. From time to time the Legislatures of Georgia and Florida passed very many acts and resolutions providing or endeavoring to provide for the actual survey, location and marking of the straight line between the two points mentioned, and to effect a settlement of the question. It is a part of the history of the matter that several lines have been run by surveyors employed by the United States and marked, which lines run respectively north or south of the land in controversy.
After much legislation and much communication between the Executives of the two States, in the year 1859 their several Legislatures by acts or resolutions agreed that the line to be run and marked by B. F. Whitner, Jr., on the part of Florida, and G. J. Orr on the part of Georgia, should be recognized as the true boundary line.
On the 8th day of February, 1861, the line run and marked by Whitner and Orr was declared by the Legislature of each State to be "the permanent boundary line."
Congress, on the 9th April, 1872, passed an act entitled "An act to settle and quiet the titles to lands along the line between the States of Georgia and Florida," declaring as follows: "That the titles to all lands lying south of the line dividing the States of Georgia and Florida, known as the Orr and Whitner line, lately established as the true boundary between said States, and north of the line run by Georgia, known as the Watson line, being all the lands lying between said lines, be and the same are hereby confirmed, so far as the United States has title thereto, in the present owners deriving titles from the state of Georgia."
This act is considered a ratification by Congress of the boundary line as adopted by Georgia and Florida, and we deem the Whitner and Orr line as marked to have been established from the date of the adoption thereof by the two States.
Precisely where this line is with reference to the land in question does not appear by any testimony in the record before us, but it is evidently assumed that it lies north of the lot claimed by plaintiffs, and we therefore consider that the land is within the present boundaries of Florida. That it lies within the territory formerly claimed by Georgia to be within her borders is unquestionable.
This appears not only by the evidence here, but by the history and legislative action of the two States. The true line was a matter in dispute between the respective legislative and executive authorities. Surveyors employed by the United States had run and marked lines south of this land. Up to the time of the agreement by the governmental authorities of the States that the Orr and Whitner line "should be and was thereby declared to be the permanent boundary lines between the States of Georgia and Florida," (as expressed by the Legislature of this State in the act of 22d December, 1859, and the resolutions of February 8, 1861,) and which line is spoken of in the act of Congress of April 9, 1872, as "the line dividing the States, * * lately established as the true boundary," it was "a case of disputed boundary." It is in evidence that in July, 1820, the Surveyor-General of Georgia caused the land in question to be surveyed and platted as situated in the 15th district in the county of Irwin, State of Georgia; and that it was conveyed to James Groover by the Governor of Georgia January 1, 1842, as land belonging to that State, "in pursuance of the act of the General Assembly passed 23d December, 1822, to dispose of the fractional lots of land in the territory lately acquired from the Creek and Cherokee Indians."
By the convention of 24th April, 1802, between the United States and Georgia , all the public lands south of the southern boundaries of Tennessee, North Carolina and South Carolina and east of the Chattahoochee river, &c., and not within the proper boundaries of any other State, were ceded to the State of Georgia . (1 Laws of U. S. , 488, 490.) By the same convention the United States agreed to extinguish all the Indian titles to lands in Georgia for her benefit. This was accomplished by treaty with the Creeks June 16, 1802, and November 14, 1805. 1 Laws U. S. 370, 373.
The State of Georgia , as appears, considered and treated the land in dispute as part of the Indian lands within her borders, and surveyed and sold it to James Groover.
The "Watson Line" is recognized by the act of Congress of April 9, 1872, by confirming to the grantees of Georgia all the interest of the United States in any lands north of that line. We do not mean that the Watson line was recognized as a State boundary, but the United States thereby recognized the grants made by the State of Georgia as valid against any claim of the United States . Nor do we intend to say that this act of Congress gave any right to plaintiffs in the disputed tract, if the United States had before conveyed it to the State of Florida by the patent of July 6, 1857. Nor on the other hand do we determine that the United States had title as against Georgia to the lands north of the Watson line.
It is not demonstrated by the proofs in this record or from the action of the United States Government or the governments of Georgia and Florida, that the line adopted by these States in 1859 and 1861 to be the permanent boundary between them, was the true line prior to that agreement. It was "adopted" and "recognized" as the settlement of a disputed boundary. The act of Congress of 1872 recognized and acted upon this settlement and mentions it as "lately established as the true boundary," thereby assuming that this "true boundary" had not been before established.
The United States Supreme Court in Poole vs. Fleeger, 11 Peters 185, in reference to a controversy between grantees of Kentucky and Tennessee, says: "Although in the compact Walker's line is agreed to be in the future the boundary between the two States, it is not so established as having been for the past the true rightful boundary." The court further remarks (p. 209): "It cannot be doubted that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories, and the boundaries so established and fixed by compact between nations become conclusive upon all subjects and citizens thereof, and bind their rights, and are to be treated, to all intents and purposes, as the true and real boundaries. * * It is a right equally belonging to the States of this Union ," Congress consenting. In that case it was held that the grants made by North Carolina and Tennessee were not rightfully made, because they were originally clearly beyond their territorial boundary, and that the grant under which the claimants claimed was rightfully made, because it was within the well known territorial boundary of Virginia. In that case there was no ground of cavil as to where the original boundaries had been located.
The same court in The State of Rhode Island vs. The State of Mass., 12 Peters 657, 748, speaking of the principle announced in Poole vs. Fleeger that an agreement between States, consented to by Congress, bound the citizens of each State, says: "There are two principles of the law of nations which would protect them in their property: 1. That grants by a government de facto of parts of a disputed territory in its possession are valid against the State which had the right. 2. That when a territory is acquired by treaty, cession or conquest, the rights of the inhabitants to property are respected and sacred. 8 Wheat. 589; 12 Wheat. 535; 6 Peters 712; 7 Peters 867; 8 Peters 445; 9 Peters 133; 10 Peters 330, 712."
In the controversy between the States of Rhode Island and Massachusetts, involving their disputed boundary, the matter was again before the Supreme Court in 4 HOW 591, 639, and at the close of the opinion of the court this language is used: "For the security of rights, whether of States or individuals, long possession under a chain of title is protected. And there is no controversy in which this great principle may be invoked with greater justice and propriety than in a case of disputed boundary."
The principles cited from the foregoing cases cannot be questioned. They are clearly applicable to the case under consideration.
It is considered established by the record here, in connection with the legislation of Georgia and Florida on the subject of the boundary, that Georgia claimed and exercised dominion of the territory down to the Watson line; that she caused it to be surveyed and mapped in 1820, and the surveys and maps to be recorded in her public records; that the territory was incorporated in the original county of Irwin; that acting under the authority of the Legislature the Governor issued patents to James Groover covering this land, and the same, the plat and certificate of survey, were recorded in the records of Irwin county; that from the date of this patent, January 1, 1842, the patentee and his grantees have, under conveyances recorded in Irwin county and its sub-divisions, been in constant possession by actual occupancy and cultivation down to 1876, when the defendant took possession under some proceeding against Mrs. Groover, and has held possession since that year.
A definitely marked boundary line between the Spanish province of Florida and the United States, or between Georgia and Florida, had never been made and recognized by the governments claiming dominion on either side until the boundary line was run by Orr and Whitner and recognized by the two States in 1859 and by Congress in 1872, whereby further controversy as to the location of the line was closed. Up to that time it was in controversy and doubt.
Congress in 1872 recognized and confirmed the titles granted by Georgia down to the Watson line as against the United States . By numerous decisions of the Supreme Court of the United States it appears that the law of nations has been recognized and adopted as applicable to the States of the Union; that grants by the nationality or the State actually exercising dominion over territory along the line of a disputed boundary, such State having power to grant lands within its border, as to the "rights of the inhabitants to property, are respected and sacred."
The claim on the part of the defendant is based upon a deed of the Trustees of the Internal Improvement Fund conveying to him in 1874 fractional section twenty-nine, which, according to a survey and plat in evidence, covers the land in question. This survey and plat is supposed to accord with the surveys made by the United States Surveyors of the public lands in Florida, and this land is described in the deed of the Trustees and the patent to the State as swamp and overflowed land granted by Congress by act of September 28, 1850, to the State, and by the State placed in the hands of the Trustees of the Internal Improvement Fund by the act of January 6, 1855, known as the Internal Improvement Act.
The court in charging the jury gave this instruction: "That the State of Georgia had no power to grant a valid title to the land in controversy," referring to the grant of Georgia to James Groover January 1, 1842 . This instruction, in connection with what followed it, was decisive of the case before the jury. It determined, as a matter of law and fact, that the State of Georgia had no power to confer the title, and that the boundary line between Georgia and Florida was, at the date of the grant, considered to lie north of this land, and that therefore it was not included within the then boundaries of the State of Georgia.
From what has preceded we think this charge cannot be sustained. Not only was there no evidence that at the date of that grant the known and recognized boundary line was north of this land, but the State of Georgia had exercised dominion and administered its government and laws upon the territory, granting lands, making surveys and records, and recording deeds of conveyance of these lands in Irwin county for a long period from a date anterior to the making of surveys by the United States.
The grant by Georgia was, at least, a "grant by a government de facto of parts of a disputed territory in its possession, and is valid against the State which had the right," and "the rights of the inhabitants to property are respected and sacred." 12 Peters 748.
The case is analogous to that of an adverse possession by one having color of title, and although we do not assert that a right by prescription or under acts of limitation is good against the sovereign power, yet the title of the United States will not prevail, when asserted merely by production of its patent, against an antecedent right.
"Neither the law of nations or the faith of the United States would justify the Legislature in authorizing these boards [the Commissioners appointed to ascertain the validity and location of grants of land claimed under the Spanish authorities in Florida] to annul pre-existing titles, which might consequently be asserted in the ordinary courts of the country, against any grantee of the American government." U.S. vs. Clarke, 8 Peters 436, 445, opinion by Marshall, C. J.
That the right of this grantee under the Georgia patent is superior to that of this grantee of the United States, is a proposition clearly shown in the before mentioned cases, decided by the highest tribunal in the land. The Congress having sovereign legislative power in the matter of the public lands, has never sought to annul these grants made by Georgia , but on the contrary has expressly recognized them.
We are entirely satisfied of the justice of our conclusion that in the case made by the record before us the right is with the appellants.
The judgment is reversed and a new trial awarded.
ANDREW J. COFFEE, PLAINTIFF IN ERROR,
JAMES M. GROOVER ET AL., DEFENDANTS IN ERROR.
[NO NUMBER IN ORIGINAL]
Supreme Court of Florida
20 Fla. 64
June, A. D. 1883, Decided
Writ of Error to the Circuit Court for Jefferson county, to which the case was transferred from Madison county.
Angus Paterson for Plaintiff in Error.
In the year A. D. 1874 the plaintiff in error brought an action of ejectment against Mary J. Groover as executrix of the last will and testament of Charles E. Groover, deceased, in Madison Circuit Court; the said case was, on the application of the said executrix, transferred to the United States Court at Tallahassee, and the verdict and judgment of that court was against her, and the said Andrew J. Coffee went into possession of the land in controversy under said judgment.
And afterwards, to wit: The defendants in error brought this suit in Madison Circuit Court, being the heirs of Charles E. Groover, and the case was transferred to Jefferson county and tried there at the Spring term of said court, A. D. 1883. To review that judgment this writ of error is sued out.
The matter of the former trial was brought to the attention of the court by a motion to dismiss, and also by a plea to the jurisdiction and res adjudicata, which were overruled on the ground that the executrix was not a party nor privy with the heirs. We take the position that the executrix is a privy, and that a suit by or against the executrix binds the heirs under our statute. Thomp. Dig., page 203, Sec. 5; McL. Dig., Sanchez's Adm'rs vs. Hart, 17 Fla., 507; Thompson vs. Campbell, 6 Fla., 546; Yulee vs. Canova, 11 Fla., 10, 56.
And especially when the case was transferred to the United States Court, because that court had jurisdiction of the whole matter, and the State court had no right to try it again. Evans & Blade vs. Percefull, 6 Ark., 424; Elliott vs. Piersall, 1 Peters, 340; 2 Peters, 169.
A married woman cannot bring a suit at common law in her own right. The case should be dismissed. Smith vs. Smith, 18 Fla., 789 and 799.
When the United States purchased Florida from Spain she purchased all the territory of the Floridas; and the State of Georgia had no more right to take part of the territory than she would if it had been a part of the Spanish Dominion; and all the territory to the established line belongs to the United States, and the United States alone has the right to dispose of lands, and a conveyance made by the United States is superior to all others. Thomp. Dig., Treaty with Spain ; 1 Peters, 511; 7 Curtis, 686; Chisholm vs. Coleman, 43 Ala., (New Series), 204.
No statute of limitation will run against the government. Angell on Lim., Secs. 34 and 37; United States vs. Hoar, 2 Mason, 312.
The land in controversy is a part of Florida, proved by the plaintiff in error and admitted by the defendants. It has been conveyed by the United States, and a patent issued therefor, and the plaintiff in error has a perfect chain of titles from the United States, therefore the plaintiff in error has a superior title to all others.
It is the right of nations to establish and fix their boundaries, and all citizens and subjects are bound thereby, and grants issued by these States must yield to the boundary thus fixed. This applies to the States of this Union, with one exception, that is Congress must ratify it. Poole vs. Fleegu, 11 Peters, 185; Rhode Island vs. Massachusetts, 12 Peters, 657; Gartice vs. Lee, 12 Peters, 511.
The Whitner and Orr line has been established by the States of Georgia and Florida. Code of Georgia, pages 6 and 7, Sections 17 and 21; McC's. Dig., page 952, Sections 8 and 11. And the line has been ratified by Congress. See Act of Congress, 1872.
The land in controversy is in Florida, and has been conveyed by the United States; therefore the plaintiff has a title superior to those claiming under Georgia grants, even if Georgia claims title from Indians. Angel on Lim., Sec. 412; Johnson vs. McIntosh, 8 Whea., 571.
The evidence shows that the Georgia grants do not cover the land in controversy.
The defendants in appeal claim Florida land and produce a grant, issued by the State of Georgia, to land that comes down to the Florida line, and they insist that the grant covers land over the McNeil line, but the evidence of G. S. Lanier, County Surveyor, shows, and also the plats with the grants show, that it only covers land to the McNeil line, and does not come south of it. Brown vs. Huger, 21 How., 305.
The Georgia grants do not come further south than the McNeil line, and therefore do not include the land in controversy.
And even if the grants covered the land the defendants fail to connect themselves in any way with them, for the deeds they produced do not show in what State the land described in them lies, and this defect cannot be cured by parol testimony: hence the defendants are not entitled to recover.
The will of Charles E. Groover shows that the executrix had power to act with reference to the land, and should not have been ruled out. A certified copy under the seal was proper evidence.
The suit did not survive to the other defendants at the suggestion of the death of Annie E. Groover, and her administrator should have been made a party.
The verdict of the jury ought not to have been changed by counsel; he was only authorized to put it in form; he changed it, the whole to 48-49ths. Proffatt on Jury Trials, Secs. 443 and 444; Patterson vs. United States, 2 Wheat., 221.
The grounds set forth in the motion for a new trial were sufficient, as they were nearly all the objections, and a new trial should have been granted.
T. L. Clarke on same side.
The first, second and third errors assigned may be considered together, they being in substance:
1. That the court erred in refusing to dismiss the action on motion of Coffee, the ground of that motion being that the matter had already been adjudicated in favor of Coffee by United States Court.
2. That the Court erred in ruling that a judgment in U. S. Court against the executrix of Groover did not bind his heirs, and that the question may again be contested by the heirs.
3. That the court erred in sustaining the demurrer of Groover et al., to second and third pleas, and in overruling these pleas.
The defence of res adjudicata was raised by both the motion to dismiss and the second and third pleas, and it is now unnecessary to determine which was the proper way to make this defence. Both were determined adversely to Coffee.
In the case of Sanchez's Administrators vs. Hart, 17 Fla., 507, this court held "that an administrator or executor could maintain in this State, ejectment upon the title of his intestate or testator. That this right followed necessarily from the duties imposed upon him and from the express language of the statute defining his powers and rights." To enable a plaintiff in ejectment to recover he must show a title at least superior to the title of his adversary. If an administrator or executor can maintain ejectment upon the title of his intestate or testator, there exists but the greater reason that he should be competent to defend such action by setting up the title of the deceased. His corresponding right and duty to defend would appear to be more especially imposed by the statute. The statute gives to the executor or administrator the possession of the lands of the deceased; being so in possession, he is the party against whom the action should be brought. The summons in ejectment is "issued to the person in possession, and to all persons claiming adversely or entitled to defend the possession of the property claimed." Rules of Court in Common Law Actions, 83.
The possession of the administrator or executor is the possession of the heir. He is to all intents and purposes the tenant of the heir. The lis pendens is a notice to all parties claiming adversely to come in and defend, and Rules 84 and 85, following that just quoted, provide how they shall come in. It occurs to us that the rule referred to (83) was designed to meet just such cases as the one at bar. The suit was against the "executrix in possession and all persons claiming adversely or entitled to defend the possession of the property claimed." The executrix appeared and removed the action by his petition to U. S. Court, when there was a trial and verdict and judgment for Coffee, under which he took possession of the premises. The defence of the executrix was the defence of the heirs and both are bound by the judgment in that action.
5. The fifth error assigned is that the court erred in deciding that a grant issued by the State of Georgia to lands within the limits of the State of Florida, is superior to a grant issued by the United States Government to the same lands, and that the title of the party holding the Georgia grant is superior to the title of the party holding under the United States Government.
It is admitted that the land in controversy is in Florida, and has always been in Florida. It was surveyed as Florida land by the United States Surveyors, and included in fractional section 29. This is shown by the testimony of Lanier, an old surveyor, who testifies that he traced the line only a few days before trial. Coffee testifies "that he came to Florida in 1839, and his brother then had this land in possession, and had cleared a part of it. That his brother had only a claim, the land not having been put on the market. That he, plaintiff in error, bought his brother's claim." This claim and possession go back prior to 1839. Three years afterwards, in 1842, the grant of the State of Georgia issues to Groover. This is the first we hear of Groover having any claim. Coffee perfects his title as soon as the United States issues her patent to the State of Florida. This was in 1857. After reciting this, Coffee says: "Mr. Chas. A. Groover had a clearing on part of the land in controversy and I had a part of the land in cultivation that was included in my deed and south of the Watson line, and as there was a dispute between myself and Charles A. Groover about said land we agreed to let it remain as it was till Congress should settle it." The grants from the State of Georgia did not purport to convey to Groover any land south of the Florida line. Both plats show the southern boundary of these lots to be the Florida line. We must bear in mind that these grants state only the numbers of the lots and the quantity of land they contain without giving their extent east and west or north and south. Everitt P. Groover, one of the witnesses, gives the distance from their northern boundary to the Watson line, but failing to give the extent east and west does not show that it is necessary to come below the McNeil line to get all the land the grants call for. Lanier, the County Surveyor of Madison county, says he has surveyed entirely around fractional section 29, and that it extends north to the "McNeil line." That while he did not survey the "Watson line" he crossed it and saw that it passed through a large swamp that extends almost as far north as the "McNeil line." When shown the Georgia plats he says "they indicate no such swamp on their southern boundary. That he has been a deputy surveyor in Georgia and is acquainted with Georgia surveying, and that from an inspection of these plats he would say that these grants do not cover the land in controversy, because in Georgia the surveyors had to put down on their plats the face of the country, that is to mark the ponds, swamps, branches, &c. That these plats show no swamp on their south boundary, and if the grants come to the Watson line they would show the large swamp referred to."
But if the State of Georgia intended to grant as far south as the Watson line the case then stands thus: Prior to 1839 the Coffees came to Florida and took possession of the land as Florida territory, cleared and cultivated a portion of it. In 1842 the Groovers cover it with a Georgia grant. Coffee goes on and as soon as it is put in market gets the United States title to it. A dispute arises as to which State it is in and which has the better title. They agree to abide the action of Congress in the settlement of the line between the two States. When the line is finally located the land is clearly and certainly in Florida. The Groovers fail to keep faith and the legal contest commences. Now which has the better title, Coffee who first took possession and as soon as possible afterwards procured his title from the General Government, which was the real owner, or Groover, who, after Coffee had taken possession and cleared and was cultivating a portion of the land, procures a grant from the State of Georgia, which State it is now admitted did not own the land?
6. It is well settled that no person can by mere occupancy acquire title against the United States government. The State of Georgia certainly never had any rightful jurisdiction over this property. At best it was but a "squatter." The Coffees claimed and held possession of the land at the time of and before the State of Georgia attempted to grant the land to James Groover. Coffee perfected his title from the United States government before the establishment of the Orr and "Whitner line." Had he attempted to oust Groover by obtaining a title from Florida after the establishment of that line, then his action, to say the least of it, would have been inequitable. But both parties seeking to acquire the title to the land before the location and establishment of the line, and each having obtained a title from their respective States, we submit that it makes a far different case. Coffee having had a prior possession, and having, before the fixing of the line, obtained a title from the State of Florida in which the real legal title was vested, has all the equities supported by the prior legal right and the legal title emanating from the General Government.
7. Neither the deed from James Groover to Thomas A. Groover, nor the deed from Thomas A. Groover to Charles A. Groover, show in what State the land they purport to convey is situated. The deeds appear to have been made in Georgia where the parties reside, the former locating the land in Lowndes county and the latter in Brooks county. Other States in the Union have counties bearing the same name, and as it nowhere appears that Brooks and Lowndes counties are the same county the location and description is indefinite, uncertain and insufficient. This deficiency should not have been supplied by parol testimony admitted against the objection of plaintiff in error.
8. The court refused to permit a certified copy of the will of Charles A. Groover to be read in evidence. The objection to its introduction was that it was not properly certified and did not appear to have been proved and admitted to probate in Florida . It is certified by the Ordinary of Brooks county, Georgia, as a copy from the records of his court, and has the seal of the court of Ordinary of Brooks county, Georgia, attached. This is sufficient to admit it as a record of a court of another State under our statute. McL. Dig., 513, Sec. 2.
The fact that the will is a record of the Court of Ordinary of Brooks county, Georgia, is conclusive of its probate in that court. No further proof is required to admit it to probate in Florida . McL. Dig., 987, Sec. 8.
Besides, if we apply the same doctrine to the will that the court has applied to the deeds no probate in Florida could be necessary. The will was made November 27, 1865 . The testimony shows that Charles A. Groover died about this time and long before the establishment of the "Orr and Whitner" line. If Georgia could pass the land in Florida by her grants a probate of the will in her courts was certainly competent to establish the validity of the will and pass the title to the devisees therein named. Under the will the wife and executrix is a necessary party to this suit. She takes a child's part in the property in controversy. It appears from the pleadings that some of the children are yet minors. The will postpones the division of the property till the youngest child becomes of age or marries. The executrix is consequently still in possession of the estate, and as such could maintain ejectment. Sanchez's Adm'rs vs. Hart, 17 Fla., 507.
Can the heirs sue till the administration is finished? Is not the right of action limited to executrix? If not, could both the executrix and the heirs prosecute separate suits for the property at one and the same time against Coffee? If we admit that either the heirs, or personal representatives of a deceased, may maintain ejectment upon his title, then certainly both may sue. And if the judgment in this cause is finally for Coffee the executrix may take her turn at him when he gets through with the heirs.
9. The action is for the recovery of the whole property and not for an undivided interest. Upon the suggestion of the death of Annie E. Groover the suit was revived against the objection of plaintiff in error in the names of all the surviving plaintiffs, and there was nothing in the pleadings or testimony concerning any undivided interest in the land. When the jury came into court they announced that they found for the plaintiffs and assessed their damages at $ 500--a verdict for the whole and damages for the detention of the whole. The counsel put the verdict in form and inserted forty-eight forty-ninths of the land, but kept all the $ 500 damages.
10. The grounds set forth in the motion for a new trial cover all the errors assigned. And for the reasons hereinbefore set forth a new trial should have been granted by the court below.
Pasco & Palmer and C. W. Stevens for Defendant in Error.
The defendants in appeal who were plaintiffs in the court below offer the following arguments against the positions taken by plaintiff in appeal in his citation of errors alleged by him to exist in the record of the judgment herein rendered in Jefferson Circuit Court.
1, 2 and 3. The first three errors assigned relate to a defence set up against the action of ejectment instituted by defendants in appeal against plaintiff in appeal; that he had recovered possession of the lands in dispute in an action tried in the United States Circuit Court against Mrs. Groover as executrix or administratrix of Charles E. Groover, through whom these defendants claim title as heirs. In the Circuit Court this plea was demurred to and the demurrer was sustained, and properly so.
(a.) If the facts as set up in the plea were a good defence the plaintiff in appeal could have availed himself of this defence under the plea of not guilty.
(b.) But they did not constitute a good defence, for it is well settled that a judgment against an administrator does not bind the heir. Freeman on Judg. 163; Bigelow on Est., 78, 79.
4. Some of the parties claiming title to the land are married women and have sued in their own names, their husbands joining with them, which is in accordance with the rule at common law and consistent with the decisions of this court. Bacon's Abr. Baron and Femme, 500; 1 Minor, 347; Lignoski vs. Bruce, 8 Fla., 269.
5 and 6. The questions covered by these alleged errors came before this court at the former appeal, and we do not propose to re-argue them unless the court so directs.
7. We think that the deeds sufficiently show where the lands are located. But evidence is surely admissible to identify and locate the land in all actions of ejectment. 2 Greenl. on Ev., 308; 1 Greenl. on Ev., 310, and note, Hogans vs. Carruth, 18 Fla. , 587.
8. The will was properly excluded. It was not probated, nor was it proved according to law. Stringer vs. Young, 3 Peters., 336; McC. Dig., 987, 8; 2 Greenl. on Ev. 315.
9. There was no variance between the verdict as originally brought in and as afterwards returned by the jury and recorded, and if there were, the jury had the right to change it, if they thought it did not speak the truth, as long as the case remained in their hands. Hilliard on New Trials, 118, 121; Proffatt on Jury Trial, 456, 457, 461, 463, and 464. The jury, under leave of the court and by consent of parties, separated late in the afternoon, after being charged by the court on the law of the case. They were to re-assemble in the morning for deliberation and it was expressly agreed that if their verdict was not in form it should be amended under the instructions of the court. Before deliberating in the morning they again came into the court and were further charged. They returned to their room and found a verdict for plaintiffs generally, and assessed damages at $ 500. Plaintiffs claimed 48 49ths of the land, and it only remained to describe what they claimed and there was no conflict in the testimony on this point. One of the joint owners had died after the last appeal had been decided. She owned an one-seventh interest in the land. All of this descended to her brothers and sisters, co-plaintiffs, six in number, except one-seventh (or one forty-ninth of the whole), which went to her mother who was not a party, leaving forty-eight forty-ninths in plaintiffs, which the jury found. No part of the damages belonged to the mother. The $ 500 was the amount found for plaintiffs and they did not change these figures. The evidence would have supported a larger amount. Plaintiffs' attorneys wrote out a form of verdict under the direction of the court. Defendant's attorneys examined it and suggested no change, they only objected to it generally. The jury retired, filled out the form, signed it and brought it in as their verdict, and it was so recorded. It was in all respects such a verdict as they had a right to find and is supported by the evidence.
10. The merits are the same as when the case was here before. They were then so strongly with the Groovers that this court reversed the former judgment. At the second trial the jury was charged in accordance with the law as laid down by this court and the result was in harmony with the former decision here made.
JUDGES: THE CHIEF JUSTICE delivered the opinion of the court.
This was an action of ejectment brought by defendants in error to recover lands in Madison county, and tried in Jefferson on change of venue. A former trial resulted in a verdict for plaintiff in error, which was set aside on appeal by this court in June term, 1882. 19 Fla. 61.
The second trial, in March, 1883, resulted in a verdict and judgment for the plaintiffs below, defendants in error, and now the defendant below brings error.
The present record brings up questions of pleading which were not before this court at the former hearing, the plaintiff below having been the appellant.
The errors assigned will be considered in their order:
I. The first is that the court refused to dismiss the cause on motion of defendant below, on the ground that the matter had been adjudicated in the Circuit Court of the United States in his favor.
A former recovery relating to the same cause of action, as between parties and privies, may be matter of defence as an estoppel, to be proved at the trial, but it is not good ground of a motion to dismiss, and the motion was properly denied.
II. The second assignment of error has no foundation in the record. We do not find that the court decided that a judgment as between the plaintiffs in error and the executrix does not bind the heirs of decedent. No such judgment was offered at the trial.
III. The third assignment is that the court erred in sustaining the demurrer to the pleas of res adjudicata.
In ejectment all legal defences may be made under the plea of not guilty, and the special denials mentioned in the statute. McC. Dig., 481. Special pleas of matter affecting the legal title, or in estoppel, only encumber the record and tend to embarrassment. Wade vs. Doyle, 17 Fla. 522; Neal vs. Spooner, supra 38. They should be struck out by the court sua sponte, or on motion or on demurrer, because they are not proper pleas; but a judgment sustaining a demurrer will not preclude proof on the trial of the facts so improperly pleaded. There was no error in the ruling.
IV. The fourth ground of error is that two of the defendants are married women, and they cannot maintain a suit at law in their own right, nor their husbands in the right of their wives, independent of them.
This assignment we do not think applicable to the case. The husbands and their wives are joined as plaintiffs here in the right of their wives. This is the correct practice. Tyler on Eject., 169; 1 Chitty's Pl., 82.
V. The fifth ground is "because the court erred in deciding that a grant issued by the State of Georgia, to lands outside of the State of Georgia, and within the limits of the State of Florida, is superior to a grant issued by the United States Government to the same lands, and that parties holding the said lands in Florida by said Georgia grant, have superior title to one claiming under the U.S. Government": and the sixth ground is "because the court erred in deciding that a party holding land in Florida under a Georgia grant for a long time acquired a title superior to that of the United States Government, thereby deciding that the statutes of limitation could run against the government."
We do not understand this to be the ruling of the court at the trial, in substance or in effect.
The testimony is substantially the same as that which was before the court upon the former trial. See 19 Fla. 61, et seq. It shows that the boundary line between Georgia and the Territory, and the State of Florida, was uncertain and in dispute; that in 1842 Georgia granted this land to James Groover, describing it as land in what was then Irwin county, in Georgia; that the survey and plat by which the grant was made were made in 1820 by the Surveyor-General of Georgia; that the State of Georgia, through all the departments of its government, and the local authorities of Irwin and other counties, which were created out of Irwin county, claimed and exercised control and jurisdiction of the territory as far south as the line known as the Watson line, and the courts exercised jurisdiction, civil and criminal; conveyances of land located there were recorded in Georgia; people living there were summoned as witnesses and jurors; the estates of people dying there were administered in the courts of Georgia; lands were surveyed, platted and granted by the authority of the government of that State down to the time of the establishment and recognition of the "Whitner and Orr" line by the States of Florida and Georgia, and by the Act of Congress of April 9, 1872.
James Groover, the grantee of Georgia, was in possession of the land under the grant of 1842 at that time, and he and his grantees and the plaintiffs as heirs of such grantees remained in possession, improving and cultivating it, until they were dispossessed in 1876 by Coffee, against whom this suit is prosecuted.
No definitely marked boundary line between Georgia and the Spanish province of Florida, or between Georgia and the Territory or State of Florida, had ever been recognized by the respective governments until the Whitner and Orr line was recognized by Congress in 1872. The boundary was in doubt and in dispute up to that time when the Whitner and Orr survey, made under the authority of the respective States, was for the first time recognized, and grants made by Georgia down to the Watson line were also recognized. (We refer to the opinion of this court in Groover vs. Coffee, 19 Fla. R. 61, 76, for a more detailed statement of the action of the respective State governments on the subject.)
On the part of the defendant below, it was shown that the land in dispute was patented by the United States to the State of Florida, July 6, 1857, under an act of Congress of September 28, 1850, as "swamp and overflowed land," it being a part of fractional section twenty-nine, in township three, north, and range nine, east. On September 2, 1857, the Register of the Florida Land Office issued a certificate of purchase to McCall and Stripling, who assigned and conveyed to A. J. Coffee November 12, 1858, and on the 12th September, 1874, the Trustees of the Internal Improvement Fund of Florida executed a deed of the said section 29 to Coffee. Coffee testifies that in 1839 his brother had a "claim on this land and cleared a part of it before it came into market, and he bought his brother's claim; that Charles A. Groover had a clearing also on it, north of the Watson line, Coffee's clearing being south of that line, and Coffee never took actual possession of the portion north of said line (which portion of section 29 is the territory in dispute) until after the act of Congress of 1872. The Groovers were dispossessed in 1876 by Coffee as appears by the testimony, and Coffee has been in possession since that time.
There is nothing in this record nor in the history of the government of the Territory or the State of Florida showing that the authorities of the latter exercised any of the powers of government over this portion of section 29 lying north of the Watson line up to the time of the survey of the Whitner and Orr line, which was recognized and adopted as the boundary February 8, 1861, by the Legislatures of Georgia and Florida, and recognized by Congress in 1872.
The court and jury did not decide, as is assumed by plaintiff in error, "that a grant by Georgia of lands outside her territorial limits and within the State of Florida is superior to a grant by the United States government," nor "that the statute of limitations could run against the government." What they did decide was that grants by a government de facto of parts of a disputed territory in its possession are valid against the State which had the right (12 Wheat. 600); and that when a territory is acquired by treaty, cession or conquest, the rights of the inhabitants to property are respected and sacred. Rhode Island vs. Massachusetts, 12 Peters 657, 749; S. C., 4 How. 591, 639; U.S. vs. Clark, 8 Pet. 436, 445. And the principle applies to the States of this Union. Poole vs. Fleegler, 11 Peters 185, 209. In the latter case the court says (p. 210): "Although, in the compact, Walker's line is agreed to be in future the boundary between the two States, it is not so established as having been for the past the true and rightful boundary."
We decided this to be the rule in the present case when it was before us on the former appeal, (19 Fla., supra,) and the cause was tried the second time under the influence of the opinion and judgment of this court. We find no reason for modifying that judgment, and the error assigned is not sustained.
VI. The seventh error assigned is, that the court erred in admitting two deeds which do not show in what county or State the land described in them is situated, and it was improper to supply the deficiency by parol.
In Atwater vs. Schenck, 9 Wis. 160, a deed was offered which described the land but did not mention the county or State. An offer was made to identify the land by a witness and the court said "this was competent evidence." To the same effect: Hogans vs. Carruth, 18 Fla. 587, 590; Cutter vs. Caruthers, 48 Cal. 178, 184; 2 Greenl. Ev., 308. The oral testimony in this case clearly proved the identity of the premises and the boundaries, and this was competent evidence. The deeds in this case hardly required any such explanation by parol.
VII. "The court erred in ruling out the last will and testament of Charles E. Groover, refusing to allow it to be read in evidence."
The paper offered was certified by the Ordinary of Brooks county, Georgia, that the "foregoing copy of the last will and testament of Charles A. Groover and codicil is a true copy from the records of this office." There is no certified copy of any proceeding of any court showing that the will had been duly proved or recorded by authority of law. McC. Dig., 513, 2; id., 987, 8. It was not competent evidence. 2 Greenl. Ev., 310, 315.
VIII. The ninth error assigned is "in permitting a variance between the verdict as brought in by the jury at first and that prepared by the attorneys for plaintiffs, the verdict of the jury being for the plaintiffs (defendants in error) and five hundred dollars damages, but the verdict as prepared by the attorneys being for forty-eight forty-ninths of the land and the same amount of damages."
The record shows that the jury brought in a verdict generally for the plaintiffs and assessed the damages at $ 500, which was not entered in the record. The court then directed plaintiffs' attorney to prepare a verdict in proper form, and a verdict having been prepared was submitted to the jury with instructions from the court to retire and examine the verdict as prepared, and if they found it to be their verdict to bring it in as such, and the jury then retired and returned it into court in writing. The jury found that the plaintiffs were "entitled to recover the interest claimed by them in the land in controversy, to wit: forty-eight forty-ninths" of the land, (describing it in full) "and the jury assess the plaintiffs' damages at five hundred dollars." This verdict was recorded and judgment entered upon it.
It is evident that if the verdict as first handed to the court had been recorded and judgment entered upon it, there would have been error, as the verdict was not in compliance with the statute. It was within the power and it was the duty of the Judge before recording such verdict to recommit the matter to the jury and call their attention to the want of form and instruct them how to correct it. This was the effect of the action of the court. In a similar case in Maryland, after the court had adjourned for the day the jury signed and sealed a verdict and delivered it to the clerk, and when called to the bar next morning, before the verdict was recorded, they were sent back to correct it, as it did not determine the issues joined in the cause to their full extent, and they found a new verdict which did. The court held that a judgment entered on the second verdict was correct. Edlin vs. Thompson, 2 Har. & Gill. 31. The rule is that a jury may vary the form or correct a verdict before they are discharged and before it is recorded. Where the court put a verdict into form and it is read to the jury and they assent, this is sufficient. Rapps vs. Parker, 4 Pick. 238; Osgood vs. McConnell, 32 Ill. 74; Wright vs. Phillips, 2 Greene, 191; Burk vs. Comm., 5 J. T. Marsh. 675; Proffat on Jury Trials, Secs. 456, 461, and citations.
IX. As to the verdict for the forty-eighth forty-ninths of the land. The suit was commenced by seven plaintiffs who were shown to be the children and heirs at law of Charles A. Groover, (to whom the land was conveyed by the grantee of the original patentee from the State of Georgia,) and who died in possession in 1866. Annie E. Groover, one of the plaintiffs, died since this suit was commenced, leaving the six surviving plaintiffs and her mother as her heirs at law. It does not appear that she was married, or that there was an executor or administrator appointed. At her death her estate descended by our statute to her mother, brothers and sisters. McC. Dig., 468. Her interest in the property was one-seventh, and her mother inherited one-seventh of one-seventh, to-wit: one forty-ninth, and the brothers and sisters six-sevenths, and thus they became the owners of forty-eight forty-ninths.
Before the last trial the death of Annie E. Groover was suggested upon the record, and it was ordered that the action proceed at the suit of the surviving plaintiffs.
Section 42 of Chapter 1096, Laws of 1861, McC. Dig., 829, Sec. 73, provides that if there be two or more plaintiffs and one or more of them should die, if the cause of action survive to the surviving plaintiffs, the action shall not be thereby abated, but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiffs.
Under this statute the suit was properly continued in the names of the survivors, as their right of action to six-sevenths was not affected by the death of the co-plaintiff. At her death the legal title to six-sevenths of the one-seventh which had belonged to the deceased was vested, cum onere, in the survivors, and thus the entire right and title of the survivors, to-wit: forty-eight forty-ninths which had been involved in the issue, remained so.
By rule 87, Circuit Court rules, "in case of the death of one or more of several plaintiffs in ejectment, where the right does not survive to the remaining plaintiffs, the action may proceed at the suit of the surviving plaintiff for such share of the property as he claims," or the legal representative of the deceased may be made a co-plaintiff.
Under this rule the right of the mother to the one forty-ninth not being involved in the issue, as she was not a party to the suit, of course had not survived to the remaining plaintiffs.
The jury were clearly right in finding that the plaintiffs were entitled to recover such interest in the land as was thus vested in them by law.
As to the amount of the damages assessed, it is objected that the first verdict was for the plaintiffs generally, and for the whole property and $ 500 damages, and when the verdict was put in form for forty-eight forty-ninths the amount of damages was not also reduced.
We see no substance in this objection. The jury in the first instance found that these plaintiffs had suffered damage to the amount named and upon examination of the testimony that amount is fully supported. The testimony is that a fair average rental for the tillable land, (about eighty acres,) was one dollar and seventy-five cents per acre, and that Coffee had occupied it for about seven years. This testimony would sustain a much larger amount of damages in favor of these plaintiffs.
This answers the assignments of errors, as we understand them, and all the points made on the motion for a new trial. We find no error in the record and the judgment is affirmed.
SUPREME COURT OF THE UNITED STATES
123 U.S. 1; 8 S. Ct. 1; 31 L. Ed. 51
Argued April 20, 1887.
October 17, 1887, Decided
ERROR TO THE SUPREME COURT OF THE STATE OF FLORIDA.
EJECTMENT for lands in Madison County, Florida. Judgment for plaintiffs, which was affirmed by the Supreme Court of the state. This writ of error was sued out to review the judgment in affirmance. The case is stated in the opinion of the court.
Head notes by Mr. Justice Bradley.
1. Grants of land made by a government, in territory over which it exercises political jurisdiction de facto, but which does not rightfully belong to it, are in valid as against the government to which the territory rightfully belongs.
2. Where a disputed boundary between two States is adjusted and settled, grants previously made, by either State, of lands claimed by it, and over which it exercised political jurisdiction, but which, on the adjustment of the boundary, are found to be within the territory of the other State, are void unless confirmed by the latter State; and such confirmation cannot affect the titles of the same lands previously granted by the latter State itself.
3. The boundary between Georgia and Florida was long in dispute; Georgia claiming to a line called Watson's line, and exercising political jurisdiction, and making grants of land to that line; whilst Florida claimed to a line called McNeil's line, further north than Watson's. Upon running the true line, as finally agreed upon by the two States, it was found to be further north than McNeil's line: Held (1) that the grant made by Georgia of the land in dispute, which was south of McNeil's line, though made whilst Georgia exercised the powers of government de facto over the territory there, was nevertheless void; (2) that the confirmation by Florida of the grants made by Georgia, did not invalidate or disturb the grant of the land in dispute previously made by itself.
4. The history of the Florida boundary stated.
SYLLABUS: Grants of land made by a government, in territory over which it exercises political jurisdiction de facto, but which does not rightfully belong to it, are invalid as against the government to which the territory rightfully belongs.
Where a disputed boundary between two states is adjusted and settled, grants previously made by either state, of lands claimed by it, and over which it exercised political jurisdiction, but which, on the adjustment of the boundary, are found to be within the territory of the other state, are void, unless confirmed by the latter state; and such confirmation cannot affect the titles of the same lands previously granted by the latter state itself.
The boundary between Georgia and Florida was long in dispute; Georgia claiming to a line called Watson's line, and exercising political jurisdiction, and making grants of land to that line; whilst Florida claimed to a line called McNeil's line, further north than Watson's. Upon running the true line, as finally agreed upon by the two states, it was found to be further north than McNeil's line: -- Held, 1, That the grant made by Georgia of the land in dispute, which was south of McNeil's line, though made whilst Georgia exercised the powers of government de facto over the territory there, was nevertheless void; 2, That the confirmation by Florida of the grants made by Georgia, did not invalidate or disturb the grant of the land in dispute previously made by itself.
The history of the Florida boundary stated.
COUNSEL: Mr. Angus Paterson for plaintiff in error.
Mr. C. W. Stevens for defendant in error. Mr. S. Pasco was with him on the brief.
MR. JUSTICE BRADLEY delivered the opinion of the court.
This is an action of ejectment for ninety-seven acres of land in Madison County, Florida, situated near the boundary line between that state and Georgia . The plaintiffs were James M. Groover and others, heirs at law of Charles A. Groover, and now defendants in error; the defendant was Andrew J. Coffee, the present plaintiff in error. Judgment was first rendered by the court of first instance in favor of the defendant below; but being reversed by the Supreme Court of Florida, a new trial was had, and judgment was given for the plaintiffs, and affirmed by the Supreme Court. The last judgment of the Supreme Court is brought here for review on two grounds; first, that the matter in controversy had been tried and determined by the Circuit Court of the United States for the Northern District of Florida, in favor of the defendant, Coffee, in a suit between him and the executrix of Charles A. Groover, the ancestor under whom the plaintiffs claim title; secondly, on the ground that the defendant's title to the land in controversy was claimed by him under a grant made by the United States to the State of Florida, and by the State of Florida to the defendant, which title was set aside by the state court in favor of the plaintiff's title derived under a conflicting grant from the State of Georgia.
The first ground of error is not raised on the record in such a manner as to avail the defendant. The matter of defence involved therein was set up by two pleas: first, a plea of former recovery; and, secondly, a plea to the jurisdiction of the court. These pleas were overruled on demurrer, but for what reason is not stated. The Supreme Court of Florida, however, in its opinion, very properly says: "In ejectment all legal defences may be made under the plea of not guilty, and the special denials mentioned in the statute. McClelland's Dig. 481. Special pleas of matter affecting the legal title, or in estoppel, only encumber the record and tend to embarrassment. Wade v. Doyle, 17 Fla. 522; Neale v. Spooner, June Term, 1883 [20 Fla. 38]. They should be struck out by the court sua sponte, or on motion, or on demurrer, because they are not proper pleas; but a judgment sustaining a demurrer will not preclude proof, on the trial, of the facts so improperly pleaded." Coffee v. Groover, 20 Fla. 64, 78. The pleas being overruled, no attempt was made, on the trial, to set up the defence by proof of the former judgment relied on. This branch of the case, therefore, may be laid out of view.
The second ground for reversal is stated in duplicate form in the assignment of errors, as follows, to wit:
(1) "In the record and proceedings aforesaid there is manifest error, to wit: That the Supreme Court of the State of Florida in the above stated cause decided that a grant for land issued by the State of Georgia is superior to a patent issued by the United States for the same land, the said land being situate within the territorial limits of the State of Florida."
(2) "There is manifest error in this, to wit, that the Supreme Court of the State of Florida in the above stated cause, [as] by the record aforesaid it appears, held that the plaintiff in error should be ousted from certain lands embraced within the territory of the State of Florida, he holding title through the State of Florida derived from the United States, and that the defendants in error should be put in possession, they claiming under a grant issued by the State of Georgia."
By 709 of the Revised Statutes, where the decision of the state court is against a title claimed under the Constitution, or any treaty or statute of, or a commission held, or authority exercised under, the United States, this court has jurisdiction to review the decision. We think it will sufficiently appear from the facts of the present case, and the points of law arising thereon, that it satisfies the conditions of the section. The title claimed by the defendant rested, not only on a grant of the United States, but on a delimitation of territory under a treaty between the United States and Spain.
The case is one of conflicting grants of the same land lying near the boundary line between Georgia and Florida . The fact that the land in controversy was covered by both grants was settled by the jury. It is conceded to lie within the bounds of Florida according to the line recently agreed upon by the two States.
The occasion of conflicting grants being made was the uncertain location, at the time, of the true boundary line referred to, and the fact that Georgia claimed one line and the United States and Florida claimed another.
The plaintiffs, to maintain their title to the land in dispute, gave in evidence, on the trial, two patents from the State of Georgia to one James Groover, each bearing date the 1st day of January, 1842; one for 226 2/10 acres of land, described as situate in the fifteenth district of Irwin County (Georgia), and known and distinguished in the plan of said district by the number 199, and having the shape, form, and marks shown by a plat annexed; the other patent being for 250 2/10 acres of land, situate in the same district and county, known and distinguished by the number 200, and having the shape, form, and marks shown by a plat annexed. The plats showed that the two lots joined each other east and west, and that they were both bounded on the south by a common line called on the plats "Florida line"; and it was testified that the line thus marked on the plats was a line known as the "Watson line." Mesne conveyances were then given in evidence showing that said lots were conveyed by James Groover to Thomas A. Groover by deed dated December 31st, 1855; and by Thomas A. Groover to Charles A. Groover by deed dated July 8th, 1860; and it was further shown that Charles A. Groover died in 1866, and that the plaintiffs were his heirs at law. Evidence was also given tending to show that the said patentee and grantees respectively had possession of said lands under and in conformity with their said titles until the plaintiffs were ousted by the defendant in 1876.
Evidence was further given to show that another line, called the "McNeil line," ran about 14 chains north of the Watson line and parallel thereto, and that the land in controversy lay between the said two lines, having the Watson line on the south and the McNeil line on the north. Also, that a third line, called the "Orr and Whitner line," ran still farther north than either of the aforesaid lines, which Orr and Whitner line was conceded to be the boundary line between the States of Georgia and Florida, as recently fixed by mutual agreement between the two States, by certain laws and resolutions of their respective legislatures, confirmed by act of Congress.
The plaintiffs also introduced evidence tending to show that the Watson line was formerly considered the State line between Georgia and Florida; that Georgians worked the Georgia roads to the Watson line, and Floridians worked the Florida roads to that line; that as far back as one of the witnesses could remember, he being for many years a lawyer and judge in one of the border counties of Georgia, that State had claimed and exercised jurisdiction to the Watson line, until the Orr and Whitner line was agreed upon as the boundary between the two States; that the people living north of the Watson line did jury duty and voted in Georgia; that the wills of people dying there were probated in the Georgia courts, and their estates were administered upon in those courts; that the Georgia courts took jurisdiction of offences committed as far south as the Watson line, and tried cases in which people living there were interested; that the officers of the Georgia courts executed writs as far south as that line; that persons were tried in Georgia for offences committed between that line and the Orr and Whitner line. And, on the other hand, as correctly stated by the Supreme Court of Florida in its opinion, there is nothing in the record, nor in the history of the government of the Territory or of the State of Florida, showing that the authorities of the latter exercised and of the powers of government north of the Watson line prior to the said settlement of the boundary between the two States.
The defendant, to maintain the issue on his part, gave in evidence, first, a certified copy of a patent from the United States to the State of Florida, bearing date July 6th, 1857, issued under and in pursuance of the act approved September 28th, 1850, known as the act for granting to certain states the "swamp and overflowed lands" therein; by which patent there was granted to said State, as swamp and overflowed lands, certain designated fractional sections of land, amongst others "the whole of fractional section 29," in township 3 north, range 9 east; which fractional section was proved to be bounded on the north by McNeil's line, and to include the land in controversy. The defendant also produced in evidence a certificate of sale issued by the register of public lands for the State of Florida to one McCall and one Stripling for said fractional section 29, and other land named in said patent, which certificate bore date September 2d, 1857, and acknowledged the receipt of one hundred dollars in cash, and of certain bonds for the remainder of the purchase money of said lands, as provided by the land laws of Florida. The defendant further gave in evidence a deed from McCall and Stripling to himself, bearing date November 12th, 1858, conveying to him all the lands included in said certificate of sale, with a covenant that they were free from incumbrances; also a deed of grant and conveyance of the same lands to the defendant from the Trustees of the Internal Improvement Fund of the State of Florida -- the proper authority for that purpose -- which last deed bore date September 12th, 1874. The defendant, being sworn as a witness, testified that McCall and Stripling paid all the purchase money for the lands to the State; but that the certificate was lost, and he, the defendant, afterwards made proof of it, and had the Trustees of the Improvement Fund make him a deed: but that the original receipt had since been found. He also testified that he had lived near the Georgia line for over forty years and never heard of the Watson line until about ten or twelve years ago. He worked the public roads up to the McNeil line, and the Georgians worked their roads down to the McNeil line and no further; that the McNeil line was understood by citizens living near the line in both states to be the boundary line between the two states.
The defendant also gave in evidence the testimony of one Lanier, county surveyor of Madison County, Florida, who testified that he had surveyed the lands in controversy, and gave it as his opinion that the plats of land annexed to the plaintiffs' grants did not cover the said land, not having marks thereon for ponds, swamps and streams which he found on the premises; that the Watson line at the place in controversy runs through a large swamp not shown in said plats; that, until the establishment of the Orr and Whitner line, the McNeil line was always considered as the boundary line between Georgia and Florida; that he had frequently surveyed on the Georgia line, and always surveyed to the McNeil line; that he never heard of the Watson line until the controversy that led to this suit.
The court charged the jury that if they believed from the evidence that the State of Georgia, anterior to the year 1842, considered the land in controversy within her territorial limits, and incorporated within one of her counties, over which the authorities of said State exercised the usual powers of government; and that in 1842 the Governor of Georgia granted the identical lands in controversy to James Groover; and that said James Groover conveyed the same lands to Thomas A. Groover in 1855; and that said Thomas A. Groover conveyed land same lands to Charles A. Groover in 1860; and that said Charles A. Groover was dead, and that the plaintiffs were his heirs -- then they must find for the plaintiffs: -- But that if the evidence failed to induce the jury to believe that the lands sued for were the same as those described in the said grants and conveyances; or that the Georgia grants included the lands to the Watson line, they must find for the defendant.
Under this charge the jury found for the plaintiffs, thus establishing the fact that Georgia, anterior to 1842, did claim jurisdiction to the Watson line, and that the lands in controversy adjoining that line were included in the grant of Georgia to James Groover in 1842.
The Supreme Court of Florida sustained the charge of the court below, it being in accordance with its own opinion given when the case was first before it, as reported in 19 Fla. 61. The position assumed is, that grants in a disputed territory, by a government exercising therein sovereign jurisdiction de facto, are valid and to be sustained, notwithstanding that, by a subsequent settlement of boundaries, the disputed territory is conceded to the other contesting sovereign. Georgia, undoubtedly, at the time of the grant to James Groover, exercised the powers of government de facto over the territory in which the land in controversy was situated; and it is assumed by the Supreme Court of Florida that the boundary line subsequently agreed upon, by which said land was conceded to lie in the State of Florida, was a mere arbitrary line, adopted by way of compromise, and was never acknowledged to be the true legal line established by previous treaties and laws. The argument is, that, whatever may be the law with regard to grants made by a government clearly beyond its lawful boundaries and jurisdiction, it is certain that grants made within its jurisdiction, being lawful when made, are not invalidated by a subsequent cession of the territory to another sovereign; because, in such case, the rights of sovereignty only, and not those of private property, are changed. It is then assumed that, in cases of disputed boundary, where a line is finally fixed by compromise, the portions of territory previously possessed by either of the contracting parties, and conceded by the adopted line to the other, are to be regarded and treated as ceded territory, and not as territory that always really belonged to the sovereign who gets it by the compromise. The Supreme Court of Florida, speaking of the decision of the lower court, (which it affirmed), says: "What they did decide was, that grants by a government de facto of parts of a disputed territory in its possession are valid against the State which had the right, De la Croix v. Chamberlain, 12 Wheat. 599, 600; and that, when a territory is acquired by treaty, cession, or conquest, the rights of the inhabitants to property are respected and sacred. Rhode Island v. Massachusetts, 12 Pet. 657, 749; 4 How. 591, 639; United States v. Clarke, 8 Pet. 436, 445. And the principle applies to the states of this Union. Poole v. Fleeger, 11 Pet. 185, 209. In the latter case, the court says (p. 210): 'Although, in the compact, Walker's line is agreed to be in future the boundary between the two States, it is not so established as having been for the past the true and rightful boundary.' We decided this to be the rule in the present case when it was before us on the former appeal, 19 Fla. 61, and the case was tried the second time under the influence of the opinion and judgment of this court. We find no reason for modifying that judgment, and the error assigned is not sustained." Coffee v. Groover, 20 Fla. 64, 81.
Whether this view of the case thus taken by the Supreme Court of Florida is the correct one, regard being had not only to the facts found by the jury, but also to the treaties and acts of the Federal government, as well as of Georgia, in regard to the line in question; and whether the rule of law relied on by the court is a sound one, and rightly applicable to the case in hand, are the questions to be determined.
It is no doubt the received doctrine, that in cases of ceded or conquered territory, the rights of private property in lands are respected. Grants made by the former government, being rightful when made, are not usually disturbed. Allegiance is transferred from one government to the other without any subversion of property. This doctrine has been laid down very broadly on several occasions by this court, -- particularly in cases arising upon grants of land made by the Spanish and other governments in Louisiana and Florida before those countries were ceded to the United States. It is true that the property rights of the people, in those cases, were protected by stipulations in the treaties of cession, as is usual in such treaties; but the court took broader ground, and held, as a general principle of international law, that a mere cession of territory only operates upon the sovereignty and jurisdiction, including the right to the public domain, and not upon the private property of individuals which had been segregated from the public domain before the cession. This principle is asserted in the cases of United States v. Arredondo, 6 Pet. 691; United States v. Percheman, 7 Pet. 51, 86-89; Delassue v. United States, 9 Pet. 117; Strother v. Lucas, 12 Pet. 410, 428; Doe v. Eslava, 9 How. 421; Jones v. McMasters, 20 How. 8, 17; and Leitensdorfer v. Webb, 20 How. 176. In United States v. Percheman, Chief Justice Marshall said: "It may not be unworthy of remark, that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change." 7 Pet. 86, 87.
But whilst this is the acknowledged rule in cases of ceded, and even conquered territory, with regard to titles acquired from a former sovereign who had undoubted right to create them, it does not apply (as we shall see) to cases of disputed boundary, in relation to titles created by a sovereign in possession, but not rightfully so. In the latter case, when the true boundary is ascertained, or adjusted by agreement, grants made by either sovereign beyond the limits of his rightful territory, whether he had possession, or not, (unless confirmed by proper stipulations,) fail for want of title in the grantor. This is the general rule. Circumstances may possibly exist which would make valid the grants of a government de facto; as, for example, where they contravene no other rights. Grants of public domain made by Napoleon as sovereign de facto of France, may have had a more solid basis of legality than similar grants made by him as sovereign de facto of a Prussian province, derogatory to the rights of the government and King of Prussia.
As the case before us depends upon a disputed boundary between two states, it cannot be properly understood or determined without adverting to the historical facts connected with that boundary. Some of these are referred to by the Supreme Court of Florida in its opinion, but several others are necessary to be stated in order to show the circumstances under which the boundary between Georgia and Florida was finally settled, and to determine whether the assumption of the court, that the territory containing the land in controversy was ceded by Georgia to Florida, is well founded. The case, if it can be avoided, ought not to be decided upon a narrow selection of facts which might determine the question one way, before one jury, to-day, and another way, before another jury, to-morrow; but upon a broad view of all the historical events which relate to this boundary line. We shall proceed, therefore, to review these events as far as they have come to our knowledge from public documents.
In early colonial times, there were always mutual complaints of encroachment between the British provinces and the Spanish province of Florida, sometimes resulting in military conflicts; and no boundary was ever settled between them. The difficulty was finally removed by the treaty of 1763, by which Florida was ceded to Great Britain . See Treaty, Arts. VII, XX, 1 Chalmers's Collection of Treaties between Great Britain and other Powers, 473, 479. Soon after this event, on the 7th of October, 1763, King George III, by proclamation, erected governments in the newly acquired territories of Canada and the Floridas, and established the boundaries of the latter as follows, to wit: "The government of East Florida, bounded to the westward by the Gulf of Mexico and the Appilachicola River; to the northward by a line drawn from that part of said river where the Chattahoochee and Flint rivers meet to the source of St. Mary's River, and by the course of the said river to the Atlantic Ocean." West Florida was bounded north by the parallel of 31 degrees north latitude, from the Mississippi to the Chattahoochee River . See Proclamation in Amer. State Papers, 1 Pub. Lands, 36; and 1 Bioren's Laws U.S. 443. On January 20, 1764, the province of Georgia was limited to the north of the line thus prescribed for Florida. 1 Bioren's Laws, 448-9.
The above defined line, from the junction of the Chattahoochee and Flint rivers to the source of the St. Mary's, has from 1763 to the present time been the recognized boundary line between Georgia and Florida. The land in controversy is situated about midway between its extremities.
By the definitive treaty of peace with Great Britain in 1783 the line above described was adopted as the southern boundary line of the United States, and the Floridas were at the same time, by another treaty, ceded to Spain . See Treaties and Conventions between the United States and Other Powers, Washington, 1873, pp. 315, 316; 2 Chalmers's, 232 -- Treaties of 1783. By the treaty of October 27th, 1795, between the United States and Spain, this boundary was confirmed, and it was provided that a commissioner and a surveyor should be appointed by each party to meet at Natchez within six months from the ratification of the treaty, and proceed to run and mark the boundary line, and make plats and keep journals of their proceedings, which should be considered as part of the treaty. Our Government appointed Andrew Ellicott, Esq., as commissioner, in May, 1796, and a surveyor to assist him, and they proceeded to Natchez, and after much procrastination on the part of the Spanish authorities, a Captain Stephen Minor was appointed on the part of Spain, and the joint commissioners of the two countries, in 1798 and 1799, ran and marked the boundary line from the Mississippi to the Chattahoochee, and determined the geographical position of the junction of the Chattahoochee and Flint rivers to be in N. latitude 30 degrees 42' 42.8" and W. longitude 84 degrees 53' 15". The hostility of the Creek Indians prevented them from running the line east of the Chattahoochee; but they sailed around the coast of Florida, and up the river St. Mary's, and fixed upon the eastern terminus of the straight line prescribed in the treaties at the head of the St. Mary's, where it issues from the Okefenoke Swamp, and erected a mound of earth to designate the spot. This was in February, 1800. The mound is still in existence, and is called Ellicott's Mound, and appears on all the principal maps of that part of the country. The commissioners, supposing that the true head of the river was located in the swamp, agreed that it should be considered as distant two miles northeast from the mound, and that in running the boundary line from the Chattahoochee it should be run to the north of the mound, and not nearer to it than one mile. The point fixed upon as the head of the St. Mary's was determined by observations to be in N. latitude 30 degrees 21' 30 1/2", W. longitude 82 degrees 15' 45". The distance by straight line, or great circle, from the junction of the Chattahoochee and Flint rivers to the head of the St. Mary's, was calculated at 155 2/10 miles, and the initial course, for running the line from each terminus, was given, with the proper corrections to be made at intervals in order to follow the great circle. The commissioners signed a joint report of their proceedings, and transmitted the same to their respective governments. All these particulars are set forth in Mr. Ellicott's journal, and are matters of public history. See Ellicott's Journal: Philadelphia, 1803.
It thus appears that, by authority of the United States and Spain, the termini of the line in question were fixed and settled in February, 1800. It only remained for any competent surveyor to follow the directions of the commissioners in order to trace the actual boundary line on the ground.
The country in the region traversed by this line was occupied, in the early part of the century, by the nation of Creek Indians, and there was no immediate demand for having it run and marked. And as, under the Constitution, no state could enter into a treaty with the Indians, it became the interest of Georgia to make some arrangement with the Government of the United States to take measures for the gradual removal of Indian occupancy. A convention was accordingly entered into between Georgia and the United States, on the 24th of April, 1802, by which the former ceded to the latter all her territory between the Chattahoochee and the Mississippi rivers, and the United States ceded to Georgia all their right to any public lands south of Tennessee and the Carolinas, and east of the Chattahoochee, not within the proper boundaries of any state; and agreed to extinguish the Indian title within the State of Georgia as early as could be peaceably done. (See Agreement, 1 Bioren's L. 488.) In pursuance of this agreement the title of the Creek Nation was extinguished throughout most of the southern part of the state by the treaties made with the nation in 1802, 1805, and 1814. 7 Stat. 68, 96, 120.
The State being now desirous of disposing of her lands and introducing settlers thereon, naturally turned her attention to the question of the true location of the boundary line between her own territory and that of the Spanish province of Florida. Some person, professing to be better posted than others as to the topography of the country about the head of St. Mary's River, asserted that the commissioners, Ellicott and Minor, in seeking its source, had ascended the wrong branch -- namely, the north branch; whereas the true St. Mary's, or main stream, came from the west and took its source many miles further south than the point fixed upon by them. The legislature of Georgia took up the matter, and in December, 1818, the Senate passed a resolution requesting the Governor to appoint proper persons to proceed, without delay, to ascertain the true head of St. Mary's river; and if it should appear that the mound thrown up by Ellicott and Minor was not at the place set forth in the treaty with Spain, that they make a special report of the facts, and that the Governor communicate the same to the President of the United States, with a request that the lines might be run agreeably to the true intent and meaning of the treaty. Ex. Doc. No. 77, 1 Sess. 23d Cong., pp. 11, 86.
In pursuance of this request the Governor appointed three eminent engineers, Generals Floyd, Thompson and Blackspear, to make the examination suggested, and immediately, by a letter dated February 17, 1819, communicated the fact to the Executive Government at Washington . The engineers made a careful reconnaissance of the country about the head streams of the St. Mary's, accompanied by the person who had made the supposed discovery, and became satisfied that his information was at fault, and reported that, after a careful examination, they found the head of the river to agree with the report made by Mr. Ellicott. This result was also communicated to the Executive at Washington; and thus ended, for the time being, the claim on the part of Georgia to have the eastern terminus of the boundary line readjusted and changed. Soon after this proceeding, in 1819, the state employed one J. C. Watson to run and mark the line. This is the origin of the line called Watson's line; and to this line the State laid out its counties and townships, surveyed its public lands, and made grants to settlers. But it nowhere appears that this line ran to Ellicott's mound, or near to it: on the contrary, it would seem from other conceded facts, that it ran considerably south of it. As we have already seen, the lands in controversy in the present case adjoin this line, being situated on the north side of it.
Florida was ceded to the United States in 1819, and possession of the territory was taken by General Jackson in July, 1821. In 1925, the Surveyor General of the Government for the Territory of Florida, preparatory to a survey of the public lands therein, caused the boundary line between Georgia and Florida to be run out and marked by D. F. McNeil, a deputy surveyor, and the line so run was called McNeil's line. At the point in controversy, which (as before said) is about midway between the two extremities of the straight line called for by the treaty, it ran, according to the testimony, 14 chains to the north of Watson's line; but how near it approached Ellicott's mound at the eastern extremity does not appear. The government surveys in Florida were made to bound on this line; and, of course, overlapped, more or less, the Georgia surveys and grants extending to Watson's line.
The State of Georgia, about this period, perhaps in consequence of the location of McNeil's line, by a communication of her Governor to the Government of the United States, requested that joint measures should be undertaken for a mutual and final settlement of the boundary. The matter being referred to Congress, an act was passed on the 4th of May, 1826, by which the President was authorized, in conjunction with the constituted authorities of the State of Georgia, to cause to be run and distinctly marked the line dividing the Territory of Florida from the State of Georgia, from the junction of the rivers Chattahoochee and Flint, to the head of St. Mary's River; and for that purpose, to appoint a commissioner or surveyor, or both: "Provided, that the line so to be run and marked shall be run straight from the junction of said rivers Chattahoochee and Flint, to the point designated as the head of St. Mary's River by the commissioners appointed under the third article of the treaty" [with Spain made October 27th, 1795]. 4 Stat. 157. This act, it will be seen, adopted the eastern terminus of the line as settled by Ellicott and Minor.
The President thereupon appointed ex-Governor Thomas M. Randolph, of Virginia, as commissioner under the act, and the Executive of Georgia appointed Thomas Spalding; and the commissioners entered upon their joint duties in February, 1827, and appointed John McBride as their common surveyor. They continued their operations for over two months; but the Georgia commissioner having, as he supposed, notwithstanding the report of the commissioners of 1819, discovered that the western branch of the St. Mary's River was the largest and longest stream, and, therefore, the true river, the Governor of the State suddenly brought the survey to a close by recalling the assent of Georgia and withdrawing the powers of her commissioner. Ex. Doc. 77, 1st Sess. 23d Cong., pp. 31, 97.
From this time onward, for many years, a controversy was carried on between Georgia, on the one side, and the United States and Florida, on the other, with regard to this boundary line; Georgia contending that the line should be run to Lake Randolph, the head of the western or southern branch of the St. Mary's, and the United States and Florida contending that it should run to the head of the northern branch, as settled and determined by the commissioners, Ellicott and Minor, under the treaty. Ib., and Ex. Doc. 152, 1st Sess. 23d cong.
In 1845 Florida was admitted into the Union as a state, embracing all the territories of East and West Florida, as ceded by Spain to the United States by the treaty of 1819. 5 Stat. 742, 743. Renewed efforts were soon afterwards made by Florida and Georgia to effect a settlement of the boundary, but without success.
In 1850 the State of Florida filed a bill in this court against the State of Georgia, to procure a determination of the controversy. In December Term, 1854, the Attorney General was allowed to intervene on the part of the United States. Florida v. Georgia, 17 How. 478. Evidence was taken by the parties, but in consequence of the war, and the final settlement of the controversy by mutual agreement, the cause was never brought to a hearing.
In 1857 the governors of the two states had a conference which resulted in an agreement by which Georgia relinquished her pretensions to have the eastern terminus of the line changed, and the termini fixed by the commissioners, Ellicott and Minor, were substantially adopted. The following resolutions and enactments of the legislatures of the two states will show the course of the negotiation, and the terms of the arrangement finally concluded between them.
On the 24th of December, 1857, the following resolution was adopted by the Legislature of Georgia, to wit:
"Whereas in the matter of controversy now pending in the Supreme Court of the United States, between the State of Florida and the State of Georgia, touching the boundary line of the two States, we deem it of much importance that this protracted and expensive litigation should cease; and whereas, with a view to the settlement of the question, a negotiation has been progressing between the late Executives of the aforesaid States, the result of which was an agreement to adopt the terminal points of the present recognized line as the true terminal points of the boundary line to be re-surveyed, corrected and marked, provided it is shown by either party, that the present line is incorrect, the agreement aforesaid being made subject to the ratification of the legislatures of the two States.
"Resolved, 1st, That we do hereby ratify the action of the late Executive of this State, in accepting the proposition of the Governor of Florida, to adopt the terminal points of the present recognized line as the true terminal points of the boundary line, and will regard, adopt, and act upon the present line, as run and recognized between those points, as the settled boundary of the two States, or will so recognize and adopt any other line between those points which may be ascertained any established on a re-survey and re-marking of the boundary, provided said boundary correction is made by virtue of law, and by joint action of the States aforesaid.
"2d. Be it further resolved by the authority aforesaid, That should it be deemed essential or important by either State to have the boundary line between the terminal points of the present recognized boundary re-surveyed and re-marked, the Governor of this State is hereby authorized to appoint a competent surveyor, to join any such surveyor appointed on the part of Florida, to run out and mark distinctly such a line from one to the other terminal point herein indicated, to be known as the line and settled boundary between the two States, the surveyor on the part of Georgia to be paid such compensation as may be determined on by the present or any future legislature.
"3d. And be it further resolved, That the Governor of this State shall, so soon as the same shall have passed both branches of the present General Assembly, transmit a certified copy to the Governor of Florida.
"Approved December 24th, 1857." Laws, 1857, Georgia, 326.
This resolution was responded to by the Legislature of Florida on the 12th of January, 1859, by passing a resolution in precisely the same terms, mutatis mutandis; and on the 15th of the same month an act was passed by the Legislature of Florida for bringing into market, as soon as the line should be settled, all state lands bordering thereon, that had not been disposed of, giving to the occupants, whose right was not disputed, five months to purchase the lands occupied by them at their appraised valuation.
As one, or both, of the parties desired to have a re-survey made between the terminal points, the State of Georgia appointed George F. Orr and the State of Florida B. F. Whitner, surveyors, to run and mark the line accordingly. They commenced their work in 1859, and it is referred to in the subsequent acts and resolutions.
An act was passed by the legislature of Georgia on the 16th of December, 1859, referring to the fact that the joint surveyors were running their first trial line, and agreeing to adopt it as conclusive, if Florida would do the same; provided that, on the eastern terminus, it did not depart exceeding on-fourth of a mile from Ellicott's mound; but that if it was not accepted by Florida, and if, therefore, a new line would have to be run so as to get a straight line from the mouth of Flint River to Ellicott's mound, that then, the line thus designated and marked by the surveyors, should be the permanent boundary between the two states. The act also proposed the passage of laws to quiet the titles of bona fide holders of lands under grants of either Georgia or the United States. The response made by the legislature of Florida to this proposition was the passage of an act on the 22d of December, 1859, substantially adopting the proposition made by Georgia, declaring "That the line now being run by B. F. Whitner, Jr., on the part of Florida, and G. J. Orr, on the part of Georgia, be and the same is hereby recognized and declared to be the permanent boundary line between the two states, so soon as the same shall be permanently marked by said surveyors: Provided, that said line, at its eastern terminus, does not depart from, or miss, Ellicott's mound more than one-fourth of a mile or 20 chains;" and declaring, secondly, "that the titles of bona fide holders of land under any grant from the State of Georgia, which land may fall within this state by the foregoing line, are hereby confirmed and conveyed to said holders, so far as any right may accrue to this state: Provided, nothing herein shall apply to lands to which citizens of this state may claim title south of what is known as the McNeil line."
It turned out that the line run by Orr and Whitner ran even farther north and the McNeil line; but it came within the stipulated distance from Ellicott's mound -- namely, within a quarter of a mile -- in fact, within 37 links, or less than 25 feet, north of the mound. (See Code of Georgia, 1868, 19.) This was more favorable to Georgia than the line agreed on by Ellicott and Minor, which was to run at least one mile north of the mound.
On the 14th of December, 1860, the Legislature of Georgia, probably considering that its last proposition was not fully accepted, passed a resolution, directing the Governor to reopen negotiations with the authorities of Florida in regard to the boundary line, and to urge its adjustment so as to protect the rights of citizenship and the titles of lands held under grants from Georgia; and, if practicable, so as to retain and keep the fractional lots sold by Georgia within the jurisdiction of the state. In response to this resolution, the Legislature of Florida, on the 8th of February, 1861, passed the following resolution, to wit: "Whereas [by] an act approved by the Governor 22d December, 1859, it was by the General Assembly enacted that the line then being run by B. F. Whitner, Jr., on the part of Florida, [and] G. J. Orr, on the part of Georgia, should be, and was thereby, recognized and declared to be the permanent boundary line between the States of Georgia and Florida as soon as the same should be permanently marked by said surveyors: Provided, the said line at its eastern terminus did not depart from or miss Ellicott's mound more than one-fourth of a mile, or twenty chains; and whereas, the said line has been run and marked by said surveyors on the part of the two states, the eastern terminus of which, was run and marked, is within the distance prescribed in said proviso: Therefore, Resolved, That the line run and marked by B. F. Whitner, Jr., on the part of Florida, and G. J. Orr, on the part of Georgia, be, and the same is hereby declared to be, the permanent boundary line between the two States of Georgia and Florida, and that the Governor be, and he is hereby, requested to issue his proclamation that the said line, so run and marked, has been and is declared to be the permanent boundary line between the two states: Provided, the State of Georgia shall have on its part declared the said line to be the boundary between that state and Florida. Be it further resolved, That the Governor be requested to forward a copy of these resolutions to the Governor of Georgia, with a request that similar steps be taken by Georgia, so that the question of boundary may be finally settled." Bush's Digest, 103; McClelland's Digest, 952.
By a long and argumentative resolution, passed by the Legislature of Georgia on the 11th of December, 1861, after stating the respective positions taken by the two states, it was proposed as follows: "The General Assembly, to avoid further dispute, proposes to her sister state, Florida, that what is denominated the Watson line (which will leave in the limits of this state the fractional lots of land heretofore sold under an act of her legislature) shall be adopted as the boundary line. The settlement upon this basis will not interfere with the rights of citizenship, as claimed by the citizens of either state." Florida made no answer to this proposition.
Finally, by a resolution passed on the 13th of December, 1866, the Legislature of Georgia, referring to the act of 16th December, 1859, and recognizing the fact that the Orr and Whitner line, as run, did not depart exceeding one-fourth of a mile from Ellicott's mound, and referring also to the action of the Florida legislature of February 8th, 1861, adopted the Orr and Whither line as "the permanent boundary line between the States of Georgia and Florida." And this agreement, thus finally arrived at by the two states, was recognized and confirmed by an act of Congress approved April 9th, 1872, entitled "An act to settle and quiet the title to lands along the line between the States of Georgia and Florida," by which it was declared "that the titles to all lands lying south of the line dividing the States of Georgia and Florida, known as the Orr and Whitner line, lately established as the true boundary between said states, and north of the line run by Georgia, known as the Watson line, being all the lands lying between said lines, be, and the same are hereby, confirmed, so far as the United States has title thereto, in the present owners deriving titles from the State of Georgia."
This historical review is sufficient, it seems to us, to show that the agreement come to by the two states was not in fact, and cannot be construed as, a cession of territory on the part of Georgia . It was simply the correction of the boundary line. Georgia had inadvertently extended her jurisdiction to a line run by her surveyor too far south. The agreement recited in the resolution of December 24th, 1857, "to adopt the terminal points of the present recognized line as the true terminal points of the boundary line," carried out by a re-survey of such line from one of its terminal points to a point sufficiently near the other to satisfy both parties, must be construed to be the carrying out of an intent to settle and establish the true line between the two states, and not an intent to adopt a line different from the true one, with a cession of the territory cut off by it. Two lines had been contended for. Florida and the United States contended for the line established by the joint commission under the treaty with Spain; Georgia, for a different line, having a widely different terminus at its eastern extremity. Each claimed that its line was the true one. Georgia finally yielded the point, and accepted the commissioners' line. This was tantamount to an acknowledgment that it was the true line. We do not say that the result would have been different if the parties had adopted a compromise line -- as, for example, the Watson line, which was proposed by Georgia. When a boundary is in dispute the adoption of a line by compromise may be considered as an agreement that the adopted line is the true line, or that it shall be considered as the true line. Where territories are coterminous, they must have a common boundary. That boundary, whether ascertained by astronomical observations, or discovery of old monuments, or mutual agreement of the parties, is to be regarded and treated as if it had always been known as the true line. The present case, at all events, can only be regarded as one in which the boundary line finally agreed to was always the true line, even though, and even when, a different line (Watson's) was temporarily adopted by Georgia, and acquiesced in by Florida.
Then what becomes of the titles granted by Georgia outside of that line, or south of it? She had no title there herself. Could she confer title by the mere exercise de facto of jurisdiction and government there -- such exercise being in derogation of the successive rights of Spain, the United States, and Florida? What authority can be found to justify such a pretension? It is the common usage, it is true, in mutual adjustments of disputed boundaries, to stipulate that private titles shall not be disturbed. Such stipulations are dictated by a humane consideration for those who have innocently invested their fortunes on the faith of the good title of their government. In the present case, as we have seen, the titles granted by Georgia were confirmed both by Florida and by the United States, so far as either had any right or title to be affected. But those confirmations cannot avail the plaintiffs in the present case; for the United States had parted with all their interest in the lands in controversy, by a grant to Florida in July, 1857; and Florida had disposed of all her interest therein by a regular sale in September of the same year. Neither the United States nor Florida, therefore, had any interest remaining, when the confirmatory acts were passed, which they could transfer by release or confirmation, or in any other mode.
The case, then, stands upon the original validity of the Georgia grants; and the question may well be asked, how does a land holder who obtains title from a sovereign that has none, stand in any better position than one who obtains title from an individual that has none? Georgia had no title to the land. Previous and subsequent historical events abundantly show this. Her grants have nothing to rest on but her actual possession of the disputed territory and her exercise of government de facto therein. The question is, whether this is sufficient.
The general subject is not a new one in the jurisprudence of this court. Before the treaty of amity and limits made with Spain in 1795, that government had claimed and occupied, as a part of West Florida, a large extent of country on the east side of the Mississippi, to the north of north latitude 31 degrees -- including a large portion of the present State of Mississippi. This claim was based on an extension of the province of West Florida to the northward by the Government of Great Britain prior to the Revolutionary war. See 1 Bioren's Laws U.S., pp. 449-453; 2 Pitkin's Hist. U.S., 434-6. It was abandoned by the treaty referred to, and the parallel of 31 degrees was adopted as the boundary line between the territories of the United States and those of Spain. But prior to that treaty the Spanish authorities had made grants of land in the territory referred to. This court invariably held those grants, not confirmed by our Government, to be invalid, on the ground that the territory did not belong to Spain, though she occupied it and claimed to own it. This point is decided in Henderson v. Poindexter, 12 Wheat. 530; followed by Hickey v. Stewart, 3 How. 750; Robinson v. Minor, 10 How. 627; and other cases. In Henderson v. Poindexter, Chief Justice Marshall carefully examined the question of the right of Spain to the territory, and showed that it was untenable, and strenuously argued that the treaty of 1795 was an acknowledgment on the part of Spain that she had no such right; -- or, why did she give it up? The idea of a grant deriving any validity from national occupancy, and government de facto over the territory, was not even hinted at, although Mr. Webster and Mr. Coxe argued the cause for the party claiming under the Spanish grant. The view taken by this court on the subject was accurately expressed by Mr. Justice McLean, in delivering the opinion in Robinson v. Minor, 10 How. 643, where he says: "The treaty with Spain established [i.e. settled] a disputed boundary; there was no cession of territory. The jurisdiction exercised by Spain over the country north of the 31st degree of north latitude was not claimed or occupied by force of arms against 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."
The same view was taken by the court with regard to the grants made by Spain in the disputed territory of West Florida after the cession of Louisiana to the United States in 1803. Spain had held possession of Louisiana and the Floridas; but, by the secret treaty of St. Ildefonso, made in 1800, had ceded Louisiana to France, "with the same extent that it now has in the hands of Spain, and that it had when France possessed it;" and, in 1803, France ceded it to the United States in the same terms. But as formerly possessed by France, Louisiana included West Florida as far as to the river Perdido, and our government claimed to the same extent. Spain, with a good deal of plausibility, contended that West Florida, extending from the Mississippi to the Perdido, was held as a distinct province by Great Britain prior to 1783, and was not embraced in the cession, and refused to surrender it, and kept possession of it in the exercise of full sovereignty until 1810, when the United States took forcible possession of it. Here was another case of disputed boundary. The United States claimed the river Perdido; Spain, the rivers Mississippi and Iberville, as the true boundary between Louisiana and the Floridas; and the latter was in possession of the disputed territory, exercising all the powers of government therein from 1803 to 1810. During this period the Spanish governors made many grants of land in the territory, which often came before this court for adjudication; and the decision was invariably against their validity.
The first case in which the question arose was that of Foster v. Neilson, 2 Pet. 253, in which the grant was made in 1804, for land in the district of Feliciana, east of the Mississippi . The principal questions argued were, first, the true interpretation of the treaties of 1800 and 1803, as to what territory was ceded to the United States; and, secondly, the effect of the confirmation of Spanish grants contained in the treaty of 1819. Mr. Coxe, it is true, took the ground that the acts of a sovereign power over territory it has ceded are lawful until possession has been transferred, and, therefore, that the grants of Spain whilst still in possession and exercising the powers of government de facto should be held to be valid. Mr. Webster, who was on the same side with Mr. Coxe, did not allude to this argument, and the court took no notice of it, but placed its decision on the ground that, by the true construction of the treaties, Louisiana included West Florida to the Perdido, and, therefore, that the territory in question did not belong to Spain when the grant was made, and so the grant was invalid; but that if this were not a clear proposition (and the court admitted that it was a question of doubtful construction), the judiciary would nevertheless follow the action of the political department of the government, charged with the management of its foreign affairs, which had always contended for the line of the Perdido, and had finally taken full possession of the country.
The case of Foster v. Neilson was followed in the subsequent cases of Garcia v. Lee, 12 Pet. 511; United States v. Reynes, 9 How. 127; United States v. D'Auterive, 10 How. 609; United States v. Philadelphia & New Orleans, 11 How. 609; Montault v. United States, 12 How. 47; United States v. Castant, 12 How. 437; all of which are referred to, and the history of the controversy is given, in United States v. Lynde, 11 Wall. 632.
It may, however, be said that the decision in these cases was controlled by the act of Congress approved March 26th, 1804, 2 Stat. 283, 287, the 14th section of which declared void all grants for lands within the territories ceded by the French Republic to the United States by the treaty of 30th April, 1803, the title whereof was, at the date of the treaty of St. Ildefonso, in the crown, government or nation of Spain; saving, however, the titles of actual settlers, acquired before December 20th, 1803.
It is doubtless true that this act did have a controlling influence in the cases referred to; but the court discussed the question upon general principles also, and no hint is dropped that the existence of a government de facto would have any influence on the decision.
In Garcia v. Lee, Chief Justice Taney expressly argues that, in a case of disputed boundary, titles must stand or fall with the right of the government creating them. His language is: "Indeed, when it is once admitted that the boundary line, according to the American construction of the treaty, is to be treated as the true one in the courts of the United States, it would seem to follow as a necessary consequence, that the grant now before the court, which was made by the Spanish authorities within the limit of the territory which then belonged to the United States, must be null and void; unless it has been confirmed by the United States by treaty or otherwise. It is obvious that one nation cannot grant away the territory of another; and if a proposition so evident needed confirmation, it will be found in the case of Poole v. Fleeger, 11 Pet. 210. In that case there had been a disputed boundary between two States, and the parties claimed the same land under grants from different States. The boundary line had been ascertained by compact between the States after the grants were made. And in deciding between the claimants in that case the court said: 'In this view of the matter it is perfectly clear that the grants made by North Carolina and Tennessee, under which the defendant claimed, were not rightfully made, because they were originally beyond her territorial boundary; and that the grant under which the claimants claim was rightfully made, because it was within the territorial boundary of Virginia.' And again, 'If the States of North Carolina and Tennessee could not rightfully grant the land in question, and the States of Virginia and Kentucky could, the invalidity of the grants of the former arises, not from any violation of the obligation of the grant, but from an intrinsic defect of title in the States.'"
The case of Poole v. Fleeger, 11 Pet. 185, quoted by Chief Justice Taney, is much to the purpose. The northern boundary of North Carolina (including Tennessee) was fixed by the charter of 1665, and by the constitutions of that State and Virginia, adopted in 1776, on the parallel of 36 degrees 30' north latitude. In 1779 an attempted survey of the line was made by commissioners of the two States, who failed to agree; but a line run by Dr. Walker, one of the commissioners, was practically used as the boundary of jurisdiction. It was afterwards found to be too far north by several miles, and a line was run on the true parallel by Professor Matthews, of Transylvania University. Tennessee laid out her counties and exercised all sovereign jurisdiction up to the Walker line, and both North Carolina and Tennessee made grants of land up to that line and north of the true parallel. On the other hand, Kentucky made grants south of that line and up to Matthews' line. In 1820, Kentucky and Tennessee agreed to adopt Walker's line as the boundary of the two States; but it was stipulated that all private rights and interests of land between the two lines, theretofore derived from either State, should be considered as rightfully emanating therefrom; but all vacant and unappropriated lands within those limits were declared to belong to Kentucky and subject to her disposal. No provision was made for cases of conflicting grants of the same land made by Virginia or Kentucky, on one side, and by North Carolina or Tennessee, on the other. The case before the court was one of that kind, the plaintiffs, claiming under a Virginia warrant and a grant made by Kentucky in pursuance thereof, in 1796; the defendants claiming the same land under North Carolina grants made in 1786, 1792, 1797, and Tennessee grants of subsequent years; and the lands in controversy being situated between the two lines before mentioned. This court held that the parallel of 36 degrees 30' was always the true line until altered by agreement of the two States in 1820, and that the grants made by North Carolina and Tennessee, north of that line, were void, and that the Virginia and Kentucky grants were good, notwithstanding the actual occupation of the disputed territory by Tennessee. The adoption of Walker's line in 1820 was held to have changed the true and original boundary only for the purpose of future jurisdiction. Evidence of the previous exercise of jurisdiction by Tennessee up to Walker's line was not allowed to affect the question of title; although the defendants proved that North Carolina and Tennessee had claimed to Walker's line as the true line from the time it was run to the time of the treaty or agreement of 1820; that the county lines of Tennessee were Walker's line on the north; that in her legislative, judicial and military capacity, Tennessee always claimed possession and acted up to said line as the northern boundary of the State; that process was executed, criminal acts were punished, taxes were paid, minitia was enrolled, and all other acts done in subordination to the laws and government of Tennessee up to that line; and corresponding jurisdiction was exercised by Kentucky to the same line on the other side.
Here was a case of mistaken boundary, and when the error was discovered, the States concerned agreed to adopt it as the permanent political boundary for the future, conceding, on both sides, that it was not the true original boundary. Mr. Justice Story, delivering the opinion of the court, said: "Although, in the compact, Walker's line is agreed to be in future the boundary between the two States, it is not so established as having been for the past the true and rightful boundary; on the contrary, the compact admits the fact to be the other way. While the compact cedes to Tennessee the jurisdiction up to Walker's line, it cedes to Kentucky all the inappropriated lands north of the latitude of 36 degrees 30' north." Then, after further remarks of the same purport, follows the passage quoted by Chief Justice Taney, to the effect that the grants of North Carolina and Tennessee were not rightfully made, because they were originally beyond their territorial boundary.
The case of Poole v. Fleeger covers the case now under consideration. It was a case of disputed boundary, and Tennessee exercised sovereign jurisdiction de facto up to a certain line (Walker's) which she claimed to be the true boundary line, and made grants of land to that line, just as Georgia did in the present case to Watson's line. Walker's line, like Waston's, was found not to be the true line, and the grants made by Tennessee were found to be for lands in territory belonging to Kentucky; just as the grants of Georgia, next to Watson's line, were found to be for lands in the territory belonging to the United States and Florida. This court decided that the Tennessee grants were void, notwithstanding the exercise of sovereign jurisdiction de facto by that State over the territory in dispute, when the grants were made. If that decision was correct, the grant made by Georgia of the land in controversy must be held to be invalid for the same reason. The only difference between the cases is, that Kentucky and Tennessee adopted the erroneous line as their permanent boundary, though recognizing the fact that it was not the true original line; whilst in the present case Georgia and Florida adopted the nearest practicable approach to the true line as their permanent boundary. This difference does not affect the question, except to make the present case the stronger of the two.
The only authority cited by the Supreme Court of Florida for the proposition that a government de facto can make a valid grant, is a dictum of Mr. Justice Baldwin, in delivering the opinion of the court in the case of Rhode Island v. Massachusetts, 12 Pet. 657, at page 748. The question there was, whether the people whose lands would be affected by the change of state line involved in that case ought to be made parties to the suit. Justice Baldwin says: "It is said that the people inhabiting the disputed territory ought to be made parties, as their rights are affected. It might with the same reason be objected that a treaty or compact, settling boundary, required the assent of the people to make it valid, and that a decree under the ninth article of confederation was void, as the authority to make it was derived from the legislative power only." The same objection was overruled in Penn v. Baltimore; and in Poole v. Fleeger, this court declared that an agreement between States, consented to by Congress, bound the citizens of each State." Thus far, the reasoning of the court was unanswerable. Settlements of boundary belong to the sovereign power, and cannot be questioned by individuals. But the learned Justice proceeds to lay down what he supposes to be two principles of the law of nations, which were entirely unnecessary to the decision of the question of parties which he was considering. He says: "There are two principles of the law of nations, which would protect them [private citizens] in their property: 1st, That grants by a government de facto, of parts of a disputed territory in its possession, are valid against the State which had the right; 12 Wheat. 600, 601; 2d, That when a territory is acquired by treaty, cession, or even conquest, the rights of the inhabitants to property are respected and sacred. 8 Wheat. 589, &c." This is the passage quoted and relied on by the Supreme Court of Florida.
The second of these propositions is in accordance with what we have already stated to by the received rule of international law; but the first is opposed to the cases which we have already cited in relation to Spanish grants in Mississippi and West Florida, and to the case of Poole v. Fleeger. As to the authority referred to, 12 Wheat. 599, 600, 601, it is a mere dictum of Mr. Justice Trimble in De la Croix v. Chamberlain, clearly inconsistent with the decision made at the same term in Henderson v. Poindexter's Lessee, and with all the subsequent decisions above referred to, and as Mr. Justice Catron, in a manuscript note upon this part of Justice Baldwin's opinion, justly remarks, "no such question was raised in that case, and Poole v. Fleeger is certainly to the contrary."
We think that the decision of the Supreme Court of Florida is erroneous in deciding against the title of the plaintiff in error. That title is claimed under a grant from the United States, of land acquired by treaty with Spain, identified as such by the former treaty of limits and the proceedings of the commissioners appointed to carry out that treaty. The decision of the Supreme Court of Florida, in effect, is, either that the land was not embraced in the treaty of cession, or, if it was, that the possession of Georgia gave a superior right. We think it clear that the land was embraced in the treaty, and that the possession of Georgia did not give a superior right. The judgment is therefore reversed, and the cause remanded, with instructions to proceed according to law, in conformity with this opinion.
A point was made in the brief of counsel for defendants in error which was not raised in the courts below, and cannot, as now presented, be properly passed upon by us; namely, that the Register had no power under the state law to make the bargain with McCall and Stripling for the sale of the land, at the time he issued his certificate to them. This is a question of state law, and involves an issue of fact, and, if deemed important, may be raised on a new trial of the cause, which will necessarily be awarded as a consequence of the reversal of the judgment.
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