Lessee of Hickey v. Stewart
44 U.S. 750 (1845)

Annotate this Case

U.S. Supreme Court

Lessee of Hickey v. Stewart, 44 U.S. 3 How. 750 750 (1845)

Lessee of Hickey v. Stewart

44 U.S. (3 How.) 750

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Syllabus

A defendant in ejectment cannot protect himself by setting up the record in a prior chancery suit between the same parties by which the plaintiff in the ejectment had been ordered to convey all his title to the defendant in the ejectment, but in consequence of the party's being beyond the jurisdiction of the court, no such conveyance had been made.

And this is so although the court of chancery, in following up its decree, had legally issued a habere facias possessionem and put the defendant in ejectment in possession of the land.

By the treaty of 1795, between the United States and Spain, Spain admitted that she had no title to land north of the thirty-first degree of latitude, and her previous grants of land, so situated, were of course void. The country, thus belonging to Georgia, was ceded to the united states in 1802, with a reservation that all persons who were actual settlers on 27 October, 1795,

should have their grants confirmed. Congress provided a board of commissioners to examine these grants, and declared that their decision should be final.

The Court of Chancery of the State of Mississippi had no authority to establish one of these grants which had not been brought within the provisions of the act of Congress. The claim itself being utterly void, and no power having been conferred by Congress on that court to take or exercise jurisdiction over it for the purpose of imparting to it legality, the exercise of jurisdiction was a mere usurpation of judicial power, and the whole proceeding of the court void.

The doctrine of this Court in 26 U. S. 1 Pet. 390 reviewed and confirmed, viz.,

"That the jurisdiction of any court exercising authority over a subject may be inquired into in every other court where the proceedings of the former are relied on, and brought before the latter by the party claiming the benefit of such proceeding. "

Page 44 U. S. 751

This was an ejectment brought by Hickey's lessee against the defendants, as the heirs of Robert Starke, for two thousand acres of land in the State of Mississippi.

The facts in the case are fully set forth in the opinion of the Court.

The question was whether or not the court below erred in permitting to be read in evidence on the part of the defendants the record of a former chancery suit between the same parties in which the court had decreed that all the title of Hickey et al. should be conveyed to the heirs of Starke.

Page 44 U. S. 756

MR. JUSTICE McKINLEY delivered the opinion of the Court.

The plaintiffs brought an action of ejectment against the defendants in the court below, and upon the trial, the plaintiffs read in evidence, to the jury, the copy of a plat and certificate of survey, signed by Charles Trudeau, Royal Surveyor of the Province of Louisiana, for two thousand acres of land, French measure, and a patent, issued by the Spanish governor of that province, thereupon, to James

Page 44 U. S. 757

Mather, dated 3 April, 1794, and a deed of conveyance from James Mather to George Mather dated 26 April, 1803, for the same tract of land, and they also read in evidence a certificate dated 10 April, 1806, signed by the commissioners appointed by the President of the United States under the Act of Congress of 3 March, 1803, and the act supplemental thereto of 27 March, 1804, confirming to George Mather the said tract of land, by virtue of the articles of agreement and cession between the United States and the State of Georgia. It was also proved that George Mather died about the year 1812, and that James Mather was his heir, and that James Mather had died pending the suit, and it was admitted by the defendants that the plaintiffs were the heirs of James Mather, "and whatever title he had at his death vested in them or any others, his heirs, to be shown."

And it was admitted by the plaintiffs

"that the defendants were in possession of the land in controversy, and were so at the time this suit was brought, under derivative titles from Robert Starke's heirs, valid so far as Starke's title was valid."

And the defendants in support of the issue, on their part, offered to read the record of the proceedings in a suit in chancery in the Supreme Court of the State of Mississippi, in which the heirs of Robert Starke were complainants and the heirs of James Mather defendants. And by which record it appeared that the complainants set up and claimed title to the land here in controversy under a warrant or order of survey, for two thousand acres of land, dated about 29 December, 1791, and the survey thereon, and the defendants claimed title under the survey and patent of the Spanish government to James Mather. And by the order and decree of that court, the land in controversy in this suit was adjudged and decreed to the heirs of Robert Starke.

To the reading of which record and proceedings as evidence to the jury the plaintiffs objected on these grounds:

"First. That it does not purport to be a record on its face, and in its context. Secondly. That said record does not disclose nor contain a final decree, neither the said record, nor the said decree therein being signed by the judges of the said Supreme Court of Mississippi. Thirdly. That the pleadings and context of said record show that the chancery suit was entertained and treated by said supreme court as a matter of original jurisdiction, whereas the statutes of Mississippi expressly provide that the opinion of the supreme court shall be certified to the court below, whose action and adoption alone can render the opinion of the supreme court final upon a question of law adjourned for its opinion. Fourthly. That the facts and the law of the case did not give the chancery court jurisdiction, inasmuch as, after the treaty of 1783, a Spanish warrant or order was a mere nullity, and could only be rendered valid by the holder's bringing himself within the first section of the Act of Congress of 1803, by

Page 44 U. S. 758

residence and cultivation, whereas, as the record shows that Starke was not within that act, nor, if he had been, could he have derived any equity against a title, confirmed by the articles of agreement and cession between Georgia and the United States of 14 April, 1802. Fifthly. That jurisdiction, legal and equitable, was vested elsewhere by the 6th section of the act of 1803, such investiture of jurisdiction in an inferior tribunal being exclusive of that of any other tribunal. Sixthly. That a record or decree out of chancery is not evidence of a legal, but an equitable title only, and is therefore not pertinent to the issue joined. Seventhly. That the decree, if read at all, must be read as an estoppel by the record, and subject to the rules as to estoppels. Eighthly. That a decree in chancery must be read on the same footing as a judgment at law, and unless carried out by a conveyance, can have no greater effect than a judgment in ejectment."

The court overruled these objections, and permitted the record to go to the jury, as evidence of any fact decided by it. To which opinion of the court the plaintiffs excepted. The plaintiffs, among other instructions, some of which were refused and some granted, but which need not be noticed here, moved the court to instruct the jury,

"That the decree read in evidence, by the defendant's counsel, does not per se divest the plaintiffs, or the ancestors of the plaintiffs, of the legal title, but that said title remains unaffected at law by said decree, and is still in plaintiffs, if the jury believe them to be the heirs of said Mather."

There were several instructions moved by the defendants, some of which were granted and some refused, but as they are either included in the ruling of the court, already noticed, or unnecessary to the decision of the points on which we think this case ought to be decided, they will not be noticed in the investigation of the subject.

Two questions are distinctly presented by the ruling of the circuit court. First. Whether the decree in the suit in chancery was a bar to the action of the plaintiffs. Secondly. Whether the court of chancery had jurisdiction of the subject matter in controversy before it in that case. For the plaintiffs in error, it has been insisted, that the decree is not evidence of a legal title, even if it were otherwise valid, and therefore no bar to the action of ejectment, and that the possession of the defendants under the decree, without a deed of conveyance as directed by it, whether by the writ of habere facias possessionem or otherwise gave no legal title to the defendants, and therefore opposed no legal bar to the plaintiffs' action. And, secondly, it was insisted that neither the court of chancery nor the Supreme Court of the State of Mississippi had jurisdiction of the subject matter presented by the bill of the complainants. The whole power to confirm Spanish titles, protected by the contract of cession by the State of Georgia to the United States, having been conferred, by act of Congress, on a board of commissioners,

Page 44 U. S. 759

whose decision was by law made final, no other court could decide upon the validity of those claims.

The converse of these propositions was maintained by the counsel for the defendants. And it was insisted that the decree operated as a conveyance and also as a judgment in ejectment, the court of chancery having the power by statute to award the writ of habere facias, and therefore the decree and possession under it are a legal bar to the action of ejectment. And upon the second point it was insisted that the jurisdiction of the court over the subject matter of the decree could not be inquired into by the court below, nor by this Court, when brought before either collaterally. To arrive at the legal effect of the decree, we must inquire into the object and intention of the complainants in bringing the suit in chancery. They charge in their bill that James Mather had obtained from the Spanish government the legal title to the land in controversy in fraud of the rights of their ancestor, Robert Starke, and they pray that by decree of the court Mather may be compelled to surrender to them the full and entire possession of the land, together with the evidences of title which he has thereto, and that they may be quieted in their title, "and such other and further relief in the premises as to the court shall seem meet."

The court by its decree established the right of the complainants to the land in controversy, and ordered Mather's heirs, who were all nonresidents of the State of Mississippi, to convey the land to the complainants and to deliver to them the possession, and awarded the writ of habere facias, which writ the court of chancery is authorized to order by a statute of the state. Without the aid of this writ, the court could not have put the complainants into possession, the defendants being out of their jurisdiction; nor could they for the same reason compel a conveyance of the title to the land. The decree is therefore if otherwise valid, nothing more than an equitable right, ascertained by the judgment and decree of a court of chancery, and until executed by a conveyance of the legal title according to the decree, Starke's heirs, and those claiming under them, have nothing but an equitable title to the land in controversy.

To enable the defendants in this case to defend their possession successfully upon their own title, that title must be shown to be a good and subsisting legal title, and superior in law to that set up by the plaintiffs; otherwise it opposes no legal bar to the recovery in the action of ejectment. And conceding what was contended for in argument -- that the decree and possession under it, by the writ of habere facias, is equivalent to a judgment in ejectment followed by like possession -- it would avail the defendants nothing in this case, because such a judgment and possession are no bar to another action of ejectment for the same premises. The defendant in ejectment can never defend his possession against the plaintiff upon a

Page 44 U. S. 760

title in himself by which he could not recover the possession if he were out and the plaintiff in possession. Reversing the positions of the parties in this case, could the defendants, if plaintiffs, recover the land in controversy upon this decree, and evidence of possession under it, against the title of the plaintiffs? We have no hesitation in saying they could not, and therefore the decree, if founded upon a valid equitable title, would be no legal bar to the action of the plaintiffs.

To a correct understanding of the question of jurisdiction argued at the bar it is necessary to ascertain the character of the grant set up by Starke's heirs in the suit in chancery. This grant was obtained from the Spanish governor of Louisiana, prior to the treaty between the United States and Spain of 27 October, 1795. By this treaty, Spain admitted she had no right to the territory north of the thirty-first degree of north latitude. In consequence of which all the grants made by her authority within that territory were void. This territory then belonged to the State of Georgia, but by deed bearing date 24 April, 1802, she ceded it to the United States. And in that deed it was stipulated

"That all persons who on 27 October, 1795, were actual settlers within the territory thus ceded, shall be confirmed in all the grants legally and fully executed prior to that day by the former British government or the government of Spain,"

&c. The first section of the Act of Congress of 3 March, 1803, chap. 80, 2 Story's Laws 893, enacts

"That any person or persons that were residents in the Mississippi Territory on 27 October, 1795, and who had prior to that day obtained, either from the British government of West Florida or the Spanish government, any warrant or order of survey for lands lying within said territory, to which the Indian title had been extinguished, and which, on that day, had been actually inhabited and cultivated by such person or persons, or for his or their use, shall be confirmed in their claims to such lands in the same manner as if their claims had been completed."

This section places those who had obtained a warrant or order of survey upon the same ground with those who had complete titles. The 5th section of the act declares,

"That every person claiming lands by virtue of British grant, or of the three first sections of this act, or of the articles of agreement and cession between the United States and the State of Georgia, shall, before the last day of March, 1804, deliver to the register of the land office, within whose district the land may be, a notice in writing stating the nature and extent of his claims, together with a plat of the tract or tracts claimed, and shall also, before that day, deliver to said register for the purpose of being recorded every grant, order of survey, deed of conveyance, or other written evidence of his claim, and the same shall be recorded by the said register in books to be kept for that purpose."

And upon the failure of the claimant to comply with these requirements,

Page 44 U. S. 761

his claim is declared to be void, and shall never "be received or admitted as evidence in any court in the United States against any grant derived from the United States."

The 6th section of the act provides for the appointment of two boards of commissioners for the purpose of ascertaining the rights of persons claiming the benefit of the articles of agreement and cession between the United States and the State of Georgia, and of the three first sections of the act. Each board was authorized to hear and decide in a summary manner all matters respecting such claims within their respective districts, and their determination was declared to be final.

The record of the chancery suit between Starke's heirs and Mather's heirs shows that Starke was not resident in the Mississippi Territory on 27 October, 1795, but had removed therefrom some years before that period; that no notice of his claim had been given to the register of the land office, within whose district it lay, together with a plat of the tract claimed and delivered to the register, to be recorded as required by law. Nor does it appear that the claim was ever submitted to the board of commissioners for their determination. Many years afterwards, the exact time not appearing by the imperfect record read in evidence, the court of chancery for the Mississippi Territory, without any authority's having been conferred on it by act of Congress for that purpose, took cognizance of Starke's claim, and established its validity by its own judgment and decree.

In the case of Henderson v. Poindexter, 12 Wheat. 543-544, the Court says

"The whole legislation on this subject requires that every title to lands in the country which had been occupied by Spain, should be laid before the board of commissioners. The motives for this regulation are obvious, and as the titles had no intrinsic validity, it was opposed by no principle. Claimants could not complain, if the law which gave validity to their claims should also provide to examine their fairness, and should make the validity depend upon their being laid before that board. The plaintiff in error has failed to bring his case before the tribunal which the legislature had provided for its examination, and has, therefore, not brought himself within the law. No act of Congress applies to a grant held by a nonresident of the territory in October, 1795, which has not been laid before the board of commissioners. It is true that no act has declared such grants void, but the legislature has ordered the lands to be sold which were not appropriated in a manner recognized by law, and the land in controversy is of that description."

"If this view of the subject be correct, no Spanish grant made while the country was wrongfully occupied by Spain can be valid unless it was confirmed by the contract with Georgia or has been laid before the board of commissioners."

This tribunal was created for the express purpose of deciding all questions arising under

Page 44 U. S. 762

the deed of cession by Georgia, securing to a particular class of claimants the lands they occupied and cultivated at the date of the treaty between the United States and Spain of 27 October, 1795, and its decision was to be final, and therefore its jurisdiction was exclusive unless, by express words, Congress had conferred concurrent jurisdiction on some other judicial tribunal. From these propositions results the inquiry whether the decree in the chancery suit was void, the court having no jurisdiction of the subject matter of the decree, or only erroneous and voidable? If the former, then its validity was inquirable into in the current court, when offered as evidence, and it ought to have been rejected.

According to the decision in case of Henderson v. Poindexter, above referred to, Starke's claim, when submitted by his heirs to the court of chancery was utterly void, and no power having been conferred by Congress, on that court, to take or exercise jurisdiction over it for the purpose of imparting to it legality, the exercise of jurisdiction was a mere usurpation of judicial power, and the whole proceeding of the court void.

In the case of Rose v. Himely, Chief Justice Marshall said,

"A sentence professing on its face to be the sentence of a judicial tribunal, if rendered by a self-constituted body or by a body not empowered by its government to take cognizance of the subject it had decided, could have no legal effect whatever. The power of the court then is, of necessity, examinable to a certain extent by that tribunal, which is compelled to decide whether its sentence has changed the right of property. The power under which it acts must be looked into, and its authority to decide questions which it professes to decide, must be considered. . . . Upon principle, it would seem that the operation of every judgment must depend on the power of the court to render that judgment, or in other words, on its jurisdiction over the subject matter which it has determined."

In the case of Elliott v. Piersol, 1 Pet. 340, it was held by this Court that

"Where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decisions be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered, in law, trespassers. This distinction runs through all the cases on the subject, and it proves that the jurisdiction of any court exercising authority over a subject, may be inquired into in every other court when the proceedings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings."

The same doctrine was maintained by this Court in the case of

Page 44 U. S. 763

Wilcox and Johnson, 13 Pet. 511, and the case of Elliott v. Piersol, referred to, and the decision approved. These cases being decisive of the question of jurisdiction, we deem it unnecessary to refer to any other authority on that point. From the view we have taken of the whole subject, it is our opinion, the decree of the Supreme Court of Mississippi would have been no bar to the action of the plaintiffs in this case if the subject matter of the suit had been within its jurisdiction. But we are of the opinion that court had no jurisdiction of the subject matter, and that the whole proceeding is a nullity. The circuit court erred, therefore, in permitting the record to be read to the jury as evidence for any purpose whatever. Wherefore the judgment of the circuit court is

Reversed.

Official Supreme Court caselaw is only found in the print version of the United States Reports. Justia caselaw is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.