Kennedy's Executors v. Hunt's Lessee
48 U.S. 586

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U.S. Supreme Court

Kennedy's Executors v. Hunt's Lessee, 48 U.S. 7 How. 586 586 (1849)

Kennedy's Executors v. Hunt's Lessee

48 U.S. (7 How.) 586




Forbes and Company obtained a grant of land in 1807 from Morales, Intendant General under the Spanish government, which land was adjacent to Mobile, in West Florida. This grant purported to be, in part, the confirmation of a concession granted in 1796 and surveyed in 1802. The survey terminated at high water mark upon the river.

The grant of 1807 included the land between the then bank of the river and the high water mark of 1802.

This grant of 1807 was excepted from the operation of the act of Congress passed on 26 March, 1804, which annulled all Spanish grants made after 1 October, 1800, and was recognized as a valid grant by the Act of 3 March, 1819.

An Act of March 2, 1829, confirmed an incomplete Spanish concession which was alleged to draw after it, as a consequence, certain riparian rights conflicting with those claimed under the grant of 1807.

A decision of a state court giving the land covered by these riparian rights to the claimants under the grant of 1807 was only a construction of a perfected Spanish title, and cannot be reviewed by this Court under the twenty-fifth section of the Judiciary Act. It did not draw in question an act of Congress or any authority exercised under the Constitution or laws of the United States.

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

Page 48 U. S. 590

MR. JUSTICE CATRON delivered the opinion of the Court.

This case comes here by writ of error to the Supreme Court of Alabama, under the twenty-fifth section of the Judiciary Act of 1789, and the first question made by the defendants in error is whether any matter presented by the record will authorize this Court to exercise jurisdiction under the twenty-fifth section. And to ascertain how far, if at all, the powers of this Court can be called into exercise, the facts and the laws bearing on them must be stated in something of detail, as in this case, in common with many others, it is found much more difficult to settle the question of jurisdiction and how far it extends than it would have been to decide the merits of the controversy had the cause been brought here by writ of error to a court of the United States.

Hunt, Hagan, and others sued in ejectment Kennedy's executors and other tenants in possession for about ten acres of land lying in the City of Mobile in the state circuit court. The plaintiffs claimed title to the premises sued for under a grant made to John Forbes & Co. in 1807, by Morales, Intendant General under the Spanish government in the Province of West Florida, Spain being then in possession of the province and exercising jurisdiction. The grant, by its recitals, purports to be, in part, the confirmation of a concession, and survey founded on it, of earlier dates, say 1796 and 1802, in favor of Panton, Leslie & Co., to which firm Forbes & Co. were successors. The concession was surveyed in 1802 by Collins, an authorized surveyor under the Spanish government, and its eastern boundary terminated on the bank of the Mobile River, at high water mark; the survey contained two hundred and sixty-three acres, equal to about three hundred arpens. To the extent of Collins' survey there is no controversy, but Forbes & Co. solicited the Intendant General in 1807 to grant them the flowed land lying east of the eastern boundary of the survey, and between the same and the channel of the river, and which the Intendant proceeded to do, in the following terms:

"And as the distance that is observed in the map from the river to the boundary lines of the land, which was left vacant at that time in consequence of its having been impassable, has since become of great use to the claimants, having constructed levels and the necessary drains, in consideration of which it has been granted to them as a compensation for their labor thereon invested, with the reserve such as necessary to allow a free passage along the bank of the river, without altering the figure of the tract on either of the other sides. Wherefore, using and exercising the powers which the King our lord -- God preserve him! -- has conferred on me, I do

Page 48 U. S. 591

in his royal name confirm and ratify to the aforesaid John Forbes & Co. the possession of the three hundred and ten arpens, seventy-seven perches and one eighth, already mentioned, and which are contained in the map (No. 1809), with the corrections made by the surveyor general, in order that they may own and possess the same, sell and alienate the land at their own and entire pleasure, without prejudice to any third person who may have a better right, on condition that they should observe and fulfill the requisitions of the land regulations formed and published by the intendancy on the seventeenth of July, 1799, as far as the local situation and quality of the land will permit."

According to Spanish usages and regulations, the grant to Forbes & Co. was a perfect title, and as such binding on the government of Spain, although made in 1807, after that government had parted with its power to grant, according to our construction of the treaty of 1803, the limits of which were claimed by this government to extend east to the River Perdido, and which claim has been upheld and established by the political and judicial departments of the United States. The first conclusive step was taken by Congress as early as 1804, when, by the act of March 26 of that year, it was declared that all grants made by the Spanish authorities after 1 October, 1800 (the date of the treaty of St. Ildefonso) should be held and deemed to be void. But the act excepted from its operation

"any bona fide grant made agreeably to the laws, usages, and customs of the Spanish government, to an actual settler on the lands so granted for himself and for his wife and family,"

and also excepted

"any bona fide act or proceeding done by an actual settler agreeably to the laws, usages, and customs of the Spanish government, to obtain a grant for lands actually settled on by the person or persons claiming title thereto, if such settlement, in either case, was actually made prior to 20 December, 1803."

Some restrictions were imposed on actual settlers in regard to quantity that have no application to the grant of Forbes & Co.

The Spanish grant recites that Forbes & Co. had been settled on the land granted, and that it had been occupied and cultivated by them since the year 1796, and up to the date of the grant, and such was the proof made before our commissioner, and therefore the "proceeding" by which the imperfect title of Forbes & Co. was completed was within the second exception of the act of 1804. That the grant made by the Intendant General Morales, in 1807, was in itself, unaided by the sanction of Congress, a valid title, we do not assert;

Page 48 U. S. 592

but being reported on by the commissioner as a title complete in form, according to the usages and laws of Spain, and recognized and sanctioned by Congress as a perfect title by the act of 1819, the courts of justice are concluded by the action of the political department, and bound to pronounce the grant to Forbes & Co. a perfect title in substance as well as form, because the claim was within the exclusive jurisdiction of the political department in 1819, when Congress acted on it. Such is the well established doctrine of this Court, as will be seen by the cases of Chouteau v. Eckhart, 2 How. 344; Mackay v. Dillon, 4 How. 421, and especially that of Les Bois v. Bramell, 4 How. 461.

Nor did the grant of Forbes & Co. require any further step to perfect its boundary. This being the prima facie condition of Forbes & Co.'s grant, the next inquiry is whether those claiming under Kennedy's title were in a condition, on the trial in the state court, to call the plaintiffs' title in question.

The defendants below claimed by virtue of an Act of Congress, passed March 2, 1829, confirming an incomplete Spanish concession made to Thomas Price. By the fourth section of the confirming act of 1829, it is provided

"That the confirmations of all the claims provided for by this act shall amount only to a relinquishment forever, on the part of the United States, of any claim whatever to the tracts of land and town lots so confirmed, and that nothing herein contained shall be construed to affect the claim or claims of any individual or body politic or corporate, if any such there be."

And by the fifth section of said act, the register and receiver of the land office at St. Stephens were invested with power, within their district, to direct the manner in which all claims to lands and town lots which had been confirmed by that act should be located and surveyed, having reference to the laws, usages, and customs of the Spanish government on the subject, and also to the mode adopted by the government of the United States, pursuant to the Act of March 3, 1803. And by section sixth, certificates of confirmation and patents were ordered to be granted for all lands and town lots confirmed by the act.

According to the act, the claim of Joshua Kennedy (representative of Thomas Price) was duly surveyed on 2 February, 1836, and in May, 1837, a patent was taken out by Kennedy for the land described in the survey. The calls in the patent having any connection with the present controversy are as follows:

"Thence north, 69

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