Doe v. City of Mobile,
50 U.S. 451 (1850)

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U.S. Supreme Court

Doe v. City of Mobile, 50 U.S. 9 How. 451 451 (1850)

Doe v. City of Mobile

50 U.S. (9 How.) 451


Under the two acts of Congress passed on 8 May, 1822, 4 Stat. 700 and 708, the register and receiver of the land office were not empowered to settle conflicting titles but only conflicting locations.

In this case, they did not describe a boundary line by visible objects, but called to bound upon another line.

The authority given to these officers was to be exercised only in cases of imperfect grants, confirmed by the act of Congress, and not cases of perfect title. In these they had no authority to act.

Hence, where a state court left the question of location to be settled by a jury, this Court will not disturb the judgment of the state court founded upon such finding.

This was a branch of the preceding case of the same plaintiff against Eslava. In the statement of that case, it is mentioned that the suit was brought against all the defendants conjointly, but that the City of Mobile obtained leave to sever in their plea. This case is the result of that severance.

The title of the plaintiff is set forth in extenso in the report of the preceding case, and need not be here repeated. The defendants produced no official survey or patent for the lot in question, but relied exclusively upon the Act of Congress passed on the 26 May, 1824, 4 Stat. 66.

The bill of exceptions states all the points in which this case differs from the preceding one.

"Bill of Exceptions"

"Doe, ex dem. Farmer's Heirs"

" v."

"Roe, Mayor and Aldermen of the City of Mobile Ejectment"

"and Joseph Clements, Tenant &c."

"Mobile Circuit Court"

"Be it remembered that on the trial of this cause, the plaintiff, to maintain the issue on his part, produced and read to the court and jury from the third volume of the American State Papers, title Public Lands, page 18, an abstract of the

Page 50 U. S. 452

title to the lessors of the plaintiff, being claim No. 45, and which it is agreed may be read from the said book on the hearing of the cause in the supreme court of this state or the United States if it shall be carried thither."

"He likewise read to the court and jury the Act of Congress passed 8 May, 1822, confirming said claim. He further read to the court and jury a patent from the United States, issued in pursuance thereof dated 14 November, 1837, for the premises in question, granted to the heirs of the said Robert Farmer, in right of Philip Gonjon de Grondel, wherein the said premises are described as follows, to-wit, beginning at a post on the line of the claim of William McVoy, at the distance of twenty-four feet north of the northeast angle of government Street and Emanuel Street; running thence north sixty-nine degrees east with the line of McVoy, eighty-nine feet seven inches to a stake, the southeast angle of a brick cotton shed, bearing north seventeen degrees west, distant forty-two feet one inch; thence north seventeen degrees forty minutes west, two hundred and twenty-four feet, to the south boundary of the bakehouse lot; thence with said south boundary, south seventy-five degrees fifteen minutes west, eighty-nine feet six inches, to the east boundary of Emanuel Street; thence with said street, south seventeen degrees forty minutes east, two hundred and thirty-four feet, to the place of beginning; containing twenty thousand four hundred and ninety-five superficial feet English, and being a lot in the City of Mobile, and State of Alabama, in township four south of range one west, in the district of lands subject to sale at St. Stephen's, Alabama, a copy of which patent is hereto attached as a part of this record. The plaintiff proved the defendants in possession of the premises, the particular location thereof, the heirship of the lessors &c. And it was further proved on the part of the plaintiff that Robert Farmer was a British subject, a native of North America, and died in Mobile about the year 1780 or 1781, as appears from the deposition of Madame Beaumont hereto attached as a part of this record; that he was an officer of the British army at the time of his death; that the family, shortly after the conquest by Spain of that province, removed from the province, and none of them returned during the whole period of the Spanish supremacy. And that De Vobiscey, father of one of the lessors, came to Mobile in 1818 or 1819 to set up the claims of the family. The defendants, for the purpose of maintaining their issues, introduced the Act of Congress of 26 May, 1824, entitled 'An act granting certain lots of ground to the corporation of the City of Mobile, and to certain individuals

Page 50 U. S. 453

of said city,' and claimed the lot in dispute as a portion of the bakehouse lot specified in said act."

"The defendants produced no official survey nor patent from the land office for the lot, but relied on said act alone. To establish the boundaries of the said lot, they had the depositions of Catharine Walters, Thaddeus Sandford and Nicholas Weeks, taken by commission issued and executed regularly, which said depositions are hereto attached as a part of this record. The plaintiff objected to the reading of the depositions because the evidence was irrelevant, incompetent, and improper under the issue, and went to contradict, to vary, and to change the legal import and terms of the patent introduced by the plaintiff."

"The court overruled the objection and suffered the depositions to be read, to which the plaintiff excepts. The defendants called a number of witnesses and examined them as to the marks and memorials that existed of the bakehouse lot as it was used and occupied in Spanish times and as to those which remained after the departure of the Spanish government, none of which appeared in the patent under which the plaintiffs claimed, either as landmarks or otherwise, nor are they now visible, nor did any of the witnesses swear that they were the lines of the lot aforesaid, nor was it proved who put them there, or when they were put there, and proved the facts of the possession by the adjoining proprietors, Joaquin de Orsono and Miguel Eslava, in Spanish times, and that in 1824, when the lot was taken by the defendants, the mayor and aldermen of said city leased a portion to third persons, without objection by the plaintiff's lessors or the heirs of Eslava, that the witnesses knew of four of these witnesses were members of the corporation in 1824, both of whom claimed the lot south and bounding on the King's bakehouse, and that no suit had been brought before this suit for the same; that the witnesses knew of no written evidence of any suit that was before the jury; that improvements had been made on the lot by the defendants on the line as now claimed by them."

"The object of all this testimony on the part of the defendants being to show that the King's bakehouse lot was as it is claimed to be by the defendants, and to show that the defendants are not in possession of any lands that did not form a portion of the said lot, and that the courses and distances laid down in the patent conflict with the right of defendants, which evidence was objected to by the plaintiff as irrelevant, improper, and incompetent, which exceptions were overruled by the court. The defendants, further to establish their southern boundary line, proved that the next lot was claimed by Joaquin

Page 50 U. S. 454

de Orsono in Spanish times and was used and improved by him; that he parted with his possession and title to Miguel Eslava, who was at the time commissary and storekeeper for the Spanish troops at Mobile, who was in possession when De Vobiscey came to the state, and who has been controverting the right of Farmer's heirs ever since, and that his heirs are now in possession of the said lot, and have been for more than twelve years. The defendants proved that their claim to the possession was not disputed by said Eslava or his heirs; further, the defendants produced the book of translated Spanish records, from the County Court of Mobile County, and offered to read a deed from Francis Fontanella to Joaquin de Orsono, on record in said book, for the lot south, calling for the bakehouse lot as the northern boundary, bearing date in 1801, and a copy of which is attached as part of this record."

"The plaintiff's counsel objected to this deed because the same was irrelevant and incompetent and because there was no evidence that the same had ever been offered to any commissioner appointed under the acts of Congress for the examination of private land claims under the treaty between the United States and France. The court overruled the objections, and the deed was read to the jury, to which the plaintiff excepts. The French grant to Grondel, calling for the boulangerie du roi for its northern boundary, was before the jury, and read by defendants' counsel. There was no evidence that the claim to possession was ever disputed by Eslava or his heirs, but there was evidence that the corporation, shortly after they took possession of the lot as testified by Josiah Wilkins, who was a member of the corporation at the time, procured the fence that bounded the bakehouse lot on the south to be moved in the night time, some thirty or thirty-five feet south, upon the premises claimed by the plaintiff, while the said Vobiscey, one of the heirs of Farmer, was in possession thereof. This was the substance of all the evidence given before the jury retired to consult on their verdict. The court read to the jury as a part of its charge a statement and opinion of the Supreme Court of the State of Alabama in this same case reversing the judgment heretofore rendered in this Court in favor of the plaintiff, which statement and opinion is in these words and figures, see the manuscript hereto appended, marked A, and instructed the jury that the said statement and opinion were the correct and true law of the case, to which the plaintiff excepted. The court in its charge to the jury further instructed them that the Act of Congress of 26 May, 1824, conferred upon the defendants as perfect and conclusive a title, and their claim and title to the bakehouse

Page 50 U. S. 455

lot was precisely equal in every respect under said act, as the plaintiff's title was under the patent on which he claimed, and was of equal dignity with the same. After the charge had been delivered by the court to the jury, and before they retired from the box, the plaintiff requested the court to instruct the jury that the Act of Congress of 26 May, 1824, granted to the said defendants the bakehouse lot as a mere donation lot, and that the register and receiver at St. Stephen's were authorized, under the Act of Congress of 8 May, 1822, and other acts of Congress, to direct the manner and mode of surveying and making the location and division between these parties, and having done so, no parol evidence is competent to set aside, to vary, or change the location so made under their direction and set forth in the patent, which instruction the court refused to give, and to which the plaintiff excepts. The plaintiff further requested the court to instruct the jury, that no survey, plat, or other description of the premises in question, can outweigh or supersede the survey set forth in the patent under which the plaintiff claims, unless it be shown by the defendants in a patent, or an instrument of evidence of equal grade and authority with a patent; which instruction the court refused to give, and to which the plaintiff by his attorney excepts. To all which charges and refusals to charge the plaintiff by their counsel excepts and prays that his exceptions may be sealed and made a part of the record, which is done accordingly."


The following is the extract from the opinion of the Supreme Court of Alabama, which was declared, in the above exception, to be the law of the case.


"1. The power given to the registers and receivers, by the different acts of Congress, to determine between conflicting and interfering claims, and to direct the manner of locating and surveying them, applies only to confirmations of imperfect grants by the former proprietors of the country. These officers have, therefore, no power to locate and direct the survey of a disputed line, where one of the parties claims by virtue of a complete and unconditional grant, as in the case of the donation to the corporation of Mobile of the hospital and bakehouse lots by the act of 26 May, 1824."

"Error to the circuit court of Mobile. Ejectment by the defendants in error against the plaintiffs in error."

"The plaintiff below, to sustain his case, introduced in evidence

Page 50 U. S. 456

a patent from the United States to the lessors of the plaintiff, for certain lands in the City of Mobile, and proved that the premises sued for were within the lines of the patent."

"The plaintiff also read the deposition of James Magoffin, and certain proceedings of the land office at St. Stephen's, in relation to the boundary of the lot known as the 'bakehouse lot,' and other testimony proving the heirship of the parties, which need not be stated."

"The defendants relied on the Act of Congress of 26 May, 1824, entitled, 'An act granting certain lots of ground to the corporation of the City of Mobile, and to certain individuals of said city,' and offered to prove that the lines of the bakehouse lot in the City of Mobile at the date of the act comprised the locus in quo. The plaintiff objected to this evidence on the ground that the transcript of the record attached to the evidence of James Magoffin, in which the limits of the bakehouse lot had been ascertained by him, was conclusive. The court sustained the objection and excluded the evidence, and charged the jury that the heirs of Robert Farmer were entitled to the property described in their patent; that the corporation was entitled to the bakehouse lot, but that the decision of the officers of the land office at St. Stephen's was conclusive of the question. To which the defendant excepted, and which he now assigns for error."

"Campbell for the plaintiff in error."

"The title of the plaintiff in error arises under the act of 26 May, 1824, by which the bakehouse lot is vested in him. This act amounts to a complete grant, and any question arising upon it is a judicial, and not a political, question. What lands are included in the grant is not a question for the land office, but the court. 10 U. S. 6 Cranch 128; 12 U. S. 8 Cranch 244, 12 U. S. 249; 31 U. S. 6 Pet. 741; 37 U. S. 12 Pet. 454; 39 U. S. 14 Pet. 414; 3 U. S. 3 Dall. 456."

"The defendants' title is inferior. The patent bears date in 1837; the terms of renunciation are in praesenti, and no evidence of title prior to 1824 is presented."

"The register and receiver at St. Stephen's were not authorized to settle conflicting boundaries. Their power is exhausted by the settlement of the question of location for the purposes of the land office. Whether that location is accurate, so far as third persons who claim by grant previous to the act of location are involved, is a question which can only be settled by the parties themselves, or by courts of justice. Instructions and opinions of the land office, Part [ ] 1445, §§ 5, 6; 31 U. S. 6 Pet. 735."

"Phillips, for the defendants in error."

"The title of the heirs of Farmer is derived from the act of

Page 50 U. S. 457

1822. Under that act, the certificate of the register and receiver was made and confirmed by Congress, and the plat of survey made the title. It is therefore older than that of the plaintiff in error, which commenced in 1824."

"The effort now is, to show that the north line, as fixed by the plat of survey confirmed by the act of 1822, was too far to the north. If, instead of being specifically located, the confirmed report had described it generally as the lot of Farmer's heirs, and in 1824 the donation to the plaintiff as the lot known in Spanish times as the 'king's bakehouse lot,' reserving the rights of others, under such circumstances, an inquiry ordered by the common grantor, and his decision thereon as to the boundary, ought to be conclusive, as a mere declaration of a fact which always existed; the more especially as the opposite party submitted to the jurisdiction, examined witnesses, and contested their rights."

"ORMOND, J. By the Act of 26 May, 1824, the United States granted to the Mayor and Aldermen of the City of Mobile 'all right and claim of the United States to the lots known as the hospital and bakehouse lots, containing about three-fourths of an acre in the City of Mobile.' 1 Land Laws 398."

"On the 14 November, 1837, a patent issued from the General Land Office in favor of the heirs of Robert Farmer upon a confirmation of a claim made by virtue of the Act of the 8 May, 1822 1 Land Laws, 352, which, among other designated boundaries, calls for the south boundary of the 'bakehouse lot' as one of the boundary lines of the land conveyed by the patent, and the controversy in this case is what is the south boundary of the bakehouse lot? To establish this boundary, the plaintiffs rely upon a decision made by the register and receiver at St. Stephen's, which they insisted, and the court below held, to be conclusive of the fact."

"The right of these officers to determine this question is attempted to be derived from the various acts of Congress giving them power to determine between conflicting and interfering claims, and also to direct the manner of locating and surveying the lands the title to which had been confirmed. See Land Laws, Part 1, 348, 352, and 455, and other acts, to which these are supplementary. There can be no doubt that Congress may attach to a pure donation such terms as it pleases, and may invest the subordinate officers of the United States with power to determine questions of fact, and to ascertain and settle conflicting claims. Of this the different preemption laws furnish examples. Whether it has such power in relation to the confirmation of imperfect titles derived from the former

Page 50 U. S. 458

proprietors of the country, is a question which does not arise in this case."

"The power conferred on the registers and receivers to decide upon conflicting claims relates only to the confirmation of imperfect titles derived from the French, British, and Spanish governments; but the grant of the bakehouse lot to the corporation of Mobile was an unconditional donation of all right and title of the United States in and to the thing granted, which immediately passed to the grantee. The previous acts of Congress, therefore, giving to the receiver and register power to ascertain and settle the boundaries of conflicting confirmed claims have no application, and it was not competent for Congress to attach such a condition to it subsequently, and it has made no such attempt. The description of the thing granted in the act is sufficient to distinguish it from other lots in the city, and by the aid of extrinsic testimony its boundaries may be ascertained. Blake v. Doherty, 5 Wheat. 359."

"By the treaty, the United States acquired all the title of the Crown of Spain to these lots as public property. The question then is what was the boundary of these lots in Spanish times? This is a question of fact, and if a controversy should arise in relation thereto between the corporation and others claiming title to the adjoining lots, it can only be settled by those tribunals appointed by the Constitution and laws for that purpose, unless the parties interested should voluntarily submit to some other mode."

"We are relieved in this case from the necessity of considering whether the recital in the patent of Farmer's heirs of the boundary line would be conclusive, because the patent does not profess to locate the north boundary line other than by calling for the 'south boundary of the bakehouse lot.' The precise location must therefore be ascertained by testimony, showing where the south line was when in the occupancy of the Crown of Spain. Such as its limits then were, it passed by the treaty to the United States, and with those limits it was granted to the corporation."

"It results from this examination that the court erred in determining that the decision of the register was evidence of the boundary line of the bakehouse lot, and its judgment is therefore reversed and the cause remanded."

The above was the extract from the opinion of the Supreme Court of Alabama, which was given in charge to the jury by the Circuit Court of Mobile County. Under these instructions, the jury found a verdict for the defendant. The case was then

Page 50 U. S. 459

carried to the Supreme Court of Alabama upon the bill of exceptions above recited, and that court affirmed the judgment of the circuit court.

The plaintiff sued out a writ of error, and brought the case to this Court.

Page 50 U. S. 467

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