Henderson v. Poindexter's Lessee. 12 W.

tion of the act of 1804, with regard to which there seems to be a very general power given to that board. All others must rest upon their validity according to the principles of the modern law of nations. Upon these principles it has been shown that the grant to Harcourt was invalid, and, if so, it was not admissible as evidence to sustain the plaintiff's action under any circumstances. The rule, therefore, applies to this case that a plaintiff must recover by the strength of his own title, not the weakness of his adversary's; for which reason, we think the grant was properly rejected, and that the judgment below must be affirmed, with costs.

6 P. 691; 12 P. 410, 657; 14 P. 353; 19 H. 393.

HENDERSON, Plaintiff in Error, v. POINDEXTER'S LESSEE, Defendant in Error.

12 W. 530.

Spanish grants made after the treaty of peace of 1782, between the United States and Great Britain, within the territory east of the River Mississippi, and north of a line drawn from that river, at the 31st degree of north latitude, east to the middle of the River Appalachicola, have no intrinsic validity, and the holders must depend for their titles exclusively on the laws of the United States.

No Spanish grant, made while the country was wrongfully occupied by Spain, can be valid, unless it was confirmed by the compact between the United States and the State of Georgia, of the 24th of April, 1802, or has been laid before the board of commissioners constituted by the act of congress of the 3d of March, 1803, (2 Stats. at Large, 229,) and of March 27, 1804, (2 Stats. at Large, 303.)

THIS cause was argued by Webster and Coxe, for the plaintiff in error, and by Ogden, for the defendant in error

MARSHALL, C. J., delivered the opinion of the court.

This is a writ of error to a judgment rendered in the court of the United States for the district of Mississippi, in an ejectment brought by the defendant in error.

George Poindexter, the lessor of the plaintiff, claimed title to the premises in controversy, by virtue of several patents regularly issued to him under the laws of the United States. If the lands were, at the time, grantable, his title is unquestionable. Consequently, the case depended, in the district court, on the title of the defendant in that court. Under several opinions given by the judge to the jury, to

which bills of exceptions were taken, a verdict was found [*531 ] *for the plaintiff in ejectment, the judgment on which has been brought before this court. The case must depend on the correctness of the opinions given by the district judge; but, as those opinions bring the title of the defendant in ejectment before this court, the case will be best understood by taking a general view of the principles on which that title stands.

Henderson v. Poindexter's Lessee. 12 W.

The defendant gave in evidence a grant from the government of Spain for 1,000 acres of land, bearing date on the 20th of June, 1795, with a plat and certificate of survey annexed; under which grant he claimed so much of the land in controversy as it covered. He also offered in evidence a duly certified copy of a certificate of survey and patent issued thereon to David Pannell, for 500 acres, the residue of the premises in controversy; the certificate by the Spanish surveyorgeneral, Carlos Trudeau, dated the 25th of March, 1795, and the patent issued December 7, 1797, by Manuel Gayoso, the Spanish governor of West Florida, with a deed of release and confirmation from David Pannell to him, dated January 19, 1820. It was admitted that the originals of the plat and certificate of survey, and of the patent thereon, of which copies were offered, were not in his possession, nor under his control. These papers were rejected, and a bill of exceptions was taken to the opinion rejecting them.

The defendant also read the deposition of Tessias, to prove the fairness of the grants under which he claimed, and that they were regularly issued by the proper officers of the Spanish government, at the time they bear date respectively. To rebut this testimony, the plaintiff in ejectment produced a letter of instructions found among the papers of William Atcheson, deceased, the deputy surveyor, by whom the lands in controversy were surveyed. This letter was directed to William Atcheson, and was proved to be in the handwriting of William Dunbar, who is also dead, and who was proved to be the principal surveyor of the district of Natchez, under whom Atcheson acted. The signature appears to have been torn off. This paper tended to show that the surveys and grant were not made at the time they bear date, but afterwards. The defendant objected to its admission, but his objection was overruled, [* 532 ] and to this opinion, also, he took an exception.

The defendant prayed the court to instruct the jury

1. If they should find that, at the time of the sale by the United States, of the premises in question, the defendant was in full possession thereof, under an adverse title or color of title, such sale was void, and passed no title on which the plaintiff could recover.

2. If they should find that the defendant, and those under whom he claimed, had the uninterrupted and quiet adverse possession of the premises, claiming under a Spanish title legally and fully executed, prior to October 27, 1795, under which the possession was originally taken, that the plaintiff cannot recover.

3. If the jury should find that, on the 20th of June, 1795, a patent emanated from the Spanish government to Joseph Pannell, under whom the defendant claimed, then such patent constituted a good

title in the grantee and those claiming under him, although the grantee was not, on the 27th of October, 1795, an actual resident of the territory ceded by Georgia to the United States.

4. If the jury should believe that Joseph Pannell, under whom the defendant claimed, on or before the 27th of October, 1795, was a resident of the said territory, and that he claimed the premises in controversy by virtue of a Spanish patent legally and fully executed prior to that day, the defendant is entitled to a verdict.

5. That the paper purporting to be a copy of the articles of agreement between Joseph Pannell and Francis Poussett, dated September 20, 1796, was competent testimony to prove any fact in controversy between the parties in this suit.

6. If the jury should be of opinion that the date attached to the paper purporting to be the instructions from William Dunbar to William Atcheson, is an interpolation or forgery, in such case they shall disregard it altogether.

7. In this action of ejectment, after a long and continued possession of thirty years, on the part of the defendant and those under

whom he claims, under title or color of title, the jury are [*533] authorized to presume that it had a legal origin, and was

legally continued in the defendant and those under whom he claims, in the absence of satisfactory proof to the contrary. 8. If the jury should believe that the survey made by William Atcheson, in September, 1795, was made at the time it purports to bear date, that then, and in such case, it will constitute an instrument of a higher and superior nature to the instrument purporting to be private instructions from said Dunbar to said Atcheson, for the purpose of proving the residence of the said Pannell at that time.

9. That if, on the whole matter, the jury should have a reasonable doubt, then their verdict should be for the defendant.

The court granted the 4th, 6th, 7th, and 9th prayers, but refused the 1st, 2d, 3d, 5th, and 8th, to which refusal the counsel for the defendant excepted.

In argument, two general questions have been made.

1. Is the title set up by the plaintiff in error under the Spanish government, sufficient in itself to protect his possession?

2. Has it been recognized and confirmed by the United States? 1. The first point has been argued very elaborately, and with deep research. The court will not enter into the reasoning of the parties, but will state the result of an attentive consideration of that reasoning.

It is undoubtedly true, that the exact boundary line between the southern British colonies and Florida, was never adjusted while that province remained in possession of Spain. Each crown claimed

Henderson v. Poindexter's Lessee. 12 W.

territory which had been granted by the other, and was settled by its subjects. Florida was at length ceded to Great Britain; after which, the 31st degree of north latitude was, by the proclamation of 1763, established as the dividing line between that province and Georgia. The crown, however, was in the habit of changing the limits of the colonies; and, though we complained of the manner in which this branch of the prerogative was exercised, we did not resist it. In consequence of a recommendation of the board of trade, the limits of Florida were supposed to be extended, as appears by the commissions to its governor, so as to comprehend the land [ *534 ] in controversy. This was the state of things when the war of our Revolution commenced. In its progress Spain took part in it, and reconquered Florida. At the treaty by which that war. was terminated, Great Britain acknowledged the United States to be free, sovereign, and independent, and treated with them as such. Their boundaries were particularly described, so as to comprehend the land in controversy. The preliminary articles of peace between the United States and Great Britain were signed at Paris on the 30th of November, 1782.' But these articles were provisional, and were not to take effect until terms of peace should be agreed upon between Great Britain and France. On the 20th of January, 1783, preliminary articles of peace were signed between Great Britain and France, and between Great Britain and Spain. In the treaty with Spain, the Floridas were ceded to that power without any description of boundary.

The United States continued to assert a claim to the 31st degree of north latitude, while Spain maintained perseveringly her pretensions to extend further north. This was the subject of long and fruitless discussion between the two governments, which was terminated by the treaty signed at San Lorenzo el Real, on the 27th day of October, 1795.2 By this treaty, "the high contracting parties declare and agree, that the southern boundary of the United States, which divides their territory from the Spanish colonies of East and West Florida, shall be designated by a line beginning on the River Mississippi, at the northernmost part of the 31st degree of latitude north of the equator, which from thence shall be drawn due east to the middle of the River Appalachicola, or Catahouchee; thence," &c. This treaty declares and agrees that the line which was described in the treaty of peace between Great Britain and the United States as their southern boundary, shall be the line which divides their territory from East and West Florida.

VOL. VII.

18 Stats. at Large, 54.

2 Ib. 138.

29

Henderson v. Poindexter's Lessee. 12 W.

The article does not import to be a cession of territory, but the adjustment of a controversy between the two nations. It is understood as an admission that the right was originally in the United

States. Nor is there any thing extraordinary in this admis[*535] sion. The negotiations were all depending at the same time and the same place. That between the United States and Great Britain was first completed and signed; it must have been communicated to France, and, of course, was known to Spain; in it the southern boundary of the United States was accurately defined. The subsequent cession of the Floridas to Spain contained no description of boundaries. Great Britain could not, without a breach of faith, cede to Spain what she had acknowledged to be the territory of the United States. No general words ought to be so construed. We think that Spain ought to have understood the cession, and must have understood it as being made only to the extent that Britain might rightfully make. This opinion is confirmed by a subsequent part of the same article, which respects the troops, &c., of either party in the territory of the other. It is in these words: "And it is agreed that, if there should be any troops, garrisons, or settlements of either party in the territory of the other, according to the above-mentioned boundaries, they shall be withdrawn from the said territory within the term of six months after the ratification of this treaty, or sooner if it be possible; and that they shall be permitted to take with them all the goods and effects which they possess."

itants.

It has been very truly urged by the counsel for the defendant in error, that it is the usage of all the civilized nations of the world, when territory is ceded, to stipulate for the property of its inhabAn article to secure this object, so deservedly held sacred in the view of policy as well as of justice and humanity, is always required, and is never refused. Had Spain considered herself as ceding territory, she could not have neglected a stipulation which every sentiment of justice and of national honor would have demanded, and which the United States could not have refused. But instead of requiring an article to this effect, she has expressly stipulated for the withdrawal of the settlements made within what the treaty admits to be the territory of the United States, and for permission to the settlers to bring their property with them. We think this an unequiv ocal acknowledgment, that the occupation of that territory by Spain

was wrongful; and we think the opinion thus clearly indi[*536]cated was supported by the state of facts. It follows that Spanish grants made after the treaty of peace, can have no intrinsic validity, and the holders must depend for their titles on the laws of the United States. We proceed, then, to inquire into the rights of the plaintiff in error under those laws.