44 US 750 Lessee of Philip Hickey et al. v. James a Stewart et al.

44 U.S. 750

3 How. 750

11 L.Ed. 814


January Term, 1845

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THIS case was brought up, by writ of error, from the Circuit Court of the United States, for the southern district of Mississippi.


It 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.


Coxe and Walker, for the plaintiff in error.


Henderson and Jones, for the defendants in error.


Coxe said that the condition of the country where the land in question was situated was described in 12 Wheat., 524. The distinction is important between an acquired country and that where a disputed boundary was settled. Different codes of laws prevail in the one and the other. 12 Wheat., 535, another case.

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This being an adjusted boundary, there was no obligation to recognize Spanish grants. 12 Wheat., 535.


The United States derived all their proprietary title from Georgia, 1 Laws U. S., 488; and took it only upon certain conditions, 3 Id., 39, 380, 491, 546.


The act of 1803 provided that the decisions of the commissioners should be final. Under it, our claim was registered and confirmed, in 1804.


Our title is therefore complete. But the defendants set up the decree of a court of equity, and the first question is, can the courts of the United States recognize any power in a state court to divest us of our title? The judgment of the commissioners was made final; and as to the effect of this, see 4 Cranch, 269; 9 Id., 127; 3 Wheat., 246; 6 Id., 109; 9 Pet., 8; 10 Id., 449; 2 Bos. & P., 392.


Decisions may be impeached for fraud; but it must be fraud in obtaining the judgment, and not pre-existing. Story Confl. of Laws, 590, 591, 592; 2 Kent Com., 118.


The state of Mississippi could not have divested us of our title by an act of legislation. How then can one of its courts do it?


Again, it is a decree of a court of equity. The title of the plaintiff is a statutory title from the United States, whose authority no one doubts. Can equity interfere? The act of Congress says that the decision of the commissioners shall be final. The rule of law is positive, and equity cannot relieve against a positive law. 1 Story Eq., §§ 10, 11, 64.


An action at law cannot be maintained upon a decree in equity. 8 Wheat., 697; 3 Barn. & Ad., 52.


If the party cannot maintain a suit, he cannot defend himself in ejectment. Lewin Trusts, 247, 482.


(Coxe then objected to the decree in many points of form.)


Henderson, for defendants.


Of the second and third instructions refused to the plaintiffs, we justify the court's refusal in the language of the decree itself:


'That the title of the defendant was obtained by fraud and force and violence, against the equity of complainant's ancestor, * * * it is therefore ordered, adjudged, and decreed, that the title of defendants to said tract of land be, and the same is hereby declared to be fraudulent and void as against complainants.'


The legal title of the plaintiffs herein does not, therefore, 'remain unaffected at law by said decree,' * * * and the decree does not limit its cancellation of title to equity merely; but it finds and adjudges the title 'fraudulent and void,' as against our grantors and title. And so, too, we defend the court below in refusing the fourth instruction asked by plaintiffs below.


The decree is, that the defendants shall 'deliver to complainants the full, peaceable, and actual possession of said tract of land.'


The presumption of law must arise, therefore, that the facts found to subsist, in conformity with the decree, were brought about in conformity with its command, and possession so surrendered, and so taken, may assuredly be lawfully retained. It was so ordered to be given, that it might be retained.


And of the charges given by the court, at the instance of the defendants, they vindicate themselves on reading—self-evident propositions on their face.


Without further noting these particular criticisms, we pass to meet the substantial propositions from which they proceed, viz.:


1. Was the chancery record admissible in evidence for any purpose? and if so,


2. What was its legal effect?


It is objected, that these chancery proceedings do not purport to be record at all. But besides, that the defendants have denominated and regarded them as a record, and acted upon them as a final decree of the highest court of law and equity in the state, and should therefore be estopped in this objection, (see the case on their appeal, 1 Pet., 94;) it is manifest, on inspection, it possesses all the elements of a formal and complete record. It is between all proper parties, and consists of a bill, answer, plea, and replication.


Much testimony on the matter in controversy appears to have been taken, on which the court exercised their chancery discretion in directing an issue at law. This was duly tendered, joined in, and verdict thereupon rendered; exceptions taken, argued, and overruled, and thence decree ordered, made out, and duly enrolled, and then thereafter appealed from to the Supreme Court of the United States. A judicial proceeding with these forms and contents, duly certified as it is, must be a record. 7 Cranch, 408.


It is assumed, too, that the Supreme Court, in treating the case as with plenary and original powers, transcended their jurisdiction. This conclusion is deduced from the assumption that, as the decree was not pronounced till 1824, the powers of the court were governed by the laws of 1822, found in Poindexter's Code; and that, by these laws, the Supreme Court, in such a case, could only certify its opinion to the inferior court to which the case had been referred; and the inferior court must adopt and execute a final decree in conformity with the opinion so certified.


We do not consider, if this record were to be tested by the acts of 1822, in Poindexter's Code, the conclusions of the appellants would follow, or that the final jurisdiction exercised by the Supreme Court in this case would be rendered doubtful. See sect. 30, p. 91; sect. 8, p. 150; sect. 21, p. 154, of Poindexter's Code.


But, it is to be observed, this bill in chancery was filed in the 'superior court of law and equity,' in Adams county, as early as 1815. The date of filing the bill does not appear in the record, but the plea of one of the defendants is sworn to 14th of October, 1815. The controversy continued a lis-pendens till final decree at December term, 1824.


The territorial act of 22d December, 1809, (Turner Dig., p. 178, sect. 116,) gave the jurisdiction under which this suit was instituted.


A further act of the territory, of 20th January, 1814, (Turner Dig., p. 201, sect. 203,) gave the jurisdiction of the Supreme Court by which they took cognisance of the cause on reference, and which expressly authorized them 'to grant judgment thereon according to the right of the matter, and award execution.'


In the year 1817, the territory became a state, and the laws generally were soon afterward, in 1822, revised by Poindexter, to conform to the modified system of jurisprudence appointed by the new constitution. By this constitution, the jurisprudence of the Supreme Court was not specified, but left to the legislature to prescribe. See Constitution, title 'Judicial Department,' p. 550, Poindexter's Code.


The act of 1822 (sect. 5, pp. 149, 150, Poin. Code,) established this jurisdiction. The Poindexter Code was adopted and operative in 1823, and while this chancery case was yet pending. But the code expressly saved from its operation all such cases as were pending, by providing, per sect. 7, p. 8, of the Code,


'That all remedies, which shall have been commenced under former laws, shall be and remain as though the said code had never been adopted.' This decree is therefore in conformity to the laws in Turner's Digest, and this exception of the appellants is manifestly groundless. And full to this point, see Blanchard's Adm. v. Buckbolt's Adm., Walk. (Miss.), 64.


It is further objected to this record and decree, that the Chancery Court of Mississippi had no jurisdiction of the subject-matter, on the ground that the title of the patentee was fixed by the government or sovereign power: 1st, by the decision of the Spanish Governor; 2d, by the 1st article of the compact of cession from Georgia to the United States, of 1802; and 3dly, by the ascertainment of those entitled to confirmation under said article by the board of commissioners, as per section 6 of act of Congress of 3d March, 1803.


To this we answer, 1st, that no title, emanating from this or any other government, for lands now within the United States, can claim immunity from investigation and adjudication in the courts. And if the wilful wrong or mistake of the ministerial officers of government, or the fraud and misrepresentation of the donee or grantee, has induced the issuance of a patent to one who, by the laws and policy of the government, was not equitably entitled to receive it, the court may, as they perpetually do, redress the wrong. And 2dly, as to the claim under the act of cession, the appellants cannot be heard to invoke any protection to their title from that article, to the prejudice of the court's jurisdiction, as they did not show themselves within the provision of that article on that occasion. See the case on appeal, 1 Pet., 94. And showing it now, could in no degree impair the jurisdiction then exercised. The patentee did not, in the chancery suit, prove himself a settler on 27th October, 1795. But had it been shown, by the finding of the board of commissioners under the 6th section of the act of 1803, such proceeding could not preclude Starke from his judicial inquiry into his rights for the same lands; and so the Supreme Court in Mississippi had previously adjudged. See case of Winn v. Coles' heirs, Walk. (Miss.), 119; 2 How. (Miss.), 603.


It having been thus shown, the court in Mississippi had rightful jurisdiction of the cause, their decision upon the matters in issue, and embraced in the decree, is final and conclusive until reversed. 16 Pet., 87; 6 Wheat., 109; 1 Mason, 515; 3 Wash., C. C., 28; 1 Brock., 126; 3 Dall., 101; 2 How. (Miss.), 338 to 342.


What then shall be adjudged the proper and legal effect of our record, as offered in defence to the plaintiff's action. The decree entitled those under whom we claim to have had a formal conveyance of the legal title from the patentee. The order in this behalf having been disregarded, this act of contumacy is now relied on as remitting the parties to their patent right of title, unaffected by the decree pronouncing it fraudulent and void as against us.


In the view we entertain of this point, the inquiry is not regarded essential, whether our decree has qualified the legal title with a trust to our use or not; or whether, in this relation of trustee and cestuis que trust, our equitable title is a bar in ejectment to the recovery of our trustee against us. We think the authorities would sustain us in this position. A mortgagee, whose debt has been paid to him, or a party holding the legal title as a resulting trust, or that of a trustee by deed, after the trust is fully executed, cannot maintain ejectment against his cestui que trust, so entitled to call for the immediate conveyance of the legal estate. 2 Har. & M. (Md.), 17; 7 Wend. (N. Y.), 379; 3 Johns. (N. Y.), 222; 2 Wend. (N. Y.), 134; 6 Munf. (Va.), 41; 1 Cowp., 46; 18 Johns. (N. Y.), 12.


And an equitable title, of like description, is also adjudged in Mississippi, (whose decisions must furnish the law to this court in this case,) as a bar to this action. Brown v. Weast's heirs, 7 How., here in manuscript.


Clear, however, as our defence may be, under this aspect of the authorities, we think it more obviously sustained, on grounds less technical and of more ready comprehension, viz.: upon the rule, that whatever takes away the plaintiff's right of possession, must bar his recovery in ejectment, notwithstanding his legal title. This rule is displayed in its most simple instances, when the defendant claims as a lessee, or tenant in dower, or by the courtesy, &c. But it holds whenever the right to possession exists in one party, though right of property be in another. 6 Pet., 441, 442; 9 Wheat., 524; 3 Wash. C. C., 204; 16 Johns. (N. Y.), 200.


Now the decree offered in evidence has expressly found, that the patent is fraudulent and void as against the better right of our vendors. And the defendants therein, besides being commanded to convey their title to the complainants, are required also, within sixty days thereafter, to 'deliver to complainants the full and peaceable and actual possession of said tract of land.'


Our derivative title under those complainants, and our actual possession of the said tract of land being admitted, our right to the possession must be sustained at law or equity.


In the Cincinnati common case, 6 Pet., 441, the defendant's claim to right of possession was established by no such formal and solemn proof as here presented, and yet sustained as a bar to the ejectment. The matters put in issue by the parties in our record, and found by the decree, are proven and established conclusively, till the judgment be reversed. 6 Wheat., 113, 114, 117; 3 Wash. C. C., 28; 1 Brock., 129. And, in deraignment of title before a court, a decree of title is good evidence even against a stranger to the record. 4 Wheat., 217.


The appellants maintain, however, that the matters decreed in a court of chancery are only available as evidence in a chancery court; or if admissible at all, in a court of law, must be received with diminished consideration, than if adjudged in a court of law. Not so.


The cases of 6 Wheat., 113, 114, and 3 Wash. C. C., 28, were of decrees offered in evidence in courts of law, and held of equal validity as judgments at law. And the former speculative opinions, that debts and charges on real estate, established by decree, were of less dignity and validity than judgments at law, no longer prevail. 3 P. Wms., 401, n. (F.)


In the view we have taken of the sufficiency of our defence in showing our right of possession, it is of course unnecessary to maintain that a decree of title, in legal consideration, is equivalent to a conveyance of title. Yet on principle, it must be so. A commissioner's deed, executed under a decree, is in itself form without substance. It has no force or validity, but in virtue of the decree. 6 Pet., 400, 401. In 10 Id., 245, it was decided, that a deed of conveyance, made pursuant to a decree, was in effect cancelled and annulled by a reversal of the decree under which it was executed. But if, as the appellants would maintain, the deed so executed passed the legal title, it is adjudged in this case that the mere reversal of the decree cancels and revests the legal title. Why, then, when the decree, (as in our record,) acting directly on the legal title, cancels it in the hands of the holder, and expressly adjudges it to belong to another; why does it not transfer the legal title? In 1 Pet., 558, 559, 560, this principle is fully maintained. True, the statute of Ohio is referred to for its authority, but quaere, if that statute should be regarded as any thing more than declaratory of the legal effect of a decree of title.


Chancellor Kent considered the decree, even on the foreclosure of a mortgage, to operate so directly on the land and the title, that on motion of the purchaser of the land (sold under the decree) to have possession awarded him against the mortgagor's wife who refused to surrender, it was adjudged the decree concluded the question of possession, as against all parties and privies, and the court's writ of assistance was directed in favor of the application, and this, though the decree had not directed the possession, should be so surrendered. 4 Johns. (N. Y.) Ch., 614.


We believe, therfore, our case is so fortified in every aspect, both in its equity and at law, that this court must affirm the judgment of the court below.


Mr. Justice McKINLEY delivered the opinion of the court.


This case is brought before the court by a writ of error to the Circuit Court for the southern district of Mississippi.


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 Mather, dated the 3d of April, 1794; and a deed of conveyance from James Mather to George Mather, dated the 26th day of April, 1803, for the same tract of land; and they also read in evidence a certificate, dated the 10th day of April, 1806, signed by the commissioners, appointed by the President of the United States, under the act of Congress, of the 3d of March, 1803, and the act, supplemental therto, of the 27th of 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 the 29th day of December, 1791, and the survery 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 bringing himself within the first section of the act of Congress of 1803, by 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 the 14th of 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, 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, is 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 non-residents 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. 759-Continued]


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.4 The defendant in ejectment can never defend his possession against the plaintiff upon a 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 the 27th of 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 the 24th day of April, 1802, she ceded it to the United States. And in that deed it was stipulated, 'that all persons who, on the 27th of 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 the 3d of March, 1803, chap. 80, (2 Story's Laws, 893,) enacts, 'That any person or persons that were residents in the Mississippi territory on the 27th of 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, 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 the 27th of 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 having been conferred on it by act of Congress for that purpose, took cognisance 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 non-resident 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 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 the 27th of 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.5


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 cognisance 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 et al. v. Piersol et al., 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 viodale 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 Wilcox and Johnson, 13 Pet., 511, and the case of Elliott et al. v. Piersol et al., 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.


The action of ejectment is only a possessory action—to determine who is entitled to the possession of the land at the moment suit was brought for it. As Lord Mansfield said, the plaintiff ought to recover, though but for a week, for the true question in an ejectment is, who has the possessory right. Bull N. P., 106; Clarke v. Rowell, 1 Mod., 10.

'It is a recovery of the possession without prejudice to the right, as it may afterward appear, even between the same parties.' Atkins v. Horde, 1 Burr., 114; see Crockett v. Lashbrook, 5 T. B. Mon. (Ky.), 531; S. C. 17 Am. Dec., 98; Mitchell v. Robertson, 15 Ala., 412; Pollard v. Baylors, 6 Munf. (Va.), 433; Clubine v. McMullen, 11 U. C. Q. B., 250; Moran v. Jessup, 15 Id., 612; Smith v. Sherwood, 4 Conn., 276; S. C. 10 Am. Dec., 143; Holmes v. Carondolet, 38 Mo., 551; Jackson v. Dieffendorf, 3 Johns. (N. Y.), 270. The only effect of the judgment is to put the defendant in possession, Minke v. McNamee, 30 Md., 294; and if he is ousted a second time, after having been put in possession by the execution officer, he must resort to a second action; he cannot have a second execution on the same judgment. Hinton v. McNeil, 5 Ohio, 509; S. C. 24 Am. Dec., 315. Even several verdicts against the defendant, who then accepts a lease from the plaintiff, and promises to give no more trouble, are not conclusive against the promisor. Richardson v. Stewart, 2 Serg. & R. (Pa.), 87.

A judgment is never admissible in evidence between the same parties unless the precise point which is in issue was put in issue and appears from the record to have been decided. In the second suit in ejectment, this is impossible, for the same point is not put in issue—a point in difference of time. Smith v. Sherwood, 4 Conn., 276; S. C. 10 Am. Dec., 143; Stevens v. Hughes, 31 Pa. St., 381. In several cases such judgments have been allowed to go to the jury, to be by them treated as persuasive, but not conclusive evidence of the facts upon which they were based. Doe v. Seaton, 2 Cromp. M. & C., 728; Bull. N. P., 2326; Wright v. Tatham, 1 Ad. & E., 3; Doe v. Wright, 10 Id., 763; Thompson v. Hall, 31 U. C. Q. B., 375. Conferring judgment does not change the rule. Botts v. Shields, 3 Litt. (Ky.), 32; contra, Secrist v. Zimmerman, 55 Pa. St., 446.


CITED. Bank of the United States v. Moss, 6 How., 38.