Adams County MsArchives Court.....Chew, William L  June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

WILLIAM L. CHEW vs. ALEXANDER CALVERT & OTHERS.

During the existence of the Spanish government in the Mississippi territory, 
the laws of Spain controuled the transfer and descent of property.

The law of Spain continued in force here, till after the territorial 
government was actually organized, under the act of Congress of the 7th of 
April 1798, and this government was not actually organized, until the 
beginning of the year 1799.

The ancient laws of conquered, or ceded countries, remain unchanged, until 
actually abrogated by the new government.

Under the laws of Spain, executors had no power to sell the immoveable 
property of the testator.

The grants of land here by Spain, were donative, and were not subject to the 
rights of community, between husband and wife. 

The conditions contained in these grants, were for the benefit of the donee, 
and were rarely if ever fulfilled. A purchaser is presumed to have notice of 
every defect, disclosed by any recital in any deed essential to his title. In 
order to protect himself in equity, as a purchaser without notice, that fact 
must be averred in the bill.

Persons standing by in silence when a sale of their property takes place, are 
not deprived of their rights, unless the purchaser in fact, was ignorant of 
the existence of their title.


This is a writ of error, in nature a bill of review, brought to reverse the 
decree of Adams Superior Court in Chancery. The errors assigned, are the 
general errors, and will bring the whole case before the court. In order 
clearly to show the grounds of the judgment of this court, a short statement 
of the case will be required. The bill charges, that Frederick Calvit, the 
ancestor of the defendants in the year 1788, obtained a patent from the 
Spanish government for 500 acres of land, that in the year 1790 he made his 
will, and devised the lands in controversy to his wife and children, giving 
her a life estate in her portion, appointing John Bisland, Thomas M. Green, 
Thomas Calvit and his wife executors and executrix to his said will - that no 
authority was given by the said will to the executors, to sell the land - that 
some of the children were of age, but the defendants were infants under age 
and of tender years. The bill also charges, that the estate was sold under the 
authority of the Spanish government, and John Roberts became the purchaser. 
That Roberts devised the lands to James Stewart jun., but it became necessary 
to sell the land for the payment of Roberts' debts, and the complainant became 
the purchaser. That two of the defendants were present, and John F. Bowie, the 
guardian of the other defendants, knew of the sale to the complainants, made 
no objections, nor did they make known their claim. That John F. Bowie, 
solicited the complainants to make the purchase. The bill does not deny that 
complainants had notice of defendants title. The answer denies all the 
material facts, to wit: the sale under any authority of the Spanish 
Government, that Roberts did not purchase under the pretended sale, but the 
purchase was made by the mother of the defendants, that no assent of theirs 
was given to the purchase by complainants, charges that complainants had both 
express and implied notice of their title.

A preliminary point was made in the argument of this cause, by what law the 
sale by the executors was to be governed, whether by the Spanish or by the 
laws established by the acts of Congress for the government of the Mississippi 
territory. It is not very material whether this point be decided or not, as 
the opinion of the court would be the same, the rules of both are analogous, 
and would bring the court to the same result. But the point having been taken, 
and insisted upon, the court will dispose of it. It is a subject of regret, 
that our libraries furnish few treatises on the laws of nations, from which 
light might be obtained to elucidate the point in question. The court will 
have to rely on Vatell, and some English authorities. 

Vatell 455, speaking of the rights of conquest by war says, a Prince taking a 
town or province from an enemy, can justly acquire over it, the same rights 
only, as belonged to the sovereign against whom he had taken up arms — war 
authorised him to possess what belonged to his enemy — if he deprives him of 
the sovereignty of a town or province, he acquires it as it is, with all its 
limitations and modifications. And again 455 he says, if the sovereign, be 
only the just object of his complaint, reason declares, by his conquest, he 
acquires such rights only, as belonged to the dethroned sovereign, and on the 
submission of his people, he is to govern it according to the law of the 
State. The above doctrine is recognised by Lord Mansfield, in the celebrated 
judgment he gave in the case of Campbell vs. Hull, Cowp., 209, he says, the 
laws of a conquered country continue in force, unti1 they are altered by the 
conqueror. 1st. Black. 108 says, but in conquered or ceded countries, that 
have already laws of their own, the King may indeed alter and charge those 
laws, but until he does actually change them, the ancient laws of the country 
remain. In Calvin's case, 7 Rep. 17 the same doctrine is recognized. That 
Spain, until the fall of l798, exercised jurisdiction over this country, is 
not controverted. Whether this jurisdiction was rightful is not the subject of 
enquiry - it is sufficient if it was a government du facto' but that she had 
some semblance of right, is evident from her treaty with the United States. 
One of the objects of that treaty was to settle the limits, and there was a 
stipulation in the treaty, that if any portion of her subjects should be found 
within the limits of the United States, as agreed upon, time was given for 
their removal. If conquest and cession make no alteration in the civil laws of 
nations, what would place the government of Spain on different grounds? — I 
know not, and this may be laid down as a general principle, that the change, 
of one form of government for another, from whatsoever cause it may arise, the 
municipal laws remain unimpaired, until changed and altered by the new 
government. Our own revolution, the different revolutions in England and 
France, and the history of all countries prove this. The usurpation of 
Cromwell in England, the dethronement of the Bourbons in France, the 
establishment of the republic, and afterwards the Imperial dynasty of 
Napoleon, did not abrogate the municipal regulations of either of those 
nations. Rome, under all her mutations, was governed by the civil law. If 
these principles be just, and I think them consonant with justice, and the 
laws of nations, an important inquiry arrises, at what time the civil law 
ceased in this country. From the testimony of Col. Steel, the first Secretary 
under the territory, the goverment was not organized until the beginning of 
the year 1790 — that the civil law did not cease to operate until the 
organization of the new government, from the above principles, if they be 
correct, must be obvious, and the court is sustained in the positions assumed, 
by the act of the 7th April, 1798, which act goes far to show the opinion 
Congress held upon this subject. By the 6th section, Congress declares, that 
from and after the establishment of the said government, the people of the 
aforesaid territory shall be entitled to, and enjoy, all and singular the 
rights, privileges and advantages granted to the people of the United States 
northwest of the river Ohio, in and by the aforesaid ordinance of the 13th 
July, 1787, in as full and complete a manner as the same are possessed and 
enjoyed by the people of the said last mentioned territory. The act requires 
the new government to be organized before the ordinance should operate, and 
become the law of the land. The evidence is, that the sale of the executors 
was on the 1st April, 1798. The court is therefore of opinion, that the civil 
law prevailed, and the sale of the executors must be governed by the Spanish 
law.

Having thus disposed of the preliminary point, the following case is presented 
for the consideration of the court. 1st. Had the executors power under the 
will, or the laws of Spain, to sell the land? 2nd. Have the defendants, by any 
acts of their own, raised an equity sufficient to preclude them from enforcing 
the judgment at law? To the first point, had the executors power under the 
will, or the laws of Spain, to sell the real estate? By the civil code, 246, 
the executors can sell moveables if there are not assets sufficient to pay the 
legacies. He cannot sell immoveables, although authorized by the testator, if 
all the heirs are present, and they are forced heirs.

When an executor has seizen of the property, and is directed to sell, he must 
proceed to the sale, and payment of the debts of the succession, in the manner 
prescribed to the creditors of absent heirs, and vacant successions, page 244, 
the testator may give to his testamentary executor the seizen of the whole 
succession, or only a determinate point, according as he has expressed 
himself. If testator has not given seizen to his testimentary executor, he 
cannot acquire it. But if the executor testamentary be merely and simply 
appointed, without any other power, his functions are confined to the 
execution of the legacies contained in the will, to cause the inventory to be 
made, and other acts conservatory of the property of the succession, even when 
the testamentary executor has been appointed detainer of the property, or 
expressly authorized by the testator to take possession of it. If there are 
any forced heirs, they may prevent the seizen of testamentary executor, by 
offering him the necessary sums to pay the legacies, or by securing their 
payment. It is admitted by the complainants, that no power is given by the 
will to the executors to sell, but it is contended, that a power was given by 
a court of competent jurisdiction. From the authorities cited, these 
principles may be assumed, as clearly established, that a power to sell 
immoveables must be expressly given by testator; the only exception is in the 
case of absent heirs, not represented — then the law authorizes seizen whether 
granted or not, or whether the heir be forced or testamentary, and gives a 
power to sell. 

See Civil Code. The exception sufficiently establishes the rule to be as laid 
down, viz: that before executors can take possession of a succession, the 
testator must expressly authorize them to do so by his will.

That appointing an executor, simply, without any other power, his functions 
are confined to the execution of the legacies contained in the will, the 
making of the inventory and other conservatory acts of the property of the 
succession. An application of the evidence to these principles, drawn from the 
civil code, puts the question of sale by the executors at rest, and I take it 
to be clear, also, that before any Spanish tribunal could have given an order 
of sale, the executors ought to have brought themselves within the exceptions 
of the first principles laid down, by showing that the heirs were absent, and 
not represented here. But no such pretence is set up; on the contrary, it 
appears from the evidence in the case, that they were all present, and the 
defendants were infants; that John Bisland, Thomas M. Green, and Thomas Calvit 
were simply executors, and had no power, under the will, either to take 
seizen, or to sell, is clearly proved from the will, and from the authorities 
cited; that the sale was without authority of law is further proved, by the 
doctrine of successions, under the civil law. The civil law acknowledges three 
kinds of heirs, legal, testamentary, and irregular — Civil Code, 164. 

The acceptance of an inheritance simply binds the heir to pay all the debts of 
the ancestor, and if the succession is not sufficient, he is bound to pay them 
out of his own estate, and becomes personally liable for their payment; in 
fact, he stands in the place of the deceased. But if he accepts the 
inheritance with the benefit of an inventory, then he is bound only so far as 
the effects of the succession go; he then assumes the same character as an 
executor or administrator, under our law. Infants, by their tutor and curator, 
can accept an inheritance. Civ. Code, 162. The heir, whether legal or 
testamentary, by the civil law, stands in the place of executor or 
administrator in our law, and the power of the executor, when he is simply an 
executor, by the civil law, is confined to see that the will is duly executed, 
by those who have the seizen of the estate. That they have no right to 
interfere in the disposition of immoveables, I think has been clearly 
demonstrated by the authorities, nor have the complainants shown, that any 
tribunal known to the laws of Spain, has the right to cloathe the executors 
with this power. Until that is shown, it would be loss of time to enter into 
the discussion of the presumption that the executors had sold under an order 
of a Spanish tribunal, but that the evidence is lost through casualty and 
length of time. One of the counsel for complainant argued ingeniously, that 
Mrs. Roberts, under the law of acquests and gains, was entitled to one half of 
the land, and her standing by and suffering the land to be sold, bound her, 
and vested a title in one half of the land in complainant, through the mesne 
conveyances; and cited Civil Code, 336, and a case in Martin’s Reports, 3 vol. 
456. Upon an examination of the authorities cited, I am of opinion, they do 
not warrant the conclusions drawn from them by the learned counsel. For, by 
law, as laid down in the Digest, this partnership or community consists of the 
profits of all of the effects of which the husband has had administration, and 
enjoyment, of the produce and reciprocal labor and industry of both husband 
and wife, of the estates which they may acquire during the marriage, either by 
donations, made jointly to them both, or by purchase, &c.; and agoin, in art. 
67, same page, at the time of the dissolution of the marriage, all the effects 
which both husband and wife possesss reciprocally are presumed common effects 
or gains, unless it is satisfactorily proved which of the said effects they 
brought in marriage, has been given to them separately, or they have 
respectively inherited. By recurrence to the patents, we find the title is 
vested solely in Frederick Calvit. This is the strongest evidence of his sole 
title; that all grants of lands by the Spanish government to settlers is 
expressly donative, is manifest from the patents, and is a fact not to be 
controverted; the conditions of the settlement cannot alter their nature; 
besides, those conditions were never enforced, and were for the benefit of the 
grantee, not of the grantor. The expences paid the officers for the operation 
of survey, and for issuing the patents, are collateral and do not enter into 
the consideration of the grant, and cannot convert what is donative into a 
purchase. That Mrs. Roberts possessed no other title but through the will, 
which was a life estate, for one third of the land, a reference to the patent, 
and will, sufficiently establishes. Its unnecessary to enter into the 
consideration who was the purchaser under the sale made by the executors, the 
court being of opinion, that no title was conveyed by the said sale; the same 
being made without authority, and against the laws of the country, is 
consequently void, and of no effect.

The second enquiry to be made is — Have the defendants, by any acts of their 
own, raised an equity sufficient to preclude them from enforcing their 
judgment at law. Much learning has been shown, many ingenious argumeots have 
been used, and many authorities have been cited both pro and con. Before we 
enter into an examination of the authorities, a recurrence to the bill will be 
necessary. The bill charges that Alexander Calvit, Joseph Calvit, and John F. 
Bowie, knew that the sale was about to be made by Stewart, stood by during the 
sale, and did not make known their title; that he purchased for a full and 
valuable consideration, from which he expects to raise an equity sufficient to 
preclude the defendants. The complainant does not deny in his bill, but that 
he had notice of the defendant’s title, nor does he come into this court as a 
bona fide purchaser for valuable consideration, and without notice of 
defendant’s title; he founds his claim to the interference of the court, upon 
the circumstance that some of the defendants had knowledge that Stewart was 
about to sell the land, and their silence when the sale took place as to their 
title, and any claim they had. So material an allegation as the want of 
notice, if the fact really existed, from the great ability discovered in the 
draft of the bill, could not have escaped the learned counsel who drew it. The 
want of notice is a substantial matter, and if it existed, no doubt would have 
made a prominent feature in the bill. But independent of the strong inference 
that may be drawn from the circumstance of its not having been stated, let us 
examine this case by the authority of other adjudged cases. I will first state 
the rules and principles by which courts of equity are governed, and then 
apply the evidence.

Lord Hardwick, in giving judgment in the case of Willoughby, and speaking of 
what persons are entitled to the protection of a court of equity, says, in the 
first place, he must be a purchaser for a sum paid, or for a valuable 
consideration; he must be a bona fide purchaser, not affected by any fraud or 
collusion; he must be a purchaser without notice of the prior conveyance, for 
notice makes him come in fraudulently. In 2d Viner, 539, and 600, Lord Cowper 
lays it down to be a rule in equity, that where a man is a purchaser for a 
valuable consideration, without notice, he shall not be disturbed in a court 
of equity, not only where he has a prior legal claim, but where he has a 
better right to call for the legal estate than his adversary. The above are 
the rules of a Court of Equity, and before a party can protect himself, he 
must bring himself within them. 

Independent of the strong inference to be drawn from the silence of the 
complainant, as to notice, let us examine the evidence, and see how far that 
establishes the notice of the title of defendants. What is sufficient to put a 
purchaser upon enquiry, is good notice—that is, when a man has sufficient 
information to lead him to a fact, he shall be deemed cognizant of the fact; 
Smith vs. Low—Atkins 489. In all cases where a purchaser cannot make out a 
good title, but by a deed which leads him to another fact, whether by 
description of the parties, recital or otherwise, he will be deemed cognizant 
thereof,—for it was crassa negligentia that he sought not it; 1 Ch. C. 287; 2 
Ch. C. 243; 2 Ver. 384, 662; Ambler 313; 2 Br. C. C. 291. In such cases, the 
inquiry must be made by the purchaser, and every essential document in the 
chain of title, is required to be examined by him, unless, indeed, its 
genuineness or legality be admitted in some other deed of the original vendor, 
and the adverse claim be not from the same vendor, or some one claiming under 
him; for if the adverse claim come by sale from the same vendor through whom 
the first purchaser claims, it matters not by what fraud or crime the title 
may have been procured after it has passed for a valuable consideration into 
the hands of a third person without actual notice; 6 Cranch, 87. The deeds 
from the executors to young Stewart, the deed from Stewart, executor of 
Roberts, to the complainant, recites and adduces the title from Frederic 
Calvit, and recites the sale made by his executors. Were not these recitals 
sufficient to put the complainant upon inquiry? Ought he not to have seen that 
Calvit’s executors were authorized to sell the land? And the mere recital in a 
deed is evidence of notice; Ambler, 311, and the cases above cited. It is also 
in evidence, that the complainant took advice of counsel, and the conversation 
related by one of the witnesses, goes far to show that the complainant, before 
the purchase, kneow the titles were defective, or why did Bowie say he never 
would inform his children of their right until he was on his death bed? From 
the facts, the court is of opinion, that the complainant had notice of 
defendant’s title, and accordiag to the rules laid down, one of the principal 
ingredients is wanting, as a purchaser must be a bona fide purchaser, and 
without notice, before a Court of Equity will interfere; and a man purchasing 
with notice, the law says the purchase is fraudulent, and closes the doors of 
a Court of Equity against him. But it is contended, that the knowledge of the 
sale by the young Calvits, and their silence, raises an equity. The rule of 
equity is predicated upon the purchasers being ignorant of the fact necessary 
and requisite to be made known, to make him innocent; that the party to be 
affected, must have a knowledge of his right, and must suppress it for some 
fraudulent purpose; 2 Ver. 554; Domat 365; 3 Term R. 56. There are some 
decisions to the contrary; but they have been overruled, and the principle 
upon examination, will be found as I have laid it down. Ignorance of a fact 
necessary to be known, and the suppression of that fact by a party having 
title, that suppression to be fraudulent, the above ingredients must concur. 
That the complainant was not ignorant of the title of the defendants, has 
already been decided; hence the rule cannot embrace his case. But it is said, 
the circumstance of the defendant’s suffering the title papers to remain in 
the hands of Stewart, enabled him to commit a fraud on the complainant. Among 
mortgagees, the rule laid down by Lord Chancellor Thurlow, is, that nothing 
has a voluntary, distinct and unjustlifiable concurrence on the part of the 
first mortgagee to the mortgagor’s retaining the title deeds, shall be reason 
for postponing his equity. But can this rule apply to aid the complainant, 
when the title papers themselves would have furnished him with evidence, that 
Stewart had no title to the estate? The rule of Caveat Emptor applies with 
more propriety. 

It is also contended, that the acts of John F. Bowie, ought in equity, to 
divest his children of their rights. Can John F. Bowie legally convey the 
title of his children?	The answer must be in the negative. If he could not do 
it as guardian, would it not be absurd to contend, he could do it by the 
commssion of a fraud? Is there any rule of law or equity that says, infants 
can be divested of their rights by the fraud of their guardians? I think not. 
Insecure indeed would be the estate of infants, if such doctrines were to 
prevail in our courts. The complainant also contends, that the receipt given 
the executors, in equity, ought to be considered as a release. Before this 
could be done, it ought to be shown that they knew their rights, and that the 
sale made by the executors was void; but no such evidence is offered; the only 
testimony is that of Mrs. Boyd, who says that James Calvit informed Alexander 
Calvit that Stewart was about to sell the land, when he replied, "he did not 
care, he knew how;" from which the witness inferred that Alexander Calvit had 
some title. No case has been produced where a Court of Equity had decreed 
against heirs under such circumstances. The law in favor of heirs never 
permits their lands to be taken from them by mere implication. For these 
reasons, I am of opinion, that the complainant wants and stands divested of 
two ingredients necessary to entitle himself to the protection of this Court—
that is to say, a clear bona fide title, and the first and best right to call 
for the legal estate. The decree below to be affirmed, and complainant decreed 
to pay defendants their costs.

Note. Whatever doubts may have at one time existed as to the question, now 
settled by the Supreme Court of the United States, whether any part of this 
territory North of latitude 31, was ever embraced within the limits of British 
West Florida, it is certain, that Spain had scarcely the shadow of a claim to 
this territory. Independent of the fact, that this territory was not embraced 
within within the limits of British West Florida, and consequently, that Spain 
could receive no valid title from Great Britain; it is clear, that Great 
Britain did not undertake to sell to Spain, or the latter to purchase the 
territory in question. On the 20th of Nov 1782, the provisional treaty of 
peace, between the United States and Great Britain was executed, by which, the 
territory in question, was acknowledged to be within the limits of the United 
States, and the 31st degree of North latitude, fixed as a boundary. This 
treaty was made by public instrument, and was well known to Spain, when 
subsequently, on the 20th of January 1783 she acquired Florida from Great 
Britain. No such fraud was attempted by Great Britain, as the sale of 
territory to Spain, previously relinquished by Great Britain to the United 
States. But it is said Spain established a government de facto here. Upon the 
same principles, her grants of land should be valid, yet they are not. 

Why then are her grants declared to be void? Because her laws could convey no 
title to any one. How then could they govern the transfer and descent of the 
lands? Her occupancy was a usurpation, and during the whole period, Georgia 
extended her legislation here. This territory, designated by Georgia as 
Bourbon county, was then as much a part of Georgia, as any other county in 
that State, and when her laws conflicted with those of Spain, which must 
controul? A different view of the Spanish treaty of October, 1795, seems to 
have been taken by the Supreme Court of the Union in 12 Wheaton 535, from that 
expressed in this case.

Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 54-64.



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