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

GEORGE WINN vs. COLE’S HEIRS.

A Spanish order of survey, signed by a deputy Governor, is presumed prima 
facie, to be issued by the competent authority, and in the absence of proof to 
the contrary, will be regarded in the same light as if signed by the Governor 
in chief. Such order of survey vests such a right, as could only be defeated 
by the alienation of the grantee, or his voluntary abandonment, or by an 
entire failure to perform the conditions, or some act against the government, 
which would justify a confiscation.

The report of the surveyor of the Spanish government, stating the land to be 
vacant, and the allegation of that fact in a Spanish grant, does not amount to 
a confiscation, or a revocation of a prior grant of the same land.

A revocation of a grant, if the effect of a capricious tyranny, ought not to 
be regarded.

But little importance was attached by the Spanish goverment to the conditions 
set forth in their grant.

The plaintiff must recover in ejectment upon the strength of his own title, 
and upon a legal, not an equitable title.

A judge, during the progress of the trial below, may change his opinion, 
though embodied in a bill of exceptions, signed and sealed.

The non performance of conditions subsequent, can only be taken advantage of 
by the grantor or his heirs.

The performace of the conditions of a Spanish order of survey, are either 
admitted, or dispensed with, by a confirmation of the title by congress.

A patent shall have relation to the origin of the title, and in this point of 
view, is admissible in evidence, though it emanated after the demise laid in 
the declaration or after the death of the patentee.

The Spanish order of survey, confirmed by the United States constituted a 
legal title, independent of the patent.

Congress cannot impair the vested rights of individuals, much less could their 
subordinate officers impair those rights.

It is the duty of the land office department to advance and perfect the rights 
of claimants of land, and to obstruct or vacate such rights.

The proceedings of the board of commissioners, are not conclusive against 
individuals.

A mere stranger without title, cannot, at least in a court of law, say that a 
patent obtained without fraud is a nullity.

At the common law, an heir could not recover on a demise laid his name during 
the lifetime of the ancestor, because the heir had not then the right of 
possession, but after issue joined, this defect cured by our statute of 
jeoafails.

Reed and Gritfith for the plaintiff; Adams and Metcalf for defendant.

This cause was brought before us by writ of error from Adams superior court, 
and argued with great zeal and ability on both sides. It is not without its 
difficulties, and the cause resting with only two of the Judges, an 
apprehension that an opinion may not be entirely satisfactory, increases the 
diffidence with which it is given.

The errors assigned are:-1st. Because the court after rejecting a patent 
offered by the plaintiffs below, and signing a bill of exceptions, tendered by 
their counsel, admitted the same, as stated more particularly in the bill of 
exceptions.

2nd. Because the court below admitted the Spanish warrant and order of survey 
in said bill mentioned, and instructed the jury, that the same vested a 
complete legal title in the plaintiffs below.

3rd. Because the court refused to permit the defendants below to show a non 
compliance of the plaintiffs lessors, with the terms imposed by the Spanish 
government as stated in the bill of exceptions.

4th. Because the court refused to permit the defendants below, to read the 
Spanish grant in the bill of exceptions mentioned, for the purposes therein 
expressed.

5th. Because the presiding judge refused to give to the jury the instructions 
required by the counsel of defendants below, as detailed in the bill of 
exceptions.

These instructions were:—1st. That the plaintiffs cannot avail themselves of 
the patent in deriving their title—1st. because it is subseguent to the demise 
laid in the declaration.

2nd. Because it appears in evidence that James Cole was dead long anterior to 
the issuing of the patent.

2nd. That as the Spanish warrant or order of survey did not appear to have 
emanated from the regular Governor, from Grandpre, the deputy, his authority 
for making the warrant should have appeared.

3rd. That the title to the plaintiffs, under the said warrant, or order of 
survey, could not accrue, until a certificate should be obtained from the 
board of commissioners.

4th. That the certificate offered by defendant from the board of 
commissioners, is conclusive of title in defendant.

The heirs, in their declaration, of April term, 1817, lay the demise to have 
been by James Cole, the ancestor, since dead, on the first day of January 
1815, and the patent to James Cole and his heirs bears date on the 29th of 
December 1815.

The property in contestation, is Lot No. 4, in square No. 12, as designated in 
a map of the city of Natchez.

The evidences of plaintiffs title are——

1st. The petition of their ancestor James Cole, for the said premises to the 
Spanish governor, bearing date 5th of June 1795.

2nd. The certificate of Wm. Dunbar, the deputy surveyor general, that said lot 
was vacant, bearing same date.

3rd. A possessory order of the deputy, governor or Grandpre, in favor of the 
petitioner, for the premises in question, bearing date 6th June 1795.

4th. Certificate of survey of same, by William Dunbar, the deputy surveyor 
general, of date 3rd October 1795.

5th. The aforesaid patent, from the United States of America, bearing date 
29th December 1815—Viewing the title alone, and it presents the principal 
features of a regular, complete legal title, but when confronted with the 
defendant’s title, and affected by the evidence in the case, it is said to be 
imperfect, and cannot prevail against that of the defendants. It is also said, 
that the confirmation, being by the governor, and not by Guyosa, the governor 
in chief, the authority of the subordinate ought to appear. It may be well to 
consider this objection first. The character of these deputy, or Lieutenant 
governors, is well known to be such, that they succeed to the discharge of the 
executive functions, in all cases of the absence of the governor in chief, and 
his mandate having been complied with in the present case, on the part of the 
deputy surveyor general, in the absence of all proof of the want of competent 
authority, affords a satifactory presumption, that at the issuing the 
possessory order in favor of James Cole, Grandpre was legitimately performing 
the executive functions in this behalf. This fact ascertained, the possessory 
order in favor of James Cole to the premises in question, dated 6th day of 
June 1795 and executed by the surveyor on the third of October of the same 
year, by which the said Cole was put into possession, vested in him such a 
right as could only be defeated by his own act of alienation, voluntary 
abandonment, or by such an entire failure to perform the conditions, or by 
some act against the government, which would justify in them a confiscation. 
In regard to the first, there is no pretence set up, neither is it pretended 
that there was a voluntary abandonment, or any rebellious or treasonable 
practices on the part of Cole, to justify the Spanish government in the 
revocation of its grant or order of possession, and confiscation of the 
property. But it is alleged that there was such a failure of the performance 
of the conditions, as worked a forfeiture of his right, under the established 
regulations of the Spanish government, and which, by a destruction of Cole’s 
title thereto, reduced this lot again to the character of the unappropriated 
domain. This question will be more fully examined, when we come to consider 
the third error assigned. For the present, we shall content ourselves with the 
remark, that there is no express declaration of the Spanish government in 
attestation of this fact, unless the information of the surveyor to the 
governor, which we perceive to have been the usual and formal procedure in 
regard to all unappropriated lands, and not to imply a judicial investigation 
and decision on the part of either the surveyor or governor, be considered in 
this light, and it is presuming too much against the justice of any 
government, to attribute to it no more solemnity in the abduction of a vested 
right in the land of one of its subjects, than it employs in the ordinary 
transfer of its own unappropriated domain, and even if the Spanish government 
had expressly stated the revocation of its grant, for the non performance of 
the conditions, the justice of the act of confiscation would still be well 
questioned by a jury, who would not sanction it, if the effect of capricious 
tyranny, but only in case it had proceeded on the salutary and lawful 
principles recognized by all civilized nations in relation to the rights of 
the citizen and subject. By reference to the petition of Farine Ros, under 
whom defendants below claim title, to the order of Survey, and the certificate 
of the surveyor of its accomplishment, it will be found, that they all bear 
date on the first of August 1796, and that the principal condition proposed 
and exacted, was the building a dwelling house on the premises, and the 
confirmatory declaration of the governor, in which he admits the performance 
of the stipulated conditions, bears date on the 8th of the same month and 
year. The presumption would be rash and unreasonable, which supposes, what is 
here officially admitted, and a contrary presumption, though it should not be 
raised to impair the character of this grant, yet may be allowed to show the 
little importance attached to these conditions, by the highest authorities 
themselves. The doctrine that in ejectment, the plaintiff must prevail by the 
strength of his own title, and not on the weakness of the defendant’s is too 
well established to be now contested. And the principle, so fully elucidated 
by counsel in argument, and not raised at the bar, that the plaintiff must 
proceed on legal, and not on an equitable title, in order to his success, will 
be allowed by this court—Vide, Adams on ejectments 32 &c. Runington, do. 14, 
with other authorities cited at the hearing.

This court, having recently, in the case of Hackler’s heirs vs. Cabel, had 
occasion fully to examine the character of the titles granted to donees by the 
act of 3d of March 1803, and that of 27th March 1804 supplementary thereto, 
and being of opinion that the same reasoning and principles will apply to such 
as hold under a Spanish order of survey, will not again go over the grounds 
occupied by their opinion in that case, but adopting its deductions, refer to 
them as the basis of their present conclusions, and shall consider the right 
of the ancestor, and the present plaintiffs below, to be such legal right, as 
is sufficient, so far as may depend on its legal character, as 
contradistinguished from its equitable one, to warrant a recovery in ejectment.

Having given this sanction to the opinion of the court below, which induced it 
to reconsider its decision, excluding the patent offered by plaintiffs below 
in evidence of title, after it had signed and sealed a bill of exceptions 
taken to its said opinion, set out the first error assigned, we will consider, 
whether there is any thing in this particular attitude of the cause, which 
forbids a change of opinion in the mind of the court below, after its first 
expression is in paper. And we can see no good reason for denying this 
privilege to the judges. At the nisi prius sessions, where hasty and imperfect 
opinions are necessarily often formed, in the absence of books, and an 
opportunity for due reflection. Why should the judge be held to a hasty 
erroneous opinion, and thereby be compelled to conduct the cause, contrary to 
his clear conviction of right, because he had signed a bill of exceptions to 
an opinion he has since abandoned, when by such abandonment, he can give the 
party aggrieved by the error, the entire benefit he could desire from a 
decision of the supreme court, without subjecting him to the inconveniences 
and delays of a writ of error.

Many of the proceedings of the court, are subject to its revision and 
correction during the term, and the furtherance of justice and the diminution 
of expence to the parties, recommend such a discretion as was exercised by the 
judge, as reasonable and salutary. We are of opinion that a sufficient answer 
has already been given to the second error assigned.

In regard to the third error assigned, the authorities cited at the bar by Mr. 
Metcalfe, Coke Littleton, 213; 1 Bac. abrig’t. 635, 640, and many other 
passages in these authorities, prove satisfactorily to us, that the question 
in relation to the performance of subsequent conditions to a deed, can only be 
raised by the grantor or his heirs, and this principle we think applies to the 
present case, of the possessory order of survey of the Spanish government in 
favor of James Cole, having conditions subsequent to be performed by him, the 
performance of which, are either admitted or dispensed with by the American 
government which succeeded to the sovereignty, evidenced by the issuing a 
patent, for the premises in question, to the said Cole & heirs. Had the United 
States, refused to confirm this order of survev, and the contest was now 
between them and Cole, it would perhaps in such case, have been proper to let 
in parol evidence, to show a non performance of conditions. It is attempted to 
evade the effect of this principle, by considering the expressions, that the 
land was vacant, some where made in the subsequent conveyance to Ros, as 
conclusive evidence of an official act of revocation and confiscation of 
Cole’s right, but this agreement has already been answered, and had little 
weight with the government of the U. States, which preferred the claims of 
Cole, resting on his possessory order of survey, to the rights of those who 
claimed under the grant to Ros, even after this bad received the sanction of 
their own board of commissioners. Whatsoever might be our opinion upon this 
subject, where a declaration of the Spanish government, which had the 
solemnity of a direct, express, and judicial decision against the rights of 
Cole, for a non performance of the stipulated conditions annexed to his grant, 
was under discussion, or even where there had been no confirmation of Cole's 
rights by the former or present sovereignty, in the present case, we think the 
parol evidence was correctly excluded by the court, and that the plaintiffs in 
error cannot prevail on this ground. It may make this opinion more 
satisfactory to remark, that Cole was not put into possession until the third 
of October, 1795, and that the proceedings on the part of Ros, were instituted 
on the first of the ensuing August, a term less than twelve months, which 
though a more reasonable time than the period of seven days, in which the 
house of Ros, as if by magic, is supposed to have arisen, is yet under the 
known courtesy and usages of the Spanish government, a period too short to 
work a destruction of Cole's rights. No limitations are made in the order of 
possession, but such as result from the general regulations of the Spanish 
government, in regard to limitations of this sort, and where we view the 
magnitude of the conditions, in relation to the value of the property at the 
time of the grant, and compare this case with other grants of that government, 
and the indulgence given under them as to time, we will be satisfied, that no 
forfeiture could have resulted, admitting all that parol evidence could have 
established on this subject. It may also be considered, that all the Spanish 
government has done, has been at the instance of Ros, to whose solicitations 
it has yielded, but at his own risque, and on his own suggestions, procured 
from the surveyor.

The arguments which induce us to overrule the third error assigned, produce 
the same convictions, in regard to the fourth.

We will now examine the grounds of the fifth error assigned, which relates to 
the refusal on the part of the court to give certain specific charges to the 
jury. The court was required in the first place to charge the jury that the 
plaintiffs could not avail themselves of the patent in deriving their title.

1st. Because it is subsequent to the demise laid in the declaration.

2d. Because it appears in evidence, that James Cole was dead long anterior to 
the emanation of the patent. 

The first of these objections, would have been very formidable, had the 
plaintiffs title vested wholly on this patent, but as we are inclined to think 
their title good, for all the purposes of bringing and sustaining this action 
as it existed in the order of survey, and the confirmatory act of Congress, in 
the ancestors, we consider this patent as a formal part of the conveyance, and 
shall have relation back to the substantial investiture of title aforesaid, 
and in this acceptation, the patent was well admitted. In 5th Cruise on real 
property 551, Lord Mansfield is reported to have said "there is no rule better 
founded in law, reason and convenience, than this, that all the several parts 
and ceremonies necessary to complete a conveyance, shall be taken together as 
one act, and operate from the substantial part by relation. Livery relates to 
the feofment; enrolment to the bargain and sale, and recovery to the deed 
which leads the use; so admittance shall relate to the surrender especially 
when it is a sale for a valuable consideration." The same doctrine is 
recognized in the case of Holdfoot vs. Clopham 1 Term. reports 600, by the 
court of Kings Bench, in which it was held, that the title to copy hold lands 
relates back to the time of admittance to the surrenderor, as against all 
persons but the lord; so that the surrenderee may recover in ejectment, 
against the surrenderor, on a demise laid between the times of surrender and 
admittance. Ashhurst who presided in that case says "the demise was laid in 
April 1786, the plaintiff proved his admittance on the 26th of July 1786 on a 
surrender by defendant by way of mortgage, made before April term 1786, so 
that the demise laid, was before the admittance, Mr. Justice Buller on the 
trial being inclined to think that the title of a copy holder was not 
complete, (so as to maintain an ejectment,) before admittance, the plaintiffs 
was non suited, and the motion is, to set aside the non suit. As against all 
persons, but the lord, the title of the surrenderee, after admittance, is 
perfect as from the time of the surrender, and shall relate back to it. If 
there had been no admittance here before the trial, it might have raised a 
greater doubt. But here, there was an admittance before trial, and that shall, 
by relation, operate so as to give the plaintiffs a complete title from the 
time of the surrender; for the admittance is only a circumstance required by 
law, merely for the sake of the lord." In 4 Cruise on real property 182, it is 
said, the enrolment of a bargain and sale, within the time limited by statute, 
has relation back to the date, or time of delivery, of the bargain and sale. 
In same book 183, it is said, neither the death of the bargainer or bargainee 
before enrolment, will prevent the passing of the estate, and where the 
bargainee dies before enrolment, his heir shall be in by descent.

In 2nd Wilson Rep. 15, Roe vs Hicks it is said, that the surrenderee may 
recover the mesne profits from the time of the surrender, alter he is once 
admitted, and so may a feofee from the date of the feofment after livery of 
seisen-and a bargainee after enrolment; the reason is, because they are 
considered as one conveyance. This doctrine we adopted, in the case of 
Hackler's heirs and are more fully confirmed in it by a further examination of 
the authorities in the present case, and if there were no other difficulties 
we would readily affirm the judgment. It is said in the second place, that the 
patent ought not to have been admitted, because James Cole, the patentee, as 
appeared in evidence, was dead long anterior to the emanation of the patent. 
There are several reasons why this objection should not prevail.-1st. Because 
as against the defendants, plaintiff's right was sufficient without it, and 
therefore shall not be prejudiced by its admission.-2nd. In legal 
contemplation, in the absence of all laches on the part of the grantee, the 
patent shall have relation back to the time of the confirmation, the rights of 
the ancestors right by congressional declaration, at which time, the ancestor 
was living, and the fact of his death, anterior to the actual date of the 
patent, shall not work a prejudice to his heirs, who succeed to his rights, 
and are expressly regarded in the language of the patent, but if a question at 
all, one between the heirs and the government, and not between them and a 
stranger.

The second specific charge required of the judge, wns desparaging the official 
act of governor Grandpre, in the absence of proof of his authority, and the 
answer to this has already been given. The third specific charge the judge was 
required to make, was, that the plaintiffs, or their ancestor, had no title 
under the warrant or order of survey, until confirmed by a certificate from 
the board of commissioners. Congress, by their acts, could not impair the 
vested rights of an individual, munch less could any subordinate authority; 
but without placing the decision on that ground, it is sufficient for the 
present purpose, to consider the board of commissioners, and their acts, as 
subsidiary to the general land office, proceeding under the sanction of the 
president of the United States, with full power, not to obstruct or vacate the 
rights of any claimant, but to advance and perfect them by their consummation 
in a patent. A mere stranger, without title, could not say, at least in a 
court of law, that a patent obtained without fraud, was a nullity, nor could 
any one, claiming under acts of the same government, which issued the patent, 
be permitted to say on behalf of that same government, that one of its acts 
was entirely invalid, and another of its acts in emanating a title for the 
same tract of land, perfectly	conclusive, and a bar to any further 
investigation. One of the acts of the government, was no more conclusive than 
another of its acts, between different claimants under it for the same land, 
and the government in issuing the patent to Cole, preferred his claim, so far 
as it could do so, to the right of Moore, claiming under Ros, supported as it 
was by the certificate of the board of commissioners; and this is a good 
answer to the fourth and last objection that the court refused to give in 
charge, that the certificate of the commissioners offered by defendant is 
conclusive evidence of title.

The only question which remains to be considered, is the one raised by 
plaintiff' counsel, and for the solution of which, one of them devoted his 
whole argument, considering the case to rest upon it. Can the heirs recover on 
a demise of the ancestor, which implies an ouster at a time when they had no 
right to possession, the ancestor being then living, not set out in the 
assignment of errors, but if the record is pregnant with it, and it be error, 
the court can look through the record, and reverse the judgment, therefore, 
though not expressly assigned for error.

In Runington, on Ejectment, 23, it is laid down, by the modern practice, the 
defendant is obliged by rule of court to confess lease, entry, and ouster; yet 
that rule was only designed to expedite the plaintiff's right, and not to give 
him a right he had not before. Hence it must appear, that the plaintiff had 
actually the possession, and was ousted thereof by the defendant; for the 
ejectment is an action of trespass in its nature, and is said to have been 
committed vi et armis; it must, therefore, be done to the person himself 
complaining, and not to another who had the plaintiff's possession, though his 
title may be affected by the ouster, for it would be absurd to state, that the 
defendant vi et armis ejected the plaintiff, when it appears by his own 
showing, that he had not the actual possession, hut it was at the time of the 
ouster, in another. Tberefore, if a lessee for years make a lease to B. at 
will, and B. is ejected, A. cannot sustain this action, upon that ouster; 
because, though the possession of B. was in law the possession of A., yet the 
trespass vi et armis, which is complained of, must be against the actual 
possession, which was in B. 1 Roll. Rep. 3. Runington, page 24, gives the 
following case from the same authority: "So if A. be lessee for years, 
remainder to B. for years; A. is ejected, and then his term expires; B. should 
not have an ejectment on the ouster of A. because the possession was not 
actually in him, and he cannot complain of a trespass done to another." "So 
(as said in the case of Sedgewood vs. Bailey, T. Raymond, 463, if the heir 
bring an ejectment, and pending the suit, his ancestor dies, yet he shall not 
recover. A plaintiff must recover according to the right which he had, at the 
time of the action brought, and during the life of the ancestor, the ouster 
was done to him only, who alone was competent to commence the action, one man 
cannot be permitted to sue for an injury done to another. 1 Burrows, 119. In 
Runington, 209, it is also said, "In the case of Wrangham vs. Hersey, 3 Wilson 
274, the lessor of the plaintiff claimed by descent from his ancester, who 
died on the 1st of January, 1771, at five o’clock in the morning, the demise 
was laid in the declaration on that day, to hold from the 3lst day of December 
preceding. After the merits had been gone into at the trial, it was objected, 
that the lessor of the plaintiff had no title, at the time of the demise, 
which appeared to be made when his ancestor was living, for he did not die 
until five o’clock, on the 1st of January, so was alive that day; but the 
plaintiff having clearly made out and proved his title, the judge directed the 
jury to find a verdict for the plaintiff, which they did accordingly. It was 
moved to set aside the verdict, because the ancestor, from whom the plaintiff 
claimed by descent, was living on the first of January, 1771, 'till five 
o’clock in the morning; and there not being any fraction of a day, in fiction 
of law, he was alive all the day, and the title could not accrue, until the 
beginning of the next day, namely, on the 2d of January. But, per totam 
curiam, if any ancestor die at five o’clock in the morning, I enter at six and 
make a lease at seven o’clock, it is a good lease."

This last case differs in nothing from the one which is now the subject of 
adjudication before us, but in this, that the demise is laid in the name of 
the heir, instead of that of the ancestor, yet if, on a demise in the name of 
the heir, a proof that the ancestor was living at the time, and therefore the 
heir had not right to enter, which is a principle conceded in this case, 
though the facts did not in the mind of the court make out such a case, 
recovery cannot be had; the case would seem to be stronger where the 
declaration itself admits the life of the ancestor in whose name the demise is 
laid. The principle laid down in Runington in regard to proof of actual 
possession, we find qualified in relation to heirs, in Buller's nisi prius 
103, where it is said, "If the plaintiff proves that A. was in possession of 
the premises in question, and that his lessor is heir to A. it is sufficient 
prima ficie; for it shall be intended that A. had seizin in fee, 'till the 
contrary appear."

The principles of these cases, and others having the same bearing, are to be 
met with in Adams on Ejectment, and other books of unquestionable authority, 
but need not be here adduced. Those authorities are sufficient to convince us, 
that if there were no interposition of the statute, but the case was to 
proceed upon the principles of the common law, notwithstanding the great 
leaning of the judges against the forms, and in favor of the substantial 
results of this action, it would be perhaps carrying that bias too far to 
overwhelm such a host of authorities. Many cases could be cited from the 
books, where, in the language of lord Mansfield "courts have gone the greatest 
extent in supporting ejectments," which however need not be exhibited, since 
we are of opinion, that our statute of jeofails, in regard to this particular 
action, has left no discretion with us upon this subject. It is to be found in 
Turners Digest, page 186, sec. 142, of courts and is in the following words—
 "After issue joined in an ejectment, on the title only, no exception to form 
or substance shall be taken to the declaration in any court." We therefore 
consider that plaintiffs at the time they instituted their action, had such a 
title on which they ought to recover in ejectment, and the only defect is in 
the manner of setting it out, and are protected herein by the statute just 
recited.

This is not analagous to the case stated by the defendants counsel, when the 
plaintiff in ejectment, having at one term of the court laid a demise in the 
declaration from A. and by an amended declaration, filed at a subsequent term, 
laid a demise from B. could not be permitted to connect the rights of A. and 
B. so as that if he failed in showing a title in A. but proved a title in B. 
who had not filed his count till after the statute of limitations would have 
interposed a bar, could not be permitted to amend, so as to connect the count 
filed by B. with the date of the count filed by A. when the statute of 
limitations had not yet given a title to the defendant.

This might not be regarded as the subject of an amendment, either to form or 
substance, as the bringing of a suit by A. the vendee, might not prevent the 
statute of limitations from running against B. the vendor, but without 
deciding that question, it is clear, that the present objection is to the 
declaration either in form or substance, and not to the title.

Let the judgment be affirmed.


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 119-131.

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