Jefferson County MsArchives Court.....Griffing, John June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

JOHN GRIFFING vs. HOPKINS & ELLIOTT


The sale, by a father, of the lands of his child, a minor, is void, both under 
the common and the Spanish law, if unauthorised by the decree of the proper 
tribunal.

Such sales of lands here, during the existence of the Spanish government in 
Mississippi, would be governed by the Spanish law.

That the sale was for the benefit of the Minor, does not render such sale 
valid.

This is a writ of error brought to reverse a decree, by the superior court of 
law and equity, in and for the county of Jefferson. Several errors are 
assigned, and many points made by the counsel for the plaintiff in error. But 
should it appear, that James Elliott the elder, had no right or power under 
the Spanish law to enter into the contract with Fordice and Bird, so as to 
affect the lands of his son, the court will be relieved from giving an opinion 
as to the other errors and points made in this cause. To ascertain this, 
resort must be made to the civil law, as the contract was made under the 
Spanish government, and while that was the law of the land. The plaintiff in 
error founds his claim upon the ground, that James Elliot the elder was the 
natural guardian of his son, and had power as such, to make the contract, and 
bind the lands of his son. This leads us to inquire into the powers and duties 
imposed by the civil law, upon tators and curators. In the civil code as 
collated in the territory of Orleans, and received in their courts as 
authority, these rules are laid down (Dig. Civ. Code, 58. The father is tutor 
to the minor children, he is bound to cause an inventory to be made, and an 
under tutor to be appointed, but is not, like other tutors or curators, bound 
to give security. In page 70 of the same code, the tutor cannot borrow for the 
minor, nor enter into any transactions, or compromise respecting his rights, 
without an authority from a judge. Ibid. 70. The testator may accept legacies, 
donations, and other advantages made to his ward, but he cannot in any case 
dispose gratuitously of the moveable or immoveable property of the minor, or 
any part thereof, 1, Domat. 12. The Roman law, forbid the sale of the real 
estate of minors, although the minor was not wronged in the price. By the same 
law, minors are restored, against all sales of their lands, whether sold by 
themselves, or their tutors, under colour of any transaction, or pretence 
whatever--and this agrees with our law. 1, Co. Lit. 88, B. 2, Institute, 380, 
2, Wilson 129, 135. When a sale of a minors' estate was necessary, under the 
Roman law, as for the payments of debts that were pressing, the sale must be 
directed by a court of justice, and the formalities prescribed must be 
observed, and it was only a decree of a court of justice in due form, that 
could sufficiently secure him, who purchases lands and tenements belonging to 
a minor, 1 Domat, 13. note. 2 Domat. 13, 2, note. And if the formalities were 
not observed, although there was just cause to make the sale, and the sale was 
made under a decree of a court of justice, the minor, might be relieved, and 
restored against the sale. Ibid, 3, note. To justify the sale of the real 
estate of minors, it is required, that the sale be made for a necessary cause, 
such as the payment of debts that were pressing, of which the payment could 
not be made in any other way, and could not be delayed, and before a sale 
could be ordered, an inventory must be returned, and a stated account given 
in, by the tutor, showing that there are not moveables, money, debts, or rents 
due, or to become due, nor other effects, that might suffice for the payment 
of the debts. Apply these principles of the civil law to the case under 
consideration. The Spanish government gave young Elliott a grant for a 
thousand arpens of land, he being then a minor. The father, without a decree, 
or order from any court, and without attending to the formalities prescribed 
by the law of the country, enters into a contract with Fordice, to give him, 
as is said, 200 acres of land for improving and complying with the conditions 
required to perfect the title, and the court below, was called upon to decree 
in favor of the defendant on this contract. All contracts touching the realty, 
must be determined according to the (lex loci;) the civil law as laid down is 
to govern this case, and by that law, James Elliott the elder, had no power to 
enter into the contract, gratuitously to dispose of the 200 acres of land. 
Gratuitously, means voluntarily, that is, without authority of law——not the 
common acceptation of the term, a gift, without consideration or merit. When 
the sale of a minor's estate is made under the civil code by his tutor or 
curator, it must be made under the authority of a judge, and according to the 
rules prescribed. The Spanish law differs from the Roman law. By the former, 
it is made the duty of the curator or tutor to sell the real estate, by the 
latter it is prohibited except in cases of absulute necessity. The reason of 
the Spanish law, is, to save the expense of tutors and curators attending to 
the management of the estate. The reason of the Roman law, is, that land is 
esteemed more valuable than money. But both laws agree in inhibiting sales, 
without a decree of a court of justice, or of a judge. And all sales, though 
made for sufficient cause, and under a decree of a court of justice, yet if 
the formalities are not observed, the sale is void, by the Roman law the forms 
being deemed necessary for the security of the rights of minors. Then can it 
be said, when that wise people, the Romans, for the protection of minors, 
rendered invalid all sales not made according to the forms prescribed, that a 
similar rule would be improper under the Spanish law and when their provincial 
laws do not contravene the civil law, it is adopted as their common law. The 
rule of the Roman law, then, as to the effect of this contract, made without 
authority, and without observing the forms prescribed by the civil code, must 
be applied, and made to govern this case. It is not pretended in this case, 
that the sale was made, by and under the authority of any competent tribunal, 
nor has it been shewn that any of the forms required by the laws of Spain, for 
the disposition of the lands of minors, have been observed. That this 
contract, so far as it went, to subject the lands of the minor is void, and of 
no effect, must result, if the rules and reasoning of the civil law be not 
fallacious. That this contract would be invalid under our law, a reference to 
the authorities will clearly shew, and our laws proceed upon the same 
principles, that the arts of guardians, when not made in conformity with their 
powers, are void. But it is said, that young Elliott received the benefit, and 
that he or those deriving title under him, ought in equity to be decreed to 
make the title. The answer is, that equity follows the law, and cannot 
conflict with it, and as no fraud is charged or proved against him, no such 
equity can arise. This opinion renders an enquiry into the other points, in 
this cause unnecessary. The court is therefore of opinion, that there is an 
error in the decree below, and the same must be affirmed, and the plaintiff in 
error be decreed to pay the defendant his costs. That one may be presumed to 
have contracted by his guardian, it is necessary that the contract does not 
exceed the power of the guardian, Pothier, 58. For example, if a guardian as 
such without a decree, sold some real property of his ward, the ward would not 
be presumed to have contracted by his interposition, and there would result no 
obligation on the ward—the sale of real property exceeding the power delegated 
to the guardian. The same rules hold as to attornies. Let the judgment be 
affirmed.

Note—The question seems not to have been agitated by the Court or Counsel, 
whether the law of Spain did ever controul the transfer or descent of lands in 
this state, above the thirty-first degree of North latitude. Over this 
country, it is now settled, by recent decisions, that Spain never did or could 
exercise any lawful jurisdiction, and never was the proprietor of this domain. 
12 Wheaton 523, 530. These cases decide, that this country "was wrongfully 
occupied by Spain," that her grants of the soil have of themselves no 
intrinsic validity, and that Georgia, at that period possessed the right of 
soil and sovreignty. Grants made by the state of Georgia of part of this 
territory, and transfers under them, have also been sustained as valid by the 
Supreme Court of the United States. 6 Cranch 87. During the occupancy by Spain 
of this territory, the eminent domain, and sovreignty, were united in Georgia. 
Spain, it is said, had the actual occupancy, but that occupancy is now decided 
to have been "wrongful," and never was acquiesced in by Georgia, or by the 
United States. From 1783, till the 27th of October 1795, Georgia passed many 
laws, claiming the right of soil and jurisdiction over this country, and the 
United States, during the same period, by many official acts, sustained the 
claim of Georgia; both here, and at the court of Spain, till finally, on the 
27th of October 1795, Spain, by a treaty with the United States, acknowledged 
our right to "said territory" not as a cession by Spain, but as a pre—existing 
right. Commenting on this treaty, the Supreme court of the Union say:

"Had Spain considered herself as ceding territory, she could not have 
neglected a stipulation, which every sentiment of justice and national honor 
would have demanded, and which the United States could not have refused. But 
instead of requiring an article to this effect, she has expressly stipulated 
for the withdrawal of the settlements made within what the treaty admits to be 
the territory of the United States, and permission to the settlers to bring 
their property with them. We think this an unequivocal acknowledgement, that 
the occupation of that territory by Spain was wrongful, and we think the 
opinion thus clearly indicated, was supported by the state of the facts. It 
follows, that Spanish grants made after the treaty of peace (1782) can have no 
intrinsic validity, and the holders must depend for their titles on the laws 
of the United States." 12 Wheat. 535. Can it be contended, that there could be 
the exercise at the same time here, of a divided and conflicted sovereignty, 
by Spain, and Georgia, and that although the laws of Spain, could not control 
the grants of land, yet they might govern their transfer and descent, in 
opposition to the laws of Georgia, especially when Spain stipulated for the 
boon of the withdrawal of her settlements, and the privilege to the settlers 
to "take with them all the goods and effects which they possessed?" The laws 
of Spain could only extend here as the sovereign de facto, upon which 
principle, they would controul the transfer and descent of all the lands 
within the territory occupied by Spain, including as well the British as the 
Georgia titles. Yet we have seen, this was not the case. 6 Cranch 87, 12 
Wheat. 523, 530. Can it then be, that the transfer and descent of lands held 
here by a British or Georgia title would be governed by the laws of Georgia, 
but that the transfer and descent of adjoining tracts, would be governed by 
the laws of Spain. Georgia, by the cession of 1802, to the United States, 
stipulated for the confirmation of certain Spanish, British, and Georgia 
titles, but never introduced, or sanctioned the introduction here, of the laws 
of Spain. Now, during the Spanish occupancy, Georgia had extended her laws 
over this period, not over detached portions of it, but over the whole 
territory and her legislation was general and exclusive. The power to regulate 
the transfer of all the lands within this territory was vested in Georgia, and 
in the language of the Supreme Court of the Union. "The existence of this 
power must negative the existence of any right which may conflict with or 
control it." An absolute title to lands, cannot exist at the same time in 
different persons or in different governments. An absolute must be an 
exclusive title." 8th Wheat. 588. The title and right of Georgia to this 
territory, is now admitted to have been absolute and exclusive,—this right was 
exercised by Georgia throughout the period of the occupancy by Spain, 
and "must negative the existence of any right which may conflict with and 
control it." The Supreme Court, in deciding in favor of the title of Georgia, 
say "there was no territory within the United States that was claimed in any 
other right, than that of some one of the confederated states;" and speaking 
of our first treaty of peace with Great Britain, by which the 31st degree of 
North latitude extending Westward to the Mississippi, was fixed as the 
Southern boundary of the United States, and consequently of Georgia, they 
say, "it has been viewed only as a recognition of pre-existing rights, and on 
that principle, the soil and sovereignty within their acknowledged limits, 
were as much theirs at the declaration of Independence, as at this hour." 
Neither by the British, or Spanish treaty, was there any change of 
sovereignty, but the admission of the pre-existing rights of one sovereign, in 
exclusion of the other. If the transient wrongful occupancy by Spain, operated 
any change of sovereignty, it would not ipso facto abolish the common law, 
which was the law of Great Britain the previous occupant, unless that law was 
expressly abolished by Spain. But no such abolition of the common law here, or 
introduction of the Spanish law by the King of Spain, can be found. The 
Spanish law was duly extended to Florida, but it is now admitted, that this 
territory never was a part of Florida, and consequently, the laws of Spain 
never were extended here. The commencement of the occupation of this country 
by the Spanish forces, was as our ally, during the war of the revolution. 
Surely this could give Spain no right of sovereignty over the territory of her 
ally, nor could the subsequent occupancy by the Spanish troops, under the 
pretense that this was a part of Florida, introduce here the laws of Spain. If 
Louisiana should for a few years take possession of a county of Mississippi, 
this state always claiming this county as a part of her territory, and 
legislating over it, would not the titles to land, and transfers of it, be 
governed by the laws of Mississippi? That the laws of Spain could vest no one 
with a title to lands here, is settled; how then could these laws govern the 
transfer of the title, and that in opposition to the laws of Georgia the 
rightful sovereign. When there is a wrongful, and rightful sovereign, both 
legislating at the same time over the same territory, the laws of the latter 
must prevail. Nor could Spain, or her citizens, complain of the operation of 
these principles here, for neither Georgia or the United States, ever 
acquiesced in this wrongful Spanish occupation. A few of these acts are 
referred to below. Statute of Georgia of Feb. 17th 1783 extending her laws and 
jurisdiction here. Statute of Georgia of the 7th Feb. 1785 creating a county 
here, and extending the land laws of the state here.

Statute of South Carolina of 1787, relinquishing to Georgia her claim to this 
territory, approved by Georgia.

Act of Georgia of 7th of Jan. 1795—selling part of the land of this territory -
 sustained by Supreme Court of the U. States. 6 Cranch 87.

Act of Georgia, 13th Feb. l796 &c. &c. as to this territory.

Resolutions of Congress, 20th Oct 1787, approving the relinquishment of her 
claim by S. Carolina to Georgia, of this territory.

The report of Mr. Jefferson, as Secretary of State, claiming this territory, 
as already within the acknowledged limits of Georgia.

7th December 1793—Report of our commissioners to Spain, insisting on the above 
claim.

10th August 1795—Communication of Mr. Pinckney, our Minister to the Court of 
Spain, insisting upon the right of Georgia to this territory.

27th October 1795 - Spanish treaty recognizing the above claim.

30th March 1798 - This territory finally evacuated by the Spanish troops.

Act of Congress 7th April 1798 - in regard to the government of this 
territory, saving "the right of the State of Georgia."

Act of Congress May	10th 1801, of a similar nature, saving "the right of 
the state of Georgia."

24th of April 1802 - Cession by Georgia of this territory to the United 
States, by compact with Congress.

On a perusal of the above acts, it is clear, that neither Congress or Georgia, 
ever assented to the introduction of the laws of Spain here, but that such 
assent was uniformly refused, Georgia continually extending her own law here, 
as the rightful sovereign, sustained by the United States, and her pre- 
existing right, was admitted by Spain, on the 27th of October 1795. Under 
these circumstances, many questions of great magnitude may still arise for 
solemn adjudication. Did the laws of Spain ever extend here, did they govern 
the transfer and descent of both real and personal property, were the decrees 
of their courts valid, had they any jurisdiction? If these laws ever extended 
here, did they cease with the Spanish treaty of the 27th of October 1795, or 
continue till the evacuation by the Spanish troops on the 30th of March 1798? 
Did the common law, or the laws of Georgia, control in the interim, and do 
they still govern, when unrepealed by our territorial, or state legislation, 
and which class of laws has been recognized by such legislation? Did the laws 
of South Carolina, prior to her cession in 1787 of this territory to Georgia 
extend here, and how far do they still extend, when unrepealed by Georgia, or 
by our legislation? If the common law extended here prior to the occupation by 
Spain, how or when did it cease to operate, and when did the operation of the 
Spanish law begin? If the Spanish law was ever the lex loci of this territory, 
when and how did it cease to operate, and how far does it still operate, when 
unrepealed by our local legislation? How far are the acts of the territorial 
government of the United States, prior to the cession by Georgia of the 24th 
of April 1802 valid, it being now admitted, that prior to that period, this 
territory was a part of the State of Georgia, embraced within her legislation, 
and not a part of Florida, and consequently, that the organization by Congress 
of a territorial government here, prior to the cession by Georgia, was a 
usurpation of power. These injuiries might be enlarged, but enough has been 
said, to direct the public attention to this subject.


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 49-54.

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