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

HACKLER'S HEIRS vs. LEWIS CABEL


Exceptions not taken to the charge of the court below, by a bill of exceptions 
duly signed and sealed, cannot be taken notice of by the supreme court.

Martin Hackler who died in December 1803, having been entitled under the act 
of Congress of the 3d of March 1803 in a section of land in this state, as a 
donation claim, which was recognized by a certificate to his heirs and legal 
representatives, by the board of commissioners, on the 11th June 1806, and 
confirmed by a patent issuing to the same persons in July 1819, the surviving 
widow of said Hackler is entitled to dower in said land. The heirs of Martin 
Hackler in such a case must claim by descent and act by purchase, and cannot 
question the validity of the title under which they claim. The patent relates 
to the act of Congress which is the foundation of the title. It is the act of 
Congress which constitutes the title, and a patent is not the only evidence of 
title.

The act of Congress and the proceedings of the board of commissioners 
constitute in themselves a perfect title in the original donee, which cannot 
be questioned or revoked by the government itself, (much less by the heirs of 
the original donee) and the patent must relate to them as the origin and 
foundation of the title.


OPINION OF THE COURT-BY JUDGES ELLIS & HAMPTON

This case is referred to the supreme court upon the following case agreed, viz:

1st. Martin Hackler deceased, the former husband of the wife of Lewis Cabel, 
settled on the land in question, in the now county of Jefferson, and state of 
Mississippi, in the year 1797, and occupied and cultivated the same, until his 
decease, which took place on the 6th December 1803.

2d. After the death of Martin Hack1er, his widow, the present Mrs. Cabel, on 
the part of, and as natural guardian of Charlotte May, Samuel, Anna, Maria, 
Jacob and Esther Hackler, heirs of Martin Hackler, deceased, entered a claim 
for said land, in the name of the said heirs and legal representatives.

3d.	On the 11th day of June 1806, the board of commissioners west of Pearl 
River, gave a certificate to the heirs and legal representatives of said 
Martin Hackler deceased, certifying that the said heirs were entitled to a 
patent for said land, (640 acres) from the United States, by virtue of an act 
of congress regulating the grants of land, and providing for the sale of 
lands, of the United States south of the state of Tennessee, passed 3d March 
1803.

4th. A patent for said land issued from the President of the United States, on 
the 15th day of July 1819, confirming the claim to said land to the legal 
representatives of Martin Hackler, deceased, (being a donation.) Now the 
question for the decision of the court is, whether the petitioners are 
entitled to dower in said land.

At the trial before the superior court, the plaintiffs in ejectment, Hackler's 
heirs, obtained a verdict, and a motion for a new trial was made and referred 
to this court, and the reasons assigned are-

1. The judge mistook the law.

2. The verdict is contrary to evidence and law.

3. The heirs of Hackler are estopped to question the title of their ancestor. 
The defendant claims in right of his wife, who was the widow of Martin 
Hackler, deceased, dower in the premises in question. The premises in 
question, is the place whereon the said Martin died, and where he had lived 
several years previous to his death. The widow’s dower never has been assigned 
her in the estate of the deceased.

The counsel of the defendant contended, that the court erred in charging the 
jury, that dower was not allowed a widow in land claimed, as a donation, when 
the husband died previous to the emanation of a patent, and in charging the 
jury, that the widow could be ejected from the mansion house of the deceased, 
previous to the assignment of her dower.

Before we proceed to the examination of the questions arising in this case, it 
may be well to remark that the second reason assigned.—The verdict being 
contrary to law and evidence, is the only one this court can respect, except 
so much of the third, as is admitted in the case agreed. It is obvious, that 
if the judge erred in his charge, to the jury, exceptions should have been 
taken at the trial, and an exhibition of the points made by a bill of 
exceptions, duly signed and sealed by the judge. Such exceptions would then 
have framed a part of the record, and might have been examined, by this court—
but as the case is now presented, in the absence of this evidence, and in the 
absence of the judge’s report, sitting out the contested points of his charge, 
this court cannot proceed upon the bare assignment of errors, as conclusive or 
satisfactory evidence of the misdirection of the judge. When this case was 
under argument, our impressions were unfavorable, to the motion, but upon a 
careful examination of the authorities, and the principles involved, we have 
had some reason to doubt the correctness of this hasty bias.

The case agreed, admits, that on the 11th day of June 1806, the board of 
commissioners west of Pearl river, issued a certificate to the heirs and legal 
representatives of Martin Hackler, certifying, that they were entitled to a 
patent from the United States, for the premises in question, and that in 
pursuance of said certificate, a patent eminated in their names, on the 15th 
day of July 1819. These proceedings were had under the act of Congress, passed 
3d March 1803, anterior to the death of the ancestor which occurred on the 6th 
of December, in the same year, and the certificate of the board of 
commissioners, which is confirmed by the by the subsequent patent, is 
satisfactory evidence, that Hackler had entitled himself, and on his 
subsequent death, his heirs, and legal representatives, to the statutory title 
conferred by the said act of Congress-Let us now enquire into the nature and 
character of that title. By adverting to the act, sec. 2, page 546,-3rd laws 
United States, we read, "that every person, or legal representative or 
representatives of every person, who, being either the head of a family, or of 
twenty one years of age, did, on that day of the year seventeen hundred and 
ninety seven, when the Mississippi territory was finally evacuated by the 
Spanish troops, actually inhabit and cultivate a tract of land in said 
territory, not claimed, by virtue, either of the preceding section relating to 
the confirmation of British or Spanish warrants or orders of survey in the 
hands of actual settlers and residents on the 27th October 1795, or of any 
British grant, or of the articles of agreement and cession between the United 
States and the state of Georgia, the said tract of land thus inhabited and 
cultivated, shall be granted. Provided, however, that not more than one tract 
shall be thus granted, to any one person, and the same shall not contain more 
than six hundred and forty acres; and provided also, that this donation shall 
not be made by any person who claims any other tract, in the said territory, 
by virtue of any British or Spanish grant or order of survey." The first 
reflection which presents itself upon the reading of this clause of the act, 
is, that it contains the recognition, on the part of the government, of a good 
and adequate consideration, of equal validity, in reference to the accruing 
right of the citizen to a full pecuniary one. It sets out all the 
circumstances of settlement &c. which are deemed a sufficient inducement to 
the government, to make a donation grant; and in applying the principle to the 
present case, we find the proper authorities have declared, that Hackler, the 
husband and ancestor, in regard to the litigated premises, occupied the 
attitude required by this act. The government, has therefore, by their own 
acknowledgement, received of him all the consideration required for such 
grant, which is termed a donation, to contradistinguish it from such as are 
made for a pecuniary consideration, all which, in contemplation of this act, 
are prospective, and not immediate, except such cases, in regard to which the 
consideration is supposed to have passed, to a former government.

The second obvious inference from the premises, is, that the government, for 
the consideration expressed, which you may call if you please, conditions 
precedent, performed, has by the said clause, vested a legal right to a 
donation grant in a11 persons, designated by its description. A right of that 
nature and character, which by the terms of the act, is made descendable and 
inheritable. As however, in the clause relating to the persons to whom pre-
emption preference is given, the same language is used in favor of the heirs 
and legal representatives, it may perhaps, be going too far to say, that the 
act of Congress in this behalf, can be considered as affording the most 
satisfactory evidence, of the peculiar character, of the cession, or grant, 
Congress intended to make to donees. But however inconclusive, this language 
may be, there are other terms and expressions, which cannot be easily 
misunderstood. The expression used in the act, "the said tract of land thus 
inhabited, and cultivated, shall be granted" and the expression "donation," 
are certainly words importing, when spoken in reference to land, the transfer 
or investiture of some title. In the clause referring to the preference given 
in the purchase, to those who were actual settlers and cultivators of the land 
at the time of the passage of said act, the courtesy and benefit intended to 
be conceded to them, are very clearly described and ascertained, and extend to 
a prospective pecuniary consideration. But it is contended, that the full 
consideration was not received by the government, because there were to be 
paid by donee certain fees of office and for surveying, which constituted 
conditions precedent, and that there were measures, to be pursued, before the 
consummation of title in a patent, which only could invest a full and perfect 
legal title, to sustain the former part of this objection, the court is 
referred to the case of Vanhorn's lessee vs. Dorance, in 2 Dallas 317.

On examination, we consider this case as proceeding upon the construction of a 
statute divesting the right of certain Pennsylvania claimants, and vesting 
them in certain Connecticut settlers, upon conditions, to be performed by the 
latter, to consumate their inchoate titles before commissioners. The courts 
view with jealousy, the operation of a law, affecting the vested rights of one 
citizen, to the advantage and favortism of another, and maintained an 
equitable construction of this act, in its aspect impairing the rights of the 
Pennsylvania claimants, and insisted upon a punctilious conformity, on the 
part of the Connecticut settlers, to all its requirements. We cannot deem this 
case analagous to the present, where the government is a volunteer in its 
bounty to one of its citizens, and on this account, if on no other, the 
declaration of its munificence, should, by the courts, receive in reference to 
the rights of the citizen a most liberal an equitable construction. Proceeding 
by this rule, we have no difficulty in ascertaining, that the execution of 
fees, very inconsiderable indeed, the only pecuniary contribution required, is 
by no means intended to enrich the coffers of the government, as a substantive 
part of the consideration, upon which the grant proceeded, but only are 
equitable requirements on the part of the government, that the donee should 
defray a reasonable proportion of the expenses incurred, for his benefit, in a 
more specific location and identity of the property ceded. The regulation, 
respecting the commissioners and the proceedings to be had before them, in 
reference to donation grants, are governed, and dictated in part, by the same 
policy, having in one view, the ascertainment of the unappropriated domain of 
the government, and in the other, the designation and quieting of the rights 
and claims, of the citizens. This conclusion will be manifest, and the subject 
will be further illustrated, by reference to the clauses in this act, which 
speak of these subjects. A quotation of these passages at length, would occupy 
more time and labor than in reference to other engagements of the court, can 
be devoted to this case; we shall content ourselves with such remarks as 
occur, on careful examination of them. On this scrutiny, we perceive, that as 
respects all the matters objected to, donations are equally formidable as 
regards British grants, which in their registry, certificate, patent, and 
concurrent expenses, are pari passu with donations. Would it be contended, 
that the wife of a British grantee, on the death of her husband, subsequent to 
the passage of the act of recognition, and anterior to the issuing of a 
certificate by the commissioners, and the emanation of a confirmatory patent, 
would not be entitled to her dower? If not, as we suppose it would not, 
neither can such principle be necessarily contended for in relation to 
donation grants of the United States. In regard to the former, the time had 
certainly gone by, during the former government, when the latent right of the 
wife to dower had existed, and which, on the death of the husband at that 
time, would have been developed and recognized. In what transition and 
revolution, are we to look for the abduction of the right existing, though 
only in obeyance? Certainly not in such acts of the government of the United 
States, succeeding to the sovereignty of the country, which were adopted for 
the express purpose, in part, of favoring and establishing these claims, 
without any diminution of any of the legal imp1ications or consequences, 
except by the limitations imposed, for the purpose of producing a seasonable 
exhibition of them. It is sufficiently clear to us, that the government did 
not consider them as inchoate, imperfect titles, considerations for which have 
yet to pass, but obscure, perfect titles, for which consideration had already 
passed to the former government, and the measures adopted in relation to them, 
were merely to ascertain and designate them, that they might not be 
enchroached upon in the future cessions of the unappropriated domain and to 
prevent unnecessary litigation. The same reasoning, we conceive is applicable 
to the donation grants of the American government.

If the court should be mistaken as to the degree and perfection of right and 
title, confirmed to Hackler, their opinion, as to what disposition they ought 
to make of the present motion, may possib1y derive some support from the 
doctrine contained in 5 Cruize on real property 551, where it is 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 operation from the substantial part by 
relation. Livery, relates to the feoffment; involvement, to the bargain and 
sale, a recovery to the deed which leads the use; so admittance shall relate 
to the surrender." The same doctrine is recognised in a late determination. 
Holdfast vs. Clapham, 1 Term Rep. 600, and in 5 Cruize 545.

As to the propriety of the attempt, on the parts of the heirs, to repudiate 
the title of the ancestor, denying that they take by descent, while they 
allege they take by purchase, it may be remarked, that this class of cases, 
are, "sui generis" in which an adherence to great technicality would be 
unreasonable. Prosecuting their patent they tell us, we take by purchase and 
not by descent, cast. We refer them to the act of Congress, which looks at 
this very patent to them, through the avowed consideration, and irrevocable 
vested rights of their ancestor, and ask, if these had not preceded, where, or 
wherefore, could they have received the patent? It is the act of Congress 
which constitutes the title, indestructable even by the government itself, as 
well before, as after the emanation of the patent, which is only one evidence 
of title, but not the only one. The act of Congress and the proceedings of the 
board of commissioners, constitute in themselves a perfect title, in the 
original donee, which cannot be questioned or revoked by the government 
itself, (much less by the heirs of the donee claiming under it) and the patent 
must relate to them as to the origin and foundation of the title. We may well 
then, refer to the heirs to the doctrine laid down in Gray vs. Harrison, 2 
Haywood 292, and to the known law, that a man shall not repudiate the title 
set up by his adversary, under which he himself raises claims.

We cannot perceive without some emotion, an attempt on the part of so many 
children, whose filial obligations and gratitude to an affectionate mother, 
were increased by her care and vigilance in securing to them this very 
property, to turn her out of that mansion, where so much of her life and 
health had been devoted in maternal tenderness and watchful affection, to 
cherish, succor and protect them, during the helplessness of infancy and the 
ignorance and indiscretion of youth.

Let a new trial be granted.


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 91-97.

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