Wilkinson County MsArchives Court.....Stark, R June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

Pages 181-194

STARK'S HEIRS vs. GEORGE MATHER.


The officers of the government should give the patent to him who is by law 
entitled to it, and if they give it to another, he is a trustee for the true 
owner.

If a government by a mere act of power, makes a grant and gives title to 
another, the courts will respect the title of the first grantee.

A confirmation by Congress of a Spanish title, shall relate back to the origin 
of the title.

Where A received a grant of lands from the Spanish government, which was 
revoked by them by an arbitrary act of power, and the land granted to B, and A 
driven from the country, and B’s title is confirmed by the board of 
Commissioners—B shall be decreed to hold as trustee for A.


OPINION OF THE COURT—BY CHIEF JUSTICE HAMPTON.

This cause was first instituted in the superior court of law and equity, for 
Wilkinson County, where the bill was filed on the 18th of October, 1813. It 
was subsequently, at the November Term of said court in 1815, transferred by 
consent of parties to Adams county, where, at a superior court, November Term, 
1820, it was transferred to the supreme court on doubts of the judge. At the 
December Term of this court in 1821, an issue was directed, after previous 
argument, to the Adams superior court, to try the question of voluntary 
abandonment on the part of R. Stark, the ancestor, which issue, at the May 
Term 1823, of said court was found for complainants; at the last June Term of 
this court, a reargument was ordered, which we have had the pleasure of 
witnessing at the present session, conducted with great zeal and ability on 
both sides. It now devolves upon us to express the opinion which we have 
formed, after the most careful and patient investigation, but which is yet 
advanced under the great difficulties of the subject and the discouragement of 
a dissenient voice among ourselves, which diminishes the confidence with which 
it is entertained.

The statements of the bill are:—That sometime in 1791, Robert Stark, the 
ancestor, obtained from the Governor General of the province of Louisiana, 
Estevan Miro, a warrant, or order of survey, for 2000 acres of land, square 
measure, on Bayou Sarah, in the then Natchez district, now in Wilkinson county 
of this State—which warrant, and evidences of actual survey in pursuance 
thereof, by William Dunbar, deputy surveyor, of said district, and the 
petition of their said ancestor therefor, are in possession of complainants, 
ready to be produced. That then said ancestor was put into possession of said 
tract of land by the proper authorities, conformably to the instructions and 
requirements contained in said warrant of survey, and complied on his part 
with all the conditions of cession, continued for several years in possession, 
made extensive clearings, raised several crops, paid the fees of surveying and 
made the necessary advances for perfecting the title by patent. Some time 
after which settlement, their said ancestor not satisfied with the situation 
of said tract, proposed to Governor Gayozo, to relinquish said tract of land, 
on express condition, that he should receive in exchange therefor from the 
Governor, another tract equal in value which he might select. But the said 
Governor, without complying with said conditions, from a personal dislike to 
their said ancestor, offered his said tract of land to one James Mather, 
lowborn it was immediately afterwards, in 1794, granted, and who took 
possession of the same, together with farming utensils and a crop of corn then 
growing; against which arbitrary conduct of the said Governor, and fraudulent 
practice of said James Mather, their said ancestor protested as unlawful. That 
the said James Mather, who had a perfect knowledge of the title of said 
ancestor of complainants to the said tract of land, obtained a grant therefor, 
entirely through the influence of said title, and the false and fraudulent 
representations of William Dunbar and other officers of the Spanish Government 
who were urged and excited thereto by the said James Mather. In part evidence 
whereof, complainants have now in possession a memorandum in the hand writing 
of the said William Dunbar, at the foot of the original warrant, or order of 
survey, purporting to be a sale and release of the said 2000 acres, to the 
said William Dunbar, and to have been subscribed by the said ancestor of 
complainants. The said warrant or order of survey had been in the possession 
of the said William Dunbar, and when delivered to the said R. Stark, which was 
after the grant to Mather, it had the memorandum mentioned, but so 
obliterated, apparently by design, as to be but partially legible.

The bill further states, that according to the law, usages and customs of the 
Spanish government, a Spanish warrant, or order of survey, was considered as 
equivalent to a complete grant, by which on the fulfilment of the conditions 
imposed, a fee simple passed to the warrantee, and that the government never 
regranted the lands so conveyed, unless the same became forfeited to the 
crown, or by consent of the first grantee, and in the latter days of the 
Spanish government, was not in the habit of exacting of their grantees many of 
the conditions annexed to the early grants, and no transfers of rights thus 
acquired were valid, unless the same were in writing and duly recorded. They 
deny that their ancestor ever committed any act by which a forfeiture of his 
right to the said tract of land resulted to the government or ever disposed of 
the same to any person whatever, or gave his consent either verbally or in 
writing to the proper authorities, to regrant the same, but that by 
confederation, &c. the said James Mather, obtained and kept possession of the 
same, and refuses to account for the corn and implements of husbandry, 
acquired therewith. The prayer is for a surrender of the land, its titles, 
peaceable enjoyment thereof, and for general relief. The answer of James 
Mather admits the acquisition of the order of survey, its execution and 
possession of the ceded premises under it, by ancestor of complainants, but 
denies his having made either early or extensive improvements thereon, and 
professes ignorance as to fees paid for a survey and monies advanced for 
perfection of title. Alleges, that sometime in 1792, respondent desiring to 
acquire a tract of land in the Natchez district, made application to Governor 
Gayoso, then Governor of said district, who informed him that the tract of 
land now in question, was vacant, and that the concession would be made to him 
on his petitioning therefor. Respondent having understood that said R. Stark, 
the ancestor of complainants, had resided on said tract for a short time, 
enquired of the said Governor, if he had no claim thereto, or expectation of 
holding it, when the said Governor informed respondent, that he the said R. 
Stark had abandoned and given up his claim to it. Respondent then enquired of 
the said R. Stark, being at the house, of the Governor at that time, if he had 
any claim to the said tract of land, who answered in the negative, that he had 
abandoned it, and should quit the country, and that this respondent was at 
full liberty to apply therefor.

Whereupon defendant petitioned for said tract of land, and obtained, an order 
of survey therefor from the Governor, of the then province of Louisiana, dated 
7th of February, 1793, and the same was actually surveyed for defendant by 
William Dunbar, the deputy surveyor, on the 20th of July, in the same year, 
and the defendant invested with possession, and about the 3rd of April, 1794, 
a patent issued for the said premises to respondent, under the seal of the 
Governor of said province, to whom the granting of lands therein pertained. 
That during the whole of this time, while respondent was perfecting his title 
as aforesaid, the said R. Stark, the ancestor of complainants, made no claim 
or pretence of claim to the same. That at the time of purchasing said titles 
to said tract of land,
this respondent had no notice of any other claim thereto, but was assured by 
the said R. Stark, that he had none. On which respondent insists, the same as 
if it were pleaded. Respondent further answering, denies that when the said R. 
Stark relinquished and abandoned his claim as aforesaid, he made any 
reservations or conditions with the Governor, or commandant of said district 
of Natchez, by which he was to have ether lands in lieu of these thus 
abandoned, but that said abandonment, was for the purpose of quitting the 
country, which the said R. Stark, did do immediately thereafter, without 
having made any application for other lands in the Spanish dominions; and 
respondent believes that when the said R. Stark thus abandoned his land and 
the Spanish country, the said order or warrant of survey was left in the hands 
of the said deputy surveyor, and did not
again come into the possession of the said R. Stark, until his return to the
country, after a change of government, after which the said R. Stark, 
instituted his action of ejectment, against the tenant of respondent, in the 
district court, for the district of Adams, to which action defendant made 
defence, and permitted the said R. Stark to give all matters in evidence, as 
well in parol as in deed, touching his said title, and after full examination 
of both the legal and equitable titles of both parties, a verdict was rendered 
for defendant. Denies taking possession of the crop, or any other property of 
said R. Stark; denies all collusion with said William Dunbar, nor does he 
believe said William Dunbar ever practised any fraud or designs against the 
said R. Stark, in relation to said land. That on the 26th of April, 1803, 
respondent sold and conveyed said tract of land, in fee simple, to George 
Mather, now deceased, for full consideration paid in money and services, by 
the said George Mather, in his lifetime. That this defendant, and said George 
Mather, in his lifetime, and those claiming under him, since his death, have 
been in possession of said premises, more than 20 years, occupying, 
cultivating and improveing the same, on which he insists as if plead. Denies 
all fraud, combination, &c. and usual prayer for dismission with costs, &c.

The amended bill charges, that George Mather, Junr. who is made party 
defendant, pretends that James Mather, father of said George Mather, conveyed 
the said premises to George Mather, senior, brother of him the said James 
Mather, and he the said George Mather, sen. devised to him the said George 
Mather junr. But they expressly charge, that if such conveyance was made, the 
same is a fraud of complainants, for they say it was a matter of public 
notoriety, not only in the family of him, the said George Mather, but also in 
the neighborhood, that the said R. Stark, the ancestor, in his lifetime, and 
his heirs since his death, claimed title to the said tract of land, of which 
the said George Mather, senior, brother of the said James Mather, and the said 
George Mather, junr. another defendant, had notice before any conveyance or 
devise as is pretended to have been made, was made. Prayer as in original 
bill, and for conveyance from the said George Mather, junr. to the 
complainants of the said premises, and for general relief.

The plea of George Mather, junr. states that George Mather, senr. was a 
purchaser for valuable consideration, of his brother, James Mather, without 
notice, and devised said premises to him, the said George Mather, junr. 
defendant.

Complainants title consists in the petition of their ancestor, Robert Stark 
for the land in question, dated 20th of September, 1791, accompanied by an 
address from Governor Gayoso to the Governor and Intendant General of the 
province of Louisiana, dated on the 1st of October 1791, recommending to his 
excellency the pretensions of the said Stark and the warrant or possessory 
order of survey from the said Governor General, to the surveyor general, 
Trudeaux, dated the 29th of December, 1791, under which it is an evidence, 
that the said R. Stark, the ancestor, was invested with possession of the said 
tract of land, the same being duly laid off and surveyed for his benefit, and 
that he remained in possession for several years, improving and cultivating 
the same, having paid the fees of survey, and the further fees for the 
perfection of title. Whatever right to the contested premises were raised by 
this state of facts in favor of the ancestor, R. Stark, if not subsequently 
affected the present complainants succeeded to as heirs, by virtue of that 
succession, now ask relief at the hands of this court. Defendant's title 
consists in a warrant of survey for the contested premises, in favor of James 
Mather, dated 7th of February, 1793—survey made in pursuance thereof, on the 
20th of July, of the same year, the certificate whereof returned into the 
office of the Governor General of the province of Louisiana, dated 2d of 
April, 1794, on which a patent emanated from said office, bearing date the 3d 
of April, 1794. A deed from James Mather, to his brother, George Mather, 
senior, of the said premises on the consideration, expressed of ten thousand 
dollars, dated 26th of April, 1803, filed and recorded in the office of the 
clerk of the county court of Wilkinson, where the land lies, on the 13th of 
November, 1815, and in the register's office, west of Pearl River, on the 31st 
of March, 1804. The will of G. Mather, senr. uncle of G. Mather, jr. the 
present defendant, bearing date the 7th of Nov. 1803, containing a bequest of 
the premises to him the said defendant, and certificate of confirmation of the 
board of commissioners, bearing date the 20th of April, 1806, in favor of the 
said George Mather, jur. the present defendant. Under which, defendant and 
those from whom he derives title, have enjoyed long and uninterrupted 
possession, not however, acquiesed in by complainants, and their ancestor 
evidenced by an action of ejectment instituted in the Adams district court, by 
R. Stark, the ancestor, against James Mather, in which verdict was for 
defendant, and the institution of this suit by complainants, the heirs of the 
said R. Stark on the equity side of the superior court of Wilkinson, in 1813.
	

If the foundation be sound and good, the superstructure of this title, so
regular and complete in all its parts, presents a very imposing aspect.

It may be well to dispose of some preliminary points, which, tho' they 
occupied a distinguished place in the able discussion at the bar, do not 
present to the court, from the view, which, after great reflection, they have 
taken of the merits of this case, matters of much difficulty. Few occasions 
have elicited greater and happier exertions on the part of the counsel of 
defendant, than the discussion of the question, how far Spain at the time of 
the respective erosions of the matter in controversy, had a right to grant 
lands lying between the 31st degree of north latitude and the mouth of the 
Yazoo River. We do not, however, consider the discussion of that question as 
an indispensable measure to the attainment of the ends of justice in the case 
under consideration. If we did, the argument and authorities advanced by the 
counsel, and the very able opinion of the judge of the district court of the 
United States, to which we have had access, would have their due weight with 
us. If the matter in controversy was between a patentee of the Spanish 
Government and the Government of the United States, the decision of that 
question would be unavoidable. Admitting in the abstract that Spain had no 
such authority, yet the argument is not satisfactory, which considers the acts 
of the Spanish Government void, as to the rights and claims of both parties 
litigant, and that the first origin of legitimate right, is to be found in the 
confirmation of Mathers' claim, by the American board of commissioners, 
conformably to the provisions and stipulations contained in the articles of 
agreement and cession between Georgia and the United States.—For equity will 
certainly reflect the gracious complacency which these provisions and 
stipulations throw over the acts of the Spanish Government, by which they are 
redeemed from the reproach of tort feasons, so far as to effectuate the 
results of immutable justice. She will enquire into the fair claims of those 
who set up pretensions under this act of munificience, (if you please,) and 
impart the benefit to him, for whom in good faith it was intended.

Though it be admitted that the finding of the jury is not conclusive upon us, 
in accordance to the principles recognised 1 chancery cases 506, still, on a 
careful examination of the evidence, we are satisfied with the verdict, and 
shall consider the question of voluntary abandonment, as put at rest by it. 
Where the evidence is contradictory, it is the province of the jury to judge 
of its weight. The evidence which would lead to a different conclusion to that 
drawn by the jury, relates mostly to expressions and conduct of R. Stark, the 
ancestor, after the misunderstanding had occurred between him and Governor 
Gayoso, when his mind was either under the irritation and excitement produced 
by that event, or discouraged by the impending storm of arbitrary power which 
it presaged. The evidence should be very conclusive to produce a satisfactory 
conviction that a man, who had, at a great expense, migrated with a large 
family, to this fertile country, and settled and improved a valuable landed 
property, in it, had voluntarily, and without any reasonable cause moving him 
thereto, abandoned and forsaken both. As to the question of notice, George 
Mather Junr. the present defendant, though he stands in relation to him of 
whom he derives title in the character of a volunteer, yet, if his uncle, 
George Mather Senr. who bequeathed to him the property in controversy, was a 
purchaser thereof for valuable consideration, without notice, it may be 
admitted, as is laid down in some of the books, that as a volunteer, he may 
protect himself by this equity in his division, and occupy the same favorable 
attitude of his uncle, a purchaser for valuable consideration without notice. 
But the evidence of Joseph Vidal, Eleazer Rees, Joseph Williams and George 
Hart sufficiently proves that George Mather Senr. at the time of the purchase 
from his brother James, had notice of R. Stark's claim.— He, therefore, cannot 
be considered in the character of a purchaser for valuable consideration 
without notice. The consequence is, therefore, that George Mather Junr. the 
present defendant, cannot have stronger claims, in reference to Stark's 
rights, to the litigated premises, upon the consideration of the court, than 
those of a volunteer, or a purchaser, with due notice of this out standing 
equity.

As it respects the trial of ejectment, in the Adams district court, some years 
since, it is sufficient to remark that the evidence of the presiding judge 
satisfactorily evinces, that tho’ the matter went to a jury, yet that the 
recovery was had for the defendant, chiefly on the ground of his being deemed 
a superior legal title, or that, the title exhibited by the plaintiff was not 
deemed a paramount legal title, sufficient to justify the eviction in that 
form of action, of defendant from the controverted premises. Having disposed 
of these preliminary points, we shall proceed to examine the two principal 
questions, in our estimation, involved in the present controversy, which we 
shall consider together in the conclusion.

1st. What is the fair construction of the provisions and stipulations 
contained in the articles of agreement and cession between the United States 
and Georgia, and the several acts of Congress passed in pursuance thereof, and 
how far such a construction bears on the case before us.

2d. What are the powers of a court of chancery to grant relief, such as is 
sought by the present complainants? By the second clause of the first article 
in the said stipulations between Georgia and the United States, it is 
provided, "That all persons, who on the 27th day of October, 1795, were actual 
settlers within the territory thus ceded, shall be confirmed in all the 
grants, legally and fully executed, prior to that day, by the former British 
government of West Florida, or by the government of Spain, and in claims by 
virtue of any actual survey and settlement made under the Georgia Bourbon Act. 
By virtue of this section the American commissioners, gave to the defendant a 
certificate of confirmation, he having exhibited his perfect Spanish title, 
and the necessary evidence of actual residence on the said 27th day of 
October, 1795. The United States having accepted of the cession upon the 
conditions hereby imposed, divested themselves of all discretionary power in 
regard to claims thus protected by the convention of Georgia. As to grants of 
this description, made either by England or Spain, their authority, so far as 
respects the vested rights in the grantees, is expressly recognized by 
Georgia, and the United States not the abstract creation or origination of 
right, but the recognition of subsisting rights, in reference to acts of other 
governments. By the first section of an act of Congress, passed 3d of March, 
1803, it is enacted, "That any person or persons, or the legal representatives 
of any person or persons, who were resident in the Mississippi territory on 
the 27th day of October, 1795, and who had prior to that day obtained, either 
from the British government of West Florida, or from the Spanish government, 
any warrant or order of survey for lands lying within the said territory, to 
which the Indian title bad been extinguished and which were on that day 
actually inhabited and cultivated by such person or persons or for his or 
their use, shall be confirmed in their claims to such lands in the same manner 
as if their titles had been completed, if granted as the true head of a family 
or over the ago of twenty-one years.”
Here again we perceive an obvious reference to the acts of the British
and Spanish governments, as the basis of the recognition of rights, of
such claims as fall within the provisions of this Congressional confirmation 
of right. Now, who can question that if R. Stark, the ancestor of
complainants, had not fled from the gathering storm of incensed power, but had 
remained in peaceable possession of his improvements, or with his order or 
warrant of survey in his pocket, a tenant in possession, he had been a 
resident of the territory on the 27th of October, 1795, even though he had not 
received a patent for which he had paid the customary fees of office, yet 
either that his claim would have been preferred, to that of defendant by the 
Board of commissioners, or that would have happened, which occurred in the 
case of Cole's heirs, the government of the United States would have granted a 
patent on the production of such evidence though the other claim had been 
preferred by their commissioners? Shall therefore, the base absence of these 
parties of necessity and not of choice, held by us to defeat a right founded 
in justice and equity, and which had actually vested in him, and had never in 
any legitimate way, by any competent authority been vacated or annulled. We 
think not. It would be to make this court the hand-maid to oppression—a 
chancery to consecrate the wrongs and enormities of licentious power. In the 
case of George Winn vs. Cole's heirs, decided at the adjourned January term, 
1833, this court held, "That the possessory order in favor of James Cole, to 
the premises in question, dated 6th of June, 1795, by which 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 of 
the conditions of the grant, or by some act against the government which would 
justify in them its confiscation.” In regard to the first, there is not in 
this, as there was not in that case any pretence set up. In that case it was 
not pretended that there was, and in this the jury have expressly found that 
there was not a voluntary abandonment, and in neither case is it alleged that 
there were any rebellious or treasonable practices on the part of the grantees 
to justify the Spanish government in the revocation or confiscation of its 
grant or order of possession. But in this
case it is not pretended, as it was in that of Cole's heirs, that there was a
failure of the performance of the conditions of the grant. The court having 
determined in that case, that there was not such failure of the conditions, 
places the two cases substantially in these features of them wholly 
analogous.    The language held by the court in that case, in regard to the 
revocation or confiscation of the first grant, applies in substance with equal 
force to the facts in the present. "That there is no express declaration of 
the Spanish government, that such a confiscation or revocation for good and 
sufficient causes, therein expressed, was ever made nor any declaration, 
unless it be found in the formal expressions as to the possession being vacant 
to be met with in the subsequent title, which amounts to nothing more than the 
language employed in the cession of all unappropriated lands, and by no means 
import a judicial investigation and decision on the part of the competent 
authorities of the government, by which the vested rights, of one citizen or 
subject are withdrawn and transferred to another, for it would be presuming 
too much against the justice of any government to attribute to it, the use of 
no more solemnity in the abduction of a vested right of one of its subjects, 
than it employs in the ordinary transfer of its own unappropriated domain." In 
the absence of a record of a judicial or official revocation or confiscation 
of the grant to R. Stark, the ancestor of complainants, for good causes moving 
the government thereto such as before stated, viz.: failure to fulfil the 
conditions of the grant, or some act of treasonable or rebelious practices, 
against the government, in case where it is not pretended there was an 
alienation of right, and the jury has expressly found, that there was not a 
voluntary abandonment of it, the regranting of the subject matter of such 
right to another person, shall be deemed the result of mistake, or if the 
second grantee had due notice of the prior claim, the procurement of false 
representations and fraudulent practices on his part, or the effect of lawless 
power in the governor, unsupported by reason or justice, and not to be upheld 
by a decree of that tribunal, which hath no help for fraud or oppression, 
whoever, therefore, may have produced another grant of the same premises, 
before the first grantee had been legally divested, such a subsequent grant, 
can convey no right or property in the premises, to the prejudice of the 
subsisting rights of the first grantee, and he who occupies the controverted 
premises, by virtue of such a subsequent grant, though he be ushered in under 
the panoply of a full and complete legal title, and be supported in his 
possession by the strong arm of power, shall nevertheless, after that 
domination ceases, be decreed by courts, exempted from its influence, to hold 
and possess as trustee for him, so unjustly evicted. Such is the character of 
defendant, and those from whom he derives title in reference to complainant's 
ancestor, and this character having attached prior to the date of the articles 
of agreement and cession between Georgia and the United States, it shall not 
be varied by any of their provisions, but receive the benefits they confer, to 
the use of those for whom they stood seized, as trustees. Neither do we 
consider that the removal of R. Stark, the ancestor of complainant's, after 
this character of the trustees, did in the estimation of equity, attach to 
James Mather, as at all varying the responsibility of said trustee, or as 
defeating the right of the said R. Stark to succeed, to the enjoyment of his 
property, as early as its restoration should be awarded by a proper tribunal. 
If the possession of James Mather was, as it certainly was in our estimation, 
virtually the possession of Robert Stark, the ancestor, there the absence of 
the latter, on the 27th day of October, 1795, shall not defeat his claim, we 
are inclined to think that such would be our opinion even in a case where the 
contest had been wholly between two citizens, when the weaker with the better 
right, was overborne by the stronger, and under such discouragements, 
voluntarily left the country, but surely in a case where a man flees from the 
strong arm of power, he shall not forfeit any right thereby. The power of the 
courts to scrutinise into the true character of titles, tho' consecrated by a 
certificate of confirmation or patent, has not been called in question. For 
congress having expressly reserved the right of a judicial investigation, to 
those whose claims were repudiated, even against the patentees of the 
government, for valuable pecuniary consideration, cannot be supposed to have 
witheld it, in relation to patentees by courtesy, or such by virtue of a 
consideration supposed to have passed to a former government.-The provisions 
in the articles of agreement and cession between Georgia and the United 
States, and in the several acts of congress in relation to this subject, were 
designed to settle claims between the government, and not to extend to the 
conflicting claims of individuals, which were left for final adjustment to the 
tribunals of justice. In regard to the present controversy, we have been 
appealed to for its decision, and are of opinion that justice and equity 
demand, at our hands the effectuation of complainant’s rights, so long and so 
unrighteously usurped. That the patent from the Spanish
government to James Mather, and the confirmatory certificate of the American 
board of commissioners to George Mather junr. ought in good faith, on the part 
of the former, and of right on the part of the latter, to have been awarded to 
R. Stark and his heirs, and that in principle the present is strongly analgous 
to the case in 1. Sargent and Rawles, Rep. 208; where Tilghman, chief justice, 
speaking of a patent erroneously obtained, says: “The officers of the 
commonwealth are to give the patent to him who is entitled to it, and if they 
give it to any other person, that person is no more than a trustee for him who 
has the right. This is the settled law in our courts, and the courts of the 
United States adopted the same principle in Hordikepper’s lessee, vs. Douglas."

We are of opinion that defendant should deliver up the premises to the 
complainants, and convey to them all his right and title, and pay the costs of 
suit.

Judge Ellis concurred.

Judge Stockton dissented.


Note.- It is much to be lamented, that no notes have been preserved of the 
arguments of original counsel in this important case. The opinion of the court 
is certainly able and eloquent; but with every feeling of respectful 
deference, it seems difficult to perceive, how the defendant could be decreed 
to stand towards the complainant, in the relation of a trustee.

The grant of the Spanish government conferred no title on Robert Stark, 
according to the principles now settled by the supreme court of the United 
States. Nor was this title embraced within the provisions of the articles of 
agreement and cession between Georgia and the United States. The title, was 
not “legally and fully executed,” according to the provisions of that compact, 
even if Stark could be viewed as a settler within the meaning of the articles. 
Were Stark, however, viewed as embraced within the provisions of these 
articles, or any other act of Congress, his title would have been forfeited 
for want of proper presentation to the board of commissioners as required by 
law. The title of Stark then, was a mere nullity, that of Mather was a 
complete legal title, being embraced within the articles of cession, and 
confirmed by the United States. How then could Mather be viewed as a trustee 
for Stark? He did not hold under Stark’s title, for that was a nullity, but by 
a distinct title of his own, unconnected with that of Stark, embraced within 
the provisions of the compact with Georgia, and confirmed by the United 
States. He who holds the legal title may be decreed to stand as trustee for 
the person holding the equitable title, but Stark never held any valid title, 
legal or equitable. What avails it even if the Spanish Government could not 
revoke their grant, if that grant was a nullity. If Mather had taken 
possession under the title of Stark, and procured a confirmation of that title 
in his own name, the question might be different; but he took and held 
possession by a title wholly distinct from and directly adverse to that of 
Stark, which adversary title was confirmed by the United States. This 
confirmation might by the retrospective energy of the compact with Georgia, 
relate to the Spanish grant to Mather so as to give it a legal existence; but 
that would only operate to render valid the Spanish title to Mather, which 
title was directly contradictory to, and destructive of the title of Stark. 
The case in which a patentee is directed to hold the title as trustee for 
another person, are when that person and the patentee hold under the same 
original title, and the officers of government in obedience to the law, should 
have given the patent to such person and not to the patentee. Courts cannot 
create titles, and Stark never held any valid title. The officers of 
government cannot create titles, and had they given a patent to Stark, they 
would have disobeyed the laws, which alone can vest the title, and the patent 
would have been invalid. But it is said
that the act of the Spanish government in revoking the grant to Stark, and 
granting the same lands to Mather, was a lawless act of arbitrary power, and 
that Mather participated in the misconduct of the Spanish government, in other 
words that the Spanish government should have completed the title of Stark, 
and that congress should have confirmed his title, and therefore that the 
court will do what, in their opinion, should have been done by the government 
of Spain, and of the United States. And are the courts of this country 
competent to vest a title in an individual who never had any valid title, 
legal or equitable; and are they also equitable to divest a complete legal and 
equitable title, created by the only power which can dispose of the public 
domain? If the Spanish government acted unjustly in granting a title to 
Mather, and the Congress of the United States participated in that injustice, 
in confirming that title, the judicial tribunals are not competent to correct 
the errors of the government, so long as the constitution is not violated by 
any legislative enactment. Stark having no valid title, legal or equitable, 
Congress, the only competent power to dispose of the public domain, vested a 
title in Mather. In doing so, no provision of the constitution was violated, 
and the justice or propriety of the act does not come within the sphere of 
judicial enquiry, otherwise the courts are omnipotent, and may repeal or 
disregard any legislative enactment which appears to them inexpedient or 
unwise.

Mather's title being embraced within the treaty with Georgia, and the acts of 
Congress carrying that treaty into effect, was itself protected by the 
constitution, which makes a treaty the law of the land.

Mather is said by the court to have held possession, in contemplation of law, 
as trustee for Stark. If so, the statute of limitations, which does not run as 
between trustee and cestui que trust, would never have given Mather a title, 
yet his possession was clearly adverse, and under a claim of ownership, and 
title also directly adverse to that of Stark, and the statute of limitations 
would undoubtedly have run in favour of such a possession. The court, it will 
be perceived, were divided in opinion.



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.

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