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V.

This language, we think, adapted to new claims, as well as to a prolongation of the time in which claims may be recorded, as the preparatory step to laying them before the enderson commissioners. It is observable, too, that the 5th section Poindexter's of the act of 1803 mentions British, but not Spanish grants. Lessee. They are comprehended in that class of claims which were confirmed by the articles of agreement with Georgia. The act of 1803 contemplates no Spanish grant that was not protected by those articles. The act of 1804, however, introduces Spanish with British grants, and places them together, as forming a class of cases not provided for in the compact with Georgia. We cannot suppose, that the legislature would have changed its language, and have introduced the words Spanish grants, with directions that they should be recorded, and laid before the commissioners, if nothing existed to which the words would be applicable.

The language of the third section also indicates an opinion, that persons, not inhabitants of the country on the 27th of March, 1795, might be entitled to land under a Spanish grant, warrant, or order of survey. It provides for the case of a claim to land which was not, at the date of such grant, &c. or within one year thereafter, inhabited, cultivated, or occupied by or for the use of the grantee. Now, land might be inhabited, cultivated, or occupied, for the use of a grantee who was not himself an inhabitant of the country, or might be occupied by himself within one year after the date of the grant, though not so occupied on the 27th of October, 1795. The act goes on to provide, that, in such case, or whenever the commissioners shall not be satisfied that the grant, &c. issued at the time it bears date, such grant, &c. shall not be conclusive evidence of the title. This language might certainly justify the implication that Congress supposed the commissioners might establish titles

in favour of non-residents.

The decision of the commissioners against them is not to be final. They are to be reported to the Secretary of the Treasury, to be by him laid before Congress for the final decision of that body.

On the 28th of February, 1809, Congress appears to have acted on this report. An act was then passed, directing the

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lands, the claims to which had been disallowed by the commissioners, to be sold in the same manner as other public Henderson lands. The same act reserves the right of the Spanish Poindexter's claimant to institute his suit in the highest Court of law or Lessee. equity in the said territory, for the recovery of the land,

V.

within one year after it shall have been sold by the United States. If he shall fail to sue within the time limited, his right to sue shall be for ever barred. The second section makes the decision of such cause to depend entirely on the claimant's proving that the survey was made before the 27th of October, 1795, and on the fairness of the transaction; and the third section declares parol evidence to be admissible.

This act relates solely to those claims which were laid before the commissioners, and disallowed.

The patent under which the plaintiff in error claims the tract of 1,000 acres, appears to have the following endorsements on it:

"Entered on record at Natchez, in the county of Adams, Mississippi territory, in lib. B. fol. 149 a 150, this second day of April, A. D. 1801.

"JOHN HENDERSON, Recorder."

"Land Office west of Pearl river. "This plat, certificate, and letters patent, are recorded in the Register's book B, of written evidences of claims, fol. 621. &c.

"Examined and corrected by

"J. GIRAULT, Translator."

The plat, and certificate of survey, and patent for 500 acres, appear to have been registered in the land office west of Pearl river, on the 26th of March, 1804.

The patent for this last survey gives no additional title, because it was granted after the authority of Spain over the country had ceased. It does not appear that either of these title papers was laid before the board of commissioners.

There is certainly some difficulty in construing these acts of Congress. It is not easy to resist the conviction, that the government has legislated on the idea, that Spanish titles might be valid, though held by persons who were not

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Lessee.

residents of the country on the 27th of October, 1795. Yet no law has, in express terms, imparted this validity to them. The act of 1804 allows them to be recorded, and Henderson to be laid before the commissioners, to be decided on by Poindexter's them. It goes farther, and seems to point the attention of the commissioners to the fairness of the claim, rather than to the residence of the claimant. The certificate of the board in favour of the claimant is conclusive against the United States. Their determination against him is to be reported to the Secretary of the Treasury, in order to be laid before Congress; and this determination is to be founded on the opinion, that the document of title is antedated, or otherwise fraudulent. When Congress acts on this report, no absolute decision is made against the rejected claims, but the claimant is allowed time to assert his title in a Court of law or equity. These provisions are scarcely to be reconciled with the idea, that no Spanish grant could be valid if made to a non-resident of the territory. It would seem as if the commissioners might have taken cognizance of such a claim, might have decided in its favour, and that such a decision would have been conclusive.

But, we repeat, that there is no act of Congress expressly confirming such titles, and that they derive no validity from any other source.

The whole legislation on this subject requires, that every title to lands in the country which had been occupied by Spain, should be laid before the board of commissioners. The motives for this regulation are obvious; and as the titles had no intrinsic validity, it was opposed by no principle. Claimants could not complain, if the law which gave validity to their claims, should also provide a board to examine their fairness, and should make the validity depend on their being laid before that board. The plaintiff in error has failed to bring his case before the tribunal which the legislature had provided for its examination, and has, therefore, not brought himself within the law. No act of Congress applies to a grant held by a non-resident of the territory in October, 1795, which has not been laid before the board of commissioners. It is true, that no act has declared such grants void; but the legislature has ordered the lands to be

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Lessee.

sold which were not appropriated in a manner recognised by law, and the land in controversy is of that descripHenderson tion. Poindexter's If this view of the subject be correct, no Spanish grant, made while the country was wrongfully occupied by Spain, can be valid, unless it was confirmed by the contract with Georgia, or has been laid before the board of commissioners. This opinion is decisive of every point on which the Court gave an opinion, so far as respects title.

The first bill of exceptions, taken by the plaintiff in error, is to the rejection of a duly certified copy of a certificate of survey, and a patent issued thereon by the Spanish governor of West Florida in December, 1797.

The patent was properly rejected, because Spain no longer occupied the territory, and the authority which had been exercised, in fact, by the Spanish government, had ceased. The order and certificate of survey were properly rejected, because they were not confirmed by the three first sections of the act of 1803, and had never been laid before the board of commissioners.

The paper dated the 19th of October, 1796, purporting to be private instructions from William Dunbar, the principal surveyor of the district of Natchez, to William Atchison, the deputy, who made the surveys for the land in controversy, was admitted to rebut the testimony of a witness whose deposition had been taken to prove that the Spanish title papers were fair and were correctly dated. This paper was admitted, because it related to the official duties of the deputy, was found among his papers after his death, and was proved to be in the hand-writing of his principal, who was also dead. Doubts are entertained by some of the Judges respecting the propriety of its admission. But this is a question which we think it unnecessary to decide, because the grant, not having been laid before the board of commissioners, could not have availed the defendant in the Court below, who did not bring himself within the reservation of the cession from Georgia.

The plaintiff in error, after the testimony had been laid before the jury, prayed the Court to instruct them on several points of law which grew out of it. The first of these,

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which was refused, questioned the validity of a grant made by the United States for land occupied at the time under colour of an adverse title. There can be no doubt of the Henderson correctness of rejecting this proposition.

The 2d, 3d and 5th points, which the Court was prayed to state as law to the jury, depend on the position that residence in the country on the 27th of October, 1795, was not necessary to the validity of the title set up by the defendant in that Court. As the title had not been laid before the board of commissioners, and as residence was indispensable to the validity of a claim, supported by the act of cession from Georgia, we think these instructions were properly refused.

The 8th was unimportant to the case in the view which this Court has taken of it. If the question, whether the survey, purporting to bear date in September, 1795, was really made on that day, or was antedated, had been the question to be decided by the jury, as it would have been had this paper been laid before the board of commissioners, the Court did right in refusing to grant this prayer. It seems to request the Court to say, that, in deciding on the verity of a paper alleged to be fraudulent, the paper itself is entitled to more credit than the parol testimony which impeaches it, though the law declares parol testimony to be admissible.

On the other points, the Court gave the instruction asked by the plaintiff in error.

We think the plaintiff in error has neither brought himself within the articles of agreement between the United States and the State of Georgia, nor within the acts of Congress; and that the judgment of the District Court must be affirmed, with costs.

Poindexter's

Lessee.