# Ross v. Doe

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United States Supreme Court
26 U.S. 655
Ross v. Doe
ERROR to the Supreme Court of the state of Mississippi.
This action of ejectment was originally instituted by the lessee of the defendants in error, in the Circuit Court of the state of Mississippi, citizens of that state, against Allison Ross, the plaintiff in error, to recover a tract of land lying in that state. The plaintiff, in that Court, obtained a verdict for the land, and on the trial of the cause a bill of exceptions was taken to the opinion of the Circuit Court, upon certain instructions which were refused to be given, when required by the counsel for the defendant below. From the decision of the state Circuit Court, the defendant in that Court, appealed to the Supreme Court of the state of Mississippi, and the judgment of the Circuit Court having been affirmed in that Court, he prosecuted a writ of error to this Court.
The bill of exceptions, sent up with the record, sets forth that the counsel for the plaintiff in error, moved the Circuit Court to instruct the jury, that, if they should be of opinion, that the defendant in the ejectment was in possession of the land in controversy, under a patent from the United States to Isaac Ross, dated 12th August 1819, and assigned by him to the said defendant, the plaintiff in the ejectment could not recover. The patent to Isaac Ross, was founded upon a certificate of the Register of the land-office west of Pearl river, and was for the land in controversy; which had been sold at the sales of the lands of the United States, and purchased by Isaac Ross, who afterwards assigned the same to Allison Ross, the defendant below.
The patent was of older date than the patent held by the lessors of the plaintiff below; which patent was issued to Joseph White, on a certificate of the Board of Commissioners, west of Pearl river, granted in pursuance of an Act of Congress, passed the 3d of March 1803, entitled 'An Act regulating the grants of land, and providing for the sales of lands of the United States, south of the state of Tennessee.'
The instructions required, claimed that the elder patent of the defendant below, should prevail in the action of ejectment, in a Court of Law, against the junior patent of the plaintiff, although the junior patent emanated from a prior certificate of the commissioners.
The Court refused to give the instructions prayed for, but on the contrary instructed them that the junior patent of the plaintiff in the ejectment, emanating upon a certificate for a donation claim, prior in date to the patent under which the defendant claims, would overreach the elder patent of the defendant, and in point of law should prevail against it.
The plaintiff in error contended, that the Court below erred in refusing the instructions prayed for, and in the instructions they gave to the jury in favour of the title of the plaintiff in the ejectment.
The case was argued for the plaintiff in error, by Mr. Wirt, Attorney General, and by Mr. Coxe for the defendants.
For the plaintiff in error.-The patent under which the defendants claim to hold the land, was granted under a donation certificate, issued by the Board of Commissioners, west of Pearl river. The land in question was sold at public sale, by the government of the United States, and was purchased by the assignor of the plaintiff in error, ignorant of any other title-the purchase money was paid-a patent issued to him, from the general land-office, and possession was taken. The holder of the donation certificate applied for a patent, and the land-office, not knowing of the prior patent, granted his request, and he holding a junior patent, brought this ejectment in the state Court of Mississippi. The question before that Court was; whether before a Court of Law, the junior patent could be given in evidence. The Court refused to instruct the jury that the senior patent was the best title, and gave instructions that the junior patent, in conformity with the donation certificate, gave the defendant in error the title to the land described in it.
The first question to be considered is: Whether in a Court of Law, the proceedings, behind the patent, can be looked at to ascertain the validity of such a patent?
Several references have been given by the opposite counsel, but they are all cases of Chancery proceedings, and there is no doubt Chancery can do this. The question now is, can a Court of Law do it? It has been decided here, that this can be done; but this was only when the local law of the state, in which the case arose, authorized such an examination; but not upon any principles of general law. Polk's Lessee vs. Wendell et al. 9 Cranch, 87. 1 Wheat. 432. 5 Wheat. 293.
The decisions of the Courts of Virginia consider the prior patent conclusive, unless in case of fraud; and it is not known that any adjudications in the Courts of Mississippi have established a different principle.
2. But if the Court can go into the examination of circumstances which preceded the patent, still the instruction given to the jury was wrong, as the junior patent cannot prevail, unless it is warranted by the prior steps.
The certificate given by the commissioners is not a donation, but a pre-emption certificate. This is shown by a reference to the provisions of the Act of Congress. The Act of 3d March 1803, (2 Story's Laws U.S. 893,) is the foundation of the certificate.
The second section of that Act gives land to those who 'actually inhabited and cultivated' the tract, on the day the Spanish troops actually evacuated the territory, on the 27th October 1797.
The third section gives to persons inhabiting and cultivating a tract at the time of the passing of the law, a pre-emption certificate for such tract. The certificate under which the plaintiffs below applied for a patent, states the occupation of the tract by the patentee, on the 13th of March 1798. This, therefore, could not be a donation certificate, which could only be granted to a person who 'inhabited and cultivated' the land on the 27th of October 1797, and it must have been given under the third section, which authorizes the issuing of preemption certificates.
The certificate granted to the holder of the junior patent, states, that he 'occupied' the land, and this does not, ex vi termini, mean inhabit and cultivate.
It was the duty of the plaintiff to make out a good title, and if he does not show, that by the course of decisions in Mississippi you can look behind the patent, he has failed to do so.
The period at which the territory was actually evacuated by the Spanish troops, is not known to the Court, otherwise than as stated in the Act of Congress; which affirms the same to have been on the 27th of October 1797. Congress have legislated as to the lands east of Pearl river, but there has been no legislation as to those which lie west of the same. The Court have here nothing to do, but to decide whether this certificate is a donation certificate, within the second section of the law; and to do this, they must decide upon facts which were for the jury alone.
Coxe for the defendant in error.--
1. This is not a case in which the Supreme Court can entertain jurisdiction. It is a writ of error directed to the highest Court of the state of Mississippi; and the 25th section of the Judiciary Act, furnishes the only rule by which to determine the question of jurisdiction.
The plaintiff in error has not produced the clause in the Constitution-the treaty or statute, under which he claims this proceeding; nor can he designate it. The Court below being of opinion, that the case of the defendant in error was within the provisions of the Act of Congress, decided the case upon general principles, and held that his title is, in law and equity, paramount to that of his opponent. Had the Court decided differently, this Court would have had jurisdiction; but the Constitution and Judiciary Act do not confer this jurisdiction in every case, in which the plaintiff in error claims title under a patent from the United States; which is the only ground upon which it is pretended to exist here. Should this doctrine meet the sanction of the Court, it will be difficult to conceive a case of ejectment that can be brought in any of our states, in which this Court may not entertain jurisdiction; for nearly every title is derived from, or depends upon a patent from the United States.
Again, what question can this Court decide, admitting it to possess jurisdiction? The same 25th section expressly declares, that no error shall be assigned, or regarded as a ground of reversal, but such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said Constitution, &c. No such question is presented on this record. The construction of the 25th section has been frequently before this Court, and may be considered as settled. Inglee vs. Coolidge, 2 Wheat. 368, decides, that the error contemplated in the statute, must be apparent on the record. Matthews vs. Zane, 7 Wheat. 164. Martin vs. Hunter, 1 Wheat. 357. Montgomery vs. Hernandez, 12 Wheat. 132. Hickie et al. vs. Starke et al., at this Term, ante, p. 94.
The case is clear upon the merits, should the Court examine them. The title of defendant in error is based upon the 2d section of the Act of March 3d, 1803, c. 340. 3 L. U.S. 546. To every person, &c., who did on that day of the year 1797, when the Mississippi territory was finally evacuated by the Spanish troops, actually inhabit and cultivate a tract of land in the said territory, & c., the said tract of land, thus inhabited and cultivated, shall be granted. The objection is, that the certificate of the Board of Commissioners under which this title is derived, shows an occupancy on and before the 30th of March 1798. It is admitted, that this is, prima facie, erroneous, and that it is incumbent on the party claiming under such a donation certificate, to show that it is warranted by the fair construction of the state.
The design of Congress in this section, was to secure the titles of actual occupants, who had taken possession under Spanish authorities; and the period up to which such occupancy should be entitled to this protection, is fixed by two circumstances-it must be on a day in the year 1797-and on the day when the Spanish troops finally evacuated this territory, the right to which had been so long contested between the two nations, and which was finally settled by the treaty of 1795.
It is certainly true, that Congress at the date of this law, were ignorant of the precise day when this evacuation occurred, and were mistaken as to the year. The Spanish troops finally evacuated the territory, on the 30th of March 1798, as is stated by an eye-witness of the fact; Ellicott's Journ. 176. Under the Act of 1803, two Boards of Commissioners were created, the one for the lands east of Pearl river, the other for the lands west of the same stream. These Boards were organized, and proceeded to business in the latter part of the same year. The Board to the west of Pearl river, discovered the incongruity in the statute. This Board proceeded to execute their duties, and all their donation certificates, amounting in number to near 300, have reference to an occupancy on and before the 30th March 1798. This construction of the law, it is apprehended, is not only correct in itself, but has received the implied sanction of the legislature. In consequence of the diversity of opinion and of practice between the two Boards, Congress passed another law, on the 21st of April 1806, c. 46; the 4th section of which enacts, that whenever it shall appear, to the satisfaction of the register and receiver of the district east of Pearl river, that the settlement and occupancy, by virtue of which a pre-emption certificate had been granted by the commissioners, had been made and taken place prior to the 30th of March 1798, they shall be authorized to grant to the party a donation certificate in lieu of such pre-emption. This was a legislative sanction, given to the opinion of the Board of Commissioners, west of Pearl river, who had, in the cases contemplated in this provision, considered the parties as within the 2d section of the Act of 1803, and therefore entitled to a donation certificate; and a legislative repudiation of the construction given by the other Board, who had considered such cases as coming within the 3d section of the Act of 1803, and the parties entitled only to a pre-emption title. On the 31st of March 1808, Congress passed another law, c. 40, the 2d section of which re-enacts and extends the benefit of the 4th section of the Act of April 21st 1806.
Independently, however, of these legislative provisions, it is the only fair interpretation of which, under the circumstances, the 2d section of the Act of 1803 is susceptible. A literal compliance with the Act is impossible, as there was no day in the year 1797, in which the Spanish troops finally evacuated the Mississippi territory. Either some latitude of construction must be admitted, or this section must become a dead letter, and every title dependent upon its provisions, annulled. The obvious meaning of the Act, was to make the period of evacuation the punctum temporis, to which the occupancy should refer, and as the one incident or the other, must yield, in order to carry the whole design of the legislature into operation, the expunging of the words 'in the year 1797,' involves the least sacrifice, and tends more effectually than any thing else, to further the intentions of the legislature.
In settling this question of construction, the practice of the government, and of its lawfully authorized agents is entitled to much consideration. This construction has received the sanction of the Board of Commissioners, who were invested not only with ministerial, but judicial functions; and who throughout the whole period of their existence so interpreted the law. It was received the sanction of the land-office, and of the executive, for patents have invariably been granted on such certificates.
In Edward's lessee vs. Darby, 12 Wheat. 210, this Court seems to recognise the importance of recurring to such sources of information.
In order to arrive at the true construction of a statute, or even to enable it correctly to interpret the provisions of the Constitution, the Court will refer to, and judicially notice the historical facts which are essential to their correct interpretation. This was done in the case of Gibbons vs. Ogden, 9 Wheat. 1.
If then, this form of certificate be correct under the law, what is its operation? The 2d section says that the land thus occupied shall be granted to the occupant; this does look as if Congress designed some ulterior act to be done to vest the title. The language of the 8th section amounts, however, to a present legislative grant. It provides, that so much of the five millions of acres, reserved for that purpose, as may be necessary to satisfy various classes of claims, enumerating particularly those which are embraced by the 2d section of the Act, 'be and the same is hereby appropriated.' This language is more definite than that which this Court, in Simms vs. Irvine, 3 Dall. 425, construed to confer a legal title as effectually as a patent. Cited also 2 Wheat. 196.
If this view of the case be correct, it follows, that the title of the plaintiff in error is radically and intrinsically a nullity. The patent under which he claims, cannot be valid even at law, if at the period of its emanation, the United States had no title. Polk's Lessee vs. Wendell, 9 Cranch, 87. 94. Patterson vs. Winn, 11 Wheat. 304.
Neither the language, nor the policy of any law, limits the time within which we were to call for the patent. No money was to be paid beyond the mere official fee for the paper. No person could be injured by the delay; and in this view, nearly all the patents emanating on donation certificates, bear date about the same period of time.
The case is therefore relieved from the difficulties presented by the question whether the Court will look behind the elder patent, and investigate the prior rights of the parties. The various decisions on that question relate exclusively to cases in which no other than an equitable title existed before the patent, and where the patent itself properly issued. Even in such cases, this Court has adopted the practice of the state Courts where the land was situated, and have decided either for or against the conclusiveness of the patent, as to the legal title, according to the varying ideas of the state Courts. In this case it is incumbent on the plaintiff in error to show, affirmatively, that the state Court has erred. Kirk vs. Smith, 9 Wheat. 241. And to do this, he must show, that under the law of Mississippi, the patent is the only and conclusive evidence of the legal title. No authority to this point, can, it is believed, be produced.
Mr. Justice TRIMBLE delivered the opinion of the Court.--

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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