# Bryan v. Kennett/Opinion of the Court

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United States Supreme Court
113 U.S. 179
Bryan v. Kennett
The objection that the record does not show a sufficient exception, upon the part of plaintiffs, to the instructions given to the jury, cannot be sustained. The series of propositions announced by the court, although styled instructions, embodies nothing more than the reasons that induced it to direct a verdict for the defendants. These propositions submitted no fact for the determination of the jury; for they were accompanied by a peremptory instruction to return a verdict for the defendants. As the bill of exceptions contains all the evidence, and, in addition, sets forth the exceptions reserved by the plaintiffs, in the progress of the trial, to the admission of testimony, it is competent for this court to determine whether the exceptions were well taken, and, also, whether there was error in directing a verdict for the defendants. If, upon all the evidence, excluding such as was incompetent, plaintiffs were entitled to go to the jury-and such is the contention here-there was error of law in instructing them to find for the defendants. We proceed, therefore, to consider such of the questions argued by counsel as are deemed necessary to the determination of the case.
By an act of congress, approved April 12, 1814, c. 52, (3 St. 121,) provision is made for the confirmation of the claims of every person or persons, or the legal representatives of any person or persons, claiming lands in the state of Louisiana, or the territory of Missouri, by virtue of any incomplete French or Spanish grant or concession, or any warrant or order of survey, which was granted prior to the twenty-fifth of December, 1803, for lands lying within that part of the state of Louisiana which composed the late territory of Orleans, or which was granted for lands lying within the territory of Missouri before the tenty day of Missouri before the tenth day it is contended that the Spanish grant of 1802, recited in the preamble of the act of February 14, 1874, was void, because made subsequent to the treaty of St. Ildefonso, concluded October 1, 1800, between Spain and France;-Act March 26, 1804, c. 38, § 14, (2 St. 287;) Foster v. Neilson, 2 Pet. 253, 304;-that if the grant to Austin was an incomplete grant, and, therefore, embraced by the act of 1814, that act operated only to confirm to him the equitable title to the land, the legal title remaining in the United States until the passage of the act of February 14, 1874; that the equitable title passed only under the restrictions and in the manner prescribed by the act of 1814; that, so far from Austin acquiring the legal title, the board of commissioners, organized under the act of congress, found that his title was not a grant made and completed prior to the treaty of St. Ildefonso, (2 Amer. State Papers, 678; 3 Amer. State Papers, 671; Burgess v. Gray, 16 How. 48;) that, for these reasons, Austin did not, at the date of the before-mentioned judgments, have any title which could be mortgaged or which was subject to levy and sale under execution; and, consequently, that all the proceedings which had for their object to acquire or reach his interest in the Mine a Breton survey are inoperative to defeat their rights under the act of February 14, 1874, by which, for the first time, the United States parted with the legal title.
It is not necessary, in this case, that we should define the precise nature and extent of the interest acquired by Austin in this land, prior to or apart from the grant of 1802 by Morales, then governor at New Orleans. The order of the governor general of the territory of Louisiana, in 1797, that he be placed in possession; his taking possession of the land and improving it in 1798; the orders of the lieutenant governor of the territory, in 1799, that the land be surveyed and Austin put legally in possession, followed by the execution of that order, and the recording of the certificate of survey, all prior to the treaty of St. Ildefonso, certainly operated to give Austin a property interest in the land, capable (even if the grant of 1802 was void) of being made a complete grant, with the consent of the United States. In Soulard v. U.S. 4 Pet. 511, it was said by Chief Justice MARSHALL that, in that treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property; that the term 'property,' as applied to lands comprehends every species of title, inchoate or complete, and embraces rights which lie in contract, executory as well as executed; and that, in this respect, the relation of the inhabitants to their government was not changed; the new government taking the place of that which had passed away. In Strother v. Lucas, 12 Pet. 410, which involved the tile to real estate in St. Louis, the court said that 'the state in which the premises are situated was formerly a part of the territory, first of France, next of Spain, then of France, who ceded it to the United States by the treaty of 1803, in full propriety, sovereignty, and dominion, as she had acquired and held it; (Foster v. Neilson, 2 Pet. 301;) by which this government put itself in place of the former sovereigns and became invested with all their rights, subject to their concomitant obligations to the inhabitants;' that 'this court has defined property to be any right, legal or equitable, inceptive, inchoate, or perfect, which, before the treaty with France in 1803, or with Spain in 1819, had so attached to any piece or tract of land, great or small, as to affect the conscience of the former sovereign 'with a trust,' and make him a trustee for an individual, according to the law of nations, of the sovereign himself, the local usage or custom of the colony or district, according to the principles of justice and rules of equity;' and that 'the term 'grant,' in a treaty, comprehends not only those which are made in form, but also any concession, warrant, order, or permission to survey, possess, or settle, whether evidenced by writing or parol, or presumed from possession.'
So, in Hornsby v. U.S. 10 Wall. 242, it was said that by the term 'property,' as applied to lands, all titles are embraced, legal or equitable, perfect or imperfect. See, also, Carpenter v. Rannels, 19 Wall. 141; Morton v. Nebraska, 21 Wall. 660. And in Landes v. Perkins, 12 Mo. 238, the court said: 'It is a matter of history, of which this court will take judicial notice, that at the time of the cession of Louisiana to the United States, in that portion of the territory of which this state is composed, nineteen-twentieths of the titles to lands were like that involved in this case prior to its confirmation. There were very few complete grants. Most of the inhabitants were too poor to defray the expenses attending the completion of their titles, but they had faith in their government, and rested as quietly under their inchoate titles as though they had been perfect. As early as October, 1804, we find the legislature speaking of freeholders, and authorizing executions against lands and tenements. There being so few complete titles, the legislatures, in subjecting lands and tenements generally to execution, must have contemplated a seizure and sale of those incomplete titles which existed under the Spanish government. At the date of the act above referred to, no titles had been confirmed by the United States. An instance is not recollected in which a question has been made as to the liability of such titles as Clamorgan's, under the Spanish government, to sale under execution. It is believed that such titles have been made the subject of judicial sales without question ever since the change of government.' That such was the law of Missouri is recognized by this court in Landes v. Brant, 10 How. 370, 371, where, among other things, referring to a title derived from the Spanish government, and confirmation of which was obtained from a board of commissioners acting under the authority of the United States, it was said: 'The imperfect title, as then filed, was subject to seizure and sale by execution; the ultimate title, fect title demanded and granted was a confirmation and sanction by the political power of the imperfect title, and gave it complete legal validity.'
We are of opinion, therefore, that, even upon the assumption that the Spanish grant of 1802 was void, the interest which Austin acquired by the concession of 1797, the order of survey, and the recorded survey of 1799, in connection with his actual possession, taken under competent authority, was a property right which, at least as between private parties, could be transferred by mortgage or be reached by judicial process. But it is contended that the defendants cannot claim title under the before-mentioned proceedings in the courts of the territory and state of Missouri, and thereby defeat the rights of the plaintiffs under Austin's deed of 1820, because (1) it was not competent for the bank to have Austin's interest sold under execution on a judgment, while it held a mortgage on part of the premises sold, and thus cut off his right of redemption; (2) the sheriff's deed to Ross was void for want of a seal or scroll affixed thereto, (1 Terr. Laws Mo. 120, § 45; Moreau v. Detchemendy, 18 Mo. 522; Moreau v. Branham, 27 Mo. 351; Moreau v. Detchmendy, 41 Mo. 431; Grimsley v. Riley's Adm'rs, 5 Mo. 280; Harley v. Ramsey, 49 Mo. 309. (3) The deed from the bank was not under its corporate seal. And these matters all appearing upon the face of the record in the suit of Deane v. Bryan, instituted in 1836, no title passed by the decree therein, even if the court rendering it had jurisdiction.
These propositions were necessarily involved in the determination of that suit, and, so far as they impeach the correctness of that adjudication, are not open to re-examination in any collateral proceeding between the same parties or their privies, provided the court which rendered the decree had jurisdiction of the subject-matter and of the parties. Its jurisdiction to pass any final decree affecting the rights of non-resident minors is assailed only upon grounds to be now stated:
1. It is contended that there was no authority, under the laws of Missouri, to proceed against the non-resident minors by publication. Counsel for the plaintiffs refers to the act of March 17, 1835, regulating the practice at law in the courts of Missouri, and calls attention to the fact that, while it provides for actual service of process upon infants, no provision is made for service upon non-resident defendants by publication. And referring to the act of March 7, 1835, regulating the practice in chancery, he insists that, while a mode is therein prescribed for the service of process upon resident and non-resident defendants, no provision is made for service on non-resident minors. It is not questioned that, under the laws of Missouri, adult non-resident defendants in equity suits concerning real estate may be proceeded against by publication in such cases as that instituted by Deane in 1836; but it is contended that non-resident infants could not be brought before the court in that mode. In this view we do not concur. It appears from the Missouri statutes that the court which determined Deane's suit was a court of record, having exclusive original jurisdiction, in the county in which it was held, as a court of equity, 'in all cases where adequate relief cannot be had by the ordinary course of proceedings at law,' with authority 'to proceed therein according to the rules, usage, and practice of courts of equity, and to enforce their decrees by execution, or in any manner proper for a court of chancery;' also, that 'suits in equity concerning real estate, or whereby the same may be affected, shall be brought in the county within which such real estate, or a greater part thereof, is situate,' and, in any county, 'if all the defendants are non-residents;' and further, that 'in all cases where the court may decree the conveyance of real estate, or the delivery of personal property, they may by decree, pass the title of such property without any act to be done on the part of the defendants, when in their judgment it shall be proper; and may issue a writ of possession, if necessary, to put the party entitled into possession of such real or personal property, or may proceed by attachment or sequestration.' Rev. St. Mo. 1835, (2d Ed. 1840,) tit. 'Courts,' 155; Id. tit. 'Practice in Chancery,' art. 1, §§ 1, 2; art. 6, § 7.
By the same statute, provision is made for proceeding against defendants who are non-residents of the state, by publication, where the complainant, or any one for him, files with his bill an affidavit, stating their non-residence. Upon such affidavit being filed, the court, or the clerk in vacation, was authorized to make an order, directed to such non-residents, notifying them of the commencement of the suit, stating the substance of the allegations and prayer of the bill, and requiring them to appear on a day to be therein named (allowing sufficient time for publication) and answer the same, or the bill will be taken as confessed. Rev. St. Mo. 1835, tit. 'Practice in Chancery,' art. 1, § 7. Similar proceedings were prescribed as to persons interested in the subject-matter of the bill, whose names appeared from the verified allegations of the bill to be unknown to the complainant. Id. §§ 10, 11. While our attention has not been called to any statute of Missouri in force when Deane's suit was instituted, which, in terms, authorized publication against non-resident minors, there was no exception in their favor from the provision which permits that mode of bringing non-resident defendants before the court. They could be proceeded against by publication whenever the statute permitted such process against adults. 1 Daniell, Ch. Pr. 164, 659, c. § 2. The provision authorizing courts of equity to proceed according to the rules, usage, and practice of courts of chancery, had reference to the rules and practice which obtained in the English courts of chancery. Ruby v. Strother, 11 Mo. 417; Hendricks v. McLean, 18 Mo. 32; Creath v. Smith, 20 Mo. 113. In conformity with that practice, the court, in the case of Deane v. Bryan, appointed a guardian ad litem to defend the suit for the non-resident infant defendants. 1 Daniell, Ch. Pr. 160-163. And the record shows that he made defense.
2. But it is claimed that the decree was based upon the admissions by the guardian ad litem of the truth of the allegations of the bill, and was, for that reason, void. Without stopping to comment upon the authorities which counsel cite in support of this position, some of which hold that decrees pro confesso against infants are erroneous,-not that they are subject on that ground to collateral attack as void,-it is sufficient to say that the decree under examination was not of the character stated. The contention to the contrary rests entirely upon the recital in the decree that 'by agreement of the parties * * * it is consented that the bill be taken in lieu of allegations.' The meaning of those words is shown by reference to the before-mentioned act regulating the practice in chancery, by which it is provided that, 'within such time as the court shall require, before the hearing of a cause at issue, each party shall set down distinctly the allegations made by him and denied by the other party, or which, by the course of proceedings in chancery, he is required to support by his testimony, and issues shall be made thereon accordingly, (Rev. St. Mo. 1835, tit. 'Practice in Chancery,' art. 3, § 1;) that the testimony shall be confined to the issue thus made, (Id. § 2;) and that 'the trial of all issues and matters of fact shall be by jury, or, if neither party require a jury, by the court, and the allegations shall be disposed of by a general or special verdict before a final decree shall be made, except such as shall be expressly decided by the court to be immaterial or irrelevant to the merits of the cause.' Id. § 5. The consent given was, not that the court might take the allegations of the bill to be true, but only that the 'bill be taken in lieu of allegations,' thereby dispensing with the requirement of the statute that the complainant should formally 'set down' the material allegations of his bill. The effect of the consent was to place the complainant under the necessity, imposed by statute as well as by the established rules in equity practice, of proving every allegation of fact necessary to authorize a decree against the non-resident infants. Nothing was confessed by the guardian ad litem, but, a jury being waived, the court found the matters alleged in the bill to true, and decreed accordingly. That the evidence upon which the court acted does not appear in the record, is, perhaps, because the suit was heard upon oral testimony, in connection with the official documents and records referred to in the bill. Id. § 7.
We have, then, a final decree of a court of superior general jurisdiction, rendered in a suit that involved the title to a tract of land embracing the premises in controversy, and situate in the county in which the court was held; in which suit the present plaintiffs, as non-resident minors, were parties defendant, having been brought, in the mode prescribed by the local law, before the court, by publication, and having made defense by guardian ad litem duly appointed, and by which decree it was adjudged that the right, title, and interest of the present plaintiffs and others in the said tract be vested in the complainant Deane, under whom the present defendants hold possession. The decree, as we have seen, passed the title without any conveyance from the non-resident defendants; for, by its terms, whatever title they held was vested in the complainant Deane. According to the settled principles of law, the plaintiffs are thereby estopped from asserting, in this collateral proceeding, any interest in the premises in controversy adverse to that of the defendants. It is not subject to collateral attack, because there is nothing on the face of the record which shows any want of jurisdiction in the court that rendered it. It was and is conclusive as to all the parties to that suit. and their privies, until reversed or modified on appeal, or unless, in proper time, it had been impeached, in some direct proceeding, and set aside or annulled.
One other question remains to be considered. Upon the supposition that Austin took nothing by the grant of 1802, and at most had but an equitable interest in the land capable of being enlarged into a complete title in the mode prescribed by the acts of congress, the plaintiffs claim that the rights of the United States were unaffected by any proceedings between private persons, involving Austin's title; and, consequently, that the legal title passed to them under that clause of the act of February 14, 1874, which releases whatever title the United States may have 'to the heirs, legal representatives, or assigns of said Moses Austin.' In other words, that the decree in 1836 does not preclude them from accepting from the government the legal title to the premises in controversy. We have seen that the property interest of Austin, whatever it was, passed, before the act of 1874, under valid judicial proceedings to other than the present plaintiffs. If congress intended to pass the title of the government to the heirs simply, there was no necessity to include his 'legal representatives or assigns.' But there could have been no such intention; for it was common knowledge, as it was the settled law, that such inchoate interest or title as Austin acquired from the Spanish government, prior to October 1, 1800, could, as between private persons, be transferred or reached by judicial process. We concur with the court below in holding that congress intended, by the act of 1874, to recognize the claim of Austin arising from the concession, survey, and grant recited in its preamble, and to release to the assignee of such claim the remaining title (if any such there was) of the United States. And those who purchased under the proceedings referred to, were assignees within the meaning of the act. There was no purpose to disturb their title or possession. On the contrary, the sole object of this legislation, so far as it may be ascertained from the debates in congress, was to assure those who thus acquired possession, whether by contract or by operation of law, that they would not be disturbed by any assertion of claim upon the part of the United States. It originated with the representatives in congress from Missouri, whose avowed purpose was to protect the interests of their immediate constituents. The necessity of this act arose from a then recent opinion of the commissioner of the general land office, that the legal title to the land within the Austin claim was still in the United States. In order to quiet the fears of those 'who have been in possession for half a century, claiming the land adversely against everybody, as well as the United States,' the act of 1874 was passed. It had no other object. Cong. Rec. vol. 2, pt. 1, (43d Cong. 1st Sess. 1874,) pp. 716, 910.
There is no error in the record, and the judgment must be affirmed. It is so ordered.

## 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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