JULY 1320.

Hallett

V.

other in the command, to occupy the premises as their quarters, until 1813, when the United States took posesssion of Mobile, at which time General Wilkinson, under Eslava, et al. whom possession was taken, occupied the same as his quarters, during the time he stayed at Mobile. There was no evidence that any of the Spanish commandants had rented the premises of Don Miguel Eslava. It was proved however, that he had several times purchased lumber to repair the dwelling house, but he was at that time the public commissary, and also purchased lumber to repair the Fort and other public buildings; and it was a part of his duties as commissary, to furnish quarters to the commandants and soldiers. The plaintiffs also proved that General Wilkinson appointed a Lieutenant, to meet an officer of equal grade appointed by the Spanish commandant, and to receive from him the public property; and that the premises in dispute were not shewn or delivered as public property. After the change of Government, Don Miguel took possession of the premises by renting them to different tenants, and he remained in possession till 1819 or 1820.

The defendant claimed under the heirs of Robert Farmer, who were proved to be living, and for whom it appeared he had been put in possession by the Sheriff of Mobile county; and in support of their title, produced a certificate of a survey made for them, dated "Surveyor's Office, Land District East of the Island of New Orleans," dated eighth of May, 1824. This certificate was signed by Silas Dinsmoor, Principal Deputy Surveyor, and recites, that in conformity with a certificate No. 15, Report No. 7, from the board of commissioners at Jackson Court House, he had surveyed the lot in question for the heirs of Robert Farrar, and annexes a plat of it. It also recites that a claim for the same lot was set up by the heirs of Eslava. He further produced a certificate of confirmation issued by the register and receiver, dated "Land Office at Augusta, Mississippi, District of Jackson county, March 28th. 1827," certifying that in pursuance of the act of Congress passed the 8th. of May, 1822, entitled "an act confirming claims to lots in the town of Mobile, and land in the former Province of West Florida, which claims have been reported favorably upon by the commissioners of the United States," the claim of the heirs of Robert Farmer had been confirmed, and regularly surveyed as per the plat certified by S. Dinsmoor; and that they were, on application to the General Land Office, entitled to a Patent

for it. Upon this evidence, the Court charged the jury, that if they believed that the plaintiffs, and their ancestor under whom they claimed, had been in possession from 1804, up to 1819 or 1820, that it was such a possession as authorised the presumption of a title in them; and that the said certificate of confirmation of title in those under whom the defendant claimed, was not a paramount title to that of the plaintiffs. This charge is now assigned for error by Hallett.

ACRE, for the plaintiff in error.

ELLIOTT and CRAWFORD, for the defendants.

By JUDGE COLLIER. The facts shewn by the bill of exceptions require that we should express an opinion; first, upon the nature of the title of the defendants founded on previous possession: second, upon the legality of the certificate offered by the plaintiff: and third, whether the possession of documentary evidence of title gives paramount right.

Evidence of title to real property founded on and deduced alone from possession, is the most unsatisfactory and inconclusive of all other, by which title is made out. Possession cannot, consistently with reason and law, unless sanctioned by the length of time which the Legislature have prescribed as a bar to an action to try titles, give a right to lands, but can only be considered in a case thus circumstanced, as creating a presumption that the title is with the possession. It is believed that a plaintiff can only recover where such proof is not accompanied with, or countervailed by proof of title in another. The presumption which it creates may be destroyed in various ways, by shewing that the title was not with the possession, as that the possession was permitted, or that it was held against the consent of the person in whom the title is. This brings us to consider the second point.

By an act of Congress passed on the 8th. of May, 1822, entitled an act confirming claims to lots in the town of Mo

JULY 1829.

Hallett

V.

Eslava, et al.

bile, &c. " when taken in connection with an act of the a Land Laws same date, entitled "an act supplementary to the several acts for adjusting the claims to land and establishing Land

819.

Offices in the District East of the Island of New Orleans," 6 Land Laws

power is given to the Register and Receiver at Jackson Court House, Augusta, Mississippi, in default of commis

823.

JULY 1829.

sioners specially appointed to confirm claims to lots in Mobile, derived under British or Spanish authority, and upon a claim being reported on favorably, they are authorEslava, et al. ised to issue a certificate of confirmation to the person en

Hallett

V.

a Laws Ala. 248.

b 12 Whea. 599.

titled, setting forth the nature of the claim, and the quantity of the land allowed. The certificate seems to be sufficiently formal and to have been regularly issued.

By an act of the Mississippi Territory," "all certificates issued in pursuance of any act of Congress by any of the boards of Commissioners, Register of a Land Office, &c. upon any warrant, &c. for any land in this Territory, &c. shall be taken as vesting a full, complete and legal title in the person in whose favor the said certificate is granted, &c. and the same shall be received in evidence as such in any Court in this Territory." The acts of Congress have authorised the issuance of the certificate. The territorial act just recited declares what fact it shall be taken to prove, and for that purpose has made it evidence. It now remains to consider the third point.

The certificate, it is declared by our statute, vests the legal title fully and completely in the grantee. Possession it has been said conveys no title in itself, but is evidence when uninterrupted for a long space of time, that the title is with the possession; the force of which presumption yields to documentary evidence. If then the possession of the ancestor was of a character to authorise the inference that the title was vested in him, that inference must yield to the strength of the title vested by the certificate in the heirs of Farmer. It is unnecessary for us to decide upon the legal effect of the certificate further than we have expressed ourselves. Its conclusiveness as evidence against all persons who claim adversely, or whether the facts and and suggestions on which it issues can be enquired into now, are topics which cannot be legitimately adjudicated in this We will however remark, that the method pursued under the direction of Congress, of examining and confirming, and rejecting the Spanish and British land claims, seems to have been sustained by the Supreme Court of the United States in De La Croix vs. Chamberlain. b

case.

In the action of trespass to try titles, the plaintiff must recover upon his own title, and if he shall make out a prima facie case, it is competent for a defendent to shew a better title in a third person. It was therefore legal for the plaintiff to have defended himself behind the title in the heirs of Farmer. It is scarcely necessary to say any thing of

JULY 1829.

Hallett

V.

the proof of purchase from the Spanish commandant by the ancestor, as it seems not to have been regarded by the presiding Judge in his charge; we however think that prima facie, he had no right to sell. Could the fact of sale Eslava, et al. be made out by legal testimony, it would be proper to give evidence of a right to dispose of the property before the sale could be made availing, if at all. We are of opinion, from the facts appearing on the record, that the Court should have instructed the jury that the certificate offered by the plaintiff, overbalanced the presumption of title in the defendants founded on the possession of their ancestor. Judgment reversed and cause remanded.

The CHIEF JUSTICE not sitting.

FRYER V. AUSTILL.

1. An execution issued against a principal and security, and a part of the money was by the sheriff made by levy and sale of the principal's effects, but he returned it "no money made," and an alias issued against the security for the whole debt. The sheriff having absconded, it was held that in Equity, the security was entitled to relief, and that the Court had jurisdiction to enjoin for the amount made by the sale.

2. Quare.-Can a Common Law Court, in such case, afford relief?

MARTIN FRYER, as administrator of John Fryer, deceased, filed his bill in equity in Monroe Circuit Court, in August, 1824, against Jeremiah Austill, as surviving partner of the firm of Files and Austill, and against John Yancy, former sheriff of Monroe county.

The bill charged that an execution issued from Monroe Circuit Court, in favor of Austill, as survivor, against one Myles, and against John Fryer, for $336, said John Fryer being the security of Myles in a writ of error bond. That this execution was levied by Yancy, then sheriff of Monroe, on property of Myles, the principal, which he held, for $136. That he gave no account of this levy and sale, but returned the execution endorsed "no money made;" that after this, Myles died insolvent, and John Fryer died; and that an alias execution had been since issued, and was in the hands of the sheriff of Monroe county, against the estate of John Fryer, for the whole amount of the debt. That Yancy had left the State, so that the complainant could not obtain a remedy at law, by giving

JULY 1829.

Fryer

V.

Austill.

him notice of a motion in said Court. The complainant averred a readiness to pay so much of said execution as had not been satisfied, being about $200; and prayed that the $136, might be credited to him, &c.; and also for an injunction to stay the collection of that amount, and for general relief. An injunction was granted by Judge Crenshaw, in September 1824, restraining the collection of the $136, for one month only, to give the complainant an opportunity of serving a notice on one of the defendants, who resided in the State.

At October term, 1824, Austill demurred to the bill, for want of equity; and at October term 1826, a decree was rendered, sustaining the demurrer, and dismissing the bill with costs, on the ground that the Court of Law could have caused satisfaction to be entered for the $136, collected. Fryer, the complainant, in this Court, assigns for error, that the demurrer was wrongfully sustained.

BAGBY and LYON, for the appellant.

HITCHCOCK, for the appellee.

LIPSCOMB, C. J. delivered the opinion of a majority of the Court. The decree of the Circuit Chancellor was predicated on the ground that he supposed the relief was ample and sufficient at common law, and if this predicate is correct, there is no doubt but his conclusion was also correct. But what is that adequate and complete remedy? Before a rule could have been served on the old sheriff, to shew cause why satisfaction should not be entered, pro-tanto, the complainant would have been compelled by the second execution to pay the money. Again; satisfaction could not have been entered on the ex-parte shewing of the complainant. Would a supersedeas have afforded a remedy? A supersedeas is a common law writ, and if the case was such as would in any aspect have supported such a writ, its effects would have been to stop the execution entirely, and by so doing, an injustice would have been done to the plaintiff in the execution. A supersedeas could not have partially destroyed the effect of the execution, it would have operated as an entire bar or not at all. But it seems to me that it was not a ground for a supersedeas; the proceedings all had the appearance of fairness, and did not shew that the execution had improvidently issued A majority of the Court are of opinion that Chancery alone could