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Hickey's Lessce v. Stewart. 3 H.

complainants, and to deliver to them the possession, and awarded the writ of habere facias; which writ the court of chancery is authorized to order by a statute of the State. Without the aid of this writ, the court could not have put the complainants into possession, the defendants being out of their jurisdiction; nor could they, for the same reason, compel a conveyance of the title to the land. The decree is, therefore, if otherwise valid, nothing more than an equitable right, ascertained by the judgment and decree of a court of chancery; and until executed by a conveyance of the legal title, according to the decree, Starke's heirs, and those claiming under them, have nothing but an equitable title to the land in controversy.

To enable the defendants in this case to defend their possession successfully, upon their own title, that title must be shown to be a good and subsisting legal title, and superior in law to that set up by the plaintiffs; otherwise it opposes no legal bar to the recovery

in the action of ejectment. And conceding, what was contended for in argument, that the decree and possession under it, by the writ of habere facias, is equivalent to a judgment in ejectment, followed by like possession, it would avail the defendants nothing in this case, because such a judgment and possession are no bar to another action or ejectment for the same premises. The defendant in ejectment can never defend his possession against the plaintiff upon a *title in himself, by which he could not recover the pos- [* 760 ) session, if he were out, and the plaintiff in possession. Reversing the positions of the parties in this case, could the defendants, if plaintiffs, recover the land in controversy upon this decree, and evidence of possession under it, against the title of the plaintiffs ? We have no hesitation in saying they could not; and, therefore, the decree, if founded upon a valid equitable title, would be no legal bar to the action of the plaintiffs.

To a correct understanding of the question of jurisdiction, argued at the bar, it is necessary to ascertain the character of the grant set up by Starke's heirs in the suit in chancery. This grant was obtained from the Spanish governor of Louisiana, prior to the treaty between the United States and Spain, of the 27th of October, 1795. By this treaty, Spain admitted she had no right to the territory north of the thirty-first degree of north latitude. In consequence of which all the grants made by her authority within that territory, were void. This territory, then, belonged to the State of Georgia; but by deed, bearing date the 24th day of April, 1802, she ceded it to the United States. And in that deed it was stipulated, “ that all persons who,

'8 Stats. at Large, 138.

Hickey's Lessee v. Stewart. 3 H.

on the 27th 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, or the government of Spain,” &c. The 1st section of the act of congress of the 3d of March, 1803, c. 80, (2 Story's Laws, 893,) enacts : “ That any person or persons that were residents in the Mississippi territory on the 27th of October, 1795, and who had prior to that day obtained, either from the British government of West Florida, or the Spanish government, any warrant or order of survey for lands lying within said territory, to which the Indian title had been extinguished, and which, on that day, had been 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 claims had been completed." This section places those who had obtained a warrant or order of survey upon the same ground with those who had complete titles. The 5th section of the act declares : “ That every person claiming lands by virtue of British grant, or of the first three sections of this act, or of the articles of agreement and cession between the United States and the State of Georgia, shall, before the last day of March, 1804, deliver to the register of the land-office, within whose district the land may be, a notice in writing, stating the nature and extent of his claims, together with a plat of the tract or tracts claimed; and shall also, before that day, deliver to said register, for the purpose of being recorded, every grant, order of survey, deed of conveyance, or other written evidence of his claim, and the same shall be recorded by the said register in books to be kept

for that purpose.” And, upon the failure of the claimant to [ * 761 ) comply with these requirements, * his claim is declared to

be void, and shall never “be received or admitted as evidence in any court in the United States against any grant derived from the United States."

The 6th section of the act provides for the appointment of two boards of commissioners, for the purpose of ascertaining the rights of persons claiming the benefit of the articles of agreement and cession between the United States and the State of Georgia, and of the first three sections of the act. Each board was authorized to hear and decide, in a summary manner, all matters respecting such claims within their respective districts, and their determination was declared to be final.

The record of the chancery suit between Starke's heirs and Mather's heirs, shows that Starke was not resident in the Mississippi territory on the 27th of October, 1795, but had removed therefrom some years before that period; that no notice of his claim had been

Hickey's Lessee v. Stewart. 3 H.

given to the register of the land-office, within whose district it lay, together with a plat of the tract claimed and delivered to the register, to be recorded as required by law. Nor does it appear that the claim was ever submitted to the board of commissioners for their determination. Many years afterwards, the exact time not appearing by the imperfect record read in evidence, the court of chancery for the Mississippi territory, without any authority having been conferred on it by act of congress for that purpose, took cognizance of Starke's claim, and established its validity by its own judgment and decree.

In the case of Henderson v. Poindexter, 12 Wheat. 543, 544, the court says: “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 to examine their fairness, and should make the validity depend upon 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 sold which were not appropriated in a manner recognized by law, and the land in controversy is of that description.

“ 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 tribunal was created for the express purpose of deciding all questions arising under * the deed of cession by Georgia, securing to a partic- [ * 762 ] ular class of claimants the lands they occupied and cultivated at the date of the treaty between the United States and Spain, of the 27th of October, 1795, and its decision was to be final; and therefore its jurisdiction was exclusive, unless, by express words, congress had conferred concurrent jurisdiction on some other judicial tribunal. From these propositions results the inquiry, whether the decree in the chancery suit was void, the court having no jurisdiction of the subject matter of the decree, or only erroneous and voidable? If the former, then its validity was inquirable into in the current court, when offered as evidence, and it ought to have been rejected.

Hickey's Lessee v. Stewart. 3 H.

According to the decision in the case of Henderson v. Poindexter, above referred to, Starke's claim, when submitted by his heirs to the court of chancery, was utterly void; and no power having been conferred by congress on that court, to take or exercise jurisdiction over it for the purpose of imparting to it legality, the exercise of jurisdiction was a mere usurpation of judicial power, and the whole proceeding of the court void.

In the case of Rose v. Himely, 4 Cranch. 241, Chief Justice Marshall said: “A sentence professing on its face to be the sentence of a judicial tribunal, if rendered by a self-constituted body, or by a body not empowered by its government to take cognizance of the subject it had decided, could have no legal effect whatever. The power of the court, then, is of necessity examinable, to a certain extent, by that tribunal which is compelled to decide whether its sentence has changed the right of property. The power under which its acts must be looked into, and its authority to decide questions which it professes to decide, must be considered." Upon principle, it would seem that the operation of every judgment must depend on the power of the court to render that judgment, or, in other words, on its jurisdiction over the subject-matter which it has determined." In the case of Elliott and others v. Piersol and others, 1 Pet. 340, it was held by this court that, “where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and, whether its decisions be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered in law trespassers. This distinction runs through all the cases on the subject, and it proves that the jurisdiction of any court exercising authority over a subject, may be inquired into in every other court, when the proceedings of the former are relied on, and brought before the latter by the party claiming the benefit of such proceedings."

The same doctrine was maintained by this court in the [ * 763 ] case of * Wilcox and Johnson, 13 Pet. 511, and the case of

Elliott and others v. Piersol and others, referred to, and the decision approved. These cases being decisive of the question of jurisdiction, we deem it unnecessary to refer to any other authority on that point. From the view we have taken of the whole subject, it is our opinion, the decree of the supreme court of Mississippi would have been no bar to the action of the plaintiffs in this case, if the

Wilson v. Smith. 3 H.

subject matter of the suit had been within its jurisdiction. But we are of the opinion, that court had no jurisdiction of the subjectmatter, and that the whole proceeding is a nullity. The circuit court erred, therefore, in permitting the record to be read to the jury, as evidence for any purpose whatever. Wherefore the judgment of the circuit court is reversed.

3 H. 787; 6 H. 31; 8 H. 495; 9 H. 155.



3 H. 763. If the owner of the bill send it to an agent, not residing at the place where it is payable, for

collection, the agent has an implied authority to employ a sub-agent at that place; and if the sub-agent receive the contents, the owner can sue him for money had and received, though the sub-agent had no notice when he collected the money, that the agent was not

the owner. And in such a case, the sub-agent cannot retain part of the proceeds, on account of a debt of

the agent, unless he has given credit on the faith that the agent owned the bill.

3h 76 91 31 96 31 26 3f 21 31 21

CERTIFICATE of division of opinion by the judges of the circuit court of the United States for the district of Georgia. The record was as follows:

“ This was an action of assumpsit brought in this court by the plaintiffs, to recover from the defendant the sum of $800 and interest, being the amount of a draft or bill of exchange drawn by one Henry B. Holcombe, of Augusta, in the State of Georgia, upon one Charles F. Mills, of Savannah, in said State, and accepted by him, and paid to the defendant. The declaration contained two counts. The first was for money collected and received by the defendant to and for the use of the plaintiffs, upon the particular bill of exchange set out and described in the declaration; the second count was generally for money had and received. The plea of non-assumpsit was pleaded by the defendant in bar of the action, 'it being proved that the draft or bill of exchange, upon which the money was collected and received by the defendant, was the property of the plaintiffs;' that it had been by them placed in the hands of their agent, David W. St. John, at Augusta, Georgia, for * collection, and by him, [ * 764 ] St. John, forwarded to the defendant, St. John's agent, at Savannah, Georgia, for acceptance and collection; that it was accepted and paid to the defendant, by whom the proceeds were received and credited to the account of St. John, from whom the defendant received the draft or bill for collection, and who was indebted to the defendant at the time. That at the time the said bill was so paid to the defendant, and by him credited to the account of St.

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