Groover et al. v. Coffee-Argument of Counsel.

swamp and over-flowed lands Stripling and McCall entered it from the State, making a part payment and receiving only a certificate, which certificate was transferred to the defendant for value, and in the year A. D. 1874 the defendant procured a deed from the State of Florida, that is, from the Trustees of the Internal Improvement Fund to himself. This land was patented to the State of Florida by the United States in the year A. D. 1850. The plaintiffs claim the land in controversy through a grant from the State of Georgia.

The defendant and Charles A. Groover, the ancestor under whom the plaintiffs claim, were neighbors, and they agreed to let the matter stand until some action would be taken by Congress. And in the year A. D. 1872 Congress did take action in the matter, but did not ratify the Georgia grants, leaving the land as the property of the defendant as the government had conveyed it. Charles A. Groover died before he and the defendant had done anything about the said agreement. However, at the request of Mary J. Groover, his widow and executrix, the defendant sold the land to her, to be paid in annual installments of one hundred dollars each, the first to be made in one year-there was no deed nor writing. At the end of the time instead of making the payment for the land she informed the defendant that she would keep the land without paying for it, as she had been advised by friends. The defendant then (A. D. 1874) brought an action of ejectment against her in her own right and as executrix in the Circuit Court in Madison county, and on her application, she living in Georgia, the case was transferred to the United States Court at Tallahassee and was tried A. D. 1876, and the verdict and judgment were in favor of Andrew J. Coffee, the defendant herein; and now the heirs at law of the said Charles A. Groover bring this suit, (the said widow not

Groover et al. v. Coffee-Argument of Counsel.

being a party.) It was commenced in Madison county, but on account of the disqualification of the Judge was transferred to Jefferson county. The verdict and judgment were in favor of the defendant, from which this appeal is taken by the plaintiffs.

If the plaintiffs had connected themselves with the chain. of titles which they attempted to make, or had shown any title at all in themselves derived through the State of Georgia, then there would have been but one question involved in this case. That is: Which had a right to the land in controversy, the United States or the State of Georgia?

If the land belonged to the United States in 1819, at the conclusion of the treaty with Spain, then the verdict of the jury is correct; if, on the other hand, the land belonged to the State of Georgia at that time, the verdict might have been different.

The dividing line between the States of Georgia and Florida was, at a very early period, recognized as a line running from the junction of the Flint and Chattahoochee rivers to the head of the St. Marys river. Hodgkiss' Statute Law of Georgia, 83; Code of Georgia (1861), 7 Sec., 21; Thomp. Dig., 4; also 584; Constitution of Florida, 1868, Art. 1; Brightly's Dig., 288, Sec. 2.

The line was not permanently marked until A. D. 1859. This was done by B. F. Whitner on the part of Florida and G. J. Orr on the part of Georgia, and is called the Whitner and Orr line.

There was also a line marked by McNeil known as the McNeil line, which has been noticed by both States. The State Legislature of Florida ratified all grants made by the State of Georgia that might fall south of Whitner and Orr line, provided they did not come south of the McNeil line. Laws of Fla., 1859, Chap. 1017.

There is a neighborhood line called the Watson line, but it

Groover et al. v. Coffee—Argument of Counsel.

is not found in the statutes of either State, and is only referred to in the act of Congress passed to quiet titles along the line which the United States had not conveyed. Statutes at Large, 1872, page 52, Chap. 461.

There are none of these acts that give the State of Georgia a right to grant the land in controversy or to make a valid deed. This land lies not only south of the Whitner and Orr line, but also south of the McNeil line, and was a part of the land ceded to the United States by Spain A. D. 1819, and the United States had the right to grant this land to the State of Florida or otherwise.

The Whitner and Orr line is now the acknowledged line between the States of Georgia and Florida, so established and fixed by the States themselves. Laws of Fla. (1859), Chap. 1017; Laws of Fla. (1861), Resolution No. 16; McClellan's Dig. page 952, Secs. 8 and 11; Code of Georgia, 1861, pages 6 and 7, Secs. 17 and 21.

And it is the right of independant nations to establish and fix disputed boundaries between their respective territories, and this right belongs to the several States of the American Union with one exception, that is by consent of Congress, and persons claiming land under grants from the States are subject to the conditions of the compact made by the States. Poole vs. Fleeger, 4 Peters, 185; Rhode Island vs. Massachusetts, 12 Peters, 657; Garcia vs. Lee, 12 do. and 511.

But even if Georgia had the right to grant the land in controversy the plaintiffs have not made out such a case as entitles them to recover. First, they introduced two Georgia grants to James Groover; second, a deed from James Groover to Thomas J. Groover; and third, they attempt to introduce a deed from Thomas J. Groover to Charles A. Groover, the ancestor under whom the plaintiffs claim their right, but this last deed they failed to prove. One of the

3-19th Fla.

Groover et al. v. Coffee-Argument of Counsel.

subscribing witnesses is alive, and his evidence could have been taken, and he is the only one that could prove the said deed. I Greenl. Evi., §569; 3 A. K. Marsh., 77; 13 Am. Dec., 136 and 139; Lewis' Heirs vs. Rings, 3 Marshall, 1109.

The want of the evidence of this witness has caused the plaintiff to fail to show any title whatever in their ancestor, or to connect them at all with the original grant, hence they are not entitled to recover even if the defendant had introduced no evidence, as plaintiffs must depend upon the strength of their own title and not upon the weakness of their adversaries. Hartly vs. Ferrill, 9 Fla., 374.

But the defendant did introduce evidence, and did show his title through the State of Florida from the United States, to-wit: a deed from the Trustees of the Internal Improvement Fund.

These Trustees held the land for the State, with power to sell, and while they had it the State owned it. Laws Fla., (1855) Chap. 610, Sec. 2; Laws Fla., (1856) Chap. 775; Laws Fla., (1870) Chap. 1784, sold to Peas Creek; Laws Fla., (1855) page 57, Resolution No. 3; Laws Fla., (1879) Chap. 3127, where their deed is declared to be evidence.

The land in controversy was patented by the United States to Florida A. D. 1850. Certificate of Hugh A. Corley, Com. L. & I.

This certificate is evidence, and of the same force as the patent itself would be. Laws Fla., (1875) Chap. 2063.

The land in controversy, as soon as it came into market, was entered by Stripling & McCall. Certificate of D. Eagan, Com. of L. & I.; Laws Fla., (1875) Chap. 2063.

But they received no deed, only a certificate, which they afterwards transferred to the defendant, who procured a deed to himself, and is therefore entitled to the land.

The Trustees of the Internal Improvement Fund had the

Groover et al. v. Coffee-Argument of Counsel.

same possession of the land in controversy that they have in all other internal improvement lands. The State is not to be deprived of its land by squatters.

The verdict of the jury is as it should be. The verbal testimony makes no change in the written evidence, and even if the defendant offered no evidence the verdict should be as it is. And if the verdict is sustained by the evidence it will not be disturbed. Daggett vs. Wiley, 6 Fla., 482.

The Judge's charge to the jury, taken as a whole, is fair and just. He charged the law in each of the three items.

What are boundaries is a question of law for the court. Where the boundaries are is a question of fact for the jury. 15 Am. Dec., 507; Tatum vs. Paine, 4 Hawks, 64, approved in Marshall vs. Fisher, 1 Jones, 111; Spruill vs. Davenport, id., 203; Clark vs. Wagner, 70 N. C., 707.

There was no dispute as to where the boundaries are in this case, but it is admitted that the land in controversy is south of the Whitner and Orr line; and far south of it. even south of the McNeil line, to-wit: in the State of Florida, hence Georgia could not make a valid title to the land in controversy, and the court had a right to charge as he did. Tolland vs. Sprague, 12 P., 300; 12 Curtis, 729.

The Judge did right in permitting the jury, at their request, to come into court, the counsel for both sides being present, and give them the instruction they asked.

For at the instance of the plaintiff's counsel the court did more than that: after the taking of the evidence was closed at noon plaintiff's counsel asked the court to adjourn until next day that he might examine some authorities before arguing the case, and by consent of defendant's counsel the court adjourned as requested for this purpose, but plaintiff's counsel instead of having authorities had sent to Georgia for a witness, and insisted on opening the evidence next morning after defendant and his witnesses had gone home;