James Foster and Pleasants Elam, Plaintiffs In Error v. David Neilson, Defendant In Error

• Citation: 2 Pet. 253,27 U.S. 253,7 L.Ed. 415
• Parties: JAMES FOSTER AND PLEASANTS ELAM, PLAINTIFFS IN ERROR v. DAVID NEILSON, DEFENDANT IN ERROR
• Decision Date: 01 January 1829
• Court: United States Supreme Court

27 U.S. 253

2 Pet. 253

7 L.Ed. 415

JAMES FOSTER AND PLEASANTS ELAM, PLAINTIFFS IN ERROR v. DAVID NEILSON, DEFENDANT IN ERROR.

January Term, 1829

IN error to the district court of the eastern district of Louisiana.

The plaintiffs in error filed their petition in the district court setting forth, that on the 2d of January 1804, Jayme Joydra purchased of the Spanish government for a valuable consideration, and was put in possession of a certain tract or parcel of land, situated in the district of Feliciana, thirty miles to the east of the Mississippi, within the province of West Florida, containing forty thousand arpents, having the marks and boundaries as laid down in the original plat of survey annexed to the deed of sale, made by Juan Ventura Morales then intendent of the Spanish government, dated January 2d, 1804, which sale was duly confirmed by the king of Spain, by his resolves dated May 29, 1804, and February 20th, 1805.

May 17, 1805, Jayme Joydra sold and conveyed six thousand arpents, part of the said forty thousand, to one Joseph Maria de la Barba; and upon the same day, Joseph Maria de la Barba sold and conveyed three thousand arpents, parcel of the six thousand so purchased on the same day of Jayme Joydra, to one Francoise Poinet, for the consideration of $750. These three thousand arpents; situated in the district of Feliciana, about thirty miles east of the Mississippi; bounded on the north by the line of demarcation between the United States and the Spanish territory; on the west by lands of Manuel de Lanzos; on the east by the lands of the said Jayme Joydra; and on the south by the lands of the said Joseph Maria de la Barba.

In June 1811, Francoise Poinet, by her attorney, Louis Leonard Poinet, sold to the petitioners the said three thousand arpents, for the sum of $3200.

The petition then avers, that the three thousand arpents of lands justly and legally belong to them; and that nevertheless, David Neilson the defendant, a resident of the parish of east Feliciana in the state of Louisiana, had taken possession of the same, and refuses to deliver the same up.

On the 23d of March 1826, the defendant in the district court filed exceptions to the petition; and the questions before this Court arose out of the third exception, which was as follows:

That the petition does not show any right in the petitioners to the land demanded, which they aver lies in a district formerly called Feliciana, in the province of West Florida; and they claim under a grant made at New Orleans on the 2d of January 1804, and regularly confirmed by the Spanish government: whereas, as defendant pleads, all that section of territory called Feliciana was, long before the alleged date of said grant, ceded by Spain to France, and by France to the United States; and the officer making said grant had not then and there any right so to do, and the said grant is wholly null and void.

The judgment of the district court is founded on this exception and decides that the grant under which the plaintiffs claim, was made by persons having no authority, at the time of the grant, to grant lands within the territory within which the lands are situated; and dismisses the petition.

On behalf of the petitioners, the plaintiffs below, it was contended:

1. That Spain possessed full right and title, at the period of the date of the grant under which they claim, to grant the lands in question.

2. That the title of the petitioners is guarantied and confirmed by the treaty between the United States and Spain of February 22d, 1819.

The case was argued by Mr Coxe and Mr Webster for the plaintiffs in error; and by Mr Jones for the defendant.

Mr Coxe, for plaintiffs in error.

This is a petitiory action, in the nature of an ejectment, brought by the plaintiffs in error, to recover a tract of land in the parish of east Feliciana in the state of Louisiana. The territory within which this property lies, may be designated in general terms as included between the Mississippi and Iberville to the west, the Perdido to the east, and south of the thirty-first degree of north latitude.

No objection has been interposed to the regularity, in point of form, of the original grant under which plaintiffs claimed title, or of the mesne conveyances from the original grantee to them. No title has been exhibited by the defendant; but having acquired the possession, he has rested his defence on the single ground of denying the validity of the grant, which lies at the foundation of the plaintiffs' title; and this objection is confined to the single point, that the authority of the Spanish government, from which that grant emanated, had terminated within the district of country, the boundaries of which have been indicated, anterior to the date of the grant.

The grant bears date in the years 1804 and 1805, and it is contended that, by the treaty of St. Ildefonso between Spain and France in the year 1800, and the treaty between France and the United States, of April 30, 1803, the territory in question became vested in the United States as a component part of Louisiana.

Whether such be the true interpretation and effect of these treaties, is the first question presented for consideration. It is a question which has for years been diplomatically discussed between the governments of Spain and the United States; and now comes before this Court to be finally settled judicially.

Much of the history of the early settlements of the territory in question, and the grounds upon which the claims of England, France and Spain rested, were presented and discussed in the cases of Henderson vs. Poindexter, 12 Wheat. 530, and Harcourt's lessee vs. Gaillard.

It may however be proper to remind the Court, that in point of fact, it appears that the earliest actual settlement made by the French in this district, was made under D'Iberville, at Dauphin island in the year 1699; and that at that period, and for some years previous, the English had formed settlements between the Mobile and the Mississippi, 4 N. Am. Rev. 76, N.S. Anderson's History of Commerce, Vol. III. 195, fixes it at 1698. On the 30th of June 1677, Charles II. made his second grant to the earl of Clarendon and others, which included this territory. 1 L. U. S. 465. Land Laws, 81.

The grant from Louis XIV. to Crouzat, bears date September 14th, 1712, thirty-five years subsequent to the English patent; and it sets forth that the original possession was taken of the territory in 1683, which is six years subsequent to the English grant. It may be remarked, however, that the possession to which allusion is made, was nothing more than a transient and rapid passage down the Mississippi, and vague as it was, in point of fact did not extend beyond the banks of the river.

This grant to Crouzat seems to have been generally considered as comprehending this debatable ground, but apparently without much reason. It distinctly limits the eastern extent by the lands of the English Carolina; and not only the grant of the Carolina, but the actual settlements under it extended much to the westward of the line to which France subsequently claimed to extend the eastern boundary of Louisiana.

The irreconcileable claims of England and France, in reference to the extent of their American possessions, gave rise to many and bloody controversies; and particularly to the war of 1756. Numerous discussions took place between the two crowns upon this subject, which it will be unnecessary to examine earlier than the war which terminated in their adjustment and settlement. In the negotiations which preceded the treaty of 1763, which are stated in 3 Jenkinson, 1174, it seems that France preferred her claim as far as the Perdido; and the answer of the British government to this claim will be found in its reply to the French ultimatum, September 1st, 1762, sec. 2. 3 Jenkinson, 148. It was deemed utterly inadmissible, because it would comprise extensive countries and numerous nations of Indians, who have always been reputed to be under the protection of the king.

This Court, in Johnson vs. M'Intosh, 8 Wheat. 581, has remarked, in reference to the controversies between France and Spain in relation to this same district of country, that 'the contests between the cabinets of Versailles and Madrid respecting the territory on the northern coast of the gulf of Mexico were fierce and bloody, and continued until the establishment of a Bourbon on the throne of Spain, produced such amicable dispositions in the two crowns as to suspend or terminate them.' And after giving a summary of those which occurred between France and England, it is observed that 'these conflicting claims produced a long and bloody war, which terminated by the conquest of the whole country east of the Mississippi.'

Pending that war, in which Spain had been induced to take part with France, the celebrated treaty was concluded between these two powers, which is entitled to notice in the present investigation. It was styled 'Pacto de Familia,' or, 'Parte de Famille;' and is usually known in England and the United States, under the appellation of the 'Family Compact.' It was signed August 15, 1761; ratified by France August 21, 1761; and by Spain, August 25, 1761^(a).

(a) Collection de Tratados 115; Marten's Recueil des Traites, tom.i. p. 1. 3 Jenk. 70.

The 4th article embraces the great object of the treaty, 'qui attaque une couronne, attaque l'autre;' and the 18th, carrying it out into detail, provides that, 'en conformite de ce principe et de l'engagement contract e en consequence, leur majestes tres chretienne et catholique, sont convenues que lorsqu'ils s'agira de terminer par la paix la guerre qu'ils auront soutenue en commun, elles compenseront les avantages que l'une des deux puissances pourroit avoir eus, avec les pertes que l'autre auroit pu faire; de mani ere que sur les conditions de la paix, ainsi que sur les operations de la guerre; les deux monarchies de France et de...