Garrow v. Toxey

CourtSupreme Court of Alabama
Writing for the CourtSAYRE, J.
PartiesGARROW ET AL. v. TOXEY.
Decision Date09 February 1911

54 So. 556

171 Ala. 644

GARROW ET AL.
v.
TOXEY.

Supreme Court of Alabama

February 9, 1911


Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Statutory ejectment by Caleb Toxey against H. W. Garrow and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded. [54 So. 557]

Hamilton & Thornton and Bestor, Bestor & Young, for appellants.

Gregory L. & H. T. Smith, for appellee.

SAYRE, J.

This is a statutory action of ejectment brought by appellee against appellants for the recovery of a tract of land in the county of Mobile. Subject to objections which will be noticed, plaintiff showed an unbroken chain of title back to the government of the United States. A patent to one Audley Gazzam, dated March 30, 1841, constituted the first link in the chain. The effort of the defendants, defeated by rulings in the court below, was to trace their title back to the United States through a patent, dated April 8, 1848, to the heirs of one Miguel Eslava. The Eslava patent, was admitted without objection. They further attempted to show a grant from the government of Spain arising out of the acts of Spanish officials during the years 1802 and 1803. Congress had dealt with Spanish claims in that territory generally and with the claims of the heirs of Miguel Eslava in particular, and both these patents were issued in pursuance of those acts of Congress. These patents, and the claims of the Eslava heirs derived from the acts of Spanish officials, raised a question of law which had elaborate consideration in the case of Eslava v. Bolling, 22 Ala. 721, decided by this court in 1853. In that case it appeared that conflicting patents to other lands, but raising questions identical with those here involved, had been issued under the same acts of Congress to Hunt and Gazzam and to the heirs of Eslava. Bolling held under Hunt and Gazzam. The heirs of Eslava brought ejectment. The Eslava heirs in proof of their Spanish grant offered, as we understand, the identical documents offered by the defendants in this case. And they were competent, no doubt, for that purpose in that case and in this as going a part of the way towards establishing a title under the Eslava grant and the acts of Congress. But the effect of the ruling in that case was that the patent to Hunt and Gazzam, construed in connection with the various underlying acts of Congress, conveyed upon its face a right and title superior to that evidenced by the patent to the Eslava heirs, subject however to be defeated by the Eslava patent upon proof in a court of justice that Eslava was in possession of the land on and prior to April 15, 1803, that he continued in possession for 10 years thereafter, and was on April 15, 1813, a resident in that part of Louisiana situate east of Pearl river and west of the Perdido, and below the thirty-first degree of north latitude, as provided in the act of Congress of March 2, 1829, c. 40, 4 Stat. 358. From 1803 to 1813 the sovereignty of that territory was in dispute. It was afterwards determined by the Supreme Court of the United States that Spanish grants during that period were void, but by the act of Congress persons claiming under such grants were granted patents, not because they were entitled as of right, but because on proof of possession, residence, etc., the government of Spain would have granted them. Intervening rights of prior patentees of the United States were, however, saved. It was contended for plaintiffs in that case that the report of the register and receiver of the Land Office to the effect that Eslava had been for 10 consecutive years in possession before April 15, 1813, and resided at that date within the territory, would, with the confirmation of that report, be sufficient evidence of those facts, and [54 So. 558] that it was not necessary to make proof of them by witnesses at the trial. The ruling was that, although the report and confirmation would be conclusive against the government, it was not so against Gazzam and those claiming under him, and that other proof was necessary to make out a case for the plaintiffs. In other words, the ruling was that the proof was not effective to the full extent claimed, did not go far enough, and that to establish the Eslava Spanish grant it was necessary to supplement the record by proof aliunde of possession and residence prior to April 15, 1813. In the case here, duly certified copies of documents, claims, proofs, etc., made to the register of the government's land office at St. Stephens, and the finding of that official in favor of the Eslava heirs, were offered in evidence by the defendants for two purposes: (1) To prove Eslava's residence within the territory and his possession of the land in controversy during 10 years prior to April 15, 1813, thus showing their patent to be superior to the patent under which plaintiff claimed agreeably to the act of Congress; and (2) to prove the bona fides of a possession which defendants attempted to show subsequent to the date of their patent--that is, that defendants had not held as mere intruders or trespassers, so that their mere prior possession, though not covering any continuous period of 10 years, was some evidence of title. The decision in Eslava v. Bolling, supra, leads to the conclusion that for the first purpose this evidence was, as between the parties, hearsay and incompetent, however ancient the record, and however well authenticated. As for the second, we see no reason to doubt that the record of the proceedings had before the Land Office were sufficient to establish a bona fide color of title, and were admissible for that purpose. But if there was error in excluding this evidence under the circumstances of the case, it was error which worked no harm to defendants for two reasons: (1) The patent under which defendants claimed, and which was admitted, evidenced the full force and effect of the proceedings had before the Land Office, to which the record, whether taken as a whole or by piecemeal, was capable of adding nothing; (2) in the absence of an impeachment of plaintiff's patent by competent evidence of those facts by which the acts of Congress permitted it to be impeached,...

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8 practice notes
  • Rabinowitz v. Keefer
    • United States
    • United States State Supreme Court of Florida
    • January 12, 1931
    ...988, 137 S.W. 264; Pellow v. Arctic Iron Co., 164 Mich. 87, 128 N.W. 918, 47 L. R. A. (N. S.) 573, Ann. Cas. 1912B, 827; Garrow v. Toxey, 171 Ala. 644, 54 So. 556. Where a grantor, therefore, has no interest in the land to convey, his quitclaim deed is regarded as merely a release or formal......
  • Merchants' Nat. Bank of Mobile v. Hubbard, 1 Div. 572.
    • United States
    • Supreme Court of Alabama
    • December 19, 1929
    ...v. Pearson (Ala. Sup.) 125 So. 39. This court has attributed to a quitclaim deed the quality of a common-law release. Garrow v. Toxey, 171 Ala. 644, 651, 54 So. 556; Harrison v. Boring, 44 Tex. 255, 261; Van Rensselaer v. Kearney, 11 How. 322, 13 L.Ed. 703; United States in Hanrick v. Patri......
  • Sisson v. Swift, 1 Div. 156.
    • United States
    • Supreme Court of Alabama
    • June 25, 1942
    ...clauses therein were like unto that employed in the conveyance. Garrow et al. v. Toxey, 188 Ala. 572, 66 So. 443; Garrow v. Toxey, 171 Ala. 644, 54 So. 556. The Reporter will set out the foregoing conveyances from Henry to William H. Sisson and from the latter to Tanner and Millen. It is no......
  • Prestwood v. Gilbreath
    • United States
    • Supreme Court of Alabama
    • November 27, 1974
    ...admissible in evidence as tending to show an interruption of the possession claimed to have been held by the defendants.' Garrow v. Toxey, 171 Ala. 644, 54 So. 556 Thus, the intrusion which will interrupt continuity of possession or require remedial legal action is one which is possessory i......
  • Request a trial to view additional results
8 cases
  • Rabinowitz v. Keefer
    • United States
    • United States State Supreme Court of Florida
    • January 12, 1931
    ...988, 137 S.W. 264; Pellow v. Arctic Iron Co., 164 Mich. 87, 128 N.W. 918, 47 L. R. A. (N. S.) 573, Ann. Cas. 1912B, 827; Garrow v. Toxey, 171 Ala. 644, 54 So. 556. Where a grantor, therefore, has no interest in the land to convey, his quitclaim deed is regarded as merely a release or formal......
  • Merchants' Nat. Bank of Mobile v. Hubbard, 1 Div. 572.
    • United States
    • Supreme Court of Alabama
    • December 19, 1929
    ...v. Pearson (Ala. Sup.) 125 So. 39. This court has attributed to a quitclaim deed the quality of a common-law release. Garrow v. Toxey, 171 Ala. 644, 651, 54 So. 556; Harrison v. Boring, 44 Tex. 255, 261; Van Rensselaer v. Kearney, 11 How. 322, 13 L.Ed. 703; United States in Hanrick v. Patri......
  • Sisson v. Swift, 1 Div. 156.
    • United States
    • Supreme Court of Alabama
    • June 25, 1942
    ...clauses therein were like unto that employed in the conveyance. Garrow et al. v. Toxey, 188 Ala. 572, 66 So. 443; Garrow v. Toxey, 171 Ala. 644, 54 So. 556. The Reporter will set out the foregoing conveyances from Henry to William H. Sisson and from the latter to Tanner and Millen. It is no......
  • Prestwood v. Gilbreath
    • United States
    • Supreme Court of Alabama
    • November 27, 1974
    ...admissible in evidence as tending to show an interruption of the possession claimed to have been held by the defendants.' Garrow v. Toxey, 171 Ala. 644, 54 So. 556 Thus, the intrusion which will interrupt continuity of possession or require remedial legal action is one which is possessory i......
  • Request a trial to view additional results

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