Garrow v. Toxey

• Decision Date: 09 February 1911
• Citation: 171 Ala. 644,54 So. 556
• Parties: GARROW ET AL. v. TOXEY.
• Court: Alabama Supreme Court

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.

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 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, defendants' prior possession for a term less than 10 years, though bona fide and under color of title, was not effective to override or supersede the plaintiff's patent, so that, at last, the defendants, if properly put to proof of their title, having at hand no competent evidence of Eslava's compliance with the conditions imposed upon the patent to his heirs, their only recourse was to prove title by showing an adverse holding during some period of 10 consecutive years subsequent to the date of the patent under which the plaintiff claimed, and this the defendants attempted to show. But upon a careful reading of the evidence offered to that end we are constrained to hold that there was no evidence, covering any uninterrupted period of 10 years, which required that question to be submitted to the jury. The case, therefore, as thus far developed, depended upon the effect of the conflicting patents without more, and in this, as we have seen, the plaintiff had the advantage.

But appellants insist that the plaintiff failed in several particulars to connect himself with the Gazzam patent. Plaintiff introduced, as the next succeeding link in his chain of title, a conveyance of certain lands, including those in suit, made by Gazzam to one George Wragg on May 19 1838. The date of this conveyance, it will be observed, was about three years prior to the date borne by the patent to Gazzam. The bill of exceptions recites that the plaintiff offered in evidence the certified copy of a quitclaim deed from Audley H. Gazzam to George Wragg, dated May 19, 1838, and duly recorded on September 25, 1838, in the probate records of Mobile county. The deed itself is not set out. We are unable, therefore, without involving ourselves in a contradiction of the record, to consider what may have been the effect of any special covenants, which counsel in their brief say the so-called quitclaim contained. We think we must take the conveyance as a mere release or quitclaim. Nor does it appear that Gazzam was in possession at the time; and defendants took these points. Where one person makes a quitclaim to another, and afterwards obtains a patent for the same lands, the title of the patent does not inure to the grantee in the quitclaim, as it would in the case of a conveyance with warranty of title. Tillotson v. Kennedy, 5 Ala. 407. On the case as it is made to appear to us as of the time when the quitclaim was received in evidence, there was error in overruling the objections taken to it. The grantor by release or quitclaim is not responsible for the goodness of his title, and such a conveyance does not operate to pass or bind an interest not then in existence. The bargain...