McMillan v. Aikin

• Court: Supreme Court of Alabama
• Citation: 66 So. 624,189 Ala. 330
• Docket Number: 814
• Parties: McMILLAN et al. v. AIKIN.
• Decision Date: 07 November 1914

66 So. 624

189 Ala. 330

McMILLAN et al. v. AIKIN.

No. 814

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Baldwin County; A.E. Gamble, Judge.

Ejectment by Norma Aikin against Benjamin McMillan and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

See also, 62 So. 519.

The following documents are referred to in the opinion, other than the map:

Patent executed by the President of the United States:

United States of America. To All Whom These Presents shall Come--Greeting: Whereas, there has been deposited in the General Land Office a certificate numbered 2, of the register and receiver of the land office at St. Stephens, Ala., with a plat of the survey of the tract of land therein mentioned whereby it appears that by the act of Congress approved on the 2d day of March 1829 entitled "An act confirming the reports of the Register and Receiver of the Land Office for the district of St. Stephens, in the state of Alabama, and for other purposes," the claim of the legal representatives of Louis Baudin, in right of Louis Baudin entered as No. 2, in abstract A, No. 1, of the register and receiver has been confirmed, and that the same has been surveyed, and is designated on the plat of the survey, dated Aug. 11, 1838, in the General Land Office as sec. 40, in township 1 north, of range 2 east, containing 1242.50 acres in the district of land subject to sale at St. Stephens in the state of Alabama: Now, know ye, that the United States of America, in consideration of the premises, and in conformity with said act of Congress, have remised, released, and forever quitclaimed unto the said legal representative of Louis Baudin, and to their heirs the said lands above described, subject to any just claim or claims, to all and every part thereof, of all and every person or persons bodies politic or corporate, derived from the United States of America, or from either the British, French or Spanish authorities; to have and to hold the same together with all rights and privileges, immunities and appurtenances of whatsoever nature thereunto belonging, subject to any such first claim or claims as aforesaid, unto them, the said legal representative of Louis Baudin, and to their heirs and assigns forever, so that neither the United States, nor any person claiming under them, except as is provided in said act, and the reservations aforesaid, may or can set up any right or title thereto. (Here follows the usual formula of signing, dated October 11, 1838, signed by President Martin Van Buren.)

The following is a petition addressed to the Governor General:

Deed Book Y, p. 547. To His Excellency, the Governor General: Louis Baudin, an inhabitant of this town, with due respect, represents to your excellency that he is established many years ago by permission of his honor, the commandant of this town, upon a tract of land fronting on the north side by Bayou Jasamine, and extending towards the north below twenty arpens, bounded on the west side by Bottle Bayou, on the south by said Bayou Jasamine, and in consideration that the clearing of the same, and other things necessary has caused him great expense, wherefore, he humbly entreats your excellency will be pleased to grant him the tract of land above described, and order the necessary documents recovered to be delivered to him, a favor which he hopes to receive from your excellency. Mobile, April 27, 1798. [ Signed] Louis Baudin.

To His Excellency, the Governor General: The petitioner is an inhabitant of this town, and a man worthy of respect who has cultivated and occupied said land for many years, and agreeably to the information which I have acquired the above-described tract of land belonged to the royal domain. Nevertheless, your excellency will decide as you may think fit. Manuel de Lanzos.

Papers of June 28, 1798. The commandant of the town of Mobile shall establish this party upon the tract of land which he solicits, bounded on Bayou Jasamine, and extended the same twenty arpens in the spot designated in the memorial above set forth, it being vacant, and without injury to a third person, returning to me when done the proceedings of the measurement by the Surveyor General, in order to provide the interest the corresponding title and due form. Manuel de Lemos.

The foregoing is conformable with the original which remains in this commandery's office under my charge to which I refer, and at the request of the party, I grant these present before two witnesses of assistance for want of a regular notary, and in common papers, the seal not being in practice. Mobile, on the 1st day of August, 1805. Franco. Maximo de St. Maxent. Francisco Canete. John Laez.

The following is a deed from Baudin to Kennedy:

"Be it known by this public instrument of writing that I, Louis Baudin, an inhabitant of this jurisdiction, do hereby grant and sell really and in fact to Joshua Kennedy of the town aforesaid, a certain tract of land containing twenty arpens front with the ordinary depth bounded fronting Bayou Jasamine, and bounded on the west by Bottle Bayou and Tensaw river, it being the same which I have acquired by virtue of a concession made to me by his excellency, Manuel Gayoso de Lemos, Governor General of this Province by his deed bearing date June 28, 1780. I say 98, and it is the same tract of land described as aforesaid that I sell to the aforementioned Kennedy for the sum of $190 cash in hand paid of which sum I acknowledge myself satisfied at will and grant a formal receipt. By means of which I divest myself of the right of property, possession, useful dominion and other actions real and personal which I have and held in and over said tract of land, and also release and transfer the same to the purchaser,

his heirs, administrators, and assigns in order that as his own he may possess, enjoy, sell alienate, build upon and cultivate the same at his will, by virtue of this deed which I make in his favor in token of real delivery whereby it is shown that he has acquired possession of the above granted premises without the necessity of any further proof of which I relieve him, binding myself to the eviction, security and warranty of this sale with my property present and to come, in due form of his granting power and authority to the parties of his majesty, in order to compel me to its fulfillment with the rigid soature ayron, and passed by the authority as the case condemned. And I, said Joshua Kennedy, being present at the execution of this deed of conveyance do accept the said tract of land as purchased in my favor for the same conformity and conditions as are expressed therein, acknowledging the same as delivered to my disposal, and in virtue thereof I grant a formal receipt and discharge. (Here follows the usual Spanish formula of the lieutenant colonel and military commandant of the town, as to the execution and delivery of the same, and the grant by the commandant at the request of the purchaser by the assistance of two witnesses, in the absence of a notary.)

The following is the register's and receiver's report:

Register's and Receiver's

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