Volume 51 — United States Reports

<p>The report of the commissioners appointed hy this court in 7 Howard, 660, to run and mark the line dividing the States of Missouri and Iowa, adopted and confirmed, and the boundary line finally established.</p>

<p>Where it appears- that the whole case has been certified pro forma, in order to take the opinion of this court, without any actual' division of opinion in the Circuit Court, the practice is irregular, and the case must be remanded to the Circuit Court to be proceeded in according to law.</p> <p>The' decision of this court in the. case of Nesmith and others v. Sheldon (6 Howard, 41) affirmed.</p>

This cause came up on á certificate of division of opinion between the .judges of the Circuit Court of the United States for the Eastern District of Pennsylvania. The complainant was a citizen of Kentucky, and the. defendants were all citizens of Pennsylvania.

<p>Where a case had been brought up to this court from the Supreme Court of the Territory of .Wisconsin, and wás pending in this court at the timewheu Wisconsin was- admitted as a State, the jurisdiction of this court oyer it ceased when such’ admission took place.</p> <p>Provision was made in the act of Congress for the transfer, from the Territorial courts to the District Court of the United States, of all eases appropriate to the jurisdiction of the new District Court) but none for cases appropriate to the juris-' diction of State tribunals.</p> <p>By the admission of Wisconsin as a State, the Territorial government ceased to exist, and ¿11 thé authority under it, including the laws organizing its courts of justice and providing for a revision, of their judgments'in this court.</p> <p>The act of Congress passed in February, 1848, supplementary to that of February, 1847, applies only "to cases-which were pending in the Territorial courts, and does . r>ot include such as were pending in this court at the time of fhe admission of Wisconsin as a State. • '</p> <p>Even if Congress had directed the transfer, to the District Court of the United States, of cases appropriate to the jurisdiction of State courts, this, court could not have ' carried its judgment into effect by'a mandate to the District Court.</p>

This was a writ of error to the Supreme Court of the late Territory of Wisconsin. An action of ejectment was commenced at the April term, 1845, of the Iowa County Court, by the defendant in error, against the plaintiffs ip error, to recover a lot of land situate in that county. The venue was afterwards changed to the county of Milwaukie. Issue having been joined, and a jury impanelled and sworn, a verdict was found for the - plaintiff, upon which a judgment was entered. .

Strader v. Graham, 51 U.S. (10 How.) 82 (1851), was a US Supreme Court decision that held that the status of three slaves who went from Kentucky to Indiana and Ohio depended on Kentucky law, rather than Ohio law. The original plaintiff was Christopher Graham, whose three slaves had traveled to Cincinnati, Ohio, aboard a steamboat owned by Jacob Strader and James Gorman and piloted by John Armstrong. The slaves later escaped to Canada. The US Supreme Court recognized the authority of the Northwest Ordinance of 1787 over its applicable territories in Strader v. Graham but did not extend the Northwest Ordinance to cover the states that were later admitted to the Union.

This was an appeal frpm the Circuit Court of the United States for the District of Louisiana.

A writ of fieri facias issued on the. 5th of January, 1842, 'from the Circuit Court of the United States for the Southern .District of Mississippi, at the instance of Joseph Kissam (the defendant in error), against one James J. Chewning, for ¡$2,336.22, besides costs, and was levied by the marshal, April 14th, 1842, on negro slaves Nancy and her child, Milley and her child, Viney and her child, Tempey and her child, Mary, Louisa, Juliana, and Charlotte, as the property of…

This was a writ of error to the Circuit Court of the United States for the Southern District of New York. " The United States .brought an action of assumpsit in the court below against the plaintiff in error. The declaration contained four counts; viz. for money lent and advanced ; for .money laid out and expended; for money had and received; and upon án account stated. The general issue was pleaded and joined.

Mr. Coxe filed the following motion and certificate. “ A certificate being produced from the District Court of Texas, by which it appears that at the April- term,. 1850, of said court a final decree was rendered by said court in faVor of th.e defendants and respondents, and that an appeal from said' decree was prayed and obtained by the libellants to the Supreme Court of the United States, — and it appearing that the record in sa!id case has not been filed,;— Mr. Coxe for…

This case was brought up, by writ -of error, from the Circuit Court of' the United States for the District of Maryland. It was an action brought by Oldfield against Marriott, who was the cdllector of the port of Baltimore, to recover .back the amount of duties paid under protest upon an importation of coffee in a Portuguese vessel from . Rio Janeiro. On the 26th of August, 1840, a treaty was made between the. United.

<p>.This was an appeal from the Circuit Court of the United States for the Southern District of Alabama.</p> <p>The controversy had. its origin in transactions long-anterior to the acquisition of the country by the United States, and involved ¿Iso the discussion of events long afterwards; so .that the^ ease became very complicated, and the record voluminous. Being an appeal in chancery, all the evidence was brought up to this court. Instead .of giving a narrative of the case, it appears best'to set forth the grounds of complaint in the bill, and .of defence in the answer.</p> <p>The defendant in error, Sidney E. Collins, was complainant •below in a bill in equity against the heirs and executors of Joshua Kennedy, deceased, and others. The bill sets forth that the complainant is both heir and devisee of his late father, Joseph Collins, and sole heir-at-law of his deceased brothers George and Joseph, the co-heirs and co-devisées with himself of his father’s estate. That Joseph Collins, his father, had obtained a grant of a certain lot of land from the Spanish government, in or near the city of Mobile. That William- E. Kennedy claimed an interest in the same lands, through a grant to. one Alexander Baudain. That on the 21st of November, 1806, Collins and Kennedy entered into an agreement to divide the land between them; Kennedy to have the northern half, and-Collins the southern; Kennedy covenanting “ to improve the lot by fencing and ditching so that it might not be forfeited.” That, in pursuance of this agreement, 'Kennedy held possession of the lot, and made the necessary improvements, during the time that Spain held possession of the territory. That when it came into possession of the United States, the Collins and Baudain permits Jor claims were both laid before the commissioners. That the first report of Mr. Crawford, the commissioner, wa^unfavorable to both. That Collins being at this time dead, his claim was not revived' by Kennedy, but it was renewed under the Baudain grant alone, and in July, 1820, a favorable report was made .in favor of Kennedy in virtue of the. Baudain grant, and the legal title confirmed in' him by the act of the 8th of May, 1822. Thkt in' the mean time, to wit, on .the second day of March, 1820, a deed was made by W. E. Kennedy reciting the original agreement between' Collins and himself, and conveying the southern half of the lot to James .Inerarity, the administrator of Collins, for the use of the estate, with a covenant for further assurance to Inerarity or the heirs of Collins, qn the issuing of the .patent for the land. The bill also charges, that about this time W. E. Kennedy became very intemperate; that his brother Joshua, who had unbounded influence over him, and was ¿ witness to the deed to Inerarity, . and acquainted with the title of Collins’s, heirs in the property, contrived a scheme to defeat it and defraud the heirs. That in pursuance thereof he obtained a deed from W. E. Kennedy to Samuel Kitchen, his father-in-law, for the Collins half of the lot, antedated so as to appear to be prior in date to the deed to Inerarity. That Joshua Kennedy transacted the business in Kitchen’s name, at first without his (Kitchen’s) knowledge, and paid the consideration, if any was paid, and afterwards took a transfer from Kitchen to himself, for a nominal consideration. That in 1824, in further pursuance of the same scheme, he procured a deed from "W. E. Kennedy for all his property, and, among other things, a claim or grant from the Spanish government to oné Price, of a very suspicious character, which had been rejected by the commissioners. That having succeded in obtaining a confirmation of the Price claim in 1829, he sur: véyed it over the claim of Baudain previously confirmed to W. E. Kennedy in right of Baudain, in 1822, and took a patent under it. That this was done for the purpose of complicating the title and defrauding the heirs of Collins. The bill charges, also, that Joshua Kennedy, in further prosecution‘of this scheme, had certain proceedings entered on the docket of the Circuit Court of Mobile in the name of William Kitchen against James Inerarity, and, without bill, answer, or pleadings of any kind to furnish any key to the claim of Kitchen, a decree was entered, in pursuance of which Inerarity made a de.ed to Kitchen for the Collins half of the land, in consideration of Kitchen paying to him a debt claimed by Forbes & Co. (of which firm Inerarity was a partner) against Collins’s estate, amounting to the sum of $ 2,233 ; the property conveyed being then worth <$ 75,000, and now. $ 200,000. That haying thus complicated the title of the heirs of Collins to the land in dispute, Joshua Kennedy applied to George and Sidney E. Collins, the heirs, as soon as they came of age, representing that their claim was of no value whatever, and utterly hopeless, but' that, for the sake of peace and quieting his title, William Kitchen was willing to give them each the sum of $ 1,000. That by means of these fraudulent misrepresentations he obtained deeds from them to Kitchen releasing their claims. That William Kitchen was a brother-in-law of Joshua Kennedy, and a yoúng man without means residing in the family of Kennedy, and his name was used ■ by hirn for a cover; and that he took a conveyance from Kitchen as soon as the complete title was supposed to be thus fully vested in him by these fraudulent schemes and contrivances.</p> <p>The bill prays for a conveyance of the land, and an aceount of rents and profits.</p> <p>The matters of defence set forth in the- several answers of the defendants, and relied upon in the argument of the case, were substantially as follows—</p> <p>1. ..That the will of Joseph Collins was not properly proved.</p> <p>2. That the complainant and his brothers were-illegitimate, and therefore incapable of inheriting from their father or from one another.</p> <p>3. That Collins had no valid claim to the property. That his concession was abandoned after , its rejection, and no possession ever taken under it, nor any attempt made by Collins or his 'heirs to obtain a title under it.</p> <p>4. That Joshua Kennedy held the lot under a grant from the Spanish government to Thomas Price, and a confirmation of' the same by the United States, and a patent issued in 1837.</p> <p>5. That the deed to Inerarity was “a.special transaction,, and not a recognition of title in Collins’s heirs, given to enable Inerarity to recover a debt due from Collins’s estate to John Forbes & Co., or as a compromise.” That the deed to Samuel Kitchen was prior in date to that of Inerarity. That Kitchen was a bond fide purchaser without notice; that he paid for the land through Joshua Kennedy, who. was indebted to him; and that in, pursuance of his purchase Kitchen took possession of the lot and made improvements, and, afterwards gave Joshua</p> <p>Kennedy a written obligation to convey to him; and that the “ transaction was closed ” in 1834, by his making a deed to William Kitchen at the request of Joshua Kennedy.</p> <p>6. That the title of Collins, whatever it was, if any, was extinguished and transferred to William Kitchen by the deed of Inerarity made under a decree of the court, and in consideration of the payment of the debt claimed by Inerarity in behalf of Forbes & Co. against Collins’s estate.</p> <p>7., That the claim of complainant was extinguished by his own release and that of his brother to William Kitchen for a consideration paid by Joshua Kennedy.</p> <p>8. And lastly, the answers, denying all fraud, insist that the full value of- the property was paid by Kennedy to the administrator and heirs; and that the sale and releases so made have been acquiesced in by complainant for many years, without any offer to return the consideration or annul the deeds, until after the death of Joshua Kennedy.</p> <p>The immense mass of evidence taken under the authority of the Circuit Court occupied a printed volume of nearly fi\ e hundred pages.. The following is ah abstract of the points which the complainant sought to establish. It is riot necessary to refer to the evidence in support of each point.</p> <p>1. That the plaintiff claimed the south half of the Baudain claim in Mobile as the devisee of his father, and the heir of two brothers, under a Spanish grant to his father and articles of agreement between his father and William E. Kennedy, and possession under them, and a deed confirmatory of them.</p> <p>.2. That the title of Alexander Baudain became perfect by the confirmation of the United States, under an act of 'Congress dated 8th May, 1822, relative to claims of lots in Mobile.</p> <p>3. ’ That a fraud was practised in the deed made by-William E. Kennedy to Samuel Kitchen, and that Joshua Kennedy was a party to it.</p> <p>4. The participation of Joshua Kennedy in the preparation of the deed to Samuel Kitchen, his beneficial interest in that deed, and.' his conception of the fraudulent design, are shown by the use that was made of it, by the relations betweeri the parties, and by the fact that all the benefits flowing from it came to him.</p> <p>5. That Joshua Kennedy brought forward the claim of</p> <p>Price, for the fraudulent purpose of superseding the Baudain claim, in which Collins had an interest, and thus obtaining the whole for himself.. .</p> <p>6. That Kennedy, alter having obtained a confirmation and location of the Price claim, purchased from the children of Collins all their rights, under circumstances which show the purchase to have been invalid.</p> <p>7. That the deeds from the children of Collins were made to William Kitchen, and ought to be set aside.</p> <p>8. That William Kitchen conveyed to Joshua Kennedy, who obtained a patent in 1837 for the Price claim; covering the land in which Collins had an interest.</p> <p>9. . That the children of Collins left the' State of Alabama, apd the fraud was not discovered until after the death of Joshua Kennedy (in 1838), and in the progress of a suit which ensued thereupon. The plea -of limitations therefore does not appiy.</p> <p>10. That the purchase money paid to the children of Collins was greatly below the real value of the property.</p> <p>On- the other hand, the points which the defendants endeavored to establish by the evidence were the following.</p> <p>T. That Joseph E. Collins was never married to Elizabeth Wilson.</p> <p>2. That the agreement in 1806, between William E. Kennedy and Joseph E. Collins, was not a settlement of conflicting claims under the Baudain grant.</p> <p>' 3. That Kennedy had a right to waive'the conditional concession from Collins, and throw himself upon his own better title ; and that, in fact, he did disavow all title derived'from Collins.</p> <p>4. That the deed made in 1820; from William E. Kennedy to Samuel Kitchen, was not fraudulently made for the benefit of Joshua- Kennedy.</p> <p>5. That the purchase made' by Joshua Kennedy from the children of Collins was fair and bona fide; that.their interest was only contingent, after paying their father’s debts; that the property was a marsh liable to be overflowed, and at the distance of several squares from the business parts of the city, whose value was entirely speculative; and that Kennedy paid as much as their interest in it was worth.</p> <p>6. That Joshua Kennedy never attempted to complicate the title or obscure the rights of other persons..</p> <p>7. That the enhanced value of the property is owing entirely to Joshrfa Kennedy’s industry and judgment in reclaiming and defending it at great expense; and that- a court of equity should not deprive his heirs of this advantage without clear proof of fraud.</p> <p>It has already been mentioned, that the evidence taken in the cause, was very voluminous to sustain the above positions upon both sides, some of which indeed -are rather inferences in law than distinct allegations of fact.</p> <p>But the two classes are so intermingled together, that it ap-. peared impossible to separate them and yet give a thorough explanation of the case.</p> <p>On the 13th .of Npril, 1847, the cause, came on for argument -in the Circuit Court, which rendered the following decree, viz.:—</p> <p>“ Sidney E. Collins v. The Heirs and Executors of Joshua Kennedy.</p> <p>" This cause this day .came on to be heard, and it is ordered, adjudged, and decreed, that the deeds of Sidney E. Collins and his brother, George Collins, to William Kitchen, be set aside, and that. the representatives of Joshua Kennedy -account for the rents and profits received from the said south half of the said lot of land, and also the money derived from the sale of any portion thereof, together with interest thereon, and- that the said representatives be allowed for all permanent improvements made on the said land; also the money paid to Sidney E. and George Collins, with interest; and that it be referred to the master to take an account between-the parties, in conformity to the principles of this decree.”</p> <p>From this decree, the defendants appealed to this, court.</p>

This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of, Alabama. In August, 1845, Sherburne Sears brought an action of trespass quare clausum fregit, in the Circuit Court of the United States for the Southern District of Alabama.

Held: that a legislative act, declaring that land which should be purchased for certain Indians should not thereafter be subject to any tax, was a contract, and could not be rescinded by a subsequent legislature. It was- held that this privilege was annexed to the land, and not to the persons of the' Indians, and was a contract in favor of their vendees.

<p>The decision of the court in the preceding case of Woodruff y. Trapnall again affirmed.</p> <p>But although the pledge of the State to receive the notes óf the bank in payment of all debts due to it in its own right was a contract which it could not violate, yet where the State sold lands which were held by it in trust for the benefit of a seminary, and the terms of sale were, that the debtor should pay in specie or its equivalent, such debtor was not at liberty to tender the notes of the bank in payment.</p> <p>And this was true, although the money to be received from the debtor was intended by the legislature to be put into the bank, and to constitute a part of its capital. The fund belonged to the State only as a trustee, and therefore was not, within the meaning of the charter, a debt due to the State.</p> <p>By the terms of sale, also, to pay “ in specie or its equivalent,” the notes of the bank were excluded.</p>

This case, like the two preceding, was brought up, by writ of error, from the Supreme Court of the State of Arkansas. It was similar to the case of Paup et al. v. Drew, except that Trigg was here the principal instead of, being the surety, and the amount of the bonds was greater, because Trigg purchased a larger amount of land. In every other respect, the cases were identical; and therefore neither the statement nor arguments of counsel need be repeated.

This ease was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts.

This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York; Like the preceding case of Greely v. Thompson and For-man, it was an action brought by the defendants in error against Maxwell, the collector at the port of New York, for the return of duties paid under protest. In January, 1850, the defendants in error imported into New York, in the ship Matilda, from Manilla, sundry bags of sugar and bales of hemp.

This case was brought up, by -Writ of error, from the Circuit Court of the United States for the District of Louisiana.

This was a writ of error to the Circuit Court of the United States, for the Southern District of New York. The defendants in error brought an action in the court below • to recover contributio'n in general average, on account of the -alleged voluntary stranding of the ship Brutus owned by them, from the plaintiffs in error, as owners of twenty bales of nutria skins, which formed a part of her cargo at the time of the stranding.

Held: Andrew Miller, at the date of the Cherokee treaty of 1817, was the head of an Indian family, and resided in the Cherokee nation, east of the Mississippi; about the 1st of March, 1818, he settled and made improvements on the land in dispute; and on the 24th of May, 1818, registered his name in the office* of the Cherokee agent for a reservation in right of his wife, and designated, on the! books of said agent, this…

The plaintiff in error brought an action in the court below, for an alleged infringement of his patent right by the defendant in error. The cause was not tried by a jury, but was submitted to the court upon the statement of facts hereinafter inserted. Judgment for the defendant, upon which the plaintiff sued out this writ of error. Statement of Facts.

Held: that, as between two claimants under that government, setting up independent imperfect claims, the courts of justice had no jurisdiction; that in such cases it appertained to the political power to decide to whom the perfect title should issue; and when this was done, no controversy could be raised before the courts of justice impeaching the first confirmation.

Held: that the taxing power of a State should never he presumed to be relinquished, unless the intention is declared in clear and unambiguous terms. Error to the Court of Appeals for the Western Shore of Maryland.

This case was brought up from Baltimore County Court by a writ of errór issued under the twenty-fifth section of the Judiciary Act. The facts in the case are stated in the opinion of the court, to which the reader is referred.

Held: that, “ where the officer is not removable at the will'of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights, which cannot be resumed.” “ The discretion of the executive is to be exercised until the appointment has been made; but having once made the appointment, his power over the office is'terminated in all cases, where by law the officer is not removable by him.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington. It came up upon a bill of exceptions to the admission of certain evidence, and four bills of exceptions to refusals of the court below to grant certain prayers, all of which exceptions were taken by the defendants below (the plaintiffs in error here).

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana. The facts are very fully set forth in the opinion of the court, to which the reader is referred.

Tins case was brought up, by writ of error, from the Circuit Court of the United "States for the District of Louisiana. The Louisville Manufacturing Company was incorporated by an act of the legislature of Kentucky, and was domiciliated and transacting business in that State.

" This was a writ of error to the, Circuit Court of the United States for the Southern District of New York. The defendant in error (who was plaintiff in the court below) brought an action against Gayler and Brown (the plaintiffs, in error), for an alleged infringement of a patent right for the.use of plaster of -Paris in the construction of fire-proof chests. .

At a- subsequent day of the term a petition was filed by the plaintiffs in error, that the foregoing case might be reopened for the purpose of amending the bill of exceptions, and reargued on such amended bill.

Held: by virtue of warning which is hereunto attached, marked S, approved of said indenture or instrument thus executed previously by said selectmen of said town of Hartford; and we find that the agent and attorney of the petitioners, when negotiating with said selectmen in relation to the purchase by the petitioners of the right of said town of Hartford in and to said ferry, distinctly stated to said selectmen that the…

Held: that where the land was granted by a concession, and a survey had been made of it by the Surveyor-General, in reasonable conformity to the grant,, before the 24th of January, 1818, that such survéy should be. recognized as valid, and deemed to have severed the land, from the public domain.

This was an appeal from the Circuit Court of the United States for the Southern District of New York.

This was an appeal from the Circuit.Court-of the United States for the Southern District of -New York. Like the preceding case, it arose from a collision which took place between a steamboat and a sailing vessel. ’ Thé circumstances under which the collision took place, as claimed to exist by the respective parties, áre thus set forth in the libel and answer.

This was an appeal from the District Court of the United States for the District of Louisiana. It was a petition presented to the District Court under the act of 1824, relating to land titles in Missouri, as revived and made applicable to Louisiana by the act of 1844. The history of the title claimed by the heirs of D’Auterive, so far as it may be necessary to explain the opinion of the court, was as follows.

<p>This was an appeal from the Circuit Court of the- United States for the Southern District of Mississippi, sitting as a court of equity.</p> <p>The circumstances of the case were these.</p> <p>On the 1st of July, 1794, Gayoso de Lemos presented the following petition to the Governor-General of Louisiana: —</p> <p>“ To the Govern or-General: — Col. Manuel Gayoso de Le-mos, governor of the town and district of Natchez, to your honor sayeth, that he owns at half a league from this town a tract of land which he has bought to build thereupon a house, and to raise the commodities that will do to his family; but being also in want of pasture for his horses and other quadrupeds, or animals, petitioner therefore begs of your honor to give order to the deputy-surveyor of this district to extend the boundaries of the said land to increase it to contain one thousand arpents; and petitioner will ever pray.</p> <p>(Signed,) Manuel Gayoso de Lemos.</p> <p>“ Natchez, July 1st, 1794 — say 1794”</p> <p>On- the 8th of August following the governor issued the following order to Carlos Trudeau, the surveyor: —¡</p> <p>“ New Orleans, 8th July, 1794.</p> <p>“ Granted. — The surveyor having to designate the limits in the notes of survey, which shall be exhibited'to me, so that a title in a due form may be extended to the party.</p> <p>(Signed,) • El Baron de Carondelet.”</p> <p>A plat was accordingly made out, and returned on the 3d of September, upon which a grant was issued. No translation of the grant being in the record, the original is not inserted.</p> <p>On the 12th of February, 1795, the following indorsement was made upon the grant.</p> <p>“ Recorded. Natchez, 12th day of February, 1795. This grant is transferred to Mrs. Margaretta Watts by a written instrument made on this day.</p> <p>“ Manuel Gayoso de Lemos.”</p> <p>Soon after this, either in the year 1795 or the early part of 1796, a private marriage took place between Gayoso and Margaret Watts. The reasons for its being private are thus explained in the deposition of Judge King, and in the letters of Gayoso himself to Mr. Wilcoff, the brother of Mrs. Watts.</p> <p> Judge King’s Testimony. </p> <p>“ To the first interrogatory he saith, he believes that Fernando Gayoso was born at Natchez, in the year 1796 or 1797, and that he was the legitimate son of Don Manuel Gayoso de Lemos and Margaret Watts; and witness will proceed to state, as he is requested in the interrogatory, some of the circumstances which induce his belief. Some time in the year 1797 or 1798, Don Manuel Gayoso was made governor of the Province of Louisiana, and arrived at New Orleans in one of those years to take charge of his government. He came to the city in a barge, and landed immediately opposite the store of witness. Witness, being acquainted with the governor, went on board the barge with others to welcome his arrival. Mrs. Gayoso (Margaret Watts) was with the governor, and had her son, the said Fernando Gayoso, then an infant, in her arms; witness, to the best of his recollection, took the child'from his niother’s .arms, and carried him on shore. Witness had known the said Mrs. Gayoso as Miss Margaret Watts, previous to her first marriage. Having been the bearer of a letter of introduction from General Wilkinson in 1793 to Governor Gayoso, then governor of Natchez, witness was invited to'his house, where he became acquainted with his family, then consisting of Mrs. Watts, the mother-in-law, and' Miss Margaret Watts, his sister-in-law.</p> <p>“ In the year 1796 or 1797 it was currently reported and believed in the city of New Orleans, where witness then resided, that Governor Gayoso had been privately married to Margaret Watts at Natchez, which marriage could not. be publicly acknowledged, because it had been contracted without the permission of the Icing of Spain, or perhaps the dispensation of the Pope was needed, as the former wife of Governor Gayoso had been a sister of Margaret Watts, or perhaps for both these reasons. Some time after the arrival of Governor-Gayoso at New Orleans, the Bishop-of Havana happening to be there, and the impediments to the marriage, whatever they were, having been removed, the nuptial ceremony was publicly solemnized by the bishop. Witness was not present at the marriage, but the fact that it was celebrated was one of general notoriety, and universally believed in the city of- New Orleans. Witness was frequently at the house of Governor Gayoso in the city of New Orleans, where he saw Mrs. Gayoso (Margaret Watts) and Fernando Gayoso, and on all occasions the former was treated as the wife of the governor, and the latter as the child of their marriage. Mrs. Gayoso, as' witness always understood, was, after the death of Governor Gayoso, treated by the Spanish government as his widow, and as such allowed during her widowhood a pension equal to half the annual salary of her deceased husband. Fernando Gayoso lived with his mother during his minority, except when at school, and was always spoken of by her as the issue of her. marriage with Don Manuel Gayoso de Lemos, Margaret Watts left at her death several other children, issue of a second marriage. At the settlement of her succession, Fernando Gayoso was treated as one of her legitimate heirs, and as such received his portion. From all these-circumstances, witness, who knew the parties from the dates already stated to those of their respective deaths, has always believed that Fernando Gayoso was the legitimate son of Don Manuel Gayoso de Lemos and Margaret Watts, his wife.”</p> <p> Letters of .Gayoso to Mr. Wikoff. </p> <p>(These letters were produced and proved by Eliza Parrott, the daughter of Mr. Wikoff.)</p> <p>“ New Orleans, 21 st February, 1796.</p> <p>“ My dear friend, — I suppose that by this you and my dear sister aré acquainted with my return from my long campaign,' by a letter “that our mamma wrote, as I arrived at the Natchez. Now 'this is to inform you that by the last packet I received my promotion as brigadier-general for my former services, and I still hope that the ensuing packet will bring me some other good news, in recompense of the successful campaign that I have finished. The lastwas-a general promotion, in which the Governor-General of this Province was made major-general, and several others promoted.</p> <p>“ A neighbor of yours is just going away, so this is just to repeat to you my affection, to give my love to my dear sister, and to embracé your sweet children. . Tell Manuel that he must come to see his godfather. Indeed, my friend, we must continue to make ourselves happy with an interview of our families; our dear mamma will look upon such an event as' the greatest blessing she could experience; therefore you must begin to think how to bring it about.</p> <p>“ As I am assured that you have been puzzled by the news mamma wrote of -our connection being brought to. an issue, I must explain it; that very day our contract was signed before many witnesses, and likewise an elegant country-house, with one hundred acres bordering th'e town that I settle on my dear Peggy, besides a very considerable allowance of my estate; however, for the public, I must wait for the king’s permission, which is important to Peggy to secure her the military pension; but this will be had by the latter end of this year, and perhaps by that time some considerable alteration in my public station, which I hope may enable me to serve you.</p> <p>“ I repeat my affectionate love to my dear sister and children, and I remain, sincerely, your truest'friend and humble servant.</p> <p>Manuel Gayoso de Lemos.”</p> <p>“Natchez, March 6th, 1797.</p> <p>“ My dear friend, — The American commissioner, Mr. Eli-cot, arrived here, and in a few days I shall set off with liim to have the first conference with the Baron near Clark’s. Perhaps we may fix the first point immediately, but it will be some time yet before we'proceed any further; therefore, I shad return to this place. In this situation I am overpowered with business.</p> <p>“ I wait with impatience for "the nécessary permission to publish my marriage, which, however, is as binding now; but the public sanction is necessary; I am in hopes that it will arrive by the first packet. General Former is lately arrived here with his daughter, married to Dr. Longstreet, whom I suppose you know, though he is very young — (I mean Mr. Longstreet). He thinks of paying you a visit; it seems that he is related to you.</p> <p>“ My kind, affectionate regard to my sister and children; and I remain, sincerely, your most humble, obedient servant and friend, Manuel Gayoso de Lemos.”</p> <p>“New Orleans, 18¿/¿ August, 1797.</p> <p>“ My dear friend, — Though as busy as you may suppose at my arrival here, I do not wish to let this opportunity pass without renewing to .you and to my dear sister the sincere assurances of my affection and attachment for you. I left our friends well at Concord, with the addition of a fine boy that four, days hence will be one month old. At the beginning of October I shall send my galiot for your sister, whom I did not bring down on account of the excessive heat, and because she would .find the house not conveniently furnished at our first arrival. The retard of the packet from Europe was the cause of the delay- of the king’s permission, as likewise, of my promotion to. the command of the province, signed by the'king the 20th of October last; however, they both arrived at the same time, and restored tranquillity to our friends.</p> <p>“ When we are fixed, at home, I shall insist on a visit from my dear. sister, &e., &c., one of these days. I shall prepare a summons, which I shall send up to Concord, to be signed by Lady Governante, as belonging to her department, to obtain the desirable end. The new governor of Texas is a friend of mine. I have already wrote to him an account of your negroes, but it would be necessary to have names and description, which, if you send to me, I’ll have circulated in all the outposts, &c.</p> <p>“ If I can be of any service to you, I need not add here complimentary expressions, I shall do it cheerfully. My love to rfty dear sister and all the little cohort. I hope she has been happily delivered, and that you all enjoy good health.</p> <p>. “ I am, sincerely, your most humble servant and friend,</p> <p>Manuel Gayoso de Lemos.”</p> <p>On the 14th of July, 1797, Fernando was born, as appears from the following certificate.:—</p> <p>“Manuel Gayoso de. Lemos, brigadier of the royal armies, military, and civil governor of the town and district of Natchez, &Ci, on this Friday, 14th July, 1797, at seven minutes to one o’clock in. the morning, my wife, Margaret.Watts Gayoso, was delivered of a robust and healthy child, to whom I determined to give the name of Fernando.</p> <p>Manuel Gayoso de Lemos.”</p> <p>On the 10th of December, 1797, the official ceremony of marriage was performed, as shown by the following certificate.</p> <p>“ No. 422. ■— On Sunday, 10th of December, of the year 1797, the most Christian Don LuÍ3 Tenalver y Cardenas, most worthy prime bishop of this diocese of Louisiana and Floridas, Marriage of Don of the Council of his Majesty, married and imL^Ste parted the nuptial benediction to Don Manuel MargaretWatm. Gayoso de Lemos, brigadier of the royal armies of lfis Catholic Majesty, civil and military governor of the aforesaid province, a native of the kingdom of Galicia, and Margaret Watts, his legitimate wife, native of Baton Rouge, district of this- same government. They performed confession and communion, and to certify the above, I sign.</p> <p>“Fe. Antonio' de Sedella.</p> <p>“ The above, is a true copy from the original, kept in the archives of the above church for reference. New Orleans, 23d August, 1844.</p> <p>“ Ant. Duluc,</p> <p>Secretary of the Yestry of the St. Louis Church.”</p> <p>In July, 1799, Gayoso died, and was buried in New Orleans, being then civil and military governor of the Province of Louisiana.</p> <p>On the 10th of August, 1799, Margaret Watts Gayoso conveyed to Daniel. Clark, Jr., for the consideration of. $ 5,000, a certain plantation or tract of land, “ known by the name of Concordia, situated, lying, and being in the Mississippi Territory, in the United States of America, about half a league northeast óf the fort of Natchez, containing one thousand acres, or arpents, be the same more or less, as is fully expressed in the grant and plan of said land, No. 632, accompanying this bill of sale ” ; and accompanied the sale with a general warranty.</p> <p>On the 15th of August, 1800, Daniel Clark conveyed the property to William Lintot for ten thousand dollars. The deed contained the following recital: —</p> <p>“ This indenture, made this 15th day of August, in the year 1800, between Daniel Clark, of the Mississippi Territory, of the one part, and William Lintot, of the Territory aforesaid, witnessed: That whereas, on the 10th.day.of September, in the yéar 1794, there was- granted by the Baron de Carondelet, Gbvernor of Louisiana, unto Don Manuel Gayoso de Lemos, a tract or parcel of .land, called Concord, containing, by estimation, one . thousand acres, with the appurtenances, situated in the district aforesaid, as per plat and grant accompanying this , will more fully appear. And whereas, by an instrument of writing! which also accompanies this, dated the 12th day of February, in the year 1795, the said Don Manuel Gayoso de Lemos did, for certain considerations therein recited, convey the said land, with all the appurtenances, to Margaret Watts; and whereas the said Margaret Watts, now the widow of the said Don Manuel Gayoso de Lemos, by her deed dated the . 10th day of August, 1799, whieh also accompanies this, did convey the said land with the appurtenances to Daniel Clark, then junior, for the valuable consideration of five thousand dollars,” &c.</p> <p>On the 15th of November, 1800, Lintot conveyed to Stephen Minor, the ancestor of the appellees.</p> <p>In 1802, a contract was madé between the United States and the State of Georgia, by which. Georgia, ceded to the United States all the territory in which the granted land was. But it was stipulated in the deed of cession, that “ all persons who, on the 27th of October, 1795, were actual settlers within the territory thus ceded, should be confirmed in all the grants legally arid fully executed prior to that day, by the former British government or the-government of Spain.” This agreement between the United States and Georgia will be found in 1 Land Laws, 588.</p> <p>On the 3d of'March, 1803, Congress passed an act (2 Stat. at Large, 229), entitled “ An Act for regulating the grants of land and providing for .the disposal of lands of the United States, south of the State of Tennessee.” This act established a board, before which all claims were to be brought, and the sixth section provided that, where it shall appear to the board that the claimant is entitled to a tract of land under the articles of .'agreement and cession, with Georgia aforesaid, in virtue of a British “ or Spanish grant legally and fully executed, they shall give a certificate thereof, describing the tract of land and the grant, and stating that the claimant is confirmed in his title thereto by virtue of the said articles; which certificate, being recorded by the register of the land-office, shall amount to a relinquishment for ever on the part of the United States.”</p> <p>In 1804, the. following proceedings took placé before-the board: —</p> <p>■“ Monday, the 10th of September, 1804, the board met.</p> <p>“-'No. 1220. Stephen Minor claims one thousand arpents, Spanish patent to Manuel. Gayoso, dated the 12th of September, 1794, who assigned and transferred the same to Margaret Watts, afterwards Margaret Watts Gayoso,-the 12th of February, 1795, who conveyed the same- to Daniel "Clark by deed dated the 10th' of August, 1799, who conveyed the same to William Lintot, the 15th of August, 1800, who conveyed the same to the .present claimant on the 15th of September, 1800; the patent to Gayoso, assignment to Margaret Watts, deed from Margaret to Clark, deed from Clark to Lintot, and deed from Lintot to Stephen Minor, \vere. produced in evidence, filed with the Register...</p> <p>“ Witness William .Barland on oath says, that Margaret Watts Gayoso was an actual settler in the-Mississippi' Territory on the 27th of October, 1795.”</p> <p>And on the 18th of September, 1805, the following certificate was issued.:-—</p> <p>“ A No. 610. Mississippi Territory. Register 1220.</p> <p>“ Board of Commissioners west of Pearl River, established by a law of Congress regulating the grants of land, and providing for the disposal of lands of the United States south of the State of Tennessee.</p> <p>“ Stephen Minor claims a tract of seven hundred and fifty-six arpents of land, situated in Adams County, near the city of Natchez, by virtue of a grant under the authority of the Spanish government, to Manuel Gayoso de Lemos, for one thousand arpents, bearing date the T2th day of September, in the year 1794, having such shape, form, and marks, both natural and artificial, as are represented in the plat annexed to said grant, and legally conveyed to the claimant.</p> <p>“ We do certify, that the said Stephen Minor is confirmed in his title thereto by virtue of the articles of agreement and cession between the United States and Georgia.</p> <p>“ Given under our hands, at the town of Washington, m the county of Adams, this 18th day of September, in the year 1805, and in the thirtieth year of the independence of the United States. “Robert Williams,</p> <p>Thomas H. Williams,</p> <p> Co mmissioners.” </p> <p>It was admitted- that those who claimed under Minor had been in possession since the issuance of the certificate of confirmation.</p> <p>In December, 1805, Margaret Watts Gayoso married Captain Stelle of the United States army.</p> <p>Stelle died in 1819, and Margaret in 1829. •</p> <p>On the 9th of May, 1832, Fernando Gayoso de Lemos, a citizen of Louisiana, filed a bill in the Circuit Court of the United States for the Southern District.of Mississippi, against Job Routh, Katharine Minor, John Minor, executor of Stephen Minor, and John William Minor, of Mississippi..</p> <p>The bill charge's that the complainant is the lawful son and only heir of Manuel Gayoso de Lemos, deceased, and that the said Manuel was, on the 27th of October, 1795, an actual settler within the Territory, now the State', of Mississippi, ceded by Georgia to the' United States on the 14th of April, Í802; that he then held a- grant legally and fully executed prior to the 27th of October, 1795, by the government of Spain, for 1,000 arpents of land, now situated in Adams County, Mississippi; that he or his legal representatives were entitled to a confirmation of that grant by the articles of cession between the United States and Georgia, and that the said Manuel’s wife, Margaret, the complainant’s mother, survived her husband, married James St'elle in 1804 or 1805, and died in 1829, and that Stelle died in 1819.</p> <p>The bill further states, that Stephen Minor, deceased, late of Adams County, Mississippi, became possessed of the evidences of the said Manuel’s said title, and after the death of the’ said Manuel, and during the infancy of the complainant, and while he resided in Louisiana, procured from the board of commissioners, west of Pearl River, the issual to him, in his own name, of a certificate for 760 arpents of. said land, which certificate was so unlawfully, falsely, and by imposition procured to the said Minor in fraud of the complainant’s rights, and of right belonged and ought to have issued to the com-, plainant as sole legal heir of the .said Manuel; that Stephen .Minor died in 1815 or 1816, leaving his wife Katharine (one of the defendants) devisee and trustee of all his estate, and making her and John Minor (also a defendant), his executors; and that the executors on the 25th of January, 1829, conveyed the land to the .defendant William J. Minor, the son of Katharine Minor, who, on the same day, reconveyed to his rflpther, in whose possession it now is, with the Spanish grant, as- it was before in her husband’s possession, and that before these last-mentioned r. -nveyances the parties to them were aware of the complainant’s claim. , .</p> <p>The bill further states, that Job Routh, then and now a citizen of Adams County, Mississippi, procured from the same board of commissioners, in like manner as Minor, a certificate for 244 arpents of said tract, under and by virtue of the said evidence of the said title of the complainant’s father, and has long been in possession, and that said certificate belonged and ought to have issued to the complainant.</p> <p>The bill prays that Katharine Minor and Job. Routh may be decreed to convey the land to the complainant, and. deliver him the evidence of the title to it, and to account for the rents and profits, and for general relief.</p> <p>After sundry proceedings of demurrers, which were overruled, and bills of revivor, which it is not necessary to state, the defendants answered, in November, 1845.</p> <p>The-answer sets out the title at law'of the appellees, begin-: ning with the Spanish grant which lies at its foundation, tracing the assignment of. that grant through its several successive holders to. Stephen Minor, showing Minor’s application under it to the board of commissioners, west of Pearl River, appointed by virtue- of- the act' of. Congress of 3d March, 1803, “ for regulating the grants of land, and providing for the disposal of lands of' the United .States south of the State of Tennessee,” and the certificate of the board in his favor, and thence deducing their title regularly from him. It denies that the certificate was issued to Stephen Minor unlawfully, falsely, or by imposition or fraud; and avers that the Concord plantation has been in the possession of them, and those under whom they claim, since the 10th of August, 1799.</p> <p>The answer does not admit Fernando Gayoso to be the lawful son and heir of Manuel Gayoso, or that said Manuel married Margaret Watts, or that she left children, or the date of the death of the said Manuel or Margaret, or the age of the said Fernando at the time of the death of the said Manuel, and requires proof of the averment of the bill on these héads.</p> <p>The answer further denies that the said Manuel Gayoso was an actual settler, within the meaning of the act of Congress of 27th October, 1795, and that the appellees had any notice of the claim of the appellants prior to the commencement of the suit-; and, in addition, relies on the failure of the appellants to file their bill within twenty years after the accrual of the right in virtue of which they claim.</p> <p>To this a general replication was filed, and a large, mass of evidence was taken.</p> <p>In November,'1847, the cause was discontinued as to the heirs of Job Routh, and abated as to Austin Williams, Archibald' Williams, and Elias Ogden. It then came up for argument on the bill, answers, exhibits, and proof, when the Circuit Court dismissed the bill, with costs.</p> <p>The complainants appealed to this court.</p>