Saffold, J.
This was an action of trespass, to recover damages,.as well as to try titles to a lot, in the city of Mobile, bounded by the lot called the "Cot-[108] ion press lot,” occupied by A. F. Stone & Co. on the East; Government Street, on the South, and on the North, by the public bake-house lot.
The defendants in error were plaintiffs in the Circuit court: they obtained a verdict and judgment for the premises in dispute, and for the damages sustained. On the trial, Hallet, the then defendant, excepted to the opinion of the court, as follows, viz:— “ The plaintiffs proved possession in their ancestor, of the premises, in the declaration mentioned, from about the year 1802, until the day the defendant was put in possession by the sheriff of Mobile county, of the premises, which was proved to be the day of the commencement of the suit (the 4th April, 1826;) and also gave in evidence a certificate of confirmation, from the land office of the proper district; together with their notice of claim, and the bill of sale, where-' on the said claim was founded, hereto annexed, (marked A,A,) also a warrant oflocation, from the same land office, with a bill of sale attached, translated and copied from the Spanish records; but which bill of sale had not passed through the land office, nor been filed or recorded there; and which was objected to-being received as-evidence, on that account; but the objection was overruled, and the said bill of sale was-permitted by the court, to be read in evidence, and which bill of sale is. hereto annexed, (marked B,) with the before mentioned order of location, hereto attached, (marked G,) and also a patent certificate,hereto annexed, issued from the same land office, (marked E,) and there rested their case.
The defendant gave in evidence a patent certificate of confirmation, issued from the same land office, in the name, and in favor of the heirs of Xio-[109] bert Farmer, under whom he claimed, (marked C,) for the same premises mentioned in the plaintiffs’ declaration, founded on a French patent, or complete grant, to one Grondell, under whom said heirs claimed, bearing date the 3 9th April 1757, as appears, by the “Register of evidence, collected, in relation to lots in the town of Mobile,” hereto annexed, (marked D,) and which was also given in evidence, having been copied from the records of said land office, and proven to be a true copy.” But, it is also stated in the exceptions, that the only evidence offered by the defendant, of his claim, having been derived from a French grant,.to Grondell; or that there had been a grant to him — was the evidence taken from the land office, and before referred to,” &c. “And it was further in proof, on behalf of the plaintiffs, that Caye-ton Perez, who succeeded Osorno, as Spanish commandant, occupied a house on the premises, previous to the change of government, and paid rent to the plaintiffs’ ancestor for the same.”
The defendant having, also, rested his case on the evidence stated, prayed the court to charge the jury,that the evidence so offered, on his part, was paramount to the evidence of title, offered by the plaintiffs; and, that, therefore, .they ought to find for him; but the court refused so to charge them; and, on the contrary thereof, did charge them, that the one certificate balanced the other; and, that the evidence of possession, on the part of the plaintiff, was sufficient. to entitle him to. recover; and, that they ought, under the evidence, to find for the plaintiffs.
The certificate of confirmation, referred to, under' letter A, is from the Register and Receiver, acting,ex-officio, as commissioners; and states, that claim, No. [110]*11079, in the Report of the Commissioners, No. 11,' claimed by Miguel Eslava — original claimant, J. De Osorno — was confirmed; it being for a lot, containing-, situated in the town of Mobile; and claimed under a grant, lost, by time or accident; _ and to be located, &c.; and was expressed to have been granted in pursuance of an act of Congress, passed the 8th May, 1822, entitled, “An act, confirming claims to lots in the town of Mobile,” and bears date the 4th November, 1822. This is understood to be the lot in contest.
The information of claim from Eslava, also marked A, consisted of a notice to the commissioner of his claim, to a lot and house, by virtue of a bill of sale to him, from Joaquin De Osorno, commandant, &c. of Mobile, bearing date, in 1814; accompanied with a conveyance from Jo;,'quin De Osorno, commandant of Mobile, to Eslava, declaring a sale of the house, in which it is recited, the former had dwelt upon the lot of .ground he bought of F. Fon-tanella, arid built, at his own expense; and which he ceded to Eslava, free from all incumbrance, &c. This notice is certified by W. Barton, as Register of the land office, to be,a true copy from the original record of the claim of Miguel Eslava, from the written evidence of claim then in his office; and that a .certificate of confirmation, to wit: certificate No. 74, of claim, No.79 in Report, No.11, of the commissioner, had been issued by the register and receiver, in his favor, and bears date 4th November, 1822.
The paper referred to in the exceptions, as the bill of sale, (B,) purports to be a conveyance from F. Fontanella, to said Osorno, of a lot of 114 feet front, and 226 in depth, bounded, north, from the king’s [111] bake-house, See. translated and copied from the Spanish records, bearing date, August, 1801; and which, as stated in the exceptions, was translated and copied, as aforesaid, but does not appear to have passed through the laud office, nor to have been filed or recorded there : it has attached to it the warrant of location, as described in the exceptions, for the same lot, dated, August, 1823 ; together with a duly certified plat, stating the lot to contain 25,312 superficial feet, dated 29th October, 1828.
The patent certificate in favor of Eslava, also referred to, is in the usual form for the same lot, of the same contents, from the same land office, bearing date 3d 'September, 1824.
The patent certificate C, offered in evidence on the part of the defendant, is from the same land office, and purports to have issued, in pursuance of the act of Congress, also of the 8th May, 1822, entitled,- “an act-confirming claims to lots in the town of Mobile, and to lands in the former province of West Florida, which claims have been reported favorably on, by the commissioners appointed by the United States.” It certifies that the claim of the heirs of Robert Farmer, original claimant Grondell, No. 27, in the report of the register and receiver, No. 7, had been confirmed, under the said act, and that on the 8th May, 1824, the said claim was regularly surveyed, containing 12,600 superficial. feet, &c., and designated as a lot m the town of Mobile, in township No. 4, of range No. 1, west, bounded and described as per plat, &c. and bears date the 28th March,-1827. The certificate of survey accompanying the plat, states, “It may be proper to observe, that a claim is set [112] up for the same lot, by the representatives of Don Miguel Eslava, by purchase from Osorno.”
The evidence referred to, .under letter D, in the exceptions, to shew that the certificate in favor of the heirs of Farmer, was founded on a French grant, to Grondell, is found to tie only an abstract of claims, being a copy of the report of the commissioners as recorded in the land office, entitled a “ Register of evidence collected in relation to lots in the town of Mobile,” shewing in a tabular form only, the number of the lot — by whom claimed — the original claimant — the nature of the claim, and from what authority derived — date of the claim — quantity in féet— where situated — to whom issued — cultivation and in-habitation. To which is subjoined the certificate of the register, that the same is a true copy of the report of the' commissioners, on the claim of Robert Farmer, as recorded in the book destined for that purpose, in his custody. These are all the facts considered material: th$ identity of the lot is not contested.
Hallet, the plaintiff in error, now assigns as erroneous the several matters and opinions of the-court, as stated in the bill of exceptions.
If the case be viewed, with reference alone to the presumption of right, arising -from possession, the advantage is obviously in favor of the heirs of Eslava. Notwithstanding Hallet was in quiet possession, at the commencement of this suit, and appears to have been placed there by the sheriff, the former have proven a possession, by their ancestor of about twenty-four years prior to that time. No legal inference can be drawn as to the strength of Hallefis title, from the fact of his having thus quietly obtained posses* [113] sion, farther, than that he did not enter as a trespasser. If he had previously established a right, either of property or possession, which continued available, by any judicial determination, it was his privilege and duty, in this trial, to have availed himself of it, either by the record, or by the introduction of the same evidence, de novo.
But the plaintiff in error, now relies upon the patent certificate, in favor of the heirs of Farmer, founded on the French grant to -Grondell, under the former of whom he assumes to claim title. He insists that his title, as it was derived from a grant, complete* and of early date, can not be overreached; orthatifhe has not shewn a regular deduction of the title to himself from Grondell, that he has proven an outstanding title in another, which is sufficient for his defence. It is admitted to be a well established rule of law; that to entitle a plaintiff' in ejectment to recover, he must show a sufficient title in himself, regardless of the weakness of his adversary’s* If the defence can prevail, it must be alone on that principle; for the position assumed in argument, that neither the French grant, nor any competent evidence of it, appears from the record to have been produced on the trial, is equally sustainable. If an inference could be drawn from the first part of the bill of exceptions, that it was produced, the subsequent statement, lhat “the only evidence offered by the defendant, of his claim, having been derived from a French grant to Grondell, or that there had been a gra?it to Grondell, was the evidence taken from the land office, and before referred to} under the letter D,” excludes the idea of any other proof of its existence, legality, or genuineness; or that there was any proof of a chain of title from the [114] patentee to Hallet. I recognise no authority for adjudging a copy of the land office register, or the original entries of the grant to' Grondell, or of the'conveyance from him to Farmer, as legal substitutes for the originals in either case, until, at least, the original instruments have been shown to be lost or destroyed.
Various acts of Congress have been referred to in argument, on both sides, as being material. Legislation relative to titles to lands in West Florida, and lots in Mobile, has been so frequent, as greatly to embarrass the subject, and create difficulty in extracting such parts of them, only, as are material,to the questions presented.
The first which I consider necessary to be noticed,. is that of 25th April, 1812,a for ascertaining the titles and claims to lands in that part of Louisiana which lies east of the river Mississippi and island of New Orleans.” It creates two lan'd districts, one eastand the other west of Pearl River; and authorises the appointment of a commission or and clerk to each, for the purposes of the act. By the fourth section, it requires, “that every person claiming lands in the tract of country aforesaid, by virtue of any grant, order of survey, or other evidence of claim whatever, derived from the French, British, or Spanish governments, shall deliver to the commissioners of land claims,” &c. a notice, in writing, stating the nature and extent of his claim; together with a plat, (in case a survey shall have been made,) of the tract or tracts claimed; and shall deliver to the commissioners, when attending as aforesaid, for the purpose of being recorded, every grant, order of survey, deed, conveyance, or other written evidence of his claim, and-ihe same shall be recorded by the clerk, in a [115] book to be kept for that purpose: Provided, that, where lands are claimed by virtue of a complete French, British, or Spanish grant, it shall not be necessary for the claimant to have any other evidence of his claim entered at large, on the record, except the original grant or patent, together with the order of survey and the plat-, all the other conveyances, or deeds, may be abreoiated in the entry, but the chain of title and the date of every transfer shall appear ,on the record. And if such purchaser shall neglect to deliver such notice in writing, of his claim, together with the plat, (in case the land shall have been surveyed,) as aforesaid, or cause to be recorded, such written evidence of the same, within the'time and times as afore-, said, his claim shall never afterwards be recognized, or confirmed, by the United States; nor shall any grant, or order of survey, deed, conveyance, or other written evidence, which shall not be recorded as above directed, ever^after, be considered, or admitted, as evidence, in any court in the United States, against any grant which may hereafter be derived from the United States.” ,
The seventh section, directs the commissioners, under instructions from the Treasury Department, "to prepare, or cause to be prepared, abstracts from the records, of the claims filed as aforesaid,” which “ abstracts shall contain the substance of the evidence adduced in support of, or obtained respecting the claims;.and shall contain such other information and remarks, as may he necessary to a proper decision thereon; which abstracts the commissioners shall respectively, as soon as may be, report to the Secretary of the Treasury, and shall be by him laid before Congress, for their determination thereon.”
[116] An act entitled, “an act for adjusting claims to lands, an destablishing'land offices in the district east of the island of Orleans,” passed on the 3d March, isi9,a created the land offices at St. Helena C. H. and at Jackson C. H., and authorised the appointment of registers and receivers thereof; and transferred to them the powers and duties previously confided to the commissioners of the districts east and west of Pearl river. It also directed the appointment of a principal deputy surveyor for the lands within the said districts; and contains various other provisions, similar, (as far as material to this case,) to the directions of the other act already quoted.
The act of 8th May, 1822, “supplementary to the several acts for adjusting the claims to lands, and establishing land offices in the districts east of the island of New t)rleans,”b section one, provides that all claims to lands said to be derived from the British or Spanish authorities, reported to the commissioner of the general land office, by the registers and receivers, (who, as we have seen, were authorised to exercise the powers and duties originally vested in the commissioners,) which should be contained in their several reports, “ and which are, in the opinion of the registers and receivers, valid, agreeably to the laws, usages and customs of the said governments, be and the same are hereby, recognized as valid and complete titles against any claim on the part of the United States, or right derived from the United States.”
The second section contains a similar provision, respecting all claims reported as aforesaid, “founded on orders of survey, requeues, permissions to settle,. qnd other written evidences of claim derived from [117] the Spanish authorities, which ought, in the opinion of the registers and receivers, to be confirmed: ” Pro- . vided, that all such confirmations of claims, “shall amount only to a relinquishment forever, on the part of the United States, of any claim whatever, to the tract of land so confirmed or granted.” The fifth section of the same act directs the issuance of patents for all lands, the claims to which should be confirmed, by virtue of the provisions therein contained, in the same manner that patents are, granted for lands confirmed under former acts, to which this is a supplement.
Another act of the same date, (8th May, 1822,) “confirming claims to lots in the town of Mobile, and to lands in the former province of West Florida,” &c. provides : “Section 1, that all claims to lots, in the’ town óf Mobile, founded on complete grant's, derived from either the French, British or Spanish authorities, reported to the Secretary of the Treasury by the commissioner east of Pearl river, under the first recited act; or which were so reported by the register and receiver, acting as commissioners under the act of the third March, 1819, before recited, and which are, in his opinion, valid, shall be, and the same are, thereby recognized as valid. The second section contains a similar provision respecting all claims to. lots in Mobile, founded on any orders of survey, re-queues, permissions to settle, or other evidences of claim, derived from either of said authorities, and bearing date prior to the 20th December, 1803. The third section places all claims to lots on the same valid footing, which have been reported in the same manner, “founded on private conveyances, which have passed through the office of the commandant, or [118] other evidence, but founded, as the claimants allege,* on grants lost by time and accident; and which ought, in the opinion of the commissioner, to he confirmed.
Thus, it appears, that, by the fourth section of the act. of 181*2, the evidence of the various grades and descriptions of laud titles, were required to be delivered by the claimants, to the commissioners of the respective land districts, east a'nd west of Pearl river, for the purpose of being recorded ; and the same was directed to be done accordingly. That, where the claim was by virtue of a'French, British or Spanish grant, the same should “be entered at large on the record ;” together with the order of survey, and plat, if surveyed; and that all the other conveyances, or deeds, might be abreviated in the entry: and further, it was provided, that if any -such claimant ‘should neglect to cause to have recorded, such written evidence of his claim, the same should never afterwards be recognised or confirmed by .the United States— nor should such be considered, or admitted as evidence, in any court of the United States, against any grant,> issued under the authority of the same. And, that the. abstracts from the records of the claims filed, with the accompanying remarks of the commissioners,.as'directed by the seventh section of the same act, to be reported to the secretary of the treasury, should be, by him, laid before congress, for their decision thereon.
• It was, doubtless, to avoid the labor and expense of transcribing the evidence entire; and from a presumption, that abstracts would answer all the purposes of transcripts or originals, for the summary and exgarte investigations by congress; and a conviction that any one, who chose to do so, Mould have an op-, [119] portunity of contesting the legality of nil such titles, before a judicial tribunal, ou the highest and best evidence the nature of the case would admit of, that full transcripts were not required at the treasury department. But, it was deemed no less necessary, that the best evidence should be delivered to the com-. missioners, and be, by them recorded, for their better preservation; and fori the information of all persons, who then were or might, áfterwards, become, interested therein. The original paper titles are presumed still to have remained subject to the use of the claimants.
It has, also, been shewn, that the act of the 3rd March, 1819, above referred to, besides establishing the land offices, and vesting the powers and duties previously belonging to the commissioners, in the registers and receivers, required, that the evidences of .land claims, not previously attended to, should be delivered to them, to be recorded, and reported on, in the manner required of the commissioners, in the former act.
It further appears, that the act referred to, of the 8th May, 1822,confirming claims to lots, in the town of Mobile,” &e. recognises all proceedings le-* gaily had, under the former acts, and declares valid, all claims to town lots, founded on complete grants; or, on any orders of survey, requettes, permissions to settle,'or other evidences of claim, existing prior to the 20th December, 1803 ; and, which .claims, of. either kind, were derived from the French, British", or Spanish authorities : also, all claims to lots, founded on private conveyances, which were passed through the office of the commandant, or other evidence, supposed to be founded on grants, lost, by time [120] and accident; provided, in each case, that the claims have been reported as required by the acts, and are valid, in the opinion of the commissioners, making the reports thereon. Nothing is found, in any subsequent act, varying the provision of the act of 1512, that the evidence, in all cases, not laid before the commissioners, and recorded, as directed, shall be inadmissible, as evidence, in courts of justice, against .any grant from the United States.'
If, then, the “ register of evidence, collected in relation to lots in the town of Mobile,” relied on, hy the plaintiff in error, was inadmissible as evidence of a legal title, it could only serve to prove a colora-ble title, in the heirs of Farmer, and create the presumption, in the absence of higher evidence, that their patent certificate issued on that grade ,of title only. It is entirely clear, that this evidence cannot have thé effect to prove, that the alleged French patent was a valid and subsisting grant. The patent, itself should have been produced, or its loss or destruction legally shewn; and then a full transcript from the record, not the mere abstract, should have been produced in evidence : and, in either case, the genuineness anda legality of the patent, should have been shewn, according to the rules of evidence.— This grade of evidence must be presumed to exist, and to be within the power of the party, as the report of the commissioners purports to have been founded upon it, and the law required, that it should previously have been recorded at large.
The case of De La Croix vs. Chamberlain,a furnishes authority, by analogy, for requiring proof of the existence and legality of the supposed French grant; In that case the Supreme court says, the [121] warrant of survey relied on, “does not appear to have been recorded; it purports to be -the act of foreign officers, and was not verified-by the great seal of the nation to which they belonged, or any other authoritative official seal, which was known or could be proved. The court and jury qould not be presum- ’ ed cognizant of their signatures. How then could ' the genuineness and authenticity of the document be proved, otherwise than by proof of the signatures of the officers by whom it purported to be made? It was not of that class of public instruments which prove themselves, and consequently ought to have been proved in the mode ordinary instruments are required to be verified by the rules of evidence.”— In this case, then, the French patent ought to have been produced, that it might have appeared whether it had been authenticated by any “ authoritative official s'eal,” which proves itself, or could be proved; or its absence should have been accounted for and supplied, according to the rules of evidence, before it was entitled to the weight of a grant,or could preponderate against a patent .certificate, under the authority of the United States. As evidence of a colorable title,alone, it is worthy of less consideration than it might otherwise have been, from the fact, 1 hat no connection of title is shewn between the plaintiff in error, and Grondell, the supposed grantee.
In the case of Jackson vs. Hudson,, it is said,, “ a defendant sets up an out-standing title, in a stranger, it must be a present subsisting title: it must be one-that is living and operative--otherwise the presumption will be, that it has become tinguished.”b
[122] Some of the preceding remarks and authorities, tend, also to shew the invalidity of the paper, entitled, the bill of sale, marked B, from Fo'utanella to Os-orno, under whom Eslava’s claim purports to have been derived, the admissibility of which, as evidence, was objected to. It does net appear to have been delivered into the land office, and recorded, by abre-viation, as directed by the act of 1812. Though the government of the United States does not appear to have issued any patent for this land, which, according to the literal expression of the act, would exclude the neglected evidence: yet, I consider the reason of the exclusion not entirely inapplicable to rights of inferior grade — such as certificates, which, by law, entitle the holders to patents. This bill of sale, however, appears to have been introduced, rather in aid of Eslava’s certificate, than against Farmer’s; and, was material, to shew that the prior possession of the former, on which his heirs mainly rely, was continued under a claim, or assertion of right. In this view, there was no error, in admitting the evidence.
Yet, I maintain, that it was competent, according to national law, for congress to require the production of all land titles, in the tract of country lately ceded to the United States : and a record of them — as the only means of retaining their validity. Otherwise, it would have been impossible to ascertain the state and condition of the various grades of conflicting titles, and separate the private claims from the public domain. It is admitted, that according to modern principles of justice and humanity, even the conquest of a nation, does not, as formerly, extinguish the titles of individuals to their lands: “ that [123] it is against one sovereign, that another makes war, and not against the quiet subjects.”-That, “the conqueror lays his hands on the possessions of the State, on what belongs to the public, while private persons wete permitted to retain theirs."a When the sovereignty is changed, by a treaty of cession, the rights of individuals ought to be, and usually are respected, in like manner. Yet, says the same author, "every Stale has the liberty of granting, Or refusing, foreigners the power of possessing lands or other immovable goods, within its territory. If it grants them these privileges, these kinds of possessions, belonging to foreigners, remain subject to the jurisdiction Sand the laws of the country; and to the same taxes as the rest. The government of the sovereign extends over the whole territory; and, it would he absurd, to except some parts from it, on account of their being possessed by foreigners"b Again, he says, "`Immovable possessions, lands, towns, provinces, &c. become the property of the enemy, who makes himself master of them: hut, it is only by treaty of' peace, or the entire submission or extiriction of the State, to which these towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect."c That, " the necessity of making peace anthorises the soveregn to dispose of the property of individuals; and the eminent domain gives him the right to do so."d
These reflections and quotations have been elicited by the parts of the argument, which related to the power of the different governments to recognise or reject the different grades of title, in controversy.But, as the alleged French grant, to Grondell, does not appear' ever to have been recognised, under the [124] Spanish government, and was not produced on this trial, it is unnecessary to investigate, particularly, the obligations of the United,States government, to respect claims to lands, derived from the French, or British governments. But, it is worthy of notice, that, by the treaty of Ildefonso, in 1788, between Great Britain and Spain, in reference to Florida, eighteen months, only, were allowed to the subjects of the former, “to sell their estates, and remove their effects, as well as their persons;” but, with the farther stipulation, that if, from the value of the possessions of the English proprietors, they should not be . able to dispose of them, within said term, then the Spanish sovereign should grant them a prolongation, proportioned to that end. — Pursuant to which, a prolongation of four months was given.a
The construction of that treaty seems to be, that all British claimants were entitled to this indulgence; not only British inhabitants, but those who may have been subjects of the king of Great Britain, in the said provinces : but, in order to receive it, they must have complied with the terms of the treaty; and, if they failed or neglected to do so, and cause their titles to be recognised by the Spanish government, it was their own neglect or misfortune, and they most abide the forfeiture. If the terms of the treaty were violated Spain — (but which does not appear, and is not to be presumed) — it furnished a subject of complaint and.negotiation between those governments: it involved, not a judicial, but a political question — with which the United States have no concern, as they were neither parties nor privies to the war or treaty.
If, therefore, the patent to Grondell, from the French government, (which could not be better than if from [125] tlie British government.,) ever haci validity, it is presumed to have been forfeited, under the British or Spanish governments, while,they successively exercised the sovereignty of the country ; so that, at most, it rested in the discretion of this government, t.0 recognise it or not; and on such terms, as respects the time and manner of exhibiting the evidence, as it might deem necessary to prescribe. — See White & Overton's Report on British Claims.a
Admitting also, that the conveyance called a bill of sale to Osorno, for the “causes mentioned, could only be regarded as part of Eslava’s evidence of co-. lorable title, in connection with his possession, yet his notice of claim, his warrant of location, his certificate of confirmation, and subsequent patent certificate, shew, that the validity of his title, was recog-nised by the govornment, pursuant to the act'of 8th May, 1822, “confirming claims to lots in the town of Mobile,” &c.
But it is contended, in,opposition to this'evidence of right, that the heirs of Farmer also, have obtained a patent certificate from the government, in like manner, on evidence satisfactory to the officers entrusted with this duty : and, that Hallet, being defendant in the suit, must be considered secure, unless the plaintiff can produce a perfect indefensable title— that a plaintiff in ejectment, can only recover on the strength pf his own title — not on the weakness of his adversary’s.' It is, however, to be recollected, that the warrant of survey, and certificate, in the name of the heirs of Farmer, are junior to those in ‘favor of Eslava; and that the former certificate is admitted to have been founded, alone, on the supposed French patent, which does not appear to have been [126] recorded, as required by law; and of the existence of which, the Circuit court had no legal and sufficient evidence. In this aspect of the case, alone, independently of the main reliance of the heirs of Eslava, (which is his prior possession of more than twenty years,) their right would appear superior, according to the rule which prefers the oldest deed. — ■ A statute of this State, passed under the territorial government, in 1812, would, also, be material, in this view of the case. — It declares, “ that all certificates, .issued in pursuance of any act of congress, by any of the boards of commissioners, register of the land office, or any other person, duly authorised to issue such certificate, upon any warrant or order of survey,” &c. “for any land in this territory, shall be taken and received, as vesting a full, complete, and legal title in the person, in whose favor, the said certificate is granted, to the lands therein mentioned-, and his, her, or their assigns, so far as to enable the holder of such certificate to maintain any action thereon; and the same shall be received in evidence, as such, any court of this territory.”a Notwithstanding ,each party relies on a certificate, which, abstractly considered,, creates title of equal grade, when they come in conflict, as in this case, the general rule would give the preference to the elder, unless it could be invalidated/ by shewing that it had illegally issued.
As respects the objection, that the claim of Eslava was originally for a lot of indefinite contents, it, is sufficient to say, it has subsequently been ascertained, by a regular survey, .made pursuant to the act of Congress of 1S19; and the same objection applies, with with equal or greater force, to the claim of the heirs of [127] Farmer. The location of the latter, as respects the French grant, and the occupancy by R Farmer, is also indefinito, except as shown by the “Register of Evidence, in relation to lots in the town of Mobile,” previously noticed: nor is its identity there defined, further than by describing it as a lot situated on “Government street.” „
The other ground, and that on which the heirs of Eslava mainly rely for a recovery, in this state of conflicting inchoate paper titles, is his prior possession, under a claim aud assertion of light, for more than twenty years.
The ci rcurnstance that this case has previously been before this court,a and that a decision was then made, that 4he prior possession alone did not eatitle the heirs of Eslava to recover against the defendant, holding under his~patent certificate, is in no degree decisive of the case in its new aspecV. Then, it did not appear that the claim of E~Iava had ever been produced in evidence betbre the commissioners; that it had ever been brought, in the opinion of the corn-missioners, within the protection or indulgence of either of th~ acts pf Congress; or that he had obtained a patent certiticate in virtue of his occupaniy, and consequent p~sumption of a grant, or any other claim of right.
Therefore, as the United States had an undoubted right, to investigate and ascertain the state of the various claims, and to recognise or reject imperfect titles, derived under the former governments, and. to prescribe the mode of establishing them, on condition of forfeiture; and- as-the heirs of Eslava did not then shew, as they have since done, that these requisites had been complied with-they could not claim [128] the benefit of the right, from possession alone, against a title confirmed pursuant to the act of congress, and recognised as legal, in the absence of any that was better, under the statute of 1812, before recited.
But now the case is different, and the least that can be said in favor of the right of the heirs of Es-lava, under their certificate, is, that it balances the other set up against them, as charged by the Circuit judge; and, that, being in conflict, the certificates destroy the weight and influence of each other: consequently we must retrospect the original evidence of right in favor of each; and determine, independently of the certificates.
Then, was the possession of the premises, by -the ancestor of the defendants in error, under a claim of right for about twenty-four years, anterior to the recent possession of Hallet, in the absence of any preponderating paper title, or any, whatever, in him; sufficient to warrant a recovery in ejectment, or in this action, as a substitute for it?
Br the case of Jackson vs. Hazena the lessor of the plaintiff had been in possession only three years, when the defendant entered, without any color of right; it was held, that such a possession would enable the plaintiff to maintain ejectment against the defendant who was to be considered a trespasser.
The case of Jackson vs. Harderb was similar, except that the plaintiff had enjoyed a longer possession, and the defendant attempted to set up an outstanding title in a stranger. It was there held, in the opinion of the court, by Chief Justice Kent, not only that an intruder was denied the protection of an outstanding title in a stranger; but, also, that where upwards of twenty years of adverse posses[129] sion have- ran against an outstanding- title, it shall not l)o sot up ;”a that, “the presumption, in that case, in, that b in no longer a subsisting title.”b - It was, also held, in this case, that a claim, or title, which could not be setup bj a person, while in possession, cannot be set up by another, who comes into possession under him. — That, “The necessity of guarding against fraud and coliunion, between tenants and third persons, requires the observance of this rule.” These principles are deemed fatal to the alleged French grant, and any original occupany by Farmer.
The effect of possession was particularly involved, in the case of Smith vs. Lorillard.c In that case, also, the opinion of the court was delivered by Chief tice Kent, in which many authorities were reviewed. He held, that a prior possession, short of twenty years, under claim or assertion of right, will prevail over a subsequent possession of less than twenty years, when no other evidence of title appears, on neither sido;” provided, “the prior possession has not been voluntarily relinguished, without the animus rever--tendí, and the subsequent possession of the defend-'aut was acquired by mere entry, without any lawful right. Again, he says, “ejectment is a possessory action, and possession is always presumption of right, and stands good until other and stronger evidence destroys that presumption. This presumption of right every possessor of laud has, in the first instance, and after a continued possession of twenty years, under pretence or claim of right, the actual possession ripens into aright of possession, which will toll an entry. But, until the possession of the tenant has become so matured, it would seem to follow, that, if the plaintiff shows a prior possession, and upon [130] which the defendant entered, without its having been 'formally abandoned as derelict, the presumption which arose from the tenant’s possession is transferred to the prior possession of the plaintiff; and so the presumption may be removed from one side to the other, toties quoties, until one party or the other has; shewn a possession, which cannot be overreached, or puts an end to the doctrine of presumptions, founded on mere possession, by shewing a regular legal title, or a right of possession.” This court has more than once recognised the same principle, on the authority of English, as well as American decisions.a Ejectment is admitted to be a possessory action.-v Our statute of 1821, substituted this action of trespass to try titles, in lieu of it; and provides, “ that the laws now in force, in' relation to the action of ejectment, except so far as relates to the fictitious proceedings therin, shall aplied to the action of trespass to try titles,”b With us, as well as in England, twenty years is a lapse of time sufficient to bar any right or title of entry. Hence, I discover no reason for doubting the applicatiomof the doctrine of possession, in this State, as well as elsewhere. .
What is most decisive in favor of the right of recovery by the heirs of Eslava, is, that their presumption of right, from the long continued possession, is attempted to be resisted by setting up a title, not in Hallet, the original defendant, but in the heirs of Farmer, between whom and himself no privity or con-nexion of title has been shown.
Iam of opinion that the judgment must be.affirmed.
Lipscomb, C. J., not sitting.