
    Alexander Montgomery et al. vs. John Doe, on the demise of John Ives et al.
    The British government, after the declaration of independence, had no right to make grants to lands lying north of the 31st degree of north latitude; as that parallel was, by the treaty of peace of 1783 between the United States and Great Britain, declared to be the southern boundary line of the former.
    Yet prior to the declaration of independence, Great Britain having, after the war of 1750, by the treaty concluded in 1763, acquired from France and Spain all the land between the Mississippi river and the Atlantic ocean, ' subject to the Indian right of occupancy, had the right to make grants to any portion of the land, whether north or south of the 31st degree of latitude.
    Between those of the colonies which were royal, and those which were proprietary before our independence, this distinction existed, viz. : the former belonging absolutely to the crown, it retained both the right of soil and of jurisdiction, and could alter boundaries, grant lands, and dismember the government at will; in the latter, the right of soil as well as jurisdiction was vested in the proprietors; and no change could be made in the limits fixed by the charters, without the consent of the proprietors.
    Whether the crown of Great Britain had the right to change the boundaries of a royal colony, by any means less solemn and notorious than by a public proclamation, considered but not decided.
    By the proclamation of George III. of October 7th, 1763, by which, with others, the government of West Florida was created and established out of the lands ceded by the treaty of Paris, it was among other things stipulated that the Indian tribes should be protected “ in the possession of such parts of our dominions and territories as, not having been ceded to or purchased by us, are reserved to them or any of them as their hunting grounds; ” and that “ no private person do make purchase of any land from any Indians, but that the same shall be purchased only for the government in the name of the sovereign, at some public meeting of the Indians ; ” in 1772, the government of West Florida created under this proclamation, granted a body of land lying between the mouth of the Yazoo and the 31st degree of north latitude ; it was held that this grant was invalid, because the Indian title was not extinguished in the land thus granted, until 1777 ; and under the proclamation of 1763, the power of the royal governor within the territory reserved, was suspended.
    Whether that portion of the lands ceded to Great Britain by France and Spain in 1763, lying between the mouth of Yazoo river and the 31st degree of north latitude, ever constituted a part of the government of West Florida, created in that year by royal proclamation, so that they would pass by a grant from the British governor of that colony, dated in 1772, discussed by Mr. Justice Clayton, and its decision left to depend upon the fact, whether the limits of the province of West Florida, as established and defined by the public proclamation of 1763, were afterwards extended north from the 31st degree of north latitude to the mouth of Yazoo river, by commissions to governors of that province, issued in 1764 and 1770. Mr. chief justice Sharkey was of opinion, in view of the facts, that the boundaries of West Florida, as established on the north by the 31st degree of north latitude, by the proclamation creating it, had never been extended or altered by any other proclamation; and that Great Britain, by the treaty of peace of 1783, acknowledged all the lands north of the 31st degree of north latitude to be part of the United States, which it could only have done upon the admission, that they formed a part of one of the revolted colonies, and not of the province of West Florida; that the lands lying south of the mouth of Yazoo river, and north of the 31st degree of .north latitude, never formed a part of the province of West Florida, and could not therefore pass by a grant from its governor.
    A claimant under a British grant from the governor of West Florida, dated in 1772, filed his claim with the board of commissioners constituted under the act of congress, to carry the session made by Georgia into effect: Held, that this was an acknowledgment that his claim was subordinate to the act of congress ; and having thus submitted to claim under that act, he could not afterwards be permitted to claim above it.
    . The plaintiff in ejectment claimed under a British grant from the governor of West Florida in 1772, the defendant under a grant from the Spanish government, bearing date in 1795; both grants were void, yet both were submitted to the commissioners appointed under the act of congress, to carry into effect the cession made by Georgia, and both confirmed by that commission : Held, that this confirmation did not relate back to the dates of the respective .patents, so as to cut out the younger patent; each patent took effect from the date of the articles of cession, and as both therefore were of equal dignity, and conferred equal right, the defendant could not be disturbed in his possession, but must prevail over the plaintiff.
    The confirmation of a void patent does not, by relation back to the date of the patent, affect the rights of third persons.
    
      Thirty-two years’ adverse possession of real estate, before the commencement of a suit in ejectment for it, is a bar to the plaintiff’s right, unless he can bring himself within some exception of the statute.
    R. applied in his petition for confirmation of a British grant, under the act of congress of 1803, and represented himself as the “ only surviving heir and legal representative ” of the grantee: Held, that this petition put an end to R.’s claim to be tenant by the courtesy of the lands ; inasmuch as he claimed upon the higher ground of descent and heirship in himself.
    In error from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge.
    On the 21st of March, 1841, John Doe, on the demise of John Ives, and Mary his wife, Matthias Overman and Sarah E. his wife, Charles Horton and Elizabeth his wife, Joseph Foxwell and Jane his wife, Wm. H. Roach, Littlebury A. Roach, John H. Roach, Louisa Roach, Levisa Roach, Mary Ann White and Elizabeth White, Thos. L. and Eliza White, sued in ejectment for five hundred acres of land, “including the town of Rodney, and all the lands, tenements and hereditaments in section number five, in township ten, range one, west.” The suit was instituted in the circuit court of Jefferson county, and Alexander Montgomery and a great many other citizens and property holders in the town of Rodney and neighborhood were made defendants. At the May term, 1845, of the circuit court of Jefferson county the venue was changed on affidavits to Wilkinson county. On the 12th of June, 1846, a trial was had in the latter county, which resulted in a verdict for the lessors of the plaintiff.
    On the trial, the lessors of the plaintiff read a grant purporting to be from “ George the Third, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, and so forth,” to “John Campbell, his heirs and assigns,” of “all that tract of land situate about thirty-nine miles above Fort Paumure, at the Natchez, at a place known by the name .of the Little Gulf, butting and bounding south on land of Alexander McIntosh, west on the river Mississippi, and on all other sides by vacant land in our province of West Florida, and having such shape, form and marks, both natural and artificial, as are represented in the plat thereof hereunto annexed, as drawn by our surveyor-general of lands, which said tract of land contains five hundred acres, &c.” The grant concluded as follows: “Given under the great seal of our province of West Florida; witness our trusty and well-beloved Peter Chester, Esquire, governor and commander-in-chief in and over-our said province, at Pensacola, this eleventh day of February in the year of our Lord one thousand seven hundred and seventy-two, and in the twelfth year of our reign.
    “(Signed,) Peter Chester.
    “Passed the Secretary’s Office, Ph. Livingston, Jun’r, D. Sec’y.”
    Accompanying this grant was the plan and surveyor’s certificate, with that of the attorney-general of the 11th February, 1772, of the correctness of the patent. This patent was recorded on the 10th of March, 1804, in the clerk’s office of Jefferson county. It was laid before a board of commissioners west of Pearl river, on the 26th of April, 1805, by Henry Roach, who claimed the five hundred acres “ in virtue of a British patent to John Campbell, dated 11th of February, 1772; ” and who, according to the proof recited in the journals of the commissioners, married “ one of the daughters of John Campbell,” who left two daughters; the other married a Mr. Gosset. The commissioners, on the 11th of July, 1805, certified, “ that the legal representatives of John Campbell, deceased, claim a tract of land,” (describing it and the patent under which they claim,) and “ that the said legal representatives of John Campbell, deceased, are confirmed in their title thereto by virtue of the articles of agreement and cession between the United States and the state of Georgia.” The claims made by Roach before the commissioners was a notice, that, as “ the only surviving heir and legal representative of John Campbell, deceased,” he claimed the land under the patent to Campbell.
    The plaintiff also read depositions and maps touching the boundaries of the-tract claimed, which need not be noticed; and also various depositions of aged witnesses, in relation to the occupancy of the land in controversy, at the different intervals from 1777 to the institution of the suit; and also as to the period of the death of Mrs. Roach; but as the conclusions on these points are stated as fully as necessary to the proper understanding of the opinion, in the opinion of the cotirt, a statement of the evidence which is very voluminous, for both plaintiff and defendant on these subjects, is omitted. Proof was also given of the heirship of the lessors of the plaintiff to Henry Roach; and, that the latter died about the year 1822, in Wilkinson county, in this state. Here the plaintiffs closed their case.
    The defendants then read a grant in Spanish, from Sir Francis Louis Hector, baron of Carondelet, knight of the religious order of St. John, brigadier of the royal armies, commander general and royal vice patron of the provinces of Louisiana, East Florida,' dated April 1, 1795, to Thomas Calvit, for eight hundred arpens of land, alleged to include the land in controversy; which was confirmed by the board of commissioners on the 5th of June, 1805. Also, a patent from the British government to Thomas Erey, dated July 4, 1769, to land claimed to include that in controversy; a short memorandum in writing from Thomas Frey, reciting a sale of his interest to Philip Barbour, on the 13th of June, 1774; and a bond to make title to the same from Barbour to Philip Alston, dated 19th of October, 1776. This was all the proof.
    Numerous instructions were asked on both sides. In the view of the case taken by the court, the following, given for - the lessors of the plaintiff, only are noticed, viz: “1. That the British grant, under which the lessors of the plaintiff claim, is a better title in point of law than the Spanish grant under which the defendants claim. 6 How. 237; 1 Pet. Rep. 664. 2.
    That this British grant, with its confirmation by the board of commissioners, vested in John Campbell and his heirs, a good and valid title, from its date, to all the land included within its original lines, as run by the surveyor without reference to quantity. 9. If the jury believe from the evidence, that John Campbell, the patentee, died in possession of said tract of land, or in the actual possession of a part of said tract of land, with title to the whole tract, that then, on his death, the right of entry and possession in said land immediately devolved on Jane Cosset and Ann Roach, provided the jury believe, from the evidence, that they were his only surviving legitimate children; and if the jury believe that Henry Roach had a child or children by his wife, Ann, born alive and capable of inheriting her estate, then said Roach was entitled to an estate by the curtesy in said land, at the death of his said wife, Ann; and that if the jury so believe from the evidence, and that said Roach died in the year 1822 or 1823, then the lessors of the plaintiff, as heirs of said Henry Roach, are not barred of their right of entry and possession in the said land. 10. If the jury believe, from the evidence, that said tract of land, at the time the right of Ann Roach accrued by the death of her father, John Campbell, was not held adversely by Philip Alston, senior, or any other person, then said Roach, upon his having a child or children born alive by his wife, Ann, and capable of inheriting, was, upon the death of his said wife, Ann, entitled to an estate by the curtesy in said land, without ever having taken actual possession of the same anterior to the death of his wife. 11. That although the jury do believe, from the evidence, that Philip Alston, senior, did, before and after the death of said Campbell, have the actual possession of part of said tract of land, till he abandoned the country about the year 1781 or 1782; yet, if they also believe, from the evidence, that Henry Roach afterwards, and before the death of his wife, Ann, did take the actual possession of the same, or that the Alstons went into the actual possession of said tract of land, under a contract with said Roach for the purchase of the same, or held the possession in any other manner of said land, by the assent or permission of said Roach; then, notwithstanding the former adverse possession of said Philip Alston, said Roach would be entitled to an estate by the cuftesy in said land, and that proof of the parol acknowledgments or declarations of said Alstons, while in possession of said land, are sufficient to prove the character of their possession. 12. That if the jury believe, from the evidence, that John Campbell, the patentee, died in the actual possession of any part of the tract of land now in controversy, with a legal title to the whole tract, and that Philip Alston, senior, also had the occupancy and possession of another part of this tract of land at and before the death of said Campbell, claiming an exclusive right to the same, or to the whole tract, but without title to any part thereof; yet, in contemplation of law, Campbell died actually seised of the whole tract, and upon his death the same descended upon his heirs at law.”
    The defendants then asked the court for the following instructions, which were refused by the court, to wit:—
    “3d. If Philip Alston, senior, was owner of the Campbell grant on the 27th of October, 1795, and if he was not a resident of the territory on that day, said grant is not confirmed by the articles of agreement and cession with Georgia.
    “4th. If on or before the 27th of October, 1795, the British grant to Campbell had vested in the Spanish government, then, by virtue of the grant from the Spanish government to Calvit, both titles vested in him, Calvit.
    ' “5th. After the treaty between Great Britain and Spain, ceding the territory of West Florida to Spain, persons claiming lands in said territories by virtue of British patents, legally and fully executed, were bound to conform to the provisions made for them in said treaty, and if they failed to do so, the government of Spain became the owners of such lands by virtue of said treaty, and had a right to dispose of them as part of the public domain in such manner as the Spanish government please.
    “6th. Unless the person, who owned the said British grant to Campbell after said treaty of cession, complied with the provisions of said treaty, or with such regulations as the government of Spain prescribed as the condition upon which claimants, under British grants, should be permitted to hold such land under the Spanish government, Spain, by virtue of said treaty of cession, became the owner of said land, and their deed to Calvit was a legal deed within the meaning of the articles of agreement and cession between Georgia and the United States.
    “7th. The certificate of confirmation of the Spanish grant in favor of Calvit, was a relinquishment of all title on the part of the United States to the land described in said Spanish grant, by a final determination of the board of commissioners, and after granting said certificate, said board of .commissioners had no power to grant another certificate of confirmation of the British patent to the legal representatives of Campbell for the same land, and said second certificate was null and void as a relinquishment, the United States having no title to relinquish.”
    The jury found for the lessors of the plaintiff. And the defendants having been refused a new trial, sued out this writ of error.
    
      G. Winchester and G. S. Yerger, argued the cause orally for appellants, and L. Sanders, Jr., in writing. -
    
      C. P. Smith and L. L. Cartwright, for defendants in error, also argued the cause orally.
   Mr. Justice Clayton

delivered the following opinion.

This is an action of ejectment to recover land in the county of Jefferson, on which the town of Rodney is situated. The plaintiffs in the court below claim title under a grant made by the British governor of West Florida, on the 11th of February, 1772, which was confirmed by the board of commissioners on the 11th of July, 1805. The defendants claim under a grant from the Spanish government, bearing date 20th of March, 1795, and which was likewise confirmed by the board of commissioners, the 5th of June, 1805. In the circuit court there was a verdict with judgment for the plaintiffs.

It will not be necessary to pass upon all the points made in the very luminous, argument of the cause, and we shall only consider such as conduce to illustrate our conclusion.

In support of the judgment below, it is insisted, that the British patent to Campbell of 1772 was valid in itself, and vested a perfect title to the land in controversy, independent of the treaty of cession, or the confirmation by the board of land commissioners in 1805.” It is urged that this follows from the fact, that the land thus granted lay within the legal boundaries of the province of West Florida, by whose governor the patent was issued in 1772.

It may be well to remark in the commencement, that none of the cases decided in the supreme court of the United States, or of this state, come fully up to the point here presented. In other words, there is a material difference in the facts. In the case of Harcourt v. Gaillard, 12 Wheat. 523, the grant was made by the British governor of West Florida, on the 24th of January, 1777, during the revolutionary war, and after the declaration of independence. The grant was held to be invalid. In its opinion the court says: “It has never been admitted by the United States, that they acquired any thing by way of cession from Great Britain, by the treaty of peace. It has been viewed only as a recognition of pre-existing rights, and on that principle, the soil and sovereignty within their acknowledged limits, were as much theirs at the declaration of independence, as at this hour.” . . . “War is a suit prosecuted by the sword; and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails, can only derive validity from treaty stipulations.” The turning point of this decision was, that the grant was made, after the declaration of independence.

In the case of Henderson v. Poindexter's Lessee, 12 Wheat. 530, the defendant gave in evidence a Spanish grant, bearing date 20th of June, 1795. The grant was of land north of thirty-one degrees of north latitude. The court held, that “the grant had no intrinsic validity, and must depend for its efficacy exclusively on the laws of the United States. This grant was made before the treaty of 27th of October, 1795, by which the southern boundary of the United States was fixed at latitude thirty-one degrees, north. That treaty was understood not to be a cession of territory by Spain, but an admission that the right was originally in the United States.”

The case, therefore, is not exactly similar to the one before us. The grant was after our revolution. In the present case, the grant was made at a time when the sovereignty was in Great Britain, whether the land lay in Georgia or in Florida; though, if in the former, the governor of West Florida had no right to issue a patent for it. The same is true in reference to the case of Doe ex dem. Nevitt v. Beaumont, 6 How. Miss. R. 237. The defendant claimed under a Spanish grant, dated March, 1783. It was held to be well settled, that the Spanish government never had a right of soil above the thirty-first degree of north-latitude. But that those who held Spanish grants legally and fully executed, and who were residents of the Mississippi territory on the 27th of October,- 1795, were secured in them by the articles of cession ; and that, as to such claimants, the commissioners had but two points to settle; “first, Was the grant genuine or bond fide? and, second, Was the claimant a citizen of the territory on the 27th of October, 1795 ? Both of which inquiries being affirmatively settled, the title became complete under the articles of cession.”

These cases show, that a British or Spanish grant, made after the declaration of independence for land north of thirty-first degree, north latitude, was invalid; but do the principles they establish apply to British grants before that period? That is the question before us. -Before . the revolution the power to make grants of land, within the royal colonies, pertained to the crown. That power was .generally deputed to the governor of the respective provinces. . Had this grant been made, by the English monarch himself, there would have been little question of its validity, because he had the power to make grants either in Georgia or in Florida. As, however, it was made by the governor of West Florida, the inquiry, deemed very important in the argument, arises, whether the land lay within the bounds of his province. To that we shall first turn our attention.

By the treaty of peace concluded between Great Britain and the United States, in 1783, at the end of the war of the revolution, Great Britain acknowledged the southern boundary of the United States, to be the thirty-first degree of north latitude. The boundaries were particularly described. By a treaty made between Great Britain and Spain, about the same time, the Floridas were ceded to Spain, without 'any description of boundary-This occasioned a lotig controversy between Spain and the United States, as to the boundary of Florida, which was ended by the treaty of the 27th October, 1795, just as it was about to give rise to another war. This treaty agrees that the line which was described in the treaty between Great Britain and the United States, as their southern boundary, shall be the line which divides their territory from East and West Florida. The article does not import a cession of territory, but is understood as an admission, that the right was originally in the United States. By these two treaties in connection, the southern boundary of the United States was recognized to have been the thirty-first degree of north latitude. Henderson v. Poindexter’s Lessee, 12 Wheat. 534.

After the war of 1756, by the treaty concluded in 1763, Spain ceded to Great Britain, Florida, Fort St. Augustin, the Bay of Pensacola, and all that she possessed on the continent of North-America, to the east or south-east of the river Mississippi. At the same time, France also ceded to Great Britain the whole of New France, and all of that portion of the province of Louisiana, lying upon the east side of the Mississippi river, except the island of New Orleans. Great Britain, by these concessions, became the owner, subject to the Indian right of occupancy of all the land between the Mississippi river, and the Atlantic ocean.

Now the question as to her rights and power in this vast extent of territory, before the declaration ■ of Independence, is very different from what it became after that time. After that time, she had, as we have seen, no right to make grants of land; before that event she had. Is this a case in which this right was properly exercised by her governor of West Florida? This question turns mainly upon the bounds of that province, at the date of the grant, in 1772.

Georgia was originally a proprietary government, but in 1752, its charter was surrendered to the crown, in consequence of which, it became thenceforward a royal colony. Florida-was ceded in virtue of its conquest, and was likewise a royal colony. Between the royal and proprietary colonies, there was a very material distinction.

In regard to royal provinces, the crown retained both the right of soil, and of jurisdiction. Their boundaries were subject to alteration at its pleasure, aud in practice they were changed as often as inclination or policy directed. The king claimed and exercised the right of granting lands, and of dismembering the government at his will. Johnson v. McIntosh, 8 Wheat. 579.

In the proprietary governments, the right of soil, as well as jurisdiction, was vested in the proprietors. Their charters were in the nature of grants; and their limits being fixed by these charters, could not be altered, but by their own consent. These were their rights, but, in point of fact, they were not always respected by the crown.

The power to change the boundaries of the royal provinces seems to be conceded, and is indeed unquestionable. The mode in which the power was to be exercised, is a matter of more doubt. In the case of Harcourt v. Gaillard, 12 Wheat. 527, the court says, “ there is no reason to believe that such power had ever been exercised by any means less solemn and' notorious, than a public proclamation.” But it goes on to add, “ this is not the material fact in the case.” By others, it has beep thought, that the crown had the right to exercise the power in any way it thought fit.

By a royal proclamation issued very soon after the treaty of Paris, and bearing date 7th October, 1763, the northern boundary of West Florida was placed at a line drawn due east from that part of the Mississippi, which lies thirty-one degrees north latitude. This line was thus the boundary between that province and Georgia. By a commission to James Wright, as governor of Georgia, on the 20th of January, 1764, the bounds of Georgia were defined “to extend along the north boundary line of Florida, westward, as far as the British territories extend,” which was to the Mississippi river. On the 23d of March, 1764, the board of trade in England, which was intrusted with the management of the affairs of the colonies, represented to the crown, “ that it would be well to alter the bounds of West Florida, by an instrument under the great seal, which should declare that province to be bounded on the north by a line drawn from the mouth of the river Yazoo, where it unites with the Mississippi, due east, in order to comprehend settlements.” By a commission to Peter Chester, as governor of West Florida, dated the 2d of March, 1770, the boundaries of the province were declared to be altered, so as to correspond with that representation, and to extend north, to the mouth of the Yazoo river. Whether the change was made, prior to that time, in the commissions of Johnson, or of Elliot, is, in this case, a matter of no practical importance. 1 Lourie, State Papers, 28, 44; 5' Hall, Law Journal, 412. Monette says, “ the British cabinet extended the limits of Florida, in 1764, -to the mouth of Yazoo,” but he cites no authority for his position. Hist. Valley Miss. Vol. 1, p. 77.

Did this extension of the boundaries, by commission, give to the British governor of West Florida the right to make the grant in question ? The supreme court of the United States, as we have seen, thought that some act more solemn than the commission, was necessary to produce this effect. 12 Wheat. 527. This opinion does not seem to amount to a decision in the case, and we should incline to the belief, that the power might as well be exercised in the shape of a commission, as in any other way. We have been pointed to no limitation, as to the manner of its exercise. In 1496, the king, Henry VIL, granted a commission to the Cabots, to discover countries unknown to Christian people, and to take possession of them in the name of the king of England. Under this commission, Cabot discovered the continent of North America, and proceeded along the coast, as far south as Virginia. To this discovery, the English trace their title on this continent. 8 Wheat. 576. If a discovery under a commission was a sufficient foundation of title, to all the subsequent acquisitions of the crown, it would seem to follow, that the boundaries of one of the royal provinces might be changed in the same way. Yet it must be admitted, that the exercise of this power, in any form, gave rise to great dissatisfaction in the colonies, and it was by no means confined to its legitimate objects. The exercise of the power was one of the matters complained of in the declaration of independence, and in the address to the people of Quebec. The power was denied by Virginia, in its constitution, and by North Carolina, in her declaration of rights. See 6 Cranch, 117. It is well known that the life and fortunes of William Penn were well nigh spent, in fruitless and unavailing controversies with the crown, in regard to his government of Pennsylvania. William III., by his own power, constituted Maryland a royal government, though it had been a proprietary government, by grant to Lord Baltimore. This arbitrary act was sustained by a legal opinion from Sir John Holt. 3 Bancroft, 31, 44. In this uncertainty, as to the limit and extent of the royal prerogative, it is a relief to find, that a correct decision of this cause, does not require the authoritative determination of this point.

Let us reeur to the proclamation of George III., already referred to, as having been made on the 7th.of October, 1763. 5 Hall, Law Journal, 405 ; 1 Lourie, State Papers, 30. By that proclamation, four distinct and separate governments were created and established within the countries and islands, then recently ceded and confirmed to Great Britain, by the treaty of Paris. These were Quebec, East Florida, West Florida, and Grenada. The limits of each of these were precisely defined. We have no concern with any of them but West Florida, and of this, it is enough to say, that its northern boundary was fixed at latitude 31° north. This proclamation then goes on to declare, among other things, that it is just, and reasonable, and essential to our interest, and the security of our colonies, that the several nations or tribes of Indians, with whom we are connected, and who live under our protection, should not be molested or disturbed, in the possession of such parts of our dominions and territories, as not having been ceded to, or purchased by us, are reserved to them, or any of them, as their hunting grounds.”

It then goes on to' declare, that no governor, in any of said provinces, shall presume, “ upon any pretence whatever, to grant warrants of survey, or pass any patents for lands, beyond the bounds of their respective governments, as described by their commissions.” It farther declares, “that, for the present, all the lands not included within the limits of said new governments, shall be reserved under the sovereignty, protection and dominion of the crown, and forbids all purchases and settlements beyond those limits, without special leave and license first obtained.” It goes on still farther to declare a principle which seems to have been adhered to ever since, “ that no private person do make purchase of any land from any Indians, but that the same shall be purchased only for the government, in the name of the sovereign, at some public meeting of the Indians.” This principle, the offspring of a just and enlightened policy, became incorporated into the intercourse of England, with the Indian tribes, and has been adopted and pursued by eur own government, in all its transactions with them.

The Indian title to the country in which this tract of land lies, Was not then extinguished. In point of fact, it was not extinguished until May, 1777, when the Choctaws relinquished their title to it, by a treaty at Mobile with the British superintendent of Indian affairs. This is the relinquishment referred to in the act of the legislature of Georgia, creating the county of Bourbon, in 1785; and it was confirmed by the treaty between those Indians, and the United States, at Hopewell, on the 3d of January, 1786. See 5 Hall, Law Journal, 363 - 390; United States Stat. at Large, Vol. 7, p. 21, Indian Treaties. The country embraced in the relinquishment extended from the mouth of the Yazoo, down the Mississippi, till it intersects the 31st degree of north latitude, and reached in the interior at the beginning, some fifteen, and at the lower end some sixty miles. Unless we hold that the extension of the limits of Florida, by the commission to her governor, which took place some years before this relinquishment by the Indians, abrogate the provision in the proclamation against grants of land to which the Indian title had not been extinguished, to the extent of the new bounds, we must hold that the grant to Campbell, in 1772, had in itself no intrinsic validity, because the lands were not subject to be granted, until their title was relinquished. On this part of the proclamation fo 1763, the Supreme Court of the United States say, “This reservation is a suspension of the powers of the royal governor, within the territory reserved.” Fletcher v. Peck, 6 Cranch, 142. It is because of this suspension, which existed at the date of this grant, that we think it has no intrinsic validity. It is an established principle in our jurisprudence, that a grant of land on which the Indian title has not been extinguished, is void. Dunforth. v. Wear, 9 Wheat. 676.

In the war between the French, and the Natchez tribe of Indians, which terminated about the year 1730, in the extinction of that tribe, the Choctaws were the allies of the French, and gave them very efficient aid. It is probable from the fact of the treaty made by the British with them at Mobile, in 1777, before mentioned, that they succeeded to and occupied the hunting grounds of the Natchez, in virtue of the conquest. They do not appear to have been ceded to any one. 1 Martin’s Hist. Louisiana, 280-287; 1 Monette, 274 Be this as it may, when the prohibition on the governor of West Florida, to grant lands beyond the limits of his province as then fixed, is established in 1763, it becomes incumbent on those claiming under his grant, to show that the prohibition had been removed.

This view derives support from the fact, that congress, in the act passed to carry the cession made by Georgia into effect, directs that those persons who had obtained, either from the British government of West Florida, or the Spanish government, any warrant or order of survey for lands in said territory, to which the Indian title had been extinguished, should be confirmed therein. The inference is, that, unless the Indian title had been extinguished at the time the warrant or order was issued, there was to be no confirmation. The farther infez’ence is, that, in the opiniozr of congress, no grant would have been made of land to which the title was not extinguished at the time, of if made, that it would not be valid. The same act of congress, also, provides for the survey and sale of the lands in said territory, to which the Indian title had been extinguished, but carefully withholds fronz the operation of the law, all such lands as the Indians had not ceded. The treaty of cession, betweezi Georgia and the United States, itself provides, that the latter government shall extinguish the Indian title to all the lands in Georgia. By reason of this principle and of this policy, a large portion of the lands in this State have been in the occupancy of the Indians, and withheld from sale until a recent period.

There is another ground on which this conclusion znay rest with equal security. The claimants under both the grants involved in this controversy, submitted them to the Board of Commissioners constituted under the act of congress to cany the cession made by Georgia into effect. This was an acknowledgment that their claims were subordinate to the act of cession. Having thus submitted to claim under it, neither party can now be permitted to claim above it. If the plaintiffs were not disposed to acquiesce in the articles of cession, and intended to set up a paramount right, they should have done no act which could be construed into assent.

Having come to the conclusion that the British grant did not of itself confer a valid title on the grantee, we proceed to the consideration of the effect of the confirmation.

The supreme court of the United States, decided in the case of Hickey v. Stewart, 3 How. S. C. Rep. 756, that the decision of the board of commissioners in regard to warrants or orders of survey of the Spanish government, was final and conclusive between the parties, and that consequently the title first confirmed was best. In other words, such title' was incomplete, only became perfect by confirmation, and therefore derived its efficacy from the confirmation. But in this case, the title was a grant, and occupies a different footing from a mere warrant or survey. If the grant were valid in its inception, then the certificate of the board of commissioners confirmed the title by relation to its date, so far as the government is concerned. But this doctrine of relation is a mere fiction of the law, for the furtherance of justice, and will not be permitted to work prejudice to any one. It is settled, that the confirmation of a void patent shall not, by relation, affect the rights of a third person. 3 Comyn, Dig. 141, Confir. D. 5; Heath v. Ross, 12 Johns. 140. In this case, the rights of Calvit’s representatives interfere with those of Campbell’s. Neither patent was valid in itself — indeed they were both void, and derive their whole validity from the articles of cession and the confirmation under it. The doctrine of relation will not be permitted to work an injury to either of them. The onl)rway to avoid this is, to give effect to both from the date of the cession, from which alone they derive their validity. The consequence of this is, the plaintiffs must fail. In a case of equal right, the condition of the defendant is best. Murfree v. Carmack, 4 Yer. 270; 3 Litt. 265. The issuance of both a British and Spanish grant for the same land, was not contemplated by the articles of cession, 'and is not expressly provided for, but as the case has occurred, it must be decided by the general principles of jurisprudence. The cession gives neither any preference over the other.

By the statute of limitations, the right of the defendants is equally clear. John Campbell died about 1777, leaving two daughters. Alston was then in the actual possession of the land. In consequence of his participation in a rebellion against the Spanish government, he fled the country about 1782, and returned about 1800, after it had come into the possession of the United States. During his absence there appears to have been no occupancy of it. On his return he settled adjoining the land, and it is in proof, that Roach either made a lease or conditional sale of the land to the two sons of Alston, who took possession of it. They were turned out of possession by an action of ejectment in favor of Calvit in 1S07 or 1808, and Calvit and those claiming under him have retained possession ever since. This suit was commenced in March, 1841.

If we are correct in holding, that, the title of Campbell’s heirs only became complete at the date of the cession by Georgia, then Mrs. Roach, the wife of Roach, and mother of the plaintiffs, obtained no title, because she was, according to the weight of the evidence, dead before 1802. Beyond all doubt she was dead before the date of the confirmation in 1805. That act could not resuscitate a right in her, which by her death had descended to others. The confirmation was to the “ legal representatives of John Campbell, deceased.” The title, therefore, vested in her children. Roach, her husband, was not one of the legal representatives of Campbell, although in the petition, which he filed for confirmation of the grant, he describes himself “ as the only surviving heir and legal representative of John Campbell, deceased.” This petition in itself puts an end to his claim as tenant by the curtesy, for he rests it upon the higher ground of descent and heirship in himself. The adverse possession of those under whom the defendants claim commenced in 1S08, at least thirty-two years before the commencement of this suit. This constitutes a bar, unless the plaintiffs could bring themselves within some exception of the statute, which they have failed to do.

There are other demises in the declaration, than those from the descendants of Mrs. Roach. But that was the title principally relied on in argument, in support of the judgment of the court below. What we have said applies with' equal force to the other lessors.

The judgment is reversed, and a new trial awarded.

Mr. Chief Justice Sharkey

delivered the following opinion.

I concur in holding that the grant'from the -British governor of West Florida, dated 11th February, 1772, to the ancestor of the plaintiffs below, was invalid for want of power in the governor to make it. This result seems to follow, whether the land in dispute was or was not, at the date of the grant, within the limits of West Florida. The preceding opinion proceeds upon the ground that West Florida was bounded on. the north by a line drawn from the mouth of the Yazoo. If that be so, then it seems to me to be conclusively shown that the governor had not, for the reason stated, the power to make the grant. . ,

But it seems to me the evidence preponderates against the conclusion that there ever was an actual extension of the northern boundary of West Florida above the 31st degree of latitude.

The land in dispute lies above the 31st degree of latitude, and below the mouth of the Yazoo. It lies in what was originally a part of the colony of Carolina, which was afterwards divided, and the colony of Georgia established, embracing the land in question. The charter which had been granted to Oglethorpe, was surrendered to the crown in 1752, and thereafter Georgia became a royal colony. The southern boundary had been'a-subject of dispute between Spain and Great Britain, but after the cession of Florida by the former to the latter government, the king, in October, 1763, by proclamation, erected.Florida into two provincial governments called East and West Florida. The northern boundary of West Florida was declared to be at a line drawn on the thirty-first ddgree of north latitude, from the Mississippi riyer to the Apalachicola.

On the request of the governor of West Florida, the board of trade, which then had charge of colonial affairs, afterwards recommended that West Florida should be extended up to a line ■to be drawn due east from the mouth of the Yazoo. The only evidence that this extension was eyer made by the crown, is found in two commissions subsequently issued to governors of the province, which specify the boundary as extending from the mouth of the Yazoo. There was no public proclamation, extending or changing the boundary. The original boundary at latitude thirty-one had been established by proclamation, and this seems to have been the usual mode of establishing boundary in the royal colonies.

■ The colony of Georgia had been previously established, embracing the territory above the thirty-first degree, and its governor continued to exercise authority over it. Here was, evidently, a conflict, and it is difficult at this day to decide the question of superior right. The conduct of Great Britain herself seems to furnish the best criterion.

In this condition things stood at the declaration of independence in 1776. The colonies then became independent, with established and defined boundaries. If that memorable event put an end to the authority of Great Britain over the territory above the 31st degree of latitude, it must have done so because that territory was within the limits of some one of the revolting colonies. The declaration .of independence did not extend oyer any territory which' was not within some of the colonies, nor was there arjy acquisition of territory by conquest, which did not lie within their boundaries. If the territory above the 31st .degree of latitude was a part of the colony of Georgia, the authority of Great Britain over it ceased when Georgia became independent. If, on the other hand, if was part of West Florida, her authority did not cease, as Florida was notone of the revolting colonies.

The treaty with Great Britain seems to be entitled to the greatest weight on this subject, as showing the opinion of that government as to the boundaries of the independent colonies, It did not cede territory to them, either collectively or individually, but it acknowledged their independence as separate states. They were separated and circumscribed by known boundaries. The treaty acknowledged the 3lst degree as the southern boundary ; not that it should thereafter be, but that it was then and should continue so to be. This was an admission that Georgia extended that far down. Or, if it did not, then Great Britain gave away part of, Florida. If so, on what ground was it ceded? None of the colonies pretended to claim any thing by conquest beyond their own limits, nor did they collectively acquire territory by conquest. It would seem to follow that Georgia claimed to the thirty-first degree of latitude, and that her claim, by the treaty, was admitted to be well founded. It is remarkable, too, that the boundary designated in the treaty, corresponds exactly with that which had been established as the northern boundary of Florida by the proclamation of 1763, which at that date was also the southern boundary of Georgia. By declaring herself independent, Georgia did not acquire territory which was not already within her limits, and Great Britain, in acknowledging her independence, did not give her additional territory. The treaty, then, seems to be an admission that Georgia extended to the 31st degree.

To the foregoing evidence may be added, also, the admission of South Carolina. In a controversy between the two states, the boundary of Georgia was admitted by the treaty of Beaufort. The United States, also, have admitted the claim of Georgia to the boundary claimed by her.

Spain, too, who acquired West Florida from Great Britain by the treaty of 1783, has also admitted that it was bounded on the north by the 31st degree of latitude. She claimed, for some time, to the mouth of the Yazoo, on the ground that the colony had been extended that far, but, by treaty made with the United States in 1795, she admitted that the boundary was at latitude 31.

But I regard this question as virtually settled by the decision in Harcourt v. Gaillard, 12 Wheat. 523, which was founded on a patent from the governor of West Florida, hearing date in January, 1777. It was held to be invalid because it was issued after the declaration of independence, and also because it was a grant made flagrante bello by the power which failed in the war. If the land granted had been in West Florida, neither of these reasons could have prevailed, because the declaration of independence did not extend to Florida, and because thát province was not at war with Great Britain, and the decision must have been the other way. The land then claimed lies in the vicinity of that which is involved in the present suit. Indeed, the court expressly admitted that if the land was embraced by the limits of Florida, the grant might have been sustained, But it was held that the territory between the thirty-first degree and the mouth of the Yazoo had never been detached from Georgia by any valid act.

The consequence is, that the grant to Campbell from the British governor of West Florida was destitute of validity, for want of power in that officer. It must depend alone on the articles of cession from Georgia to the United States, which provided for the confirmation of such grants.

On the other points I have nothing to add to the view already taken.  