
    JOHN GRIFFING vs. HOPKINS & ELLIOTT.
    The sale, by a father, of the lands of his child, a minor, is void, both under the com»-mon and the Spanish law, if unauthorised by the decree of the proper tribunal.
    Such sales of lands here, during the existence of the Spanish government in Mississippi, would be governed by the Spanish law.
    That the sale was for the benefit of the Minor, does not render such sale valid.
   This is a writ of error brought to reverse a decree, by the superior court of law and equity, in and for the county of Jefferson. Several errors are assigned, and many points made by the counsel for the plaintiff in error. But should it appear, that James Elliott the elder, had no righ or power under the Spanish law, to enter into the contract with Fordice and Bird, so as to affect the lands of his son, the court will be relieved from giving an opinion as to the other errors and points made in this cause. To ascertain this, resort must be made to the civil law, as the contract was made under the Spanish government, and while that was the law of the land. The plaintiff in error founds his claim upon the ground, that James Elliot the elder was the natural guardian of his son, and had power .as such, to make the contract, and bind the lands of his son. This leads us to inquire into the the powers and duties imposed by the civil law, upon tators and curators. In the civil code as collated in the territory of Orleans, and received in their courts as authority, these rules are laid down (Dig. Civ. Code, 58. The father is tutor to the minor children, he is bound to causean inventory to be made, and an under tutor to be appointed, but is not, like other tutors or curators, bound to give security. In page 70 of the same code, the tutor cannot borrow for the minor, nor enter into any transactions, or compromise respecting his rights, without an authority from a judge. Ibid. 70. The testator may accept legacies, donations, and other advantages made to his ward, but he cannot in any case dispose gratuitously of the moveable or immoveable property of the minor, or any part thereof, 1, Domat. 12. The Roman law, forbid the sale of . the real estate of minors, although the minor was not wronged in the price. By the same law, minors are restored, against all sales of their lands, whether sold by themselves, or their tutors, under colour of any transaction, or pretence whatever — and this agrees with our law. 1, Co. Lit. - 88, B. 2, Institute, 380,2, Wilson 129,135. When a sale of a minors’ estate was necessary, under the Roman law, as for the payments of debts that were pressing, the sale must be directed by a court of justice, and the formalities prescribed must be observed, and it was only a decree of a court of justice in due form, that could sufficiently secure him, who purchases lands and tenements belonging’ to a minor, 1 Domat, 13. note. 2 Domat, 13, 2, note. And if the formalities were not observed, although there was just cause to make the sale, and the Sale was made under a decree of a court of justice, the minor, might be relieved, and restored against the sale. Ibid, 3, note. To justify the sale of the real estate of minors, it is required, that the-sale be made for a necessary cause, such as the payment of debts that were pressing, of which the payment could not be made in any other way, and could not be delayed, and before a sale could be ordered, an inventory must be returned, and a stated account given in, by the tutor, showing that there are not moveables, money, debts, or rents due, or to become due, nor other effects, that might suffice for the payment of the debts. Apply these principles of the civil law to the case under consideration. The Spanish government gave young Elliott a grant for a thousand arpens of land, he being then a minor. The father; without a decree, or order from any court, and without attending to the formalities prescribed by the law of the country, enters into a. contract with For-'dice, to give him, as is said, 200 acres of land for improving and complying with the conditions required to perfect the title, and the court below, was called upon to decree in favor of the defendant on this contract. All contracts torching the realty, must be determined according to the (lex loci;) the civil law as laid down is to govern this case, and by that law; James Elliott the elder, had no power to enter into thq contract, gratuitously to dispose of the 200 acres of land. Gratuitously, means voluntarily, that is, without authority of law — not the common acceptation of the term; a gift, without consideration, or merit. When the sale of a minor’s estate is made under the civil code by his tutor or curator, it must be made under the authority of a judge, and according to the rules prescribed. The Spanish law differs from the Roman law. By the former; it is made the duty of the curator or tutor to sell the real estate, by the latter it is prohibited except in cases of absolute necessity. The reason of the Spanish law; is, to save the expense of tutors and curators attending to the management of the estate.' The reason of the Roman law, is, that land is esteemed more valuable than money. But both laws agree in inhibiting sales, without a decree of a court of justice, or of a judge. And all sales, though made for sufficient cause, and under a decree of a court of justice,, yet if the formalities are not observed, the sale is void, by the Roman law the forms being deemed necessary for the security of the rights of, minors. Then can it be said, when that wise people, the Romans, for the protection of minors, rendered invalid all sales not made according to the forms, prescribed, that a similar rule would be improper under the Spanish law and when their provincial laws do' not contravene the civil law, it is. adopted as their common law. The rule of the Roman law, then, as to the effect of this contract, made without authority, and without observing the forms prescribed by the civil code, must be applied, and made to govern this case. It is not pretended in this case, that the sale was made, by and under the authority of any competent tribunal, nor has it been shewn, that any of the forms required by the laws of Spain, for the disposition of the lands of minors, haVe been observed. That this contract, so far as it went, to subject the lands of the minor is void, and of no effect, must result, if the rules and reasoning of the civil law be not fallacious. That this contract would be invalid under our law, a reference to the authorities will clearly shew, and our laws proceed upon the same principles, that the acts of guardians, when not made in conformity with their powers, are void. But it is said, that young Elliott received the benefit, and that he or those deriving title under him, ought in equity to be decreed to make the title. The answer is, that equity follows the law, and cannot conflict with it, and as no fraud is charged or proved against him, no such equity can arise. This opinion renders an enquiry into the other points, in this cause unnecessary. The court is therefore of opinion, that there is no error in the decree below, and the same must be affirmed, and the plain, tiff in error be decreed to pay the defendant his costs. That one may be presumed to have contracted by his guardian, it is necessary that the contract does not exeeed the power of the guardian, Pothier, 58. For example , if a guardian as such without a decree, sold some real property of his ward, the ward would not be presumed to have contracted by his interposition, and there would result no obligation on the ward — the sale of real property exceeding the power delegated to the guardian. The. same rules hold as toattornies. Let the judgment be affirmed.

JVo¿e-The questicn seems »ot to have been agitated by the Court or Counsel, whether the law of Spain did ever controul the transfer or descent of'lands in this slate, above the thirty-firstdegreeof North latitude. Over this country, it now settled, by recent decisions, that Spain never did or could exercise any lawful jurisdiction, and never was the proprietor of this domain. 12 Wheaton 523,530. These cases decide, that this country 44 was wrongfully occupied by Spain,” that her grants of the soil have of themselves no intrinsic validity, and that Georgia, at that period possessed the right of soil and sov-reignty. Grants made by the state of Georgia of part of this territory, and transfers under them, have also been sustained as valid by the Supreme Court of the United States., 6 Cranch 87. During the occupancy by Spain of this territory, the eminent domain, and sovreignty, were united in Georgia. Spain, it is said, had the actual occu-panc}r,.but that occupany is now decided to have been 44 wrongful,” and never was acquiesced in by Georgia, or by the United States. From 1783, till the 27th of October 1795, Georgia passed many laws, claiming the right of soil and jurisdiction over this country, and 'the United States, during the same period, by many official acts, sustained the claim of Georgia, both here, and at the court of Spain, till finally, on the 27th of October 1795, Spain, by a treaty with the United States, acknowledged our right to 44 said territory” not as a cession by Spain, but as a pre-existing right. Commenting on this treaty, the Supreme court of the Union say:

• 44 Had Spain considered herself as ceding territory, she could not have neglected a 44 stipulation, which every sentiment of justice and national honor would have demand-44 ed, and which the United States could not have refused. But instead of requiring u an article to this effect, she has expressly stipulated for the withdrawal of the settlements made within what the treaty admits‘to be the territory of the United States, *4 and permission to the settlers to bring their property with them. We think this an unequivocal acknowledgement, that the occupation of that territory by Spain was wrong-4‘ ful, and we think the opinion thus clearly indicated, was supported by the state of the 44 facts. It follows, that Spanish grants made'after the treaty , of peace (1782) can 44 haveno intrinsic validity, and the holders must depend for their titles on the laws of 44 the United States.” 12 Wheat. 535. Can it be contended, that there could be the exercise at the same time here, of a divided and conflicting sovereignty, by Spain, and Georgia, and that although the laws of Spain could not control the grants of land, yet they might govern their transfer and descent, in opposition to the laws of Georgia, especially when Spain stipulated for the boon of the withdrawal of her settlements, and the privilege to the settlers to 44 take with them all the goods and effects which they possessed ?” The laws of Spain could only extend here as the sovereign de facto, upon .which principle, they would controul the transfer and descent of aJJ the lands within the territory occupied by Spain, including as well the British as the Georgia titles. Yet we have seen, this was not the case. 6 Cranch 87,12 Wheat. 523, 530. Can it then be, that the transfer and descent of lands held here by a British or Georgia title would be governed by the laws of Georgia, but that the transfer and descent of adjoining tracts, would be governed by the law's of Spain? Georgia, by the cession of 1802 to the United States, stipulated for the confirmation of certain Spanish, British, and Georgia titles, but never introduced, or sanctioned the introduction here, of the laws of Spain. Now, during the Spanish occupancy, Georgia had extended her.laws over this country, not over detached portions of it, but over the whole territory, and her legislation was general and exclusive. The power to regulate the transfer of all the lands within this territory was vested in Georgia, and in the language of the Supreme Court of the Union. 44 The existence of this power must negative the existen.ee of any right which may conflict with or control it.” An absolute title to lands, cannot exist at the samp time in different persons or in different governments. An absolute must be an exclusive title ” 8th Wheat. 588. The title and right of Georgia to this territory is now admitted to have been absolute and exclusive, — -this right wras exercised by Georgia throughout the period of the occupancy by Spainj and “must negative the existence of any right which may conflict with and control it.” The Supreme Court, in deciding in favor of the title of Georgia, say 44 there was no territory within the United States that was claimed in any other right, than that of some one of the confederated' states,”-and «peaking of onr first treaty of peace with Great Britain, by w'hich the 31st degree of North latitude extending Westward to the Mississippi, was fixed as the Southern boundary of the United States, and consequently of Georgia, they say, “ it has been viewed only as a recognition of pre-existing rights, and on that principle, the soil and sovereign-ip within their acknowledged limits, were as much theirs at the declaration of Independence, as at this hour.” Neither by the British, or Spanish treat}', was there any change of sovereignty, but the admission of the pre-existing rights of one soverign,in exclusion of-the other. If the transient wrongful occupancy by Spain, operated any change of sovereignty, it would not ipso facto abolish the common law, which was the law of Great Britain the previous occupant, unless that law was expressly abolished by Spain. But no such abolition of the common law here, or introduction of the Spanish law by the King of Spain, can be found. The Spanish law was duly extended to Florida, but it is now admitted, that this territory never was a part of Florida, and consequently, the laws of Spain never were extended- here. The commencement of the occupation of this country by the Spanish forces, was as our ally, during the war of the revolution. Surely this could give Spain no right of sovereignty over the territory of her ally, nor could the subsequent occupancy by the Spanish tioops, under the pretence that this was a part of Florida, introduce here the laws of Spain. If Louisiana should for a few years take possession of a county of Mississippi, this state always claiming this county as a part of her territory, and legislating over it, would not the ti-■ties to land, and transfers of it, be governed by the laws of Mississippi? That the laws of Spain could vest no one with a title to lands here, is settled; how then could these laws govern the transfer of the title, and that in opposition to the laws of Georgia the rightful sovereign. When there isa wrongful, and rightful sovereign, both legislating at' the same time over the same territory, the laws of the latter must prevail. Nor could Spain, or her citizens, complain of the operation of these principles here, for neither Georgia or the United States, ever acquiesced in this wrongful Spanish ocdipan-cy. -4few of these acts are referred to below. Statute of Georgia of Feb. 17th 1783-extending her laws and jurisdiction here. Statute of Georgia of the 7th Feb. 3785 creating a county here, and extending the land laws of the state here.

Statute of South Carolina of 1787, relinquishing to Georgia her claim to this territory, approved by Georgia.

ActofGeorgia of7thofJan. 1795 — selling part of the land of this tcnitoy — sustain, cd by Supreme Court of the U. States. 6 Cranch 87.

Act of Georgia, 13th Feb. 1796 &c. &c. as to this territory.

Resolutions of Congress, 20th Oct. 3787, approving the relinquishment of her claim by S. Carolina to Georgia, of this territory.

The report of Mr. Jefferson, as Secretary of State, claiming this territory, as already within the acknowledged limits of Georgia.

7th December 1793 — Report of our Commissio.ners to Spam, insisting on the above claim.

10th August 1795T-rCommunication of Mr. Pinckney, our'Minister to the Court of Spain, insisting upon the right of Georgia tb this territory.

27th October, 1795 — Spanish treaty recognizing the above claim.

30th March 1798 — This territory finally evacualed by the Spanish troops.

Act of Congress 7th April 1798 in regard to the government of this territory, saving “ the right of the State of Georgia.” s

Act of Congress May 10th 1801, of asimilar nature, saving “the right of the state ofGeorgia.”’

24th of April 1802 — Cess&ion by Georgia of this territory to the United States, by compact with Congress.

On a perusal of the above acts, it is clear, that neither Congress or Georgia, ever assented to the introduction of the laws of Spain here, but that such assent was uniformly refused, Georgia- con ti n ua 1 Jy extending her own law here, as the rightful sovereign, sustained by the United States, and herpre-existing.right, was admitted by Spain, on the27th of October 1795. Under these circumstances, many questions of great magnitude may still arise for solemn adjudication. Did the laws of Spain ever extend here, did they govern the transfer and descent of both real and personal property, were the decrees of their courts valid, had they any jurisdiction'? If these laws ever extended here, did they cease with the Spanish treaty of the 27th of October 1795, or continue till the evacuation by the Spanish troops on the 30 th of March 1798 ? Did the comrnpn law, or the laws of Georgia, control in the interim, and do they still govern, when unrepealed by our territorial, or state legislation, and which class of laws has been recognised by such legislation? Did the laws of South Catolina, prior to her cession in 1787 of this territory to Georgia extend here, and how fardo they still extend, when unrepealed by Georgia, or by our legislation? If the common law extended here prier to the occupation by Spain, how or when did it cease to operate, and when did the operation of the Spanish law begin? If the Spanish law'was ever the lex loci of this territory, when and how did it cease to operate, and how far does it still operate, when unrepealed by our local legislation? How far ate the acts of the territorial government of the United States, prior to the cession by Georgia of the 24th of April 1802 valid, it being now admitted, that prior to that period, this territory was a part of the State of Georgia, embraced within her legislation, and not a part of Florida, and consequently, that the organisation by Congress of a territorial government here, prior to the cession by Georgia, was a usurpation ofppwer. These inquiries might be enlarged, but enough has been said, to direct the public attention to this subject.  