Samuel H. Hempstead

“ Indeed, without any regulations at all upon that subject in Louisiana and Florida, the survey of lands would have followed as a natural consequence upon making grants; for without surveys, the confusion in land titles, and the disputes and litigation that must have ensued, would have been intolerable evils which no government would allow. In point of fact the survey of grants of land was common in the Province of Louisiana as early as 1754, because the sixth and seventh clauses of the royal order of that year, of date the 15th October, expressly require surveys to be made. ”

“ One creditor may obtain priority over another and have his debt satisfied, to the exclusion of others, who, owing to the exhaustion of property, may get nothing, or only partial satisfaction. But this is no greater hardship than may and in fact constantly does occur between the living, because one creditor, by his activity and vigilance, may clothe himself with the right of judicially appropriating sufficient property of the defendant to satisfy the debt, and which may be his entire property, thus shutting out all other claims and debts, and leaving them unpaid. ”

“ The distinction between the obligation of a contract, and the remedy to enforce it, is clearly stated by the chief justice who delivered the opinion. In their nature they are different and distinct things. The obligation of a contract arises at the time the contract is made, and continues until it be performed or discharged. The remedy to enforce the obligation of the contract does not arise until there is a failure to perform the obligation. ”

“ But to go further still, planting or erecting a stone to designate any particular corner with a contemporaneous assertion, as to how the lines are to run from it, is no identification of land, nor can these acts, in the very nature of things, give it any known or certain locality. I repeat, that if there was full proof of the act of planting a stone, or erecting a monument, it was an illegal act, and severed no land from the royal domain. ”

“ And it may not be improper to remark, that as interferences with the military authority for any cause whatever are regarded with jealousy, a strong case ought to be made out, before a court or judge of the United States would send the writ to a military officer. Reasonable grounds must exist for awarding the writ, because if it should issue upon a mere unsupported application, a felon, under sentence of death, or undergoing imprisonment in a prison, or a person confined for insanity, or other prudential reasons, might obtain a temporary enlargement, although certain to be remanded. ”

“ Cummins, 5 Eng. 541, decided by the supreme court of Arkansas in 1850, it was said that our statutes certainly recognize the right of the circuit court to render judgments de bonis testatoris, else why permit any action pending against the deceased at the time of his death to survive and be revived against his executor, or why the recognition of the right to commence actions generally against executors and administrators after the death of the testator or intestate, or why make provisions touching the conduct of such suits, and the character and effect of judgments in such cases? ”

“ Besides, it is well settled that if land be levied on in the lifetime of the judgment debtor, the sale may proceed after his death. The levy upon the property places it from that time forward in the custody of the law, for the payment of the judgment, and although the judgment creditor does not thereby become the owner, yet the levy may be said to vest in him an interest, or give him a lien not affected by the death of the judgment debtor. Certainly death does not withdraw it from the custody of the law. ”

“ Whenever a case is presented embraced within the provision alluded to, no difficulty would be felt by me in issuing the writ, since the power to do it is clear, and there is nothing in the subject to prevent it or render it improper. The military is subordinate to the civil authority, and the privilege of the writ of habeas corpus cannot be suspended unless when, in cases of rebellion or invasion, the public safety may require it. ”

“ I deem the claim invalid upon two grounds: first, that the conditions of the grant were not complied with; and I will merely remark that I cannot subscribe to the argument that it was a grant without conditions; second, that there was no authoritative survey of the grant, which was undoubtedly required by the Spanish regulations. For my reasons on this point, I refer to the opinion in the case of the Heirs of Elisha Winter. [1] Nor do I deem the calls of the grant sufficiently certain to separate any land from the royal domain without a survey. ”

“ The term is used in the constitution as one which was well understood, and the judicial act authorizes this court and all the courts of the United States, and the judges thereof, to issue the writ "for the purpose of inquiring into the cause of commitment." This general reference to a power which we are required to exercise without any precise definition of it, impresses on us the necessity of making some inquiries into its use according to that law which is in a con­siderable degree incorporated into our own. ”

“ OPINION OF THE COURT.—The claim of the petitioners, as heirs and legal representatives of Don Carlos De Villemont, civil and military commandant of the post of Arkansas and its districts, is based on the request or petition of De Villemont, dated the 10th May, 1795, addressed to the Baron de Carondelet, governor-general of Louisiana, to grant to him a tract of land having a front of two leagues by a depth of one league, with parallel boundaries, situated in the place called the "Island del Chicot," distant twenty-five leagues below the mouth of the Arkansas River ”

“ The law makes no exception in favor of a particular class of creditors, and the priority of the United States does not yield to the claims of any creditors, however high may be the dignity of their debts. ”

“ It is insisted, that to allow the property of a deceased person to be sold on execution, would be likely to produce a sacrifice of it. But I am not able to perceive why there would be any greater sacrifice than in any ordinary judicial sale. The sale must be public, and every one would have equal opportunities of purchasing ”

“ It is only necessary to ascertain what are assets, because if by the common law goods and chattels might be taken on execution on account of their being assets and unadministered, so here lands and slaves may be taken and sold, if assets by our laws, which they certainly are. ”

“ Real estate, slaves, personal chattels, rights and credits, and property of every nature and description, are declared to be assets for that pupose. [3] Every thing is surrendered, nothing withheld. The administrator represents the intestate; and although it is true that by means of an action and judgment de bonis testatoris, the issuing of execution thereon, and levying on and selling specific property of the deceased, unadministered, subject to execution, one creditor may obtain an advantage over another, yet this results from the favor which the law extends to the vigilant creditor. ”

“ The supreme court of the United States, in various cases, has either directly or indirectly decided, that an actual survey of an open floating concession is a necessary ingredient to its validity; and that it must also be an authorized survey to sever any land from the royal domain. ”

“ Are they pleas of accord and satisfaction, or of covenants performed? It seems to me that they are not pleas of the latter class, because they fail to aver performance. It is true that they aver part performance, and a readiness and an offer to perform fully, which was refused by the plaintiffs. The defence then is, part performance and a legal excuse assigned for failure to perform fully.
A part performance, and a readiness and offer to perform the residue, is not in all cases equivalent to an actual, full, and complete performance. For example ”

“ The district attorney in his argument, insists that the Baron de Carondelet had no authority to make so extensive a grant, and that if he could rightfully do so, he might with the same propriety have conceded to any private individual, as a mere gratuity, a whole parish or district of the royal domain. Certainly no one can doubt that a concession so immense ought to be closely scrutinized ”

“ The president himself would not be exempt because he is above the law or because he can do no wrong, but because he cannot be held responsible except through the medium of impeachment, and to allow the writ to go to him, would involve the necessity of punishing him for a refusal to obey it, and such a power does not belong to the judiciary. ”

“ But it is insisted that death has the effect of withdrawing the assets and property of the deceased, of every description, from the influence of an execution, and placing all within the exclusive control of the probate courts. ”

“ The court said, "We regard the venditioni exponas merely as a continuation and completion of the previous execution, by which the property had been appropriated, and was still in the custody of the law." A sale under execution without revival of the judgment is not absolutely void, but voidable only, and cannot be avoided collaterally. ”

“ But the fact that a claim of such magnitude, and thus apparently formal and regular as to muniments of title, should be allowed to sleep more than half a century, is a strong circumstance against its validity, and, on the familiar principle of lapse of time, ought to be almost conclusive against it. ”

“ The only question I deem it material to determine is, whether the execution law of this State, entitled "An Act to regulate the sale of property on execution," approved 23d December, 1840, (Acts, p. 58,) providing for the valuation of property taken on execution, and that it shall not be sold unless it brings two thirds of its appraised value, be a valid and constitutional law. ”

“ Don Joseph Vallieré died in 1799. Whether he ever took possession of the land, or any part of it, or made any settlement thereon, does not appear; but as it was in the heart of the Indian country, and they hostile, it is probable no settlement of any consequenee was made under the grant. No claim of title was presented by his heirs to the commissioners appointed by the act of congress of March 2, 1805, or the subsequent laws on the subject of French and Spanish grants in the province of Louisiana ”

“ All grants shall be made in the name of the king, by the governor-general of the province, who will at the same time appoint a surveyor to fix the bounds thereof, both in front and depth, in presence of the judge ordinary of the district, and of the adjoining settlers who shall be present at the survey ”

“ It seems to me that it can admit of no serious doubt, that a contract thus uncertain and unperformed in any part, cannot be legally pleaded as an accord and satisfaction of a previous liability. 1 Com. Dig., Accord (b. 3) , 201. The pleas are not sufficient in law to bar the action, and the demurrer to them must be sustained. ”

“ Such an enlistment being illegal, a minor is entitled to be discharged on the application of his father or guardian or next friend, on a showing satisfactory to the court or judge. It is an illegal confinement of his person, and he may be released on habeas corpus without any application having been first made to the war, or any other, department of the government for his discharge. ”

“ The government has afforded grantees and heirs and legal representatives an opportunity to test the validity of their claims, and if found good such claims are confirmed, and this may be considered as a judicial renunciation on the part of the government of all title. ”

“ It is not pretended that the lands mentioned in this concession were surveyed within one year, nor before the 10th day of March, 1804. On the contrary, the fact is distinctly alleged in the petition, that there was no actual survey; and an excuse is offered for the omission, which, when scrutinized, will be found to be insufficient. According to a well-established rule, this averment cannot be controverted by proof on the part of the petitioners; they being bound to abide by their own pleadings. ”

“ Therefore, I grant to Don Joseph Vallieré, captain of the regiment stationed in Louisiana, a portion of land in the jurisdiction of Arkansas, situated on both banks of the Rio Blanco, ten leagues on both banks, beginning, &c. [describing it as in the above proces verbal, and then proceeds] which will be better seen on the figurative plan made by my order by the surveyor-general, Don Carlos Trudeau, of this province, the 24th October last (it being impossible for the royal surveyor to make an actual survey at the time) . ”

“ The United States, (10 Peters, 334,) it is said that "Spain never permitted individuals to locate their grants by mere private survey. The grants were an authority to the public surveyor, or his deputy, to make the survey as a public trust, to protect the royal domain from being cut up at the pleasure of grantees. A grant might be directed to a private person, or a separate official order given to make the survey ”

“ JOHNSON, J.—This is a petition filed by the heirs of Elisha Winter, under the act of congress of the 26th May, 1824, entitled "An Act enabling the claimants of lands within the limits of the State of Missouri and Territory of Arkansas to institute proceeding to try the validity of their claims," revived for five years by the act of 17th July, 1844 ”