John McLean

“ The idea that the lands of an infant which descend to him, cannot be made reponsible for the payment of the debts of the ancestor, except through the decree of a court of chancery, is novel and unfounded. So far from this being the case, no doubt is entertained, that the legislature of a state have power to subject the lands of a deceased person to execution, in the same manner as if he were living. ”

“ It was a contemporaneous exposition of the constitution. The act was no doubt passed on the application of the administratrix of Oliver Holman, and was enacted to enable her to pay the debts. It does not direct the sale, but authorizes it. The presumption is, that it was passed to enable the administratrix to do her duty. He who seeks to avoid an act, upon the ground that it was procured upon false suggestions, must prove, affirmatively, that the suggestions were false. There is not only no proof in this case, that Holman's estate was not in debt, at the time of his death ”

“ Before being turned out of possession, the defendants in error are called upon to show a valid subsisting title to the premises. Possession is a valid title against all the world, until a better title is shown.
The first question now arises: we claim the property under a title derived from Oliver Holman, the ancestor of the defendants in error, his heirs-at-law. Can we be permitted to question and deny the title of the ancestor under whom we claim? ”

“ The inhibition of the Alabama constitution contains, in terms, that which necessarily arises from the construction of the constitutions of other states. In some cases, it is difficult to draw a line that shall show with precision the limitation of powers, under our form of government. The executive, in acting upon claims for services rendered, may be said to exercise, if not in form, in substance, a judicial power. ”

“ Does this law take away the vested rights of the heirs of Oliver Holman? If the law is void on this ground, it must be because the legislature had no power to pass this law; for, if constitutional, the law can nowhere be questioned. It cannot be objected to the law, that it infringes the obligation of contracts, and is, therefore, void, under the constitution of the United States. The law authorized the sale of the lot, for the purpose of paying the debts of Holman, and thus enabling the administratrix to keep his contracts. ”

“ An administrator is bound to perform all the contracts entered into by the testator, whose estate he represents; or to incur damages for the non-performance of them, so far as the assets in his hands will enable him to do so. If the testator gave a bond or note, the administrator must pay it; and so in reference to any other contract. The assets in his hands are answerable for the non-performance of the contracts of the intestate. If he contracted to sell lands, the assets in the hands of the administratrix are liable for damages for non-performance. ”

“ The heirs of Holman commenced an action of ejectment againsts the plaintiffs in error, to recover possession of a certain lot in the city of Mobile. On the trial, the lessors of the plaintiffs proved, that before the year 1785, one Geronio was in possession of a lot in the city of Mobile, at the corner of St. Francis and Royal streets, which he continued to occupy until his death. Previous to his death, he devised the lot to Lucy Landry, whose father, Simon Landry, took charge of it for his daughter, until she became of age, when she occupied it as her own property. ”

“ It was executed by the administratrix, under a decree or order of the supreme court in Massachusetts, and by virtue of a statute of that state. The proceeding, it is not pretended, was authorized by any law of Alabama. And no principle is better established, than that the disposition of real estate, whether by deed, descent or by any other mode, must be governed by the law of the state where the land is situated. A court of chancery, acting in personam, may well decree the conveyance of land in any other state, and may enforce their decree by process against the defendant. ”

“ If the vendor has actually made a conveyance, his title is extinguished.' And the court say, 'the property having become, by the sale, the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises.' To the same effect are the cases of the Society for the Propagation, &c. ”

“ The law of accretion should give the ground which is thus raised from the water to the public. It ought not to become private property. If the court decide that the plaintiffs in error come in to the question of the title of those who claim the property from them, they will decide against any right which they may set up as accretion. ”

“ Until the improvements by Holman, the lot in controversy was not susceptible of occupancy. Water street was laid out in 1817 or 1818, and the lot in dispute lies east of that street and east of the high land above described. The ridge or high land was protected by the Spanish authorities; no person was permitted to remove the earth or improve on the ground. It was called the king's highway and landing-place. And after the American authorities took possession, the general impression seemed to be, that the ground east of Water street did not belong to the proprietors of lots west of it. ”

“ Without deciding, or presuming to think, what a court of equity would do in this case, it is enought for me to say, that we are to decide a legal question, and cannot enter into such an entangled equity.' The other judges, except BULLER, concurred with the chief justice. In Shewen v. Wroot, 5 East 132, LORD ELLENBOROUGH said, 'We can only look to the legal estate, and that is clearly not in the devisees, but in the heir-at-law of the surrenderer; and if the devisees have an equitable interest, they must claim it elsewhere, and not in a court of law. ”

“ We suppose also, that the act is repugnant to several provisions of that constitution. By the tenth section of the first article, no one accused even of crime can be deprived of his life, liberty or property, 'but by due course of law.' He cannot, in such case, be deprived by an act of legislation. Is a man accused of debt in a worse situation then one accused of crime ”

“ The court say, 'the rule, excluding a defendant against whom there has been a judgment and execution from defeating the purchaser's recovery of his possession, by setting up a title in some third person, is founded on justice and policy ”

“ Sarah Holman, the widow of Oliver Holman, removed to Boston, Massachusetts, and there took out letters of administration on the estate of her deceased husband. Charles Brown presented a petition to the supreme judicial court of Massachusetts, setting forth, that Oliver Holman had executed to him the bond before stated, by which he bound himself to convey certain property in Mobile to him, being the part of the premises for which this suit was instituted ”

“ It was in proof, that the house and premises in question front on Water street. On this, the court instructed the jury, that if they believed from the evidence, 'that Geronio claimed title to the premises in question, and was in actual possession of a part of the lot of land to which they were then attached,' &c. ”

“ The volume of state papers offered in evidence by the defendants, we think, should have been admitted. This volume was published under an act of congress, and contains the authentication required by the act. Its contents are, therefore, evidence. The recital, in the preamble of a public act of parliament, of a public fact, is evidence to prove the existence of that fact. Rex v. Sutton, 4 Maule & Selw. 532; Stark. Evid. 197. The journals of the house of lords have always been admitted as evidence of their proceedings, even in criminal cases ”

“ The same rules do not govern them. The condition of vendor and vendee is different. Cited, Blight v. Rochester, and other cases referred to by Mr. Ogden.
2. The title of Lucy Landry does not cover the land in dispute. Accretion does not apply to limited possession. The title was by possession, and possession extends no farther than the actual pedis possessio. The title was limited to the fence which ran to high-water mark. Cited, 2 Johns. 230; 6 Cow. 617; 1 Ibid. 276. The law of alluvion applies only to possession. ”

“ By the 29th section of the same article, it seems to be clearly intended, that every one, in every 'civil cause,' in which his interests are involved, shall have the privilege of defending himself before 'any tribunal in this state;' and shall not be 'debarred' therefrom. ”