Torre v. Jeanin

Woods, C. J., delivered the opinion of the court. It would be hazardous for a court not familiar with the French language to undertake to settle important property rights on the sole ground that proper names of parties asserting such rights are not identical in sound and orthography with that of their ancestors, as disclosed by the patent obtained from the United States. Whether the name Fayard has similar or identical sound with the name Fasiar, as written and pronounced in the old French, we are utterly unable to say, after looking at it in the light of the evidence in the record before us. But this is not vital to the issue. The identity of Louis Fayard with the person called Louis Fasiar in the patent cannot be said to be doubtful. In the year 1793 Louis Fayard, the ancestor of him through whom the father of the appellees claim title, settled upon this land, and continued to reside upon the same until his death, about the year 1830, and his children continued to occupy and claim the land after his death. In the year 1847 a patent was issued to Louis Fasiar, as the name is therein written, in pursuance of the provisions of an act of congress of March 3, 1819. By the terms of a treaty between the United States and Spain, by which the territory of East and West Florida was ceded by the latter to the former, the United States undertook to respect existing private rights of property in the ceded territory. Besides protecting private ownership under grants from the several foreign governments who had successively owned the ceded territory, the act of congress of 1819 made provision for .grants of land, not exceeding six hundred and forty acres, to settlers act [905] ually occupying their holdings. The claim of Louis Fayard, written Fasiar in the patent, was established to the satisfaction of the interior department, and a patent issued, after the government survey had been made, to section 26, township 7, range 9 west, the same being the land settled upon by Fayard in 1793, and continuously occupied by him until his death, and afterward by his heirs at law. In the year 1849 the lands involved in the present suit were allotted, under regular proceedings had by the heirs of Louis Fayard for that purpose in the probate court of Harrison county, to Alexis Fayard, one of the sons of said Louis Fayard, as lot 2, the other lots, 1, 3, 4, 5 and 6, falling to the several other children or descendants of said Louis Fayard, and these various allotments have stood as then made for fifty years. The entire body of the lands embraced in the patent of 1847 has always been called and known as the “Louis Fayard claim.” The oldest inhabitants in that region—and one who testified was over one hundred years old when her deposition was taken—have never known or heard of any person whose family name was Fasiar, while all knew the Fayards, and one knew Louis Fayard in his lifetime, and when he was in actual occupation of the Fayard claim. The title of Louis Fayard and of his descendants and grantees has never before been challenged. That Louis Fayard, the settler of 1793, and Louis Fasiar, the patentee from the United States, were one and the same man appears to us to be perfectly certain, and the title to the lot in controversy, derived by conveyance to appellees’ father from Alexis Fayard, perfectly made out. The court below did not err in so holding, and in peremptorily instructing the jury to so find. Whether the land described in the declaration was lot 2 was left to the jury under all the evidence. 'That the defendants, appellants here, were in possession of the property was admitted by their plea, and evidence offered by them to deny possession was unavailing. That they had no title derived [906] from some unnamed tax sale is too clear to require remark. That possession, under color of title from one Lyons, for less than ten years, did not bar plaintiffs—appellees—right of recovery is also clear. Complaint is made to the court’s action in admitting and excluding evidence. That hearsay evidence is admissible in controversies over ancient boundaries seems to be well established. That some errors were committed may be conceded, .but they could not have materially affected the result—the only result which could have been rightfully reached having been reached. It is argued by counsel for appellants that the purchaser of this property, the ancestor of appellees, from Alexis Fayard, was at the time of the purchase a nonresident, unnaturalized alien, and incapable of holding or transmitting by descent real estate situated in this state. Under the view which we entertain touching the ten words of evidence found in the record on this point, it will be unnecessary to consider at all the treaty of 1853 between France and the United States, by which the rights of a French alien to hold and dispose of real estate in the United States were placed on the same footing with those of citizens of this country, or to examine the decisions of the United States supreme court on this subject. The only scrap of evidence on this point is found in one question and the answer to it. One of the appellees was asked, “Of what country was your father a subject?” To which she replied, “France—-Paris.” The answer seems to show that the witness was giving the nativity of her father, and it was too vague and unsatisfactory to warrant the counsel’s contention. There is absolutely nothing to show that the father of appellee was never naturalized during the many years of his life when he resided in this country. “An alien is one who is born out of the jurisdiction of the United States, subject to some foreign government, and who has never been naturalized under the constitution or laws of the United States, or any of them.” 1 Am. & Eng. Ene. L., 156. The appellees are not to be subjected to the loss of their inheritance by evi [907] dence so inconclusive and unsatisfactory. The evidence of alienage must be clear and satisfactory, and these ten words are neither clear nor satisfactory proof of the facts that the father was a subject of France, and that he died without ever ■ having been naturalized. Affirmed.