Opinion of the Court.

EJECTMENT for lands in Madison County, Florida.

Judg

ment for plaintiffs, which was affirmed by the Supreme Court of the state. This writ of error was sued out to review the judgment in affirmance. The case is stated in the opinion of the court.

Mr. Angus Paterson for plaintiff in error.

Mr. C. W. Stevens for defendant in error. Mr. S. Pasco was with him on the brief.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is an action of ejectment for ninety-seven acres of land in Madison County, Florida, situated near the boundary line between that state and Georgia. The plaintiffs were James M. Groover and others, heirs at law of Charles A. Groover, and now defendants in error; the defendant was Andrew J. Coffee, the present plaintiff in error. Judgment was first rendered by the court of first instance in favor of the defendant below; but being reversed by the Supreme Court of Florida, a new trial was had, and judgment was given for the plaintiffs, and affirmed by the Supreme Court. The last judgment of the Supreme Court is brought here for review on two grounds; first, that the matter in controversy had been tried and determined by the Circuit Court of the United States for the Northern District of Florida, in favor of the defendant, Coffee, in a suit between him and the executrix of Charles A. Groover, the ancestor under whom the plaintiffs claim title; secondly, on the ground that the defendant's title to the land in controversy was claimed by him under a grant made by the United States to the State of Florida, and by the State of Florida to the defendant, which title was set aside by the state court in favor of the plaintiff's title derived under a conflicting grant from the State of Georgia.

The first ground of error is not raised on the record in such a manner as to avail the defendant. The matter of defence involved therein was set up by two pleas: first, a plea of former recovery; and, secondly, a plea to the jurisdiction

Opinion of the Court.

of the court. These pleas were overruled on demurrer, but for what reason is not stated. The Supreme Court of Florida, however, in its opinion, very properly says: "In ejectment all legal defences may be made under the plea of not guilty, and the special denials mentioned in the statute. McClelland's Dig. 481. Special pleas of matter affecting the legal title, or in estoppel, only, encumber the record and tend to embarrassment. Wade v. Doyle, 17 Fla. 522; Neale v. Spooner, June Term, 1883 [20 Fla. 38]. They should be struck out by the court sua sponte, or on motion, or on demurrer, because they are not proper pleas; but a judgment sustaining a demurrer will not preclude proof, on the trial, of the facts so improperly pleaded." Coffee v. Groover, 20 Fla. 64, 78. The pleas being overruled, no attempt was made, on the trial, to set up the defence by proof of the former judgment relied on. This branch of the case, therefore, may be laid out of view.

The second ground for reversal is stated in duplicate form in the assignment of errors, as follows, to wit:

(1) "In the record and proceedings aforesaid there is manifest error, to wit: That the Supreme Court of the State of Florida in the above stated cause decided that a grant for land issued by the State of Georgia is superior to a patent issued by the United States for the same land, the said land being situate within the territorial limits of the State of Florida."

(2) "There is manifest error in this, to wit, that the Supreme Court of the State of Florida in the above stated cause, [as] by the record aforesaid it appears, held that the plaintiff in error should be ousted from certain lands embraced within the ter ritory of the State of Florida, he holding title through the State of Florida derived from the United States, and that the defendants in error should be put in possession, they claiming under a grant issued by the State of Georgia."

By § 709 of the Revised Statutes, where the decision of the state court is against a title claimed under the Constitution, or any treaty or statute of, or a commission held, or authority exercised under, the United States, this court has jurisdiction to review the decision. We think it will sufficiently appear

Opinion of the Court.

from the facts of the present case, and the points of law arising thereon, that it satisfies the conditions of the section. The title claimed by the defendant rested, not only on a grant of the United States, but on a delimitation of territory under a treaty between the United States and Spain.

The case is one of conflicting grants of the same land lying near the boundary line between Georgia and Florida. The fact that the land in controversy was covered by both grants was settled by the jury. It is conceded to lie within the bounds of Florida according to the line recently agreed upon by the two States.

The occasion of conflicting grants being made was the uncertain location, at the time, of the true boundary line referred to, and the fact that Georgia claimed one line and the United States and Florida claimed another.

The plaintiffs, to maintain their title to the land in dispute, gave in evidence, on the trial, two patents from the State of Georgia to one James Groover, each bearing date the 1st day of January, 1842; one for 226 acres of land, described as situate in the fifteenth district of Irwin County (Georgia), and known and distinguished in the plan of said district by the number 199, and having the shape, form, and marks shown by a plat annexed; the other patent being for 250 acres of land, situate in the same district and county, known and distinguished by the number 200, and having the shape, form, and marks shown by a plat annexed. The plats showed that the two lots joined each other east and west, and that they were both bounded on the south by a common line called on the plats "Florida line"; and it was testified that the line thus marked on the plats was a line known as the "Watson line." Mesne conveyances were then given in evidence showing that said lots were conveyed by James Groover to Thomas A. Groover by deed dated December 31st, 1855; and by Thomas A. Groover to Charles A. Groover by deed dated July 8th, 1860; and it was further shown that Charles A. Groover died in 1866, and that the plaintiffs were his heirs at law. Evidence was also given tending to show that the said patentee and grantees respectively had possession of said lands under and

Opinion of the Court.

in conformity with their said titles until the plaintiffs were ousted by the defendant in 1876.

Evidence was further given to show that another line, called the "McNeil line," ran about 14 chains north of the Watson line and parallel thereto, and that the land in controversy lay between the said two lines, having the Watson line on the south and the McNeil line on the north. Also, that a third line, called the "Orr and Whitner line," ran still farther north than either of the aforesaid lines, which Orr and Whitner line was conceded to be the boundary line between the States of Georgia and Florida, as recently fixed by mutual agreement between the two States, by certain laws and resolutions of their respective legislatures, confirmed by act of Congress.

The plaintiffs also introduced evidence tending to show that the Watson line was formerly considered the State line between Georgia and Florida; that Georgians worked the Georgia roads to the Watson line, and Floridians worked the Florida roads to that line; that as far back as one of the witnesses could remember, he being for many years a lawyer and judge in one of the border counties of Georgia, that State had claimed and exercised jurisdiction to the Watson line, until the Orr and Whitner line was agreed upon as the boundary between the two States; that the people living north of the Watson line did jury duty and voted in Georgia; that the wills of people dying there were probated in the Georgia courts, and their estates were administered upon in those courts; that the Georgia courts took jurisdiction of offences committed as far south as the Watson line, and tried cases in which people living there were interested; that the officers of the Georgia courts executed writs as far south as that line; that persons were tried in Georgia for offences committed between that line and the Orr and Whitner line. And, on the other hand, as correctly stated by the Supreme Court of Florida in its opinion, there is nothing in the record, nor in the history of the government of the Territory or of the State of Florida, showing that the authorities of the latter exercised any of the powers of government north of the

Opinion of the Court.

Watson line prior to the said settlement of the boundary between the two States.

The defendant, to maintain the issue on his part, gave in evidence, first, a certified copy of a patent from the United States to the State of Florida, bearing date July 6th, 1857, issued under and in pursuance of the act approved September 28th, 1850, known as the act for granting to certain states the "swamp and overflowed lands" therein; by which patent there was granted to said State, as swamp and overflowed lands, certain designated fractional sections of land, amongst others "the whole of fractional section 29," in township 3 north, range 9 east; which fractional section was proved to be bounded on the north by McNeil's line, and to include the land in controversy. The defendant also produced in evidence a certificate of sale issued by the register of public lands for the State of Florida to one McCall and one Stripling for said fractional section 29, and other land named in said. patent, which certificate bore date September 2d, 1857, and acknowledged the receipt of one hundred dollars in cash, and of certain bonds for the remainder of the purchase money of said lands, as provided by the land laws of Florida. The defendant further gave in evidence a deed from McCall and Stripling to himself, bearing date November 12th, 1858, conveying to him all the lands included in said certificate of sale, with a covenant that they were free from incumbrances; also a deed of grant and conveyance of the same lands to the defendant from the Trustees of the Internal Improvement Fund of the State of Florida - the proper authority for that purpose - which last deed bore date September 12th, 1874. The defendant, being sworn as a witness, testified that McCall and Stripling paid all the purchase money for the lands to the State; but that the certificate was lost, and he, the defendant, afterwards made proof of it, and had the Trustees of the Improvement Fund make him a deed: but that the original receipt had since been found. He also testified that he had lived near the Georgia line for over forty years and never heard of the Watson line until about ten or twelve years ago. He worked the public roads up to the McNeil line, and the