Hartley vs. Ferrell.-Opinion of Court. release, relinquish, and forever quit-claim, all my right, title and interest of dower, in and to the lands and tenements therein mentioned and expressed, and that the same was done freely and voluntarily, and without any compulsion, constraint, apprehension or fear of or from my said husband, or any other person. "In witness whereof, I have hereunto set my hand and seal, this 12th day of November, A. D., 1859. LAVINIA SELLARS, [L. s.]" "Executed in presence of J. W. ANDERSON, SAMUEL F. SLOAN." "STATE OF FLORIDA, Madison County: Be it remembered that on this, the 12th day of November, in the year of our Lord one thousand eight hundred and fifty-nine, personally came before me, the subscriber, a Justice of the Peace in and for said county, Lavinia C. Sellars, wife of John W. Sellars, and separately and apart from her said husband made and executed the foregoing acknowledgment. "In witness whereof I have hereunto set my hand and seal, the day and year first above written. J. W. ANDERSON, [L. 8.] The only objection made to the sufficiency of this private examination is that the interest acknowledged to have been assigned and intended to be transferred, is limited and confined to her "right of dower" in the premises. If the words "of dower" were stricken out, there could be no doubt as to the sufficiency of the acknowledgment. Shall these words be permitted to defeat the evident intention of the parties to the instrument? The execution of this acknowledgment was manifestly intended to convey some interest in the premises, or it was made in pursuance of a premeditated fraud. Mrs. Sellars had no dower interest; her only inter MaGee et als., vs. Doe, ex dem.-Statement of Case. est was in the fee. If the fee was not intended to be conveyed, then no interest was passed to the grantee, and the whole transaction bears the impress of an unmitigated attempt at fraud. We will not do this lady the injustice to put such a construction on her act; but will rather attribute the insertion of the word "dower" to the lack of information or inadvertence of the officer who made the examination. We think that the word may be discarded as surplusage, without doing violence to any principle of the law. Having maturely considered the case as presented by the record, we are of opinion that there was no error in the rulings of the Judge below. It is therefore ordered and adjudged that the judgment rendered in the Circuit Court be affirmed with costs. ADELAIDE MAGEE et als., vs. DoE, ex dem. CONSTANCE ALBA, AND OTHERS. 1. By making an act of Congress part of a special verdict of a jury (particularly where no objection to its admissibility in evidence appears in the record) the court will consider that the jury found all the facts stated and set forth in said act, whether the same were stated by way of inducement or otherwise. 2. The 8th Article of the Treaty of February 22d, 1819, between the United States and Spain, by which the Floridas were acquired, must be construed to stipulate expressly for the security to private property, which the laws and usages of nations would, without express stipulation, have conferred. 3. The operation of the said treaty as a confirmation, is the same upona purchase of land of the Spanish government, before the date fixed in the treaty, as upon a grant made by the Spanish authorities previous to that time, which is to confirm such grant or purchase "in presenti," and the language of the Spanish side or Spanish copy of the treaty, is substantially adopted as the true reading, viz: that such grants "shall stand or remain ratified and con firmed," &c. MaGee et als., vs. Doe, ex dem.-Statement of Case. 4. Under the said treaty it was not contemplated that the Government of the United States should convey titles upon purchases made of Spain before 24th January, 1818, but only that the United States after a change of dominion, should respect such purchases as were made of the Spanish government before that time, and ratify and confirm the right which had, before that time, 'been acquired of the Spanish government. Commissioners, 5. The report and abstract or decision of the Board of Land appointed under the act of Congress, approved May 8th, 1822, entitled "An act for ascertaining claims and titles to lands within the Territory of Florida," in regard to claims and titles to lands in Florida, whether under grants from the Spanish government or by purchase from said government, are not final and cannot have the force of res adjudicata, nor deprive them of any right which they may have had previous to said report and abstract or decision. That the object for which these commissioners were appointed was to enable the government to ascertain the Spanish grants and sales, and their location, so that they might be separated from the public domain, and not sold as public lands. That for this purpose they "constituted a board of inquiry, not a court exercising judicial power and deciding finally on titles." As to "Donation" claims-Quere? 6. It is inconsistent with all the acts ofCongress and of our courts, in adjusting land titles derived from the Spanish government in Florida, prior to the date fixed by the treaty, to construe said acts in confirmation as a grant de novo. 7. The act of Congress, approved March 3,1839, entitled "An act for the relief of the heirs and assignees of Peter Alba,deceased," (and made part of the special verdict in this case,) is confirmatory of the preexisting title of Peter Alba, Jr., ratifying and confirming the same, as by the treaty stipulation the government was bound to do; and by the "relinquishment of any title which the United States may have to said lots," in said act, Congress but authorizes the separation of the land from the public domain, in order that they may not be sold as public lands, and therefore is not,to any intents and purposes, a grant de novo. 8.The, ancialrights and privileges of the husband and wife, as to property acquired during coverture,under the Spanish law in force in Florida at the exchange of flags, have been secured and have been acknowledged in our courts. 9. Those rights and privileges declared. 10. By the rules of descent in Florida real estate descends, where there are no children nor their descendants, to the father, excepting in cases where husband is heir of his wife. 11.A devise of "all the rest and residue of my property and estate,real and personal, and of every kind and description whatsoever," embraces the corpus of the testator's property not otherwise disposed of. Appeal from the Circuit Court of Escambia county. This cause was argued at March Term, 1860, at Mari MaGee et als., vs. Doe, ex dem.-Statement of Case. ana; was held under advisement by the court, and by agreement of counsel the opinion of the court was delivered at Tallahassee at January Term, 1861. Dillon Jordan, McClellan and Holland for appellants. Richard L. Campbell for appellees. FORWARD, J., delivered the opinion of the Court. The appellees brought an action of ejectment in the Circuit Court, holden in and for the county of Escambia, to recover possession of the lots of land hereinafter described, situate and being in the city of Pensacola. The jury empanelled to try the case brought in a special verdict, and judgment was rendered thereon in the court below for the appellees, (who were the plaintiffs,) on which the appellants, (who were the defendants,) brought their appeal to this court. As appears by the record, the special verdict and judgment are in the following words, viz. "We, the jury, find that Peter Alba, Jr., claims to be the purchaser, for a valuable consideration, from the Spanish government, in the year 1817, of the lots described in the plaintiff's declaration; that the said Peter Alba, Jr., presented his claim to the commissioners appointed under the act of Congress, approved May 8th, A. D. 1822, entitled 'An act for ascertaining claims and titles to land within the Territory of Florida,' and that the said commissioners, in their report and abstract K, reported to Congress that the evidence before them proved that the certificates of sale of the said lots was a forgery; that prior to the purchase of the said lots, the said Peter Alba, Jr., intermarried with the said Constance Alba, one of the lessors of the plaintiff; that in the year A. D. 1833, Peter Alba, Jr., departed this life MaGee et als., vs. Doe, ex dem.-Opinion of Court. without leaving any child or children; that Peter Alba, Sr., the father of the said Peter Alba, Jr., survived the latter; that the said Peter Alba, Sr., departed this life in the year 1836, leaving no lawful issue or decendants, and by his last will and testament, executed in due form to pass real estate under the laws of Florida, after several specific devises, in none of which were the said lots embraced, did, by the residuary clause of his said last will and testament, devise and bequeath, unto the said John Alba, (the illegitimate son of the said Peter Alba, Jr., and illegitimate grandson of the said Peter Alba, Sr.,) Virginia Alba, Angela Wilkins, wife of the said Joseph Wilkins, Peter Alba, Annette Alba, and Mary Louisa Alba, the lessors of the plaintiff, all the rest and residue of his property and estate, real and personal, and of every kind and description whatsoever; that at the date of the act of Congress of March 3d, A. D. 1839, entitled 'An act for the relief of the heirs and assignees of Peter Alba, deceased,' (which said act of congress is hereby incorporated into and made a part of this special verdict), the defendants, Adelaide MaGee, Drausin de Rocheblade, Delphine Jordan, wife of the said Charles N. Jordan, and Sophia Mason, wife of the said Felix G. Mason, were the sole heirs at law, then in being, of the said Peter Alba, Jr. And forasmuch as the jury is ignorant, in point of law, upon the foregoing facts, on which side they ought to find the issue, it is agreed that if the court shall be of the opinion that the plaintiff is not entitled in law to the said lots upon the foregoing facts, then they find the defendants not guilty of the trespass and ejectment in the plaintiff's declaration alleged; but, if on the other hand, the court shall be of the opinion, that the plaintiff is entitled to the whole, or any part of, or any interest in the said lots, in the said declaration set forth, then the jury finds the defendants guilty of the said trespass and ejectment, in the said declaration |