is a real right, that is to say, the party evicted may retain Western Dist. possession until he is remunerated. We, therefore, conclude, that the judgment first pronounced ought to be maintained, and it is ordered accordingly. October, 1840. BROSNAHAM 28. TURNER. BROSNAHAM ET AL. vs. TURNER.* 16L 433 44 49 16L 433 APPEAL FROM THE COURT OF THE NINTH DISTRICT, FOR THE FARISH OF 49 181 16L 433 51 175 The decree or judgment of a foreign court, the jurisdiction of which not having been questioned, will be considered conclusive on the matters adjudged by it. The validity of a legislative enactment of another state or foreign country, where it operates on property within its jurisdiction, or when it authorizes and confirms the acts of its own officers, will not be inquired into by the courts of this state; but its extra territorial effect on rights to immoveable property in this state, will not be tolerated. Where there is a judgment, execution and sale of property shown, the court will not inquire into the validity of the judgment; and when in the investigation of title a judgment is produced, to which one of the litigants is a party, it cannot be inquired into collaterally. After the lapse of more than twenty years, a sheriff's sale will be presumed good and valid. Acts of sale, sous seing privé, and not being recorded in the parish where the property is situated, are inadmissible as evidence of title to immoveable property. This is an action instituted by John Brosnaham, in behalf of his minor child, (Clotilda,) and of Manuel and Francisco This case was decided at the October term, 1839, by judges Martin, Strawbridge and Morphy, and a rehearing was granted, and now finally decided at this term. Judge Bullard did not sit in the case, having been of counsel. WESTERN DIST. Villaverde, the two latter free people of color, as the heirs and October, 1840. legal representatives of Antonio Villaverde, who died in Pen BROSNAHAM ET AL. V8. TURNER. sacola, the 29th August, 1821, to recover from the defendant a tract of land in the parish of Concordia, containing eight hundred superficial arpents. Villaverde derived title to this land from the Spanish government in 1801, which was confirmed by an act of congress approved the 3d March, 1807, and by a patent which issued to Villaverde or his legal representatives, the 2d November, 1832. The plaintiffs claim as heirs of Villaverde, under a will purporting to be made and drawn up, from his dictation, by four persons, who state at the foot of the will, that the "said Antonio Villaverde, having been solemnly called and required to say if the within were his deliberate, positive and last intentions, and he declared them to be such. In testimony whereof, we have affixed our names and seals, &c." John Garnier, Eugene Lavalle and Lorenzo Brue, three of the four persons who subscribed said will, declared on oath, that Villaverde declared to them, and in presence of all the witnesses, that the foregoing instrument contained his last will and testament. This oath was taken before a person signing himself H. M. Brackenridge. His official capacity or character, is not stated. The will is dated the 29th August, 1821. On the 23d May, 1836, the judge of Escambia county, in the territory of Florida, certifies, that he received the foregoing instrument of writing, from Joseph E. Caro, keeper of the public archives, as the last will and testament of Antonio Villaverde, deceased, therefore, the same is admitted to probate, under the act of the Governor and Legislative Council of the territory of Florida, entitled "an act to authorize the county court of Escambia county, to admit to probate the last will and testament of Antonio Villaverde, deceased," approved 4th February, 1836. John Brosnaham, was under this act duly appointed administrator, with the will annexed, and received letters of administration accordingly. This will was presented to the judge of probates, for the parish of Concordia, and there ordered to be enregistered, and made executory in this state. BROSNAHAM ET AL. vs. TURNER. The following is the clause of the will under which the WESTERn Dist. plaintiffs claim the land in question. "Second, the said An- October, 1840. tonio Villaverde, gives and devises all his rights and claims to lands, tenements, &c., which he possesses, or shall be entitled to, within the states of Mississippi, Louisiana, or the territory of Florida, to the lawful children of Dr. John Brosnaham of Pensacola, and to the two mulatto children, Manuel and Francisco above named, equally divided; that is to say, one-half of said rights and claims, and undecided pretentions, to the said children of Dr. Brosnaham, and the other half equally divided between the said Manuel and Francisco, to have and to hold forever; and them to be substituted to all intents and purposes, to all his rights, claims, and privileges whatsoever." The plaintiffs allege, that they claim the tract of land in question under and by virtue of this will, as the only true and legal owners. They, however, state that one George Turner is in possession of said land, which he claims as owner, and pray that he be decreed to deliver it up to them, and that they have judgment for the land, and damages for its detention, together with the rents and profits. The defendant claims to be owner under a sheriff's sale, as evidenced by the record of a suit, judgment therein, and execution. The sheriff's deed bears date the 10th December, 1814, and was not recorded until the 25th July, 1816, when it was recorded in the parish judge's office. The record of the suit of Joseph Petit vs. Antonio Villaverde, under which this tract of land purports to have been sold, consists of a petition to the parish judge signed by his attorney, J. Thompson, claiming one hundred and twelve dollars and fifty cents, but not stating the residence of either plaintiff or defendant. It was filed the 6th June, 1809, on which the parish judge endorsed, "let a summons issue as required and due notification given to the defendant." The affidavit. of the plaintiff to the petition is followed by another order of the judge: "Let the defendant be held to bail as the law. requires." The parish constable endorses his return on the 'petition. "Notification given 8th June, 1809." WESTERN DIST. October, 1840. BROSNAHAM ET AL. v8. TURNER. There is no citation, answer, or appearance of the defendant, or judgment by default in the record. On the 17th November, 1812, the parish judge writes on the petition, "judgment for one hundred and twelve dollar fifty-six cents, and the costs." The next document is the fieri facias, under which the land was sold, and an instrument purporting to be a sale of eight hundred arpents of land, described "as situated at Point Pleasant, 75 miles above Vidalia, 10th December, 1814." The defendant denies that Villaverde ever had any good or legal title to the land; that if he ever had any, he was legally divested of the same by virtue of a sale of the same by the sheriff of the parish of Concordia, on the 10th day of December, 1814, to satisfy a judgment rendered against him, at the suit of Joseph Petit, before the Parish Court of said parish, and that one Jonathan Thompson became the purchaser of all the said Villaverde's right, title or interest in and to said land, and that he, the said Thompson, afterwards, to wit, on the 13th day of August, 1819, conveyed the same by deed to those from whom this respondent purchased. Thompson sold to Henry Turner, and the defendant G. Turner, claims under him. The validity of the will is also put at issue, and the capacity and right of the plaintiffs to take as heirs, is specially denied. At the outset of the case, the defendant's counsel excepted to the right of the plaintiffs to sue, and to their capacity as heirs of Villaverde. On the other hand, the plaintiffs, by their counsel, excepted to the introduction of the record and papers of the suit of Petit vs. Villaverde in evidence, but the exception was overruled. There was a bill of exceptions taken to the introduction of several private acts of sale to the defendant, from Henry Turner to the defendant in possession. Their admissibility was objected to, on the ground of their not being recorded in the parish where the property was situated. The objections were overruled, and the documents admitted. There was judgment for the defendant, and the plaintiffs WESTERN DIST. appealed. This case was argued at the October term, 1839, by Mr. Elam and Mr. Barton, for the plaintiffs. Mr. Stacy and Judge Bullard, argued it on behalf of the defendants. Strawbridge, J., delivered the opinion of the court. The plaintiff styling himself administrator, with the will annexed, of one Antonio Villaverde, and suing, also, in behalf of his minor child, (whose name, by an amended petition, appears to be Clotilda S. Brosnaham;) and of Manuel and Francisco Villaverde, free people of color, residing in Florida, allege they are the heirs and legal representatives of the said Villaverde, who died owner of a certain tract of land in the parish of Concordia, which the defendant has illegally taken possession of and retains. Turner appeared and filed various exceptions, which were overruled, when he answered, denying the locus in quo, asserting title, pleading prescription, &c. Villaverde's title to the land commenced in 1801, under the Spanish Government; he died the 30th August, 1821, having the day before made a will, in which he bequeaths his property to the plaintiffs; the two latter, bearing his name, are therein shown to be his natural children, by a slave belonging to him, to whom he gives freedom; and states that the emancipation of the children had been established before. Two depositions, which appear to have been intended to prove this will, are annexed, and are sworn to and subscribed before H. M. Brackenridge; but it is not stated in what capacity, or by what authority he acted. They were made in October, 1821; but no probate followed, or was, so far as the evidence goes, attempted until the year 1836. The Legislative Council of Florida, then passed an act, "Entitled an act to authorize the county court of Escambia, to admit to probate the will, &c. of Antonio Villaverde." October, 1840. |