Fowler v. Hart. 13 H.

Fowler was appended, and the marshal returned "that he had received the same on the 12th May, 1845, and on the same day served a copy of the rule on the within named Joseph Fowler."

The principal objection to the validity of the sale of the property to Hart is founded on the procedure in the district court, for the correction of the misdescription of the mortgage. As between the mortgagor and mortgagee, there can be no objection to this proceeding. The district court had jurisdiction of the matter, and it is but the ordinary exercise of the powers of a court of chancery to reform a mortgage or other instrument so as to effectuate the intention of the parties. But it is alleged that Walden having become a bankrupt, his property was vested in his assignee for the benefit of his creditors, and that the judicial mortgage of the [*380] petitioner could not be affected by a procedure in which the petitioner was not a party, and of which he had no notice.

The assignee generally represents the creditors, and being made a party to the proceeding on the mortgage, he appeared and denied the allegations of the petition of the mortgagee; but on the hearing, the district court was satisfied of the truth of the allegations in the bill, and reformed the mortgage so as to describe truly the property intended to be mortgaged.. It is true that Fowler, the petitioner, was not a party to this proceeding, and if the action of the district judge had here terminated, it would be difficult to maintain the decree.

By the 11th section of the bankrupt law, the court had power to order the assignee to redeem and discharge "any mortgage or other pledge or deposit, or lien upon any property," &c. It also necessarily had the power, on the sale of mortgaged premises, to distribute the proceeds as the law required. And in regard to the property in question, it appears that due notice was given to Fowler of the application for the sale of it by Hart, who claimed to have a special mortgage on it; and the property was substantially described, and the day stated on which the court would act on the application. And in addition, a notice was published in two newspapers ten days before the time set for hearing by the court. The object of this notice was stated to be, to make an unembarrassed title to the purchaser, and enable Fowler to make any objections he might have to the sale, and the cancelment of his mortgage. That the rights of creditors were reserved as to the proceeds of the mortgaged premises on a final distribution.

Whether the petitioner, Fowler, took any steps under this notice, does not appear; and in the absence of such evidence, it may well be presumed that he acquiesced in the procedure. The notice afforded him an opportunity to assert his rights, and to object to the 46

VOL. XIX

Howard v. Ingersoll. 13 H.

decree for the reform of Hart's mortgage, of which he now complains, as fully as if he had been made a party to that proceeding. This he could have stated as an objection to the sale of the premises, or in claiming the proceeds of that sale. The reform of the mortgage by the court could not have estopped him from the assertion of his rights, as he was not a party to that proceeding of the court. But, having neglected to assert his rights on the above occasion, it is now too late to set them up against the purchaser of the property at the sale. Although there is some discrepancy in the description of the property contained in the notice from that in the decree reforming the

mortgage, yet substantially it is believed to embrace the [* 381] *same property; and as the notice was served upon the petitioner, as having a mortgage on the property, we think it was sufficient. The decree of the circuit court is affirmed, with costs.

JOHN H. HOWARD, Plaintiff in Error, v. STEPHEN M. INGERSOLL; JOHN H. HOWARD and JOSEPHUS ECKOLLS, Plaintiffs in Error, v. STEPHEN M. INGERSOLL.

13 H. 381.

Construction of an act of commissioners establishing part of the western boundary of Georgia on the west bank of the Chattahoochee River.

The first-mentioned case came here upon a writ of error to the supreme court of Alabama. The second, on a writ of error to the circuit court of the United States for the district of Georgia. The question in both was concerning the boundary line between the States of Georgia and Alabama; the plaintiffs in error claiming under Georgia, and the defendants under grants from the United States, as of the territory of Alabama.

The instructions given in the courts below and the questions raised, and the facts and documents upon which they depend, are stated in the opinion of the court.

Johnson and Berrien, for the plaintiff.

Coxe, contrà.

* WAYNE, J., delivered the opinion of the court.

* 397 ] The point for decision in these cases is one of boundary, between the States of Georgia and Alabama. It is, what is the line of Georgia on the western bank of the Chattahoochee River, from the 31st degree north latitude, "where the same crosses the boundary line between the United States and Spain; running thence up the said River Chattahoochee, and along the western bank thereof, to the great bend thereof, next above the place where a certain

Howard v. Ingersoll. 13 H.

creek or river called 'Uchee,' (being the first considerable stream on the western side, above the Cussetas and Coweta towns,) empties into the said Chattahoochee River."

Its determination depends upon what were the limits of Georgia, and her ownership of the whole country within them, when that State, in compliance with the obligation imposed upon it by the revolutionary war, conveyed to the United States her unsettled territory; and upon the terms used to define the boundaries of that cession.

In the case from Alabama, "the court charged the jury, that one passing from Georgia to Alabama, across the Chattahoochee River, at ordinary low water, would be upon the bank as soon as he left the water on the western side, although an inappreciable distance from the water, and that the line described in the treaty of cession from Georgia to the United States, as running *up [* 398 ] said river and along the western bank thereof, is the line impressed upon the land by ordinary low water; and if they believed the plaintiff's mill was west of that line, and the defendant's dam backed the water so as to obstruct the operation of the mill, the plaintiff was entitled to recover."

In the case from the circuit court of the United States for the district of Georgia, the district judge presiding, the jury was instructed "that by the true construction of these articles of cession, the boundary line between the State of Georgia and Alabama was to be drawn on and along the western bank of the Chattahoochee River, at low-water mark, when the river was at its lowest state."

All of us think that both of these instructions were erroneous, though there is a difference among us as to the construction given by the majority of the court to the article defining the boundary of Georgia upon the river, and the reasoning in support of it. These differences will be seen in the opinions which our brothers have said they meant to give in these cases.

We will now give our views of what were the limits of the State of Georgia when it ceded its unsettled territory west of the Chattahoochee River to the United States; that State's then ownership of the whole of it, citing in support of our conclusions indisputable historical facts, and the legislation of Georgia, of South Carolina, and of the United States, upon the subject.

It is well known to all of us, when the colonies dissolved their connection with the mother country by the declaration of independence, that it was understood by all of them, that each did so with the limits which belonged to it as a colony. There was within the lim

its of several of them a large extent of unsettled territory. Other States had little or none.

Howard v. Ingersoll. 13 H.

The latter contended, as all of them had united in a common declaration of independence, and in a common war to secure it, which no one colony could do for itself, that the unsettled lands within the former ought to become a common property among all

of the States.

On the 6th of September, 1780, congress recommended this subject to the consideration of the States. On the 10th of October after, it was resolved by congress "that the unappropriated lands that may be ceded or relinquished to the United States by any State, should be disposed of for the common benefit of the United States; and be settled and formed into distinct republican States, which shall become members of the federal union, and have the same rights of sovereignty, freedom, and independence, as the other States." 3 Journals of Congress, 516, 535.

From these references, we have the whole policy of congress concerning those unsettled territories, so happily, since, consum[* 399 ] *mated by the States and by congress. It was not, however, achieved without some delays and objections from the States to which these lands belonged. Some of the States, Maryland taking the lead, refused to sign the articles of confederation until after strong assurances had been given that such cessions would be made. And when that State did so, it was with the declaration that she did not relinquish or intend to relinquish the right which she had with the other States to the "back country," as she termed the unsettled lands within the limits of some of the States.

Early in 1781, Virginia made such a relinquishment. New York quickly followed, and Massachusetts and Connecticut, always willing to make any sacrifice for the common cause, relinquished their unsettled lands after the war had been concluded.

The cause assigned by each of these four States for doing so, and the principles upon which these cessions were accepted by the United States, involved North and South Carolina and Georgia in the obligation to do the same. Though not done for several years, it was never denied by either of these States.

All of the States had been actuated by the same spirit for independence. When the war had been happily concluded, all of them looked to the wild territory within the United States, as the first source from which revenue could be raised to pay the war debt of the Union. It then was $42,000,000.

It would be difficult to say which class of its creditors had the strongest claims upon the justice and gratitude of the people of the United States. But all felt, and it was conceded by the other classes of creditors, that the soldiers who had patiently borne the privations

Howard v. Ingersoll. 13 H.

of the field, and bravely met its hazards to secure the liberties of the country, ought to have their claims paid by portions of the public lands, with certain available securities from congress for the residue. From these references, we learn that the States entered into the Union, with the understanding by all of them that each had an undiminished sovereignty within its colonial limits. That there were within the limits of some of them unsettled lands over which congress had no legislative control. But that it was early recognized by these States whilst the articles of confederation were in the course of ratification, and immediately after they were completed, that their unsettled territories were to be transferred by them to the United States, to be disposed of for the common benefit, and to be formed into distinct republican States, with all the rights and sovereignty of the other States.

We have seen that relinquishments had been made by Virginia, New York, Massachusetts, and Connecticut. South Carolina did the same in 1787, after the settlement of her territorial disputes with Georgia.

We will now state what those disputes were, and how [* 400 ] they were adjusted, in order that the jurisdiction of the State of Georgia, and that State's ownership of the whole territory ceded by it to the United States in 1802, may be fully understood, in connection with the principles or rules by which its western boundary upon the Chattahoochee River must be interpreted.

Georgia was originally a province, formed by royal prerogative, out of a portion of that territory which was within the chartered limits of South Carolina. It was a corporation under the title of "Trustees for establishing the colony of Georgia in America, which was to continue for twenty-one years, with power in the trustees to form laws and regulations for its government, after which all the rights of soil and jurisdiction were to vest in the crown."

It was described in the act of incorporation, "as all those lands, countries, and territories, situate, lying, and being in that part of South Carolina in America, which lies from the northern stream of a river, then commonly called the Savannah, all along the seacoast to the southward under the most southern stream of a certain other great water or river, called the Alatamaha, and westward from the heads of the said rivers respectively in direct lines to the south seas." It may be well here to say, that the power of the king to alter, change, enlarge, or diminish the limits of his royal governments in America, cannot be denied. "Those governments were of two kinds, royal and proprietary. In the former, the right of the soil and jurisdiction remained in the crown, and their boundaries, though described