Menard's Heirs v. Massey
49 U.S. 293 (1850)

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U.S. Supreme Court

Menard's Heirs v. Massey, 49 U.S. 8 How. 293 293 (1850)

Menard's Heirs v. Massey

49 U.S. (8 How.) 293

Syllabus

In the case of Stoddard v. Chambers, 2 How. 284, this Court decided by implication, and now decides expressly, that a general and unlocated concession, granted by the Spanish governor prior to the transfer of Louisiana, a private survey of which made after the transfer was recognized by the commissioners appointed under the act of 1805, before whom the claim was filed, was so designated and located as to be reserved from sale by virtue of the act of 1811, and consequently no New Madrid certificate could be located upon it.

The act of 1804, forbidding private surveys upon the public lands, was impliedly repealed by the act of 1805, which required claimants to file a plat. The act of 1806 authorized the commissioners to direct such surveys as they might deem necessary, which gave them thereby the power to adopt any prior and private surveys which they might deem just and proper for the purpose of designation and location.

The effect of such private surveys was not to sever the land from the public domain, but merely to indicate the tract which Congress was to act upon at a subsequent period, in case it thought proper to confirm the claim.

The act of 1836 confirmed the claims of assignees who had prosecuted them as claimants, and did not intend to vest the title in the assignor, the original holder. This Court has so decided in former cases.

The confirmation by the act of 1836 is equally effectual in favor of the claimant, whether the commissioners recommended that the claim should be confirmed generally or confirmed "according to the survey." The only difference is that in the latter case, the survey on file is probably conclusive upon the government and errors cannot be corrected, whilst in the former case they may be.

The second section of the act of 1836 makes no provision for a relocation of an unlocated claim confirmed on the report of the commissioners, and further legislation will be necessary for such cases.

The cases of Mackay v. Dillon, 4 How. 421, Les Bois v. Bramell, 4 How. 449, and Jourdan v. Barrett, 4 How. 169, examined and explained.

Upon the transfer of Louisiana, the United States succeeded to all the powers of the intendant generals, and could give or withhold the completion of all imperfect titles at their pleasure. In order to exercise this power with discretion, boards of commissioners were established in order to enlighten the judgment of Congress, and special courts were organized in which claimants might prosecute their claims.

But in all the legislation upon the subject, the claimants were never considered as possessing a legal title until the final assent of Congress was expressed in some mode or other to that effect.

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The date of such legal title commences with the ratification by Congress, and does not extend back to the date of the imperfect title.

Therefore, the title of Cerre, being confirmed in 1836, must give way to patents for the same land issued before that time unless Congress had by some law protected the land from the location of patents.

But the acts of Congress did not so protect it, because the concession of Cerre called for no boundaries, and had never been surveyed. Before land could be reserved from sale, it was necessary to know where the land was.

The confirming act of 1836 declared that it should convey no title to any part of the land which had previously been surveyed and sold by the United States. This the United States had a right to do, because, having the plenary power of confirmation, they could annex such conditions to it as they chose.

Where claims were confirmed according to the concession, a subsequent survey made in the mode pointed out by law is conclusive upon the United States and the confirmee to show that the land included in the survey was the land the title to which was confirmed. But it does not follow that other persons who may previously have purchased portions of the land from the United States subsequent to the confirming act and before the survey are equally concluded.

The form of a Spanish title given.

This was one of those cases arising from a conflict between an old Spanish concession and a title otherwise acquired. The acts of Congress passed from time to time to regulate these claims are all set forth in the report of the case of Stoddard v. Chambers, 2 How. 317, and need not be repeated. It is only necessary now to state the respective titles of the plaintiffs and defendant as exhibited by themselves.

This was an action of ejectment brought by Amedee Menard, a citizen of the State of Illinois, as assignee of Pascal L. Cerre, against the defendant, Samuel Massey, a citizen of the State of Missouri for the recovery of a piece of land situated in the County of Crawford and State of Missouri, containing three thousand and one acres and seventy-five hundredths of an acre, being survey number three thousand one hundred and twenty, of three thousand five hundred and twenty-eight arpens of land originally granted to Pascal L. Cerre, in township thirty-eight north, of range five west, and townships thirty-seven and thirty-eight north, of range five west, of the fifth principal meridian. This tract of land was confirmed by the Act of Congress of 4 July, 1836, to Pascal L. Cerre, the grantee, or his legal representatives, who conveyed to Amedee Menard, the plaintiff. Menard died during the pendency of the suit, and his heirs at law were made parties to the suit, all of whom were residents of the State of Illinois. A verdict and judgment were rendered against the plaintiffs in the circuit court, the case is brought to this Court by the plaintiffs in error.

The case, on each side, as it appears in the transcript, is as follows:

Page 49 U. S. 295

On 5 November, 1799, one Pascal Leon Cerre presented his petition to Don Carlos Dehault Delassus, Lieutenant Governor and Commander-in-Chief of Upper Louisiana, for seven thousand and fifty-six arpens of land, to be taken in two different places as follows: the half of said quantity, or three thousand five hundred and twenty-eight arpens, to be taken at the place commonly known by the name of the Great Source of the River Maramee; the other half on the head-waters of the Gasconade, and those of the Maramee, known by the name of La Bourbeuse.

On 8 November, 1799, the Lieutenant Governor, Charles Dehault Delassus, in pursuance of said petition, gave a concession for the quantity of land asked for by the petitioner, reciting that he was well convinced of the facts set forth and stated by the petitioner, and stated further in the grant, that as it was situated in a desert where there was no settlement, and at a considerable distance from the Town of St. Louis, he was not compelled to have it surveyed immediately, "but as soon as someone settles on said place," in which case he was required to have it surveyed without delay.

The said Pascal Leon Cerre, the grantee, produced a letter from Manuel Gayoso de Lemos, Governor General at New Orleans, to Monsieur Gabriel Cerre, the father of the petitioner, dated New Orleans, 28 April, 1798, in which he acknowledged the many services which the said Gabriel Cerre had rendered the government and his claim to the generosity of the same, and that the said lieutenant governor, seeing the letter of the Governor General Gayoso, inquired of said Gabriel Cerre in what manner he might reward him, and that said Cerre replied that he was then advanced in years, and had a sufficiency of lands, and recommended his son, who was the head of a family, said Pascal Leon Cerre, who had then received no grant for any land, to the bounty of the government.

The concession was registered, by order of the lieutenant governor, in the Book of Concession, and presented to the first board of commissioners for confirmation by the grantee September 15, 1806, who reported against its confirmation September 28, 1810, and the claim was again presented for confirmation 5 October, 1832, supported by documentary and oral testimony, and was unanimously recommended for confirmation by the board of commissioners October 31, 1833, and was confirmed by the Act of Congress of 4 July, 1836, to the said Pascal L. Cerre, or his legal representatives.

The land as confirmed was surveyed under the authority of

Page 49 U. S. 296

the United States, by Deputy-Surveyor Joseph C. Brown, from 18 to 20 June, 1838, under instructions from the surveyor of the public lands in the States of Illinois and Missouri, dated 6 June, 1838.

On 26 February, 1844, by deed of that date, Pascal L. Cerre conveyed said lands, as granted, located, and surveyed, to Amedee Menard, under whom the present plaintiffs claim as heirs at law.

By the Act of Congress of 4 July, 1836, the above decision of the Board of commissioners, under the acts of 1832 and 1833, was affirmed, and thereby, the title under said grant was confirmed.

The defendant admitted that he was, before and at the time of the commencement of this suit, in possession of the whole of section one, township thirty-seven north, range six west, except the west half of the southwest quarter of said section, containing eighty acres, which were the same premises on which "the Big Spring," at the source of the Maramee, is located.

The heirs at law of Amedee Menard, deceased, were admitted, from a statement made by Judge Pope, to be the present plaintiffs.

The plaintiffs gave in evidence a letter from the Secretary of the Treasury of the United States to the Commissioner of the General Land Office, dated 10 June, 1818, in which he was directed and instructed to furnish the receiver and register of the land office at St. Louis, Missouri, with a descriptive list of the land claims which had been presented and registered under the different acts of Congress for confirming the rights of individuals to lands that had not been confirmed, situated within said land district, with instructions to withhold from sale all such lands, until otherwise directed.

The land confirmed to Pascal L. Cerre, and now sued for, was then within the district of St. Louis. The letter of the Secretary of the Treasury was the official copy, transmitted by the Commissioner of the General Land Office to the register at St. Louis and was produced by the said register, in whose possession the same was.

The plaintiffs gave in evidence also a list of claims which had been made out by Frederic Bates, former recorder of land titles at St. Louis, and which had been presented for confirmation, but not finally acted on by Congress, which list was also produced by the register of the land office at St. Louis and taken from the files in his office, and on said list was this claim, since confirmed to Pascal L. Cerre.

Accompanying said list was a certificate made out by Frederic

Page 49 U. S. 297

Bates, former recorder of land titles at St. Louis, under date 10 July, 1818, in which he states -- "The foregoing is a list of claims regularly entered in this office," and which were supposed to be situated and intended to be located within the County of St. Louis, and which was no doubt made out, in pursuance of the instructions and directions from the Commissioner of the General Land Office, under the direction of the Secretary of the Treasury, reserving said lands from sale.

The plaintiffs also gave in evidence a proclamation of the President of the United States dated June, 1823, and published in the summer and autumn of 1823, for the sale of public lands on the third Monday of November in that year at St. Louis, which were situate in the township and range in which the lands sued for in this action are located, and in which the lands sued for and contained in the list made out by the recorder of land titles, as above stated, are reserved from sale.

The property in dispute was admitted by the defendant to be worth more than two thousand dollars.

The plaintiffs also proved, by the testimony of Augustus H. Evans, that this claim was located at "the Big Spring" on the Maramee. And by the testimony of Henry A. Massey that between the years 1826 and 1828, Samuel Massey, in speaking of the works at "the Big Spring" on the Maramee, said there was an old claim on the land, which he understood had not been allowed, and authorized Major Biddle at that time to try and buy up that old claim.

The plaintiffs also established by the testimony of Joseph C. Brown, the United States deputy surveyor, that he made the survey of this claim, at "the Big Spring," "as the source of the claim."

There was offered in evidence, on the part of the plaintiffs, Plat No. 2 from the register's office and a copy of the original diagram, as certified by F. R. Conway, Surveyor of the Public Lands in the States of Illinois and Missouri, dated Surveyor's Office, St. Louis, 11 April, 1846, which were objected to on the part of the defendant, and the objection sustained by the court, to which decision of the court plaintiffs' counsel excepted.

The above facts, and also a certified survey, under the act of 1836, constitute the title of the plaintiffs in error.

The evidence on the part of the plaintiffs was here closed.

The defendant, as it appears from the transcript, gave in evidence seven patents from the President of the United States, all issued on 20 December, 1826, to Samuel Massey and Thomas James, five for eighty acres of land each, and one for eighty-two and ninety-six one hundreths acres, and one

Page 49 U. S. 298

other for eighty-one and twelve one hundreths acres of land, and all of said patents covering a part of the same land included in the survey of Pascal L. Cerre under the confirmation made to him at the great source of the Maramee.

The evidence on both sides being closed, the counsel for the defendant then prayed the court to direct the jury:

1. That the plaintiffs in this case cannot recover against the defendant for any land embraced within the patents given in evidence by the defendant.

2. That the plaintiffs cannot recover in this case against the defendant on account of any land within the plaintiffs' survey without proof that the defendant at the commencement of this suit was in possession thereof, and the fact that the defendant had cut wood upon such land is not sufficient to authorize a recovery for the land upon which the wood was cut if these were merely temporary trespasses and occupation of the land.

These instructions the court gave to the jury, whereupon the counsel for the plaintiffs excepted, and upon this exception the case came up to this Court.

Page 49 U. S. 301

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