Lessieur v. Price
53 U.S. 59 (1851)

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U.S. Supreme Court

Lessieur v. Price, 53 U.S. 12 How. 59 59 (1851)

Lessieur v. Price

53 U.S. (12 How.) 59

Syllabus

Where the highest court of a state affirmed the judgment of the court below in consequence of an equal division between the judges thereof, such judgment of

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affirmance is considered, when the case is brought here under the twenty-fifth section of the Judiciary Act, as an affirmance of the rulings of the court below.

Under the act of 17 February, 1815, 3 Stat. 211, for the relief of the inhabitants of New Madrid County who suffered by earthquakes, a notice of location given to the Surveyor General was not sufficient to vest the title in the applicant; the title was not complete until the plat and certificate of survey were filed and recorded in the Recorder's office. An exchange of titles then at once took place. The applicant became entitled to his new location, and the land which he abandoned reverted to the United States.

But if the claim under a New Madrid certificate be prosecuted by an agent without the knowledge of the principal, the title to the new land cannot vest in the principal until he assents to and adopts the proceedings of his agent, because by such assent he relinquishes the title to the land which he first owned.

In 1820, Congress granted to the State of Missouri, 3 Stat. 547, four sections of land which should,

"under the direction of the legislature, be located, as near as may be, in one body, at any time, in such townships and ranges as the legislature may select, on any of the public lands of the United States, provided that such locations shall be made prior to the public sale of the lands of the United States surrounding such location."

This grant did not need an application to an officer of the United States for permission to locate it. When the legislature selected the land and gave notice thereof to the Surveyor General and recorder of the land district, the land became identified and the title complete.

In making the selection, the legislature had a right to include fractional parts of sections until the entire amount of four sections was made up.

The time at which the title of the state became complete was the day on which the governor notified the Surveyor General of the selection of the land by commissioners who had been appointed for that purpose.

This was an ejectment brought by the plaintiffs in error in the Circuit Court of Cole County, state court of Missouri, to recover lot No. 455, as known and described upon the plat of the City of Jefferson, lying and being at a corner formed by the intersection of Washington and High Streets. Both parties claimed to derive title from the United States. The cause was submitted to the Circuit Court of Cole County as a jury, and the judgment being for the defendant, the plaintiffs carried it to the Supreme Court of Missouri, where the judgment of the court below was affirmed by a divided court, one judge not sitting, one being for affirming the judgment, and one dissenting. The plaintiffs then brought the case to this Court by writ of error.

The bill of exceptions, which was taken to the rulings of the court upon the trial of the cause in Cole County, sets forth in extenso sundry papers, the insertion of which does not appear necessary in this report. A summary of the evidence offered, together with the prayers to the court, seems to be all that is required.

Upon the trial in the circuit court, the plaintiffs gave in evidence the following chain of title, to-wit:

1. A confirmation made by the board of commissioners on

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8 January, 1811, of two hundred arpens of land in the County of New Madrid to Baptiste Delisle, as described in a plat of survey certified 27 February, 1806.

2. The commissioners' or New Madrid certificate issued 20 November, 1817, to Baptiste Delisle, for two hundred arpens in lieu of his land, injured by earthquakes, lying in the County of New Madrid.

3. A notice of location given by the Surveyor General, by Thomas Hempstead and A. L. Langham, as the legal representatives of Baptiste Delisle, dated 2 June, 1821, that they had located two hundred arpens under the foregoing certificate

"so as to include fractional section number six, the northeast fractional quarter of fractional section number seven, and as much off the north part of the west fractional half of fractional section number eight, as will make the quantity of two hundred arpens, all in township number forty-four, north of the base line of range number eleven, west of the fifth principal meridian, south of the Missouri River."

4. A survey made by the Deputy Surveyor of the above location, dated 5 August, 1821, and filed 11 February, 1822.

5. Patent certificate, dated 25 February, 1822, and delivered to Charles L. Hempstead.

6. Patent from the United States to Baptiste Delisle, dated 13 November, 1822.

7. Deed from Delisle and wife to Robert D. Dawson and Godfrey Lessieur for the land patented to him, dated 13 September, 1842.

8. It was admitted that the parties suing as the heirs of R. D. Dawson, were his heirs, and their names were correctly set out.

9. It was further admitted, that the defendant was in possession of the land in controversy at the commencement of this suit.

10. The monthly and yearly value of the premises was agreed upon between the parties.

The defendant, to show title in himself, relied upon the following facts:

1. An Act of Congress approved 6 March, 1820, the fourth paragraph of the sixth section of which provides as follows:

"Four entire sections of land be and the same are hereby granted to said state, the State of Missouri, for the purpose of fixing their seat of government thereon, which said sections shall, under the direction of the legislature of said state, be located, as near as may be, in one body at any time, in such townships and ranges as the legislature aforesaid may select on any of the public lands of the United States, provided that

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such locations shall be made prior to the public sale of the lands of the United States surrounding such location."

3 Stat. 547.

2. An ordinance, adopted by the Convention of the State of Missouri on 19 July, 1820, accepting the said grant of land. R.C. 1845, 22.

3. An act of the Legislature of the State of Missouri entitled "An act providing for the location of the permanent seat of government for the State of Missouri," approved 16 November, 1820. 1 Terr.Laws 649. This act appoints commissioners to select a site for the permanent seat of government, and requires them to make their report to the next session of the general assembly of said state.

4. An act, supplementary to the foregoing act, approved 28 June, 1821. 1 Terr.Laws, 773. This act provides for filling vacancies that may happen in the Board of commissioners, and extends the time of making their report until the next session of the general assembly.

5. A joint resolution of the general assembly, approved 28 June, 1821, 1 Terr.Laws, 780 requiring the governor of the state to notify the Surveyor General for the State of Illinois and Missouri, and also the register of the land office in which the lands are selected that commissioners appointed for that purpose

"have selected the fractional sections six, seven, and eight, the entire sections seventeen and eighteen, and so much of the north part of sections nineteen and twenty as will make four sections, in fractional township forty-four, south of the Missouri River, in range number eleven, to fifth principal meridian, and that he request the said surveyor and register to withhold the same from sale or location until the general assembly determine whether said selection be accepted by the state."

6. An Act of the general assembly entitled "An act fixing the permanent seat of government," approved 31 December, 1821, 1 Terr.Laws, 825. The first section of which accepts the land above described for the use and benefit of said state. The second section provides for the laying out of a town thereon, and the third section requires the governor to notify the Surveyor General of the acceptance of said land by the general assembly for the permanent seat of government by transmitting to him an authenticated copy of said act.

7. Also an act of the general assembly entitled "An act supplementary to the act fixing the permanent seat of government," approved 11 January, 1822. 1 Terr.Laws, 859. This act further provides for the laying out of a town on the land selected, authorizes the sale of the lots in said town, and prescribes the terms of said sale, and requires the commissioners to make a

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report of their acts to the next general assembly. It further provides that

"any proposals made by any person or persons having claim to any part of the said lands selected for the permanent seat of government, in order that any claim or claims may be adjusted, provided nothing herein contained shall in anywise be construed to legalize or acknowledge such claim as valid in law,"

shall by said commissioners be communicated to the general assembly.

8. A proclamation by the President of the United States dated 13 June, 1823, bringing into market by public sale, in the ordinary way, townships No. 40, 41, 42, 43, and 44, in range 11 west, and townships No. 40, 41, 42, and 43, in ranges 12, 13, and 14, of the fifth principal meridian. Sales to take place on the first Monday of October, 1823.

9. It was admitted that the premises in dispute are a part of the lands described in the foregoing resolutions, and the acts of the legislature given in evidence by the defendant subsequent thereto, and that the defendant holds whatever title the state had to the said claim.

To rebut the defendant's title, the plaintiff gave the following evidence:

1. A copy of a letter from the Governor of the State of Missouri addressed to the Surveyor General of Illinois and Missouri, dated 3 July, 1821, informing him of the selection made by the commissioners for locating the permanent seat of government and requesting him to withhold the lands thus designated from sale or location until the general assembly shall determine whether they will accept the same. This letter is endorsed as having been received 8 July, 1821.

2. A letter from same to same, dated 1 January, 1822, transmitting an authenticated copy of the act of 31 December, 1821, entitled "An act fixing the permanent seat of government." This letter, by the endorsement thereon, appears to have been received on the day of its date.

3. A letter from the Surveyor General to Governor McNair in answer to the above letter, dated 2 January, 1822. After acknowledging the receipt of the letter of 1 January, 1822, and the copy of the act of the general assembly of 31 December, 1821, the letter proceeds as follows:

"I conceive it proper for me to inform you for the information of the general assembly that a part of this land, referring to the land selected by the commissioners and accepted by the act of 31 December, 1821, was located in virtue of a New Madrid certificate on 2 June, 1821, as represented on the sketch and described in the entry made thereof, which you will find herewith enclosed. You will also receive a copy of a paper purporting to be a copy of

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an entry or location of fractional section No. 7, township No. 44, north of the base line of range No. 11, west of the fifth principal meridian, this day filed in this office by Major Taylor Berry. For the character of this last-mentioned paper, as I view it, see my remarks on the back thereof."

4. It was admitted that the journal of the Senate of Missouri of 23 November, 1821, shows that a committee of the Senate, to which had been referred the report of the commissioners for the location of the seat of government of the state, reported to the Senate that the propositions made by Angers L. Langham ought to be accepted, and that the seat of government should be permanently located on the eight hundred and ninety-two acres of land situated at Cote Sans Dessein. That one-half of which Langham proposed to donate to the state, which was concurred in. On motion, the report was laid on the table until next day, and afterwards, on 25 November, 1821, the same was indefinitely postponed.

5. That the journal of the House of Representations shows that, on 28 November, 1821, the House had under consideration the location of the permanent seat of government.

On 15 December next following, the committee of the judiciary of the House reported to the House the state of the title at Cote Sans Dessein. On the 28th of same month, the House had the same subject under consideration.

6. It was further admitted that the journal of the House of Representations shows that on 3 January, 1822, Governor McNair laid before the general assembly the communication received by him from the Surveyor General of date 2 January, 1822.

7. A joint resolution of the two houses of the general assembly requesting the governor to notify the President of the United States of the selection made for the seat of government, approved 14 December, 1822. 1 Terr.Laws, 984.

8. An act of the General assembly of the State of Missouri approved 19 December, 1822, 1 Terr.Laws, 1018, authorizing the trustees appointed by the act to contract with the claimant for the removal of the New Madrid location from the lands selected for the seat of government on certain conditions; if an adjustment be not obtained, then the trustees are required to select eight squares for public purposes, and the land so selected, together with the streets and alleys laid out, are condemned for public use &c.

9. The survey of the lands selected by the State of Missouri, made in August, 1824 and approved by the Surveyor General on 25 September, 1847.

Thereupon the defendant offered the following additional evidence, to-wit:

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1. A copy from the books of the Recorder of Land Titles of the relinquishment of lands in New Madrid, by which it appears that the land in lieu of which the certificate in favor of Baptiste Delisle was issued, and which the plaintiff had given in evidence, was made by Carter Beamon.

2. A copy of a deed from Delisle for the land in New Madrid to Carter Beamon, dated 4 August, 1817, acknowledged on same day, and recorded on 17 September, 1817. It was certified by the Recorder of land titles as being a true copy of the original on file in his office, and was also a sworn copy. Having first proved by a witness that he had applied to said recorder for the original which he had seen in his office and had compared with the copy, stating to him that he wished to use it on the trial of this case. But the recorder refused to let it go out of his office, saying that it was one of the files of his office and that he was not authorized to let it go out of his office.

3. A certified copy of a deed from Delisle to Alexander Conia dated 17 October, 1810, proved on 20 January, 1823, before the Judge of the County Court of St. Louis County and recorded on 6 May, 1823, in Cole County. This deed conveys the same land in New Madrid County.

The plaintiffs objected to the introduction of both deeds as evidence in the cause, and their objections were sustained and said deeds rejected.

4. The defendant then read in evidence the deposition of John Baptiste Delisle, which shows that until the year 1842, he never knew that the certificate issued in his favor, by virtue of which the location on the land in question was made, had been issued, nor of the location, nor survey thereof, nor of the issuing or existence of a patent to him of said land, nor even that Congress had passed a law for the relief of the sufferers by earthquakes in New Madrid County. And that consequently until said last-mentioned date, he never had given any assent to any of the proceedings touching the New Madrid location in his name.

On the close of the evidence. the counsel for the plaintiff prayed the court to declare the following, in the nature of instructions, to be the law of this case:

"1st. The patent from the United States to John Baptiste Delisle, if the same be true and genuine, is sufficient in law to vest the legal title [to] the land therein mentioned in the said Delisle if he were living at its date.[Given.]"

"2d. The deed from Delisle and wife to Robert D. Dawson and Godfrey Lessieur, if true and genuine, is sufficient in law to vest said title in said Dawson and Lessieur. [Given.]"

"4th. That if the New Madrid certificate granted to said Delisle was, on 2 June, 1821, located on the land in controversy,

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and was afterwards surveyed by a United States surveyor according to law, and was appraised by the Surveyor General, and said land was finally patented to Delisle according to said location and survey, then the effect of said patent is to vest said legal title in said Delisle, as against any other title derived from the United States, from said 2 June, 1821, the date of said location. [Refused.]"

"5th. That to vest the legal title to the four entire sections of land granted to the state for a seat of government by the act of 6 March, 1820, it was necessary that said location should have been made of four whole and entire sections, and that a location thereof on two whole sections and five parts of other sections was not in conformity with said act, and therefore void unless subsequently ratified by the government of the United States or some department or office thereof authorized so to do. [Refused.]"

"6th. That a location of said land by the state should have been made in the office of some officer of the Land Office Department of the United States, and that a record of said location should have been made in such office. [Refused.]"

"7th. To give validity to such location, it should have been sanctioned by some officer of the United States having authority in disposing of the public lands. [Refused.]"

"8th. That such location could not lawfully be made in the office of the Surveyor of Public Lands in Illinois and Missouri. [Refused.]"

"9th. There is no evidence before the court, sitting as a jury, that any location of said four entire sections ever was in fact made. [Refused.]"

"10th. That if the New Madrid certificate, granted to John B. Delisle, was, on 2 June, 1821, located on the lands in controversy, and that said location was, on 5 August, 1821, surveyed by the proper officer of the United States, and afterwards patented to said Delisle in conformity to said survey, the effect of said patent is to vest said title in said Delisle or his legal representatives from the 5 August, 1821, as against any person deriving title from the United States after said location and before said patent. [Refused.]"

"11th. That the notice of location, survey, patent, and other documents and acts shown in evidence by the plaintiffs touching the location of the New Madrid certificate No. 347, issued to John B. Delisle &c., if true and genuine documents, show a better title than any which has been shown by the defendants. [Refused.]"

"12th. The neglect of the Surveyor General or the Recorder of Land Titles, to perform any act of mere duty on their part

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towards the consummation of a title on said location could not affect the rights of the party interested. [Refused.]"

The defendants then prayed the following instructions:

"1st. The title of the United States to the land described in the copy of the patent given in evidence by the plaintiffs was not divested out of the United States until the plat and survey, given in evidence by the plaintiffs, was returned to the office of the Recorder of Land Titles, and the title of the United States to the land located under the directions of the Legislature of the State of Missouri in pursuance of the 4th proposition of the 6th section of the Act of Congress of 6 March, 1820, was vested in the state as early as the acceptance by said state of the selection of land made by her commissioners. If, therefore, said acceptance was made prior in point of time to the returning of said survey and plat to the office of the Recorder of Land Titles, and if the land so selected and located embraces the same land mentioned in said copy of patent given in evidence by the plaintiff, then the said plaintiffs are not entitled to recover in this action. [Refused.]"

"2d. If the John B. Delisle, who was the owner of the land in the County of New Madrid in lieu of which the certificate No. 347 was issued, until the year 1842, knew nothing of the issuing or existence of said certificate, nor of the notice, survey, or patent, given in evidence by the plaintiffs, and never assented to the same prior to said date, and if, prior to said date, the former sections of land mentioned in the 14th proposition of the 6th section of the Act of Congress approved March 6, 1820, had been located under the direction of the legislature of this state, upon the premises in question, then no title passed to said Delisle in or to said premises as against the State of Missouri. [Given.]"

"3d. If Langham and Hempstead obtained the certificate No. 347, given in evidence by the plaintiffs claiming to be the legal representatives of John B. Delisle, and in that character made the location when in fact they were not the legal representatives of said Delisle nor in any manner entitled to said certificate nor to the land located by virtue thereof, such location is void, as against this defendant. [Refused.]"

The first and third of which were refused, and the second given, to the giving of which the plaintiffs also excepted.

The court thereupon gave a verdict for the defendant.

The plaintiffs then moved for a new trial, which was refused, and a bill of exceptions was taken to the several rulings of the court.

It has been before mentioned that the Supreme Court of Missouri affirmed the judgment of the court below by a divided

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court and that the plaintiffs sued out a writ of error and brought the case up to this Court.

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