Marsh v. Brooks
55 U.S. 513 (1852)

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U.S. Supreme Court

Marsh v. Brooks, 55 U.S. 14 How. 513 513 (1852)

Marsh v. Brooks

55 U.S. (14 How.) 513

Syllabus

This Court decided, in 49 U. S. 8 How. 223, that the recitals in a patent for land referring to titles of anterior date were not of themselves sufficient to establish the titles thus recited.

Page 55 U. S. 514

The titles themselves being now produced, it is decided that a permit, given by the Lieutenant-Governor of Upper Louisiana in 1799 to a person to form an establishment on the Mississippi, followed by actual possession and improvement, entitled the occupant to 640 acres, including his improvements, although the Indian title was not then extinguished.

It was not the practice of the Spanish government to make treaties with the Indian tribes defining their boundaries, but to prevent settlements upon their lands without special permits. Such permits, however, were usual.

The construction of the treaty between the United States and the Sac and Fox Indians must be that the latter assented to an occupancy which was as notorious as their own.

The Act of Congress approved April 29, 1816, 3 Stat. 328, confirming certain claims to land confirmed this one, although the Recorder of Land Titles, in his report, made in 1815, had added these words, "if Indian title extinguished." These words were surplusage.

This case was before this Court at January term, 1850, and is reported in 49 U. S. 8 How. 223.

The children and heirs of Thomas F. Reddick (the defendants in error) were the plaintiffs in the court below, having brought their action by writ of right, according to the practice of the courts in Iowa, to recover 640 acres of land upon the right bank of the Mississippi River.

The acts of Congress and the patent to Reddick are set forth in 8 How., to which the reader is referred. But the plaintiffs having offered additional evidence, it may be proper to bring the whole into one view. In the former trial, the plaintiffs relied on the recitals in the patent to Reddick to prove the title of Tesson; but this Court having decided that those recitals were insufficient, the evidence produced upon the trial of the present suit in the District Court was the following:

Plaintiffs' Evidence

1. The plaintiffs proved that Louis Honore Tesson settled on the land in controversy in 1798, and on 30 March, 1799, obtained from the Spanish government a written permit to settle thereon, which is recited at length in the record.

2. That Tesson had possession, and inhabited, cultivated, and had houses and orchards and fields on said lands in 1798, 1799, 1800, and until 1805, and that all his right under the permit and settlement passed by mesne conveyances to said Thomas F Reddick.

3. That said Reddick duly presented and proved before the Recorder of Land Titles at St. Louis his claim and claim of title from Tesson to said land, and that said Recorder, by his report dated November 1, 1815, reported on said claim his opinion, as follows: "Granted 640 acres, if Indian rights extinguished."

Page 55 U. S. 515

4. The Act of Congress, approved April 29, 1816, 3 Stat. 328, ch. 155, "for the confirmation of certain claims to land in the Western District of the State of Louisiana, and in the Territory of Missouri."

5. That on 17 May, 1838, a patent certificate (No. 1157) was delivered, by the Recorder of Land Titles at St. Louis to Edward Brooks, one of the original plaintiffs, for the land referred to in the report of November 1, 1815.

6. A patent of the United States issued to Thomas F. Reddick, described as assignee of Joseph Robidoux, assignee of Louis Honore Tesson, for the lands in controversy, dated 7 February, 1839.

7. They also proved, that they, the plaintiffs, were the heirs and legal representatives of said Reddick and that the defendants were in possession of the land in controversy at the commencement of the suit, and rested their case.

Defendants' Evidence

The defendants then gave in evidence:

1. The treaty between the United States and the Sac and Fox Indians, 7 Stat. 229, made at Washington on 4 August, 1824, by the first article whereof these Indians ceded to the United States all their right and title to the lands claimed by them between the Mississippi and the Missouri Rivers and a northerly line running from the Missouri, at the entrance of the Kansas River, north 100 miles to the northwest corner of the State of Missouri, and thence east to the Mississippi, but with the understanding

"that the small tract of land lying between the Rivers Des Moines and Mississippi, and the section of the above line between the Mississippi and the Des Moines, is intended for the use of the halfbreeds belonging to the Sac and Fox nations, they holding it, however, by the same title, and in the same manner, that other Indian titles are held."

2. The Act of Congress approved June 30, 1834, 4 Stat., ch. 167, p. 740, "to relinquish the reversionary interest of the United States in a certain Indian reservation lying between the Rivers Mississippi and Des Moines."

3. That the land in controversy is included within the interior boundary lines of the Sac and Fox halfbreed reservation referred to in the treaty of 1824 and act of Congress of 1834.

4. The Act of Congress of July 1, 1836, 6 Stat. 661, by which the United States relinquished to the heirs of said Thomas F. Reddick their right in the lands embraced in said patent, but reserving any older or better claim not emanating from the United States and providing that in case said lands should be included in any reservation theretofore

Page 55 U. S. 516

made under treaty with any Indian tribe, Reddick should be authorized to make another location on unappropriated lands.

5. That the 640 acres of land referred to in said Act of Congress of July 1, 1836, lie within the exterior boundary lines of said Sac and Fox halfbreed reservation, made by the Treaty of August 4, 1834.

6. That the land in controversy is worth more than $2,000.

The defendants then rested their case.

The plaintiffs then prayed the court to instruct the jury:

1. That under the treaty with France of 30 April, 1803, and the several acts of Congress passed in pursuance thereof for settlement of titles in the Territory of Missouri, Tesson and Reddick, as his assignee, had a valid subsisting interest in the land in controversy at the date of the report made by the Recorder which was not divested by the reservation in the treaty with the Sac and Fox Indians or the Act of Congress of 30 June, 1834.

2. That the claim of Tesson and of Reddick, as his assignee, as reported, was substantially confirmed by the Act of Congress approved April 27, 1816.

3. That the patent, taken in connection with other evidence, conveyed to the plaintiffs a fee simple title to the land in controversy, and overrides the title set up by defendants.

These instructions were given by the Court.

The defendants then prayed the court to instruct the jury:

1. That under the report of the Recorder of Land Titles given in evidence by the plaintiffs, they are not entitled to recover the land, unless their title thereto has been confirmed by an act of Congress. This instruction was given by the court.

2. That the true construction of the Act of Congress of 29 April, 1816, given in evidence by the plaintiffs, does not confirm their title to the lands sued for, if the Indian title to the same was not at that time extinguished.

3. That the Treaty of August 4th, 1824, with the Sac and Fox Indians, is a recognition by the United States, at the date of said treaty, of the Indian right to the lands in controversy, the same being within the Sac and Fox halfbreed reservation.

4. That the Indian title to the land in controversy was not extinguished prior to 4 August, 1824.

5. That the plaintiffs have shown no right to recover the land in controversy in this suit.

The first of these instructions, prayed for by the defendants, was given by the court, but the second, third, fourth, and fifth instructions, as prayed, were refused to be given.

The defendants, by their counsel, excepted to the rulings and

Page 55 U. S. 517

decisions of the court in giving the instructions prayed for by the plaintiffs, and in refusing to give the second, third, fourth, and fifth instructions, prayed for by the defendants.

The jury, under these instructions, found a verdict for the plaintiffs, and a bill of exceptions brought these several rulings before this court for review.

Page 55 U. S. 521

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