Hogan v. Page
69 U.S. 605 (1864)

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U.S. Supreme Court

Hogan v. Page, 69 U.S. 2 Wall. 605 605 (1864)

Hogan v. Page

69 U.S. (2 Wall.) 605

ERROR TO THE SUPREME

COURT OF MISSOURI

Syllabus

1. A patent certificate, or patent issued, or confirmation made to an original grantee or his "legal representatives," embraces representatives of such grantee by contract, as well as by operation of law, leaving the question open in a court of justice as to the party to whom the certificate, patent, or confirmation should enure.

2. The fact that A., many years ago, did present to a board of commissioners appointed by law to pass upon imperfect titles to land a "claim" to certain land, describing it as "formerly" of B., an admitted owner; the fact that the board entered on its minutes that A., "assignee" of B., presented a claim, and that the board granted the land to "the representatives" of B., and the fact that A., with his family, was in possession of the land many years ago and cultivating it are facts which tend to prove an assignment, and as such, in an ejectment where the fact of an assignment is in issue, should be submitted as evidence to the jury.

After the cession, in 1803 by France of Louisiana to the United States, Congress passed an act [Footnote 1] establishing a board of commissioners at St. Louis, for the purpose of settling imperfect French and Spanish claims. The act provided that any person who had, for ten consecutive years prior to the 20th December, 1803, been in possession of a tract of land not owned by any other person &c., "should be confirmed in their titles."

In 1808, one Louis Lamonde presented a claim for a tract of one by forty arpens, "formerly the property of Auguste Conde." The minutes of the board of November 13, 1811, disclosed the following proceedings:

"Louis Lamonde, assignee of Auguste Conde, claiming one by forty acres, situate in the Big Prairie District of St. Louis, produces

Page 69 U. S. 606

a concession from St. Ange and Labuxiere, Lieutenant-Governor, dated 10 January, 1770. [Footnote 2] The board granted to the representatives of Auguste Conde forty arpens, under the provisions of the act of Congress &c., and ordered that the same be surveyed, conformably to possession &c."

The minutes did not record the fact that any assignment of this land from Conde to Lamonde had been presented to the board or that other proof was made of such conveyance.

This decision of the board, among many others, was reported to Congress, and the title made absolute by an Act of 12 April, 1814. In 1825, Lamonde obtained from the recorder of land titles a certificate of the confirmation.

Hogan, claiming through Lamonde, now, A.D. 1850, brought ejectment at St. Louis against Page for a part of this land. Lamonde was an old inhabitant of St. Louis who had died some ten years before the trial at a very advanced age, and there was some evidence on the trial that he and his family cultivated this lot in the Grand Prairie at a very early day, before the change of government under the treaty of 1803, and evidence that by the early laws of the region, these interests passed by parol.

The court below decided that the plaintiff was not entitled to recover upon the evidence in the case.

Page 69 U. S. 607

MR. JUSTICE NELSON delivered the opinion of the Court.

On looking into the cases cited on the part of the plaintiff, it will be seen that the confirmations which there appeared were either to the assignee claimant by name or in general terms -- that is to the original grantee and "his legal representatives" -- and when in the latter form, it was the assignee claimant who had presented the claim before the board and had furnished evidence before it of his derivative title, and which had not been the subject of dispute. The present case therefore is different from either of the cases referred to.

A difficulty had occurred at the Land Office at an early day in respect to the form of patent certificates and of patents arising out of applications to have them issued in the name of the assignee or present claimant, thereby imposing upon the office the burden of inquiring into the derivative title presented by the applicant. This difficulty also existed in respect to the boards of commissioners under the acts of Congress for the settlement of French and Spanish claims. The result seems to have been, after consulting the Attorney General, that the Commissioner of the Land Office recommended a formula that has since been very generally observed -- namely the issuing of the patent certificate, and even the patent, to the original grantee or his legal representatives, and the same has been adopted by the several boards of commissioners. This formula "or his legal representatives" embraces representatives of the original grantee in the land by contract, such as assignees or grantees, as well as by operation of law, and leaves the

Page 69 U. S. 608

question open to inquiry in a court of justice as to the party to whom the certificate, patent, or confirmation, should enure.

Now upon this view of the case, we think the court below erred in ruling as matter of law that the plaintiff was not entitled to recover. The question in the case is whether or not the evidence produced by the plaintiff on the trial before the jury tended to prove that there had been an assignment by the one of forty arpens from Conde to Lamonde, prior to his notice of the claim before the board of commissioners in 1808. If it did, then it should have been submitted to the jury as a question of fact, and not of law. The transaction was ancient, and of course it could not be expected that the evidence would be as full and specific as if it had occurred at a more recent period.

The piece of land is but a moiety of the original concession to Conde, and it appears that previous to the change of government and while Conde was living, Lamonde and his family were in possession cultivating the strip in the usual way in which these common field lots were occupied and improved. And very soon after the establishment of a board at the Town of St. Louis for the purpose of hearing and settling these French and Spanish imperfect grants, we find him presenting this claim before the board, setting up a right to it as his own, and asking for a confirmation, and in the proceedings of confirmation, the board speaks of it as a claim by Lamonde, assignee of Conde.

The title did not become absolute in the confirme, whoever that person might be, till the passage of the act of 1814, and in 1825, Lamonde, for he appears to have been then alive, procured from the recorder of land titles the certificate of confirmation.

We are of opinion that these facts should have been submitted to the jury for them to find whether or not there had been an assignment or transfer of interest in this strip of one by forty arpens from Conde to Lamonde. Especially do we think that the question should thus have been submitted as it appears that at this early day and among these

Page 69 U. S. 609

simple people, a parol transfer of this interest was as effectual as if it had been in writing.

Judgment reversed with costs and cause remanded with directions to issue a new venire.

[Footnote 1]

Act of 3 March, 1807, 2 Stat. at Large 440.

[Footnote 2]

This concession, about which there was no dispute, was to Conde.

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