The state of Virginia, which, prior to the Revolution, asserted
title to the Northwest Territory, always respected the possessions
and titles of the French and Canadian inhabitants who had declared
themselves her citizens, and when she ceded the territory to the
United States in 1783, she stipulated by the express terms of her
grant for their confirmation, and the United States, in 1784, in
accepting the grant with this provision, bound themselves to
perform the stipulation.
The duty of the United States under the cession and acceptance
and by the principles of public law, was to give to such
inhabitants such further assurance as would enable them to enjoy
undisturbed possession and to assert their rights judicially to
their property as completely as if their titles were derived, from
the United States.
The United States confirmed or provided for the confirmation of
these existing rights by resolutions and acts of Congress in 1788,
1804, and 807. The patents which the Act of 1807 authorized did not
convey the title.
In the legislation of Congress, a patent has a double operation.
It is a conveyance by the government when the government has any
interest to convey, but where it is issued upon the confirmation of
a claim of a previously existing title, it is documentary evidence,
having the dignity of a record, of the existence of that title or
of such equities respecting the claim as justify its recognition
and confirmation.
A legislative confirmation of a claim to land is a recognition
of the validity of such claim, and operates as effectually as a
grant or quitclaim from the government. If the claim be to land
with defined boundaries, or capable of identification, the
legislative confirmation perfects the title to the particular
tract, and a subsequent patent is only documentary evidence of that
title. If the claim be to quantity, and not to a specific tract
capable of identification, a segregation by survey will be
required, and the confirmation will then immediately attach the
title to the land segregated.
Langdeau brought ejectment August, 1872, against Hanes for a
piece of ground which before our Revolution was part of the French
and Canadian settlement of St. Vincents (now Vincennes), and, as
such, part of the Northwestern Territory conveyed in 1783, by
authority of the State of Virginia, who then claimed it, to the
United States under an express stipulation:
"That the French and Canadian inhabitants and other settlers
Page 88 U. S. 522
of . . . St. Vincents, and the neighboring villages, who have
professed themselves citizens of Virginia, shall have their
possessions and titles confirmed to them, and be protected in the
enjoyment of their rights and liberties."
This stipulation was embodied in the deed of cession, and the
deed, in the form in which it was subsequently executed, was
incorporated into the resolutions of Congress of 1784, declaring
their readiness to accept the deed. [
Footnote 1]
By act of March 26, 1804, [
Footnote 2] Congress appointed commissioners to hear and
determine all claims for land held by settlers under the French,
and under this act the claim of the heirs of one Jean Baptiste
Tongas, under a grant to their ancestor for two hundred and four
acres, came up and was confirmed. [
Footnote 3] The commissioners made report of the titles
which they had confirmed, and Congress, on the 3d of March, 1807,
by "An act confirming claims to land in the District of Vincennes,"
[
Footnote 4] enacted:
"SECTION 1. That all the decisions made by the commissioners
appointed for the purpose of examining claims of persons claiming
lands in the District of Vincennes in favor of such claimants . . .
be, and the same are, hereby confirmed."
"SECTION 5. That every person or the legal representative of
every person, whose claim to a tract of land is confirmed by this
act and who had not previously obtained a patent for the same . . .
shall,
whenever his claim shall have been located and
surveyed, be entitled to receive from the register of the land
office at Vincennes, a certificate stating that the claimant is
entitled to
receive a patent for such tract of land by
virtue of this act, . . . which certificate shall entitle the party
to a patent for the said tract, which shall issue in like manner as
provided by law for the other lands of the United States."
A survey of the tract was made in 1820, but no patent issued
until 1872, when one issued reciting the "confirmation" by the Act
of 1807 of the report of the commissioners
Page 88 U. S. 523
appointed under the Act of 1804. The patent purports to "give
and grant" to the heirs of Tongas, in fee, the tract in question.
The plaintiff claimed under these heirs.
The defendant claimed as tenant under one law, who for more than
thirty years had been in the actual possession of the premises,
under claim and color of title made in good faith, having purchased
the same at a sale under a decree of foreclosure made by the
Circuit Court of Illinois for Lawrence County, and received the
deed of the commissioners appointed by the court to make the sale,
and had paid all the taxes thereon during that time.
By the law of Illinois, such a possession constitutes a bar to
any adverse claim.
The court held as matter of law under the foregoing facts:
"1st. That the fact of confirmation of 1807 was a present grant,
becoming so far operative and complete to convey the legal title
when the land was located and surveyed by the United States in 1820
as that an action of ejectment could be maintained on the
same."
"2d. That the patent was not of itself the grant of the land by
the United States, but only the evidence that a grant had been made
to the heirs of Jean Baptiste Tongas."
"3d. That as Law went into the possession of the land under
claim and color of title made in good faith, and had held
possession for more than seven successive years, and during that
time had paid all the taxes legally assessed upon the land before
the commencement of this suit, it was a bar to a recovery by the
plaintiff."
To each of these propositions of law the plaintiff excepted, and
judgment having been given against him, he brought the case
here.
Page 88 U. S. 525
MR. JUSTICE FIELD delivered the opinion of the Court.
Although the territory lying north of the Ohio River and west of
the Alleghanies, and extending to the Mississippi,
Page 88 U. S. 526
was claimed by Virginia previous to 1776 to be within her
chartered limits, it was not reduced to her possession until the
war of the Revolution. Previous to that period, numerous
settlements had been formed within that portion which at present
comprises the States of Indiana and Illinois, consisting
principally of French inhabitants from Canada who held the lands
they occupied under concessions from French and English
authorities. The possessions and titles of these people were
respected by Virginia, and in her cession of the territory to the
United States she expressly stipulated for their confirmation. The
act of her legislature, passed on the 20th of October, 1783,
authorized her delegates in Congress to execute a deed transferring
her right, title, and claim, as well of soil as of jurisdiction, to
the territory, provided that the transfer should be subject to
various conditions, and, among others, to this one:
"That the French and Canadian inhabitants and other settlers of
the Kaskaskias, St. Vincents, and the neighboring villages, who
have professed themselves citizens of Virginia, shall have their
possessions and titles confirmed to them and be protected in the
enjoyment of their rights and liberties."
The deed executed by the delegates embodied the Act of Virginia,
and its acceptance by the United States imposed upon them the duty
of performing the condition and giving the protection stipulated.
That duty was to confirm the possessions and titles of the
inhabitants, and to confirm was to give to them such further
assurance as would enable them to enjoy undisturbed their
possessions and assert their right to their property in the courts
of the country as fully and completely as if their titles were
derived directly from the United States. Such further assurance
might have been given by any act of the new government recognizing
the existence of the original possession and defining its limits,
which the claimants could use as evidence of their title under the
cession. It might have been by a certificate of survey, or by a
patent of the government, or by direct legislation. The mode in
which the obligation assumed by the United States should be
discharged was a matter resting in the discretion of Congress.
Page 88 U. S. 527
It was for confirmation of existing possessions and titles that
the deed of cession stipulated, not the transfer of any new title.
Virginia had not repudiated the concessions made by the French and
English authorities to the inhabitants in the territory who had
declared themselves her citizens, but had recognized and sustained
them. There was therefore no title in her in the lands covered by
the possessions of these people to transfer, and she did not
undertake to transfer any. Her language was that she conveyed "all
right, title, and claim, as well of soil as of jurisdiction" which
the commonwealth had to the territory. In this respect she
recognized the general rule of public law that by the cession of
territory from one state to another, public property and
sovereignty alone pass, and that private property is not affected.
Even in cases of conquest, as Mr. Chief Justice Marshall observes
in
United States v. Percheman, [
Footnote 5] it is unusual for the conqueror to do more
than to displace the sovereign and assume dominion over the
country, and the sense of justice and right which is felt by the
whole civilized world would be outraged if private property should
be generally confiscated and private rights annulled. "The people,"
continues the Chief Justice,
"change their allegiance; their relation to their ancient
sovereign is dissolved, but their relations to each other and their
rights of property remain undisturbed. If this be the modern rule
even in cases of conquest, who can doubt its application to the
case of an amicable cession of territory? Had Florida changed its
sovereign by an act containing no stipulation respecting the
property of individuals, the right of property in all those who
became subjects or citizens of the new government would have been
unaffected by the change. It would have remained the same as under
the ancient sovereign."
The United States took, therefore, the territory ceded by
Virginia bound by the established principles of public law to
respect and protect all private rights of property of the
inhabitants of the country, and bound by express stipulation
Page 88 U. S. 528
to confirm the possessions and titles of the French and Canadian
inhabitants and other settlers mentioned in the deed of cession who
had professed themselves citizens of Virginia.
By resolutions passed by Congress under the Confederation in
June and August, 1788, measures were authorized for the
confirmation of these possessions and titles, and in supposed
compliance with the authority conferred upon the governor of the
territory, numerous confirmations were made by him which have been
sometimes designated in the subsequent legislation of Congress as
grants by that officer. [
Footnote
6] But no system of measures was adopted for a general
confirmation until the passage of the Act of Congress of March 26,
1804. [
Footnote 7]
By that act, every person claiming lands within certain
designated limits in the territory north of the Ohio and east of
the Mississippi, by virtue of a legal grant made by the French
government prior to the Treaty of Paris of the 10th of February,
1763, or by the British government subsequent to that period and
prior to the treaty of peace between the United States and Great
Britain on the 3d of September, 1783, or by virtue of any
resolution or act of Congress subsequent to that treaty, was
required to deliver, on or before the 1st of January, 1805, to the
register of the land office of the district within which the land
was situated, a notice stating the nature and extent of his claim,
together with a plat of the tract or tracts claimed, and at the
same time, for the purpose of being recorded, "every grant, order
of survey, deed, conveyance, or other written evidence of his
claim." And the register of the land office and the receiver of
public moneys were constituted commissioners within their
respective districts for the purpose of examining the claims thus
presented. It was made their duty to hear in a summary manner all
matters respecting such claims, to examine witnesses and such
testimony as might be adduced
Page 88 U. S. 529
before them and to decide thereon "according to justice and
equity," and to transmit to the Secretary of the Treasury a
transcript of their decisions made in favor of the claimants and a
report of the claims rejected, with a substance of the evidence
adduced in their support. This transcript of decisions and the
report the secretary was required to lay before Congress at its
next ensuing session.
Among the claims presented under this act was one on behalf of
the heirs of Jean Baptiste Tongas for two hundred and four acres,
situated in the neighborhood of Vincennes, a place which is
designated in the cession from Virginia as St. Vincents, such claim
being founded upon an ancient grant to their ancestor. The
commissioners decided in favor of the heirs and confirmed their
claim, and transmitted a transcript of their decision to the
Secretary of the Treasury, by whom it was laid before Congress.
By the Act of March 3, 1807, [
Footnote 8] this decision and all other decisions in favor
of persons claiming lands in the district of Vincennes contained in
the transcript transmitted to the Secretary of the Treasury, were
confirmed. This confirmation was the fulfillment of the condition
stipulated in the deed of cession so far as the claimants were
concerned. It was an authoritative recognition by record of the
ancient possession and title of their ancestor, and gave to them
such assurance of the validity of that possession and title as
would be always respected by the courts of the country. The
subsequent clause of the act providing for the issue of a patent to
the claimants when their claim was located and surveyed took
nothing from the force of the confirmation.
In the legislation of Congress, a patent has a double operation.
It is a conveyance by the government when the government has any
interest to convey, but where it is issued upon the confirmation of
a claim of a previously existing title, it is documentary evidence,
having the dignity of a record, of the existence of that title or
of such equities respecting the claim as justify its recognition
and confirmation.
Page 88 U. S. 530
The instrument is not the less efficacious as evidence of
previously existing rights because it also embodies words of
release or transfer from the government.
In the present case, the patent would have been of great value
to the claimants as record evidence of the ancient possession and
title of their ancestor and of the recognition and confirmation by
the United States, and would have obviated in any controversies at
law respecting the land the necessity of other proof, and would
thus have been to them an instrument of quiet and security. But it
would have added nothing to the force of the confirmation. The
survey required for the patent was only to secure certainty of
description in the instrument and to inform the government of the
quantity reserved to private parties from the domain ceded by
Virginia.
The whole error of the plaintiff arises from his theory that the
fee to the land in controversy passed to the United States by the
cession from Virginia, and that a patent was essential to its
transfer to the claimants, whereas, with respect to the lands
covered by the possessions of the inhabitants and settlers
mentioned in the deed of cession, the fee never passed to the
United States; and if it had passed, and a mere equitable title had
remained in the claimants after the cession, the confirmation by
the Act of 1807 would have operated as a release to them of the
interest of the United States. A legislative confirmation of a
claim to land is a recognition of the validity of such claim, and
operates as effectually as a grant or quitclaim from the
government. "A confirmation," says Sheppard in his Touchstone of
Common Assurances,
"is the conveyance of an estate, or right, that one hath in or
unto lands or tenements, to another that hath the possession
thereof, or some estate therein, whereby a voidable estate is made
sure and unavoidable, or whereby a particular estate is increased
and enlarged. [
Footnote 9]"
If the claim be to land with defined boundaries, or capable of
identification, the legislative confirmation perfects the title
Page 88 U. S. 531
to the particular tract, and a subsequent patent is only
documentary evidence of that title. If the claim be to quantity,
and not to a specific tract capable of identification, a
segregation by survey will be required, and the confirmation will
then immediately attach the title to the land segregated.
We do not understand that the ancient grant to Tongas was only
of quantity, but understand that it was of a specific tract of two
hundred and four acres, and that the decision of the commissioners
in favor of the claimants had reference to a defined tract. If such
were the fact, the title of the heirs was perfected, assuming that
previously they had only an equitable interest, upon the passage of
the confirmatory act of 1807; if, however, the grant was of a
certain quantity of land then undefined and incapable of
identification, the title became perfect when the quantity was
segregated by the survey made in 1820. [
Footnote 10]
The plaintiff can therefore derive no aid from the patent issued
in 1872. The doctrine which his counsel invokes, that the
legislation of a state cannot defeat or impair the rights conferred
by a patent of the United States in advance of its issue, is sound
when properly applied, but it has no application here. There is no
analogy between this case and the case of
Gibson v.
Chouteau [
Footnote 11]
and other cases cited by him. Here, in any view that may be taken,
the title was perfected in the heirs of Tongas more than half a
century before the patent issued, and for more than thirty years of
that period the landlord of the defendant has been in the actual
possession of the premises under claim and color of title made in
good faith, and has during that time paid all the taxes legally
assessed thereon. His possession has therefore ripened into a
title, which, under the statute of Illinois, is a bar to any
adverse claim.
Judgment affirmed.
[
Footnote 1]
See Journals of Congress, vol. i, pp. 66-72.
[
Footnote 2]
2 Stat. at Large 277.
[
Footnote 3]
American State Papers 573; Supplement to Document D.
[
Footnote 4]
2 Stat. at Large 446.
[
Footnote 5]
32 U. S. 7 Pet. 51,
32 U. S. 87.
[
Footnote 6]
Laws of the United States, vol. i, p. 580;
Doe ex dem Moore
v. Hill, Breese 236, 244;
Reichart v. Felps, 33 Ill.
434.
[
Footnote 7]
An act entitled An act making provision for the disposal of the
public lands in the Indiana territory, and for other purposes, 2
Stat. at Large 277.
[
Footnote 8]
An act confirming claims to land in the district of Vincennes,
and for other purposes, 2 Stat. at Large 446.
[
Footnote 9]
Page 311.
[
Footnote 10]
Rutherford v. Greene's
Heirs, 2 Wheat. 196.
[
Footnote 11]
80 U. S. 13 Wall.
93.
