A grant of land in Missouri made by the Lieutenant Governor of
Upper Louisiana before the treaty of 1303 affirmed.
In repeated decisions, the Supreme Court has affirmed the
authority of local governors, under the Crown of Spain, to grant
land in Louisiana before the same was ceded by Spain to France, and
the Court has also affirmed the validity of descriptive grants,
though not surveyed before 11 March, 1804, in Missouri and 24
January, 1818, in Florida.
The case is stated in the opinion of the Court.
MR. JUSTICE BALDWIN delivered the opinion of the Court.
This is an appeal from the decree of the District Court of
Missouri rejecting the claim of the appellants to eight hundred
arpents of land in that state, for the confirmation of which they
had filed their petition pursuant to the provisions of the act of
1824 for the adjustment of land claims in that state.
The petition was in the form prescribed by the law, presenting a
proper case for the jurisdiction of the court.
The claim of the petitioners was founded on an application by
James Mackey, to the Lieutenant Governor of Upper Louisiana, on 13
September, 1799, for a grant of eight hundred arpents of land at a
place therein particularly described. On the 14th of the same
month, the application was granted by the lieutenant governor, with
directions to make the survey and put the party into
possession.
The grant or commission was proved to have been in the
handwriting of the surveyor general; the signature of the
lieutenant governor was also proved to be genuine. The claim of the
petitioner was rejected by the district court on the ground that
the grant was not consistent with the regulations of O'Reilly, made
in 1770, and was invalid for the want of authority to make it.
Page 35 U. S. 341
Having heretofore decided that these regulations were not in
force in Upper Louisiana, this Court cannot consider them as in any
way affecting the title of the petitioners. In repeated decisions
we have affirmed the authority of the local governor to make grants
of land, and have also affirmed the validity of descriptive grants,
though not surveyed before 10 March, 1804, in Missouri and 24
January, 1818, in Florida.
But there is another objection to the title of the claimants
which is suggested in the decree of the court below, though it is
not assigned as a reason for its rejection.
In the original petition to the lieutenant governor, the land
prayed for is described as adjoining the land of Mr. Choteau,
whereas the grant to Choteau for the land referred to was not made
until January, 1800, four months after the date of Mackey's
application in September, 1799. This was deemed a circumstance
tending to show that his grant was fraudulently antedated, and had
it not been explained, would have induced this Court to have
directed an issue to the court below to try its genuineness.
By the record in the
Case of Choteau's
Heirs, decided at the last term, 9 Pet. 142-143, it
appears that, by a letter of 20 May, 1799, the Governor General of
Louisiana directed the governor of the upper province to favor all
the undertakings of Mr. Choteau. In the evidence given in that case
it was established that Mr. Choteau had erected a distillery on the
tract granted to him in 1800 as early as 1796, which was occupied
and in operation from that time until the date of the grant, after
obtaining which he enlarged and continued the establishment at the
same place. It is therefore perfectly consistent with the date of
Mackey's application that he should refer to land in the occupation
and actual possession of Choteau, though he had not at the time any
grant or order of survey. The record in the present case also shows
that the court below has considered this subject, and did not think
the reference to Choteau's land was such evidence of fraud or
antedating of the grant as to make it its duty to prevent it from
being used as evidence of title to the land claimed.
The final decree was rendered on 15 January, 1830. On the 16th,
the court ordered that the clerk retain with the papers on file in
this case the concession upon which the claim is founded, until its
further order. On the 18th, the court "ordered that the petitioners
show cause why the concession under which the petitioners claim
Page 35 U. S. 342
should not be impounded by the court." This rule was discharged
on 5 February, 1830.
After such evidence as appears on the record in the
Case of
Choteau and the proceedings of the district court in this case
in relation to the grant to the petitioner, it is fair to presume
that that Court was satisfied on its last examination that the
grant to Mackey was genuine, and not open to any impeachment on
account of the reference to Choteau's adjoining land. It would be
assuming much in this case for this Court to decide as a matter of
fact that the grant was fraudulent and void; the proof of the
signature to and the handwriting of the grant is positive and
uncontradicted, and the reference to Choteau's land before the date
of the grant to him is accounted for. We therefore are of opinion
that the grant was genuine and that the title of the petitioners
derived therefrom is valid by the law of nations, of the United
States, of Spain, under whose government the claim originated; and
by the stipulations of the treaty ceding Louisiana to the United
States, and ought to be confirmed.
It is therefore ordered, adjudged, and decreed by this Court
that the decree of the district court be and the same is hereby
reversed, and proceeding to render such decree as the said district
court ought to have rendered, it is further ordered, adjudged, and
decreed, that the title of the petitioners to the land described in
their petition to the district court is valid by the laws and
treaty aforesaid, and the same is hereby confirmed as therein
described, and that the Surveyor of Public Lands in Missouri be and
he is hereby directed to survey the quantity of land claimed in the
place described in the petition and grant or concession; that he
deliver to the petitioners a copy or plot of such survey, and also
do and perform such other acts and things therein, as by law are
directed.