A deed of land in Missouri, in 1804, attested by two witnesses,
purporting to have been executed in the presence of a syndic,
presented to the commissioners of united states in 1811 and again
brought forward as the foundation of a claim before the
commissioners in 1835, must be considered as evidence for a
jury.
If it was not objected to in the court below, it cannot be in
this Court.
A confirmation under the act of 1836 to the original claimant
and his legal representatives enured, by way of estoppel, to his
assignee.
Page 43 U. S. 285
To bring a case within the second section of the act of 1836, so
as to avoid a confirmation, the opposing location must be shown to
have been made "under a law of the United States."
The holder of a New Madrid certificate had a right to locate it
only on "public lands which had been authorized to be sold." If it
was located on lands which were reserved from sale at the time of
issuing the patent, the patent is void.
There was no reservation from sale of the land claimed under a
French or Spanish title between 26 May, 1829, and 9 July, 1832. A
location under a New Madrid certificate, upon any land claimed
under a French or Spanish title not otherwise reserved, made in
this interval, would have been good.
If two patents be issued by the United States for the same land,
and the first in date be obtained fraudulently or against law, it
does not carry the legal title.
A patent is a mere ministerial act, and if it be issued for
lands reserved from sale by law, it is void.
A patent is a mere ministerial act, and if it be issued for
lands reserved from sale by law, it is void.
This was an ejectment brought by the plaintiffs in error (who
were also plaintiffs in the court below) against the defendant. The
title of the plaintiffs was derived through their ancestor, Amos
Stoddard, from an old Spanish concession, granted in 1800, and that
of the defendant, to forty-seven acres and twenty-one hundreths of
an acre, from what is called a New Madrid patent, issued to one
Peltier under the Act of Congress passed on 17 February, 1815, ch.
198. The defendant also claimed one acre and sixty-three hundreths
under a certificate granted, under the same act, to one Coontz, for
which a patent had not issued. Beyond these forty-eight acres and
eighty-four hundreths of an acre, the defendant set up no
claim.
The historical order of the facts in the case is this:
On 21 January, 1800, Mordecai Bell a resident of Louisiana,
presented a petition to Don Carlos Dehault Delassuse, Lieutenant
Governor and Commandant-in-Chief of Upper Louisiana, praying for a
concession of 350 arpens of land.
On 29 January, 1800, Delassuse made the concession and
instructed the surveyor, Soulard, to put the petitioner in
possession of the land conceded.
On 29 May, 1804, Bell conveyed the concession and order of
survey to James Mackay. The original deed was in French, and
purported to be executed before Richard Caulk, syndic of the
District of St. Andrew. The names of two attesting witnesses are
also subscribed.
Page 43 U. S. 286
On 2 March, 1805, Congress passed an act "for ascertaining and
adjusting the titles and claims to land within the Territory of
Orleans and the District of Louisiana," the general purport of
which was to recognize all existing grants. It further provided for
the appointment of three persons, who should examine, and decide
on, all claims submitted to them, and report the result to the
Secretary of the Treasury, who was directed to communicate it to
Congress.
On 26 September, 1805, James Mackay conveyed the grant and order
of survey to Amos Stoddard, who was at that time civil commandant,
under the government of the United States at St. Louis. It may here
be remarked that evidence was given on the trial below that as
early as 1817, Stoddard was in possession under this deed, and that
the facts of his death before the suit and of the plaintiffs being
his heirs at law were also given in evidence.
In January, 1806, Soulard, the Surveyor General of the Territory
of Louisiana, but not so under the authority of Congress, made a
plat and certificate of the survey of the above land.
On 3 March, 1807, Congress passed another act relating to land
titles in Missouri, explanatory and corrective of the act of 1805.
It also extended the time limited for filing the claims to 1 July,
1808.
On 29 June, 1808, all the papers relating to the claim were
presented to the recorder of the district,
viz.: 1. The
concession. 2. Deed to Mackay. 3. Deed the Stoddard. 4. Certificate
of survey in favor of Stoddard.
On 15 February, 1811, Congress passed an Act by which the
President was authorized (section 10), "whenever he shall think
proper, to direct so much of the public lands lying in the
Territory of Louisiana as shall have been surveyed in conformity
with the eighth section of this act, to be offered for sale,"
and further
"That all such lands, with the exception of the section number
sixteen, which shall be reserved for the support of schools within
the same; with the exception also of a tract reserved for the
support of a seminary of learning, as provided for by the eighth
section of this act, and with the exception also of the salt
springs and lead mines, and lands contiguous thereto, which, by the
direction of the President of the United States, may be reserved
for the future disposal of the said states, shall be offered for
sale to the highest bidder, under the direction of the register of
the land office and the receiver of public moneys, and of the
principal deputy surveyor, and on such day or
Page 43 U. S. 287
days as shall, by public proclamation of the President of the
United States, be designated, for that purpose."
"Provided, however, that, till after the decision of Congress
thereon, no tract shall be offered for sale, the claim to which has
been in due time, and according to law, presented to the recorder
of land titles in the district of Louisiana, and filed in his
office, for the purpose of being investigated by the commissioners
appointed for ascertaining the rights of persons claiming lands in
the Territory of Louisiana."
On 3 March, 1811, Congress passed another act, in which the same
reservation is made as is above stated.
On 10 October, 1811, the board of commissioners rejected the
claim.
On 17 February, 1815, Congress passed an act declaring that any
person or persons owning lands in the County of New Madrid, in the
Missouri Territory, with the extent the said county had on the
tenth day of November, 1812, and whose lands had been materially
injured by earthquakes, should be and they were thereby authorized
to locate the like quantity of land on any of the public lands of
said territory authorized to be sold.
On 28 November, 1815, Frederick Bates, recorder &c., issued
a certificate that a lot of one arpent, in the Village of Little
Prairie, in the County of New Madrid, owned by Eustache Peltier or
his legal representatives, was materially injured by earthquakes,
and that said Eustache Peltier, or his legal representatives, was
entitled to locate any quantity of land not exceeding 160 acres on
any of the public lands in the Territory of Missouri the sale of
which was authorized by law.
On 24 October, 1816, an entry was made of land in conformity
with the above certificate. This entry covered forty-seven acres
and twenty-one hundreths of the concession to Bell, and the
defendant claimed under it.
In 1817, 1818, and 1819, the township in which the land in
controversy lies, was surveyed under the authority of the United
States, and not offered at public sale by the authority of the
President until 1823.
In March, 1818, the certificate which had been issued in favor
of Peltier was surveyed by Brown, the deputy surveyor, and the
location made. It may here be remarked that evidence was given upon
the trial, showing the possession of Peltier's location to have
been in him and his assignees from 1819 down to the occupancy of
the defendant, accompanied by deeds.
Page 43 U. S. 288
On 29 May, 1818, Martin Coontz made an entry under a New Madrid
certificate, which was surveyed in July, 1818. This survey clashed
with Bell's concession, and included one acre and sixty-three
hundredths, which the defendant, Chambers, claimed under Coontz's
title. Coontz did not obtain a patent for it.
On 26 May, 1824, Congress passed another act,
"enabling the claimants to lands within the limits of the State
of Missouri and Territory of Arkansas to institute proceedings to
try the validity of their claims."
It allowed any persons claiming lands under old grants or
surveys, under certain circumstances, to present a petition to the
district court of the State of Missouri, which court was authorized
to give a decree in the matter, reviewable, if need be, by the
Supreme Court of the United States. The 5th section provided that a
claim not before the district court in two years, or not prosecuted
to final judgment in three years, should be forever barred both at
law and in equity, and the seventh section directed that where a
claim, tried under the provisions of the act, should be finally
decided against the claimant, or barred by virtue of any of the
provisions of the act, the land specified in such claim, should,
forthwith, be held and taken as a part of the public lands of the
United States, subject to the same disposition as any other public
land in the same district.
On 26 May, 1826, an act was passed continuing the above act in
force for two years.
On 24 May, 1828, another act was passed, by which the act of
1824 was continued in force for the purpose of filing petitions,
until 26 May, 1829, and for the purpose of adjudicating upon the
claims until 26 May, 1830.
On 9 July, 1832, Congress passed an "act for the final
adjustment of private land claims in Missouri," which authorized
commissioners to examine all the unconfirmed claims to land in that
state which had been filed prior to 10 March, 1804. The
commissioners were directed to class them, and at the commencement
of each session of Congress, during said term of examination, lay
before the commissioner of the general land office a report of the
claims so classed. The first class was to include the claims which
ought, in their opinion, to be confirmed according to the laws and
usages of the Spanish government; the second, those which ought not
to be confirmed. The third section provided that the lands included
in the first class should continue to be reserved from sale, as
heretofore, until the decision of Congress should be made
against
Page 43 U. S. 289
them; and those in the second class should be subject to sale as
other public lands.
On 2 March, 1833, Congress passed another act, directing the
commissioners to embrace every claim to a donation of land held in
virtue of settlement and cultivation.
On 16 July, 1832, a patent was issued to Peltier for the land
described in his survey.
On 8 June, 1835, the commissioners decided that 350 arpens of
land ought to be confirmed to Mordecai Bell, or his legal
representatives, according to the survey.
On 4 July, 1836, Congress passed an act confirming claims to
land in the State of Missouri, by which it was declared that the
decisions in favor of land claimants, made by the above
commissioners were confirmed, saving and reserving, however, to all
adverse claimants, the right to assert the validity of their claims
in a court or courts of justice, and the 2d section declared that
if it should be found that any tract or tracts thus confirmed or
any part thereof had been previously located by any other person or
persons under any law of the United States, or had been surveyed or
sold by the United States, the present act should confer no title
to such lands in opposition to the rights acquired by such location
or purchase.
The cause came on for trial at April term, 1842, in the circuit
court. After the evidence was closed the counsel for the defendant
prayed the court to instruct the jury
1. That the plaintiffs are not entitled to recover in this
action any land included in the patent issued to Eustache Peltier
or his legal representatives.
2. That the plaintiffs are not entitled to recover in this
action any land which the jury may find, from the evidence, to be
embraced in the location made in favor of Martin Coontz, or his
legal representatives.
Both of which instructions the court gave. Whereupon the counsel
for the plaintiff excepted.
Page 43 U. S. 313
MR. JUSTICE McLEAN delivered the opinion of the Court.
The plaintiffs brought an action of ejectment for 350 arpens of
land situated near St. Louis. Their title was founded on a
concession by Delassus, Lieutenant Governor, to Mordecai Bell, 29
January, 1800. Bell conveyed the same to James Mackay, 29 May,
1804, and on 26 September, 1805, he conveyed to Amos Stoddard. A
plat and certificate of the survey were certified and recorded by
Antoine Soulard, as surveyor general, 29 January, 1806.
The above papers were presented to the recorder of the district
of St. Louis, 29 June, 1808. And the claim was duly filed with the
board of commissioners for their action thereon, who, on 10
October, 1811, rejected it. But afterwards, 8 June, 1835, the board
decided that 350 arpens of land ought to be confirmed to the said
Mordecai Bell or his legal representatives, according to the
survey. And on 4 July, 1836, an act of Congress was passed,
confirming the decision of the commissioners. The land was surveyed
as confirmed. The plaintiffs proved the death of Amos Stoddard,
before the suit was commenced, and that they are his heirs-at-law.
The defendant was proved to be in possession of forty-eight acres
and eighty-four hundredths of the land in controversy, one acre and
sixty-three hundredths of which were in the
Page 43 U. S. 314
location and survey of Martin Coontz, and the residue within the
patent of Peltier.
The title of the defendant was founded on an entry made by
Peltier of 160 acres of land, by virtue of a New Madrid
certificate, on 24 October, 1816. A survey of the entry was made in
March, 1818, and a patent to Peltier was issued 16 July, 1832.
Possession has been held under this title since 1819. The title was
conveyed to the defendant.
On 29 May, 1818, an entry was made, which authorized the survey
of Coontz, but no patent has been issued on it.
The township in which the above tract is situated was surveyed
in 1817, 1818, and 1819, and was examined in 1822. Since 1804, a
certain mound on the land has been called Stoddard's mound. In
1823, the proclamation of the President, published at St. Louis,
directed the lands in the above township to be offered at public
sale.
On the above evidence the court instructed the jury
1. That the plaintiffs were not entitled to recover the land
embraced in Peltier's patent.
2. That they were not entitled to recover the land embraced in
Coontz's survey.
The decision of this controversy mainly depends on the
construction of certain acts of Congress. By the Act of 2 March,
1805, all persons residing in the Territory of Orleans, who had
claims to land under the French or Spanish government, were
required to file their claims for record with the register of the
land office or recorder of land titles, and provision was made for
confirming them.
The time limited in the above act was extended by the Act of 3
March, 1807, as regards the filing of claims with the register or
recorder, until 1 July, 1808. By the Act of 15 February, 1811, the
President was authorized to have the lands which had been surveyed
in Louisiana offered for sale,
"provided, however, that till after the decision of Congress
thereon, no tract of land shall be offered for sale, the claim to
which has been in due time, and according to law, presented to the
recorder of land titles in the district of Louisiana, and filed in
his office, for the purpose of being investigated by the
commissioners appointed for ascertaining the rights of persons
claiming land in the Territory of Louisiana."
The same reservation was repeated in the Act of 3 March,
1811.
The Act of 26 May, 1824, authorized claimants
"under French and Spanish grants, concessions, warrants, or
orders of surveys
Page 43 U. S. 315
in Missouri, issued before 10 March, 1804, to file their
petition in the District Court of the United States for the
confirmation of their claims. And every claimant was declared by
the same act to be barred, who did not file his petition in two
years."
By the Act of the 24 of May, 1828, the time for filing petitions
was extended to 26 May, 1829. On 9 July, 1832, an act was passed,
"for the final adjustment of land titles in Missouri," which
provided that the recorder of land titles, with two commissioners
to be appointed, should examine all the unconfirmed claims to land
in Missouri, which had heretofore been filed in the office of the
said recorder, according to law, prior to 10 March, 1804. And they
were required to class the claims so as to
"state in the first class what claims, in their opinion, would
in fact have been confirmed, according to the laws, usages, and
customs of the Spanish government and the practice of the Spanish
authorities under them. And secondly, what claims in their opinion
are destitute of merit, law, or equity."
And by the third section it was provided,
"That from and after the final report of the recorder and
commissioners, the lands contained in the second class shall be
subject to sale as other public lands, and the lands contained in
the first class shall continue to be reserved from sale as
heretofore, until the decision of Congress shall be against the
claims of any of them, and the lands so decided against shall be in
like manner subject to sale as other public lands."
These are the facts and statutory provisions which are material
in the case. The defendant, under the entry and survey of Peltier,
holds the elder legal title to the land in controversy, except the
one acre and sixty-three hundredths, which is covered by the entry
and survey of Coontz. Until the confirmation of the plaintiff's
title by the act of 1836, the legal title to the land claimed was
not vested in the plaintiffs.
Objections are made to the intermediate conveyances under which
the plaintiffs claim. And first it is insisted that the deed from
Bell to Mackay was not proved. It is stated on the record, that
there was no proof that R. Caulk, the syndic, before whom the deed
was signed and acknowledged, had authority to act as such.
The deed was executed in 1804. It was attested by two witnesses,
and purports to have been acknowledged in the presence of a syndic.
There was no exception to the admission of this deed in evidence,
and consequently the objections now made to its execution
Page 43 U. S. 316
are not before the Court. But if the execution of the instrument
were now open to objections, they could not be sustained. Forty
years have elapsed since this deed purports to have been executed.
From that time to this, a claim under it seems to have been
asserted. It was presented to the commissioners in 1811, having
been filed with the recorder of land titles, in 1808. And again, it
was brought before the commissioners in 1835, it having remained on
file until that time. Under these circumstances, the regular proof
of the instrument might well be dispensed with. Possession, under
this deed, was held by Stoddard for a time, and became so notorious
that a certain elevation on the land was called Stoddard's
mound.
Independently of the lapse of time, the unsettled state of the
country at the time this instrument was signed, the transfers of
the country from one sovereignty to another, the rude and defective
organization of the government -- the civil and military functions
being blended, are facts which no court can disregard in acting
upon transfers of property between individuals. If some degree of
regularity and form were observed in regard to public grants,
technical and legal forms cannot be required in the transmission of
claims to land, among a people, the great mass of whom were
ignorant of the forms of titles, and indeed of almost everything
which pertained to civil government.
A syndic was not in that country an appointed officer, as he is
in a regulated government; but the duties devolved upon the
commandants of military ports, as occasion might require. There is
nothing on the face of this deed to excite suspicion. It was
attested by two witnesses, and contains the signature and
certificate of the syndic. The genuineness of these attestations
was not objected to on the admission of the deed as evidence, or on
a motion to overrule it. The deed must therefore be considered as
evidence to the jury, without exception. And, under all the
circumstances, we think, that full effect should have been given to
it, as a muniment of title. The deed from Mackay to Stoddard, the
ancestor of the plaintiffs, is not objected to. Bell made the
conveyance to Mackay, not having the legal title, but when, under
the act of 1836, the report of the commissioners was confirmed to
Bell and his legal representatives, the legal title vested in him
and enured, by way of estoppel, to his grantee, and those who claim
by deed under him. A confirmation, by act of Congress, vests in the
confirmee the right of the United States, and a patent, if issued,
could only be evidence
Page 43 U. S. 317
of this. On a title by estoppel, an action of ejectment may be
maintained.
If the claim of the defendant had not been interposed, no one
could doubt the validity of the plaintiffs' title. It has the
highest sanction of the government, an act of legislation. But the
2d section of the act of 1836, which gave this sanction,
provided,
"That if it should be found that any tract confirmed, or any
part thereof, had been previously located by any other person or
persons, under any law of the United States, or had been surveyed
or sold by the United States, that act should confer no title to
such lands, in opposition to the rights acquired by such location
or purchase."
This provision, it is insisted, covers the case, and defeats the
title of the plaintiffs. But it must be observed that a location,
to come within the section, must have been made "under a law of the
United States." Now an act under a law, means in conformity with
it, and unless the location of the defendant shall have been made
agreeably to law, or the patent were so issued, the reservation
does not affect the title of the plaintiffs.
The holder of a New Madrid certificate had a right to locate it
only on "public lands which had been authorized to be sold."
Peltier's location was made in 1816, and his survey in 1818. The
location of Coontz was made in 1818, and his survey in 1818. At
these dates there can be no question that all lands claimed under a
French or Spanish title, which claim had been filed with the
recorder of land titles -- as the plaintiffs' claim had been --
were reserved from sale by the acts of Congress above stated. This
reservation was continued up to 26 May, 1829, when it ceased, until
it was revived by the act of 9 July, 1832, and was continued until
the final confirmation of the plaintiffs' title by the act of 1836.
The defendant's patent was issued 16 July, 1832. So that it appears
that when the defendant's claim was entered, surveyed, and
patented, the land covered by it, so far as the location interferes
with the plaintiffs' survey, was not "a part of the public land
authorized to be sold."
On the above facts, the important question arises whether the
defendant's title is not void. That this is a question as well
examinable at law as in chancery, will not be controverted. That
the elder legal title must prevail in the action of ejectment, is
undoubted. But the inquiry here is whether the defendant has any
title as against the plaintiffs. And there seems to be no
difficulty in answering
Page 43 U. S. 318
the question that he has not. His location was made on lands not
liable to be thus appropriated, but expressly reserved, and this
was the case when his patent was issued. Had the entry been made or
the patent issued after the 26 of May, 1829, when the reservation
ceased, and before it was revived by the act of 1832, the title of
the defendant could not be contested. But at no other interval of
time, from the location of Bell, until its confirmation in 1836,
was the land claimed by him liable to be appropriated in
satisfaction of a New Madrid certificate.
No title can be held valid which has been acquired against law,
and such is the character of the defendant's title so far as it
trenches on the plaintiff's. It has been argued that the first
patent appropriates the land, and extinguishes all prior claims of
inferior dignity. But this view is not sustainable. The issuing of
a patent is a ministerial act, which must be performed according to
law. A patent is utterly void and inoperative, which is issued for
land that had been previously patented to another individual. The
fee having been vested in the patentee by the first patent, the
record could convey no right. It is true a patent possesses the
highest verity. It cannot be contradicted or explained by parol,
but if it has been fraudulently obtained or issued against law it
is void. It would be a most dangerous principle to hold, that a
patent should carry the legal title, though obtained fraudulently
or against law. Fraud vitiates all transactions. It makes void a
judgment, which is a much more solemn act than the issuing of a
patent. The patent of the defendant having been for land reserved
from such appropriation, is void, and also the survey of Coontz, so
far as either conflicts with the plaintiffs' title. For the
foregoing reasons, we think the instructions of the court to the
jury were erroneous, and consequently the judgment must be
Reversed at the defendant's cost and a venire de novo is
awarded.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Missouri, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged by this Court, that the judgment
of the said circuit court, in this cause be, and the same is hereby
reversed with costs, and that this cause be, and the same is hereby
remanded to the said circuit court, with directions to award a
venire facias de novo.
