On 15 May, 1820, Congress passed an Act, 3 Stat. 605, for the
benefit of the inhabitants of the Village of Peoria by which every
person claiming a lot in the village was to give notice to the
register of the land office, whose report was to be laid before
Congress.
On 3 March, 1823, Congress passed another Act, 3 Stat. 786,
granting to each of the French and Canadian inhabitants, and other
settlers according to the report, the lot upon which they had
settled, and directed the surveyor of the public lands to make a
plat of the lots, for which patents were to be issued to the
claimants.
This survey and plat were not made until April and May,
1837.
In November, 1837, a person who was not a settler purchased at
the land office at private entry the fractional quarter of land
which included some of the above lots, and soon afterwards obtained
a patent. Both the certificate and patent reserved the rights of
the claimant under the acts of Congress above mentioned.
In 1845 and 1847, these claimants obtained patents.
They were entitled to recover in ejectment from the persons who
held under the private entry and patent.
The title of the plaintiffs was not divested by a tax sale in
1843. The whole fractional quarter section was taxed and one acre
off of the east side sold. This sale was irregular.
This was an ejectment brought by Forsyth, Dumain, and Bovis to
recover two lots of ground,
viz., Nos. 47 and 65, in the
Town of Peoria. The bills of exceptions extended over thirty-seven
pages of the printed record, and included deeds and depositions and
proceedings under a tax sale &c. It is therefore impossible to
insert them. The following is a summary notice of the evidence
offered on the trial by plaintiffs and defendant.
Plaintiff's Evidence
1. The Act of Congress passed on 15 May, 1820, 3 Stat. 605. It
directed that every person who
Page 54 U. S. 19
claimed a lot in the Village of Peoria should give notice of his
claim to the register of the land office, whose report should be
laid before Congress.
2. An Act of Congress passed on 3 March, 1823, 3 Stat. 786,
after the report of the register had been received. It granted to
such of the French and Canadian inhabitants and other settlers in
the village as had settled there prior to the 1st of January, 1813,
the lot so settled upon and improved. The second section of the act
required the surveyor of the public lands to cause a survey to be
made of the several lots, and to designate on a plat thereof the
lot confirmed and set apart to each claimant, and to forward the
same to the Secretary of the Treasury, who should cause patents to
be issued in favor of such claimants, as in other cases.
This survey and plat were not made until April and May,
1837.
3. A patent to Boushier for lot No. 47, issued on 27 March,
1847.
4. A plat of the village.
5. A plat of lot No. 47.
6. Testimony taken under a commission relative to the settlement
of the lots.
7. Deed to plaintiffs, 11 December, 1836.
8. Patent for lot No. 66, December 16, 1845.
9. Plat of lot No. 65.
10. Deed to plaintiffs, September 16, 1836.
11. }
}Plats of an addition to the town.
12. }
13. An agreed statement of certain facts.
Defendant's Evidence
1. A certificate from the register showing that on 15 November,
1837, John L. Bogardus entered and purchased the southeast
fractional quarter of section, No. 9, containing 23 93/100 acres.
This included the lots in question.
2. Deed from Bogardus to Underhill of the whole south-
east fractional quarter.
3. Two deeds from Underhill to Ballance, the plaintiff in
error.
4. Proceedings relative to a tax sale. The taxes were assessed
on the fractional quarter, and an "acre off east side" was sold to
Ballance.
5. Deed under the sale from the sheriff conveying the land in
dispute.
6. An award between Ballance, Bigelow, and Underhill,
whereby the lots in dispute were assigned to Ballance.
Page 54 U. S. 20
7. Copies of certificates relative to Bogardus' preemption.
8. Patent to Bogardus, January 5, 1838.
The plaintiffs then offered in evidence a copy of the
certificate of entry which the register gave to Bogardus, and which
contained the following reservation:
"Now therefore be it known that on presentation of this
certificate to the Commissioner of the General Land Office, the
said John L. Bogardus shall be entitled to receive a patent for the
lot above described, subject, however, to the right of any and all
persons claiming under the Act of Congress of 3 March, 1823,
entitled 'An act to confirm claims to lots in the Village of
Peoria, in the State of Illinois.'"
"SAMUEL LEECH,
Register"
The patent contained a similar reservation.
The above was all the material evidence given in the case. Each
party saved the right on the argument of the cause to object to any
of said evidence on the ground of the incompetency or effect of the
evidence, but not to make merely formal objections such as proof of
authenticity of papers offered.
"It was further agreed that the property in controversy was
worth more than two thousand dollars, whereupon the court
instructed the jury to bring in a verdict for the plaintiffs as by
law they were entitled to recover on the above facts. To all of
which opinions of the court the defendants excepted, and prayed
this, his bill of exceptions, be sealed, signed, and made of
record, which is accordingly done &c."
"NATH'L POPE [SEAL]"
Upon this bill of exception, the case came up to this Court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
This is an action of ejectment to recover the possession of
three lots, numbered 47, 65, and 68, in the Town of Peoria under
the Act of Congress of 3 March, 1823, entitled "An act to confirm
certain claims to lots in the Village of Peoria." The claim 47
contains twenty-seven thousand four hundred and forty-nine square
feet and seven hundreths; surveyed and designated as covered by
claim 47, in the southeast fractional quarter of fractional section
nine in township 8, north of range eight, and east of the fourth
principal meridian &c.
Page 54 U. S. 21
Lots 65 and 68 contain the same number of square feet, and in
fact constitute but one lot, situated in the same fractional
quarter section. Separate suits were brought for these lots, but,
being consolidated, they are included in one. The defendant below
pleaded not guilty.
At the trial, exceptions were taken to the rulings of the court,
which present the points of law to be decided.
The whole of the evidence was copied into the bill of
exceptions, on which the court instructed the jury to find a
verdict for the plaintiffs, as by law they were entitled to recover
on the facts, to which instruction the defendant excepted.
The parties must have considered this case as a demurrer to the
evidence or as a special verdict. As there was evidence on both
sides, some of which was conflicting, it could not be considered as
strictly a demurrer to evidence. Nor was it strictly a special
verdict, as the instruction was given before the jury found the
facts.
From the whole of the evidence being set out in the bill of
exceptions, we may suppose it to have been the intention of the
parties to treat the facts as agreed or undisputed in order that
the law applicable to them might be pronounced by the court.
In sustaining the jurisdiction of this case, it is not to be
considered as a precedent. It imposes a labor on the Court which
they are not bound to incur. But as there seems to be not much
difficulty in the facts, the Court will decide the questions of law
as far as it shall be necessary to examine them.
By the Act of 15 May, 1820, Congress provided that every person,
or the legal representative of every person, who claims a lot or
lots in the Village of Peoria, shall, on or before the first day of
October next, deliver to the register of the land office for the
District of Edwardsville a notice of his claim, and the register
was required to examine the evidence in support of the same and
report to the Secretary of the Treasury such as in his opinion
should be confirmed, and the secretary was required to lay the same
before Congress for its determination.
On 3 March, 1823, an act was passed granting to each of the
French and Canadian inhabitants, and other settlers in the Village
of Peoria, whose claims are ascertained in a report made by the
register of the land office at Edwardsville in pursuance of the act
of 1820, and who had settled a lot in the village prior to the 1st
of January, 1813 &c., where the same shall not exceed two
acres; and when the same shall exceed two acres, more than four
acres shall not be confirmed.
"Provided nothing in this act contained shall be so construed as
to
Page 54 U. S. 22
affect the right, if any such there be, of any other person or
persons to the said lots, or any part of them, derived from the
United States or any other source whatever or as a pledge on the
part of the United States to make good any deficiency,"
&c.
And the surveyor of the public lands was required to survey the
lots, designating those confirmed, which survey and plat were to be
returned to the secretary, who was required to issue patents to the
claimants. The surveys, it appears, were not executed for several
years, but at length, having been made and forwarded to Washington,
a patent was issued to the legal representatives of Louis Le
Boushier for lot No. 47, 27 March, 1847. The proviso in the act of
1823 was copied into the patent.
A plat was in evidence showing that lot No. 47 was situated in
the southeast fractional quarter, section 9.
Testimony was introduced to show that this lot was inhabited by
Le Boushier prior to 1813. On 11 December, 1836, Joseph Touchette
and Madeline, his wife, who was the daughter of Le Boushier, and
his only living child and heir, executed a deed to plaintiff for
the above lot.
A patent was also read to Antoine Bourbonne, or to his legal
representatives, dated 16 December, 1845, for lot 65, also covered
by claim 68. By the recitals in this patent, it appeared that this
claim had been presented to the register, at Edwardsville, and
recommended by him for confirmation, on which the grant was issued
under the act of 1823. A plat was introduced showing the locality
of this lot to be in the same fractional quarter section as No. 47,
and also a description of its boundary.
A deed from Bourbonne to the plaintiffs was in evidence for the
above lot, dated 16 September, 1836.
Charles Ballance was admitted to defend in the place of Lincoln,
that suit having been consolidated with the one brought by the
plaintiffs against Goudy for the other lot. Ballance admits himself
to be in possession of lots No. 47 and 65-68, described in the
declaration.
It was agreed that Ballance was in possession of that portion of
said premises covered by lots one and two in block 51, more than
seven years before the commencement of this suit, by actual
residence with his family thereon, up to 1845, and from that time
by his tenants, and that portion of said premises northwest of
Water Street, in Bigelow and Underhill's Addition to Peoria, was
possessed more than seven years by the enclosure and cultivation of
the same as a garden.
It was agreed that J. L. Bogardus, in 1832, was in possession of
the southeast fractional quarter of section 9, township 8,
Page 54 U. S. 23
north of range 8, east of the 4th principal meridian, and
continued in possession until 1834, when Isaac Underhill went into
possession under Bogardus, and that Ballance was in possession of
the premises in dispute under title from Bogardus, neither of them
resided on the premises, but had tenants.
On 14 November, 1837, Bogardus purchased the southeast
fractional quarter of section No. 9. A deed for the same was made
by Bogardus to Isaac Underhill, dated 5 August, 1834. On 7 July,
1841, Underhill and wife conveyed to Ballance, lots Nos. 8, 9, and
7, in block No. 34, and lots 5 and 6, in block No. 38, in the above
addition to the town. And, on 1 February, 1842, Underhill and wife
conveyed to Ballance lot No. 3, in block 51, in the above addition
to the town.
A record and proceeding of the County Commissioners of Peoria
County, showing that a tax was laid upon real property in the
county for 1843 and that such tax was imposed on the southwest and
southeast quarters of said section, and that, on a return of the
collector, that the owner had no personal property in the county
out of which the taxes could be made, a judgment was rendered
against the land by the circuit court under the statute of
Illinois, and an order was issued to the sheriff directing him to
sell the delinquent land to such person as should pay the tax for
the smallest quantity of the tract.
And the defendant offered to read a deed from the sheriff on
said tax sale to Charles Ballance, covering a part of lot No. 65,
which was objected to by the plaintiffs, and the court sustained
the objection on the ground that the sale was contrary to law, to
which decision the defendant excepted.
As there appears to have been no specific exception taken, and
as we have not the opinion of the court except that the evidence
was defective, and could not sustain the tax title, we are left to
conjecture as to the particular ground of the decision.
One acre of land was sold by the sheriff, "off of the east side
of the southwest and southeast fractional quarters of section
number nine," &c. In these two fractional quarters there appear
to have been about one hundred and fifty acres. It is not said in
what form the acre was to be surveyed. Certainty in such a case is
necessary to make the sale valid, for on the form of the acre its
value may chiefly depend. And there is nothing on the face of the
deed or in the proceeding previous to the sale which supplies this
defect.
It is singular that the land should be sold in the name of
Ballance and that he should become the purchaser, especially as he
appears to have been in possession of the land as owner.
Page 54 U. S. 24
Although the right of Bourbonne to lot 65 was recognized by the
government by the Act of Congress of 1823, yet until the public
surveyor marked the lines, its position and extent could not be
ascertained. And it appears that this duty was neglected by the
public surveyor for many years. The patent was not issued until in
1845, two years after the tax was assessed. And it is not perceived
how the specific lot could be taxed when its boundaries were not
known. It seems to have been included in the southeast fractional
quarter section, but it was not taxable as a part of that tract.
Both the entry and the patent of Bogardus for the fractional
quarter section contained an exception of the rights of all persons
claiming under the Act of Congress of 3 March, 1823. So that the
whole or any part of the lots claimed by the plaintiffs, which may
have been included in either of the fractional quarter sections,
both having the same exception, the claim to such lots was not
affected by the patent. And consequently neither of the lots were
liable to be sold for the taxes on the tracts which included
them.
The court will not, unless fraud be shown, look behind the
patents for the lots in controversy. That the patents cover the
lots as surveyed seems not to be disputed. We cannot, therefore, in
an action at law, inquire whether the lots as originally claimed
are accurately described in the patents. The survey having been
made by a public officer and sanctioned by the government, the
legal title must be held to be in the patentee.
If the patent to Bogardus be of prior date, the reservation in
the patent, and also in his entry was sufficient notice, that the
title to those lots did not pass. And this exception is
sufficiently shown by the acts of the government.
These lots were surveyed before the taxes were assessed for
1843, but the assessments were made on the fractional quarter
section without regard to the lots reserved. Such lots were neither
assessed nor sold for the taxes due on them, and they were not
liable for the taxes due on the quarter section.
That Ballance, being liable for the tax, should permit his own
land to be sold, and purchase one of the lots, or a part of it, to
pay the taxes on the larger tract would seem to require
explanation. Had a stranger purchased at this sale a part of the
quarter sections, from the irregularity of the procedure, it is not
perceived how the tax title could have been sustained. But however
this may be, we are clear that the sale of lot sixty-five, or a
part of it, under the circumstances is void, and consequently that
the sheriff's deed on such sale was properly rejected. As the whole
law of the case seemed to have been submitted to the court, the
deed, if admitted as
prima facie evidence, could not have
changed the result.
Page 54 U. S. 25
The statute did not protect the possession of the defendant
below. His patent excepted these lots; of course he had no title
under it for the lots excepted.
The judgment of the circuit court is
Affirmed with costs.
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
Illinois, 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
affirmed with costs.
