Under the circumstances described in the preceding case, if
there was no sufficient evidence of a survey under the act of 1823,
the title claimed under that act could not be held superior to that
claimed under a patent issued in the interval between the act of
1823 and the alleged survey.
Page 60 U. S. 343
This case was similar in most of its features to the preceding
MR. JUSTICE CATRON delivered the opinion of the Court.
In the case of Charles Ballance against Papin and
the same title was relied on by the defendant below
(Ballance) that was set up in defense in the preceding case of
Forsyth v. Brien and Rouse.
The plaintiff sued to recover
a village lot in Peoria, No. 42, confirmed to Fontaine, in right of
his wife, Josette Cassarau, dit
Fontaine. A plat of lot
No. 42 was given in evidence, and is found in the record, but no
certificate of the surveyor accompanies this plat, and without such
certificate there is no evidence that lot No. 42 was lawfully
surveyed. The act of 1823, sec. 2, required that a survey should be
made of each lot confirmed to the claimant, and a plat thereof
forwarded to the Secretary. The evidence of a legal United States
survey is not a mere plat, without any written description of the
land by metes and bounds; neither the plat nor less proof than a
written description will make a record on which a patent can issue.
That most accurate evidence of separate surveys of the village lots
of Peoria exists we know, but as none is found in this record of
lot No. 42, it follows, from the reasons given in the previous case
that no title was adduced in the circuit court that authorized it
to reject the instructions demanded by the defendant; that,
comparing the titles of the parties by their face, the defendant's
was the better one. But as the same question of the application of
the act of limitations arises in this case as it did in the former
one, it must, of course, have been reversed had the certificate of
survey been found in the record. We therefore order that the
Reversed and the cause remanded for another trial to be had
MR. JUSTICE McLEAN dissented.