Where there are two confirmations by Congress of the same land
in Missouri, the elder confirmation gives the better title, and the
jury are not at liberty, in an action of ejectment, to find that
the survey and patent did not correspond with the confirmation.
Titles to lands thus situated could be confirmed; nor were the
lands affected by the act of March 3, 1811, providing for the sale
of public lands and the final adjustment of land claims.
Page 60 U. S. 80
This was an action of ejectment brought by Sandford a citizen of
New York, to recover the following-described premises,
viz.:
"A certain tract of land, containing 750 arpens, more or less,
which was claimed by one Antoine Lamarche, as derived to him from
the government of Spain, was surveyed for said Lamarche by John
Harvey, a deputy surveyor under the government of the United
States, and the plat of said survey duly certified by said Harvey
under date of December 20, 1805, and the same received for record
by Antoine Soulard, Surveyor General under the government of the
United States for the Territory of Louisiana, February 27, 1806,
which said tract is situate, lying, and being on Lamarche's Creek,
alias Spencer's run, in St. Charles County, Missouri, and the claim
thereto was duly confirmed to the said Antoine Lamarche or his
legal representatives by an act of Congress entitled 'An act
confirming claims to lands in the State of Missouri, and for other
purposes,' approved July 4, 1836."
It is unnecessary to recite the evidences of title set forth
upon the trial by the plaintiff and defendants, as they are set
forth on both sides in the opinion of the court.
Amongst other rulings of the circuit court were the following,
viz.,
"5. That the survey made by the United States surveyor, and on
which issued the patent certificate and patent, is evidence of a
high character that the land included in the survey is the same as
that included in the confirmation to the legal representatives of
Dissonet."
"6. That said survey is not conclusive evidence that the land
confirmed to the legal representatives of Dissonet was correctly
located and surveyed by said survey."
"7. If the jury, therefore, believe that the land sued for is
not within the confirmation to the legal representatives of
Dissonet, although it may be within the survey and patent, then
such confirmation, survey, and patent cannot protect said
defendants in this suit."
It is not necessary to mention any of the other instructions or
rulings of the circuit court.
MR. JUSTICE CATRON delivered the opinion of the Court.
Peter Chouteau, claiming under one Dissonet, laid before
Recorder Bates a claim for 800 arpens of land situate in St.
Page 60 U. S. 81
Charles County, Missouri. The evidence presented to the recorder
was a certificate of a private survey embracing the claim as set
up, with proof that Dissonet had inhabited and cultivated the land
from 1798 to 1805. The recorder pronounced the claim valid as a
settlement right to the extent of 640 acres, and declared that it
ought to be surveyed as nearly in a square as might be, so as to
include Dissonet's improvements, and furthermore that the land
should be surveyed at the expense of the United States.
This report was confirmed by Congress by the Act of April 29,
1816. The land was surveyed in 1817 by authority of the United
States. A patent certificate was forwarded to the General Land
Office by the recorder of land titles at St. Louis, in 1823, and a
patent issued on it in 1850. Protection is claimed by the
defendants under the survey and patent.
The jury was instructed by the circuit court that the survey and
patent were not conclusive evidence that the land they embraced was
correctly located and surveyed according to the confirmation, and
if they believed that the land sued for was not within the
confirmation of the legal representatives of Dissonet, although it
may be within the survey and patent, then the survey and patent
would not protect the defendants.
Exceptions were taken to this ruling. The jury found that the
official survey did not correspond to the confirmation, but that it
was illegally extended so as to interfere with the claim on which
the plaintiff relies. His claim is this:
In 1805, Antoine Lamarche caused a private survey to be made by
Harvey for 750 arpens of land, which he claimed by right of
settlement. Lamarche laid his claim before the board of
commissioners, but produced no evidence of inhabitation and
cultivation -- indeed, no evidence at all except the surveyor's
certificate. On coming before the board in 1811, the claim was of
course rejected, and thus it lay until 1833, when the board of
commissioners organized under the Act of July 9, 1832, took
evidence which established the fact to their satisfaction that
Lamarche had inhabited and cultivated the land, and was entitled to
a confirmation, and in 1835 they recommended to Congress that the
claim ought to be confirmed according to Harvey's survey of 1805,
and it was thus confirmed by the Act of July 4, 1836.
Harvey's survey covers the land in dispute, which is overlapped
on its eastern boundary by the survey and calls of the patent to
Dissonet, and within this interference the defendants hold
possession.
Up to the date of the confirmation of Lamarche's claim in
Page 60 U. S. 82
1836, it had no standing in a court of justice. So this Court
has uniformly held.
Les Bois v.
Brommell, 4 How. 449.
In the next place, the United States reserved the power to
survey and grant claims to lands in the situation that these
contending claims were when confirmed; nor have the courts of
justice any authority to disregard surveys and patents when dealing
with them in actions of ejectment. This Court so held in the case
of
West v. Cochran, and will not repeat here what is there
said.
When the survey of 1817 for Dissonet's land was recognized at
the Surveyor General's office as properly executed, which was
certainly as early as 1823, then Dissonet had a title that he could
enforce by the laws of Missouri, and which was the elder and
better, it being settled that where there are two confirmations for
the same land, the elder must hold it. A more prominent instance to
this effect could hardly occur than that of rejecting the younger
confirmation in the case of
Les Bois v. Brommell, above
cited.
The act of 1811, reserving lands from sale which had been
claimed before a board of commissioners, has no application to such
a case as this one. It was so declared in the case of
Menard v.
Massey, 8 How. 309-310.
It is ordered, that the judgment of the circuit court be
reversed and a venire de novo awarded.
