Morehouse v. Phelps,
62 U.S. 294 (1858)

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U.S. Supreme Court

Morehouse v. Phelps, 62 U.S. 21 How. 294 294 (1858)

Morehouse v. Phelps

62 U.S. (21 How.) 294


By the Acts of Congress passed in 1829, 4 Stat. 334, and 1836, 5 Stat. 79, commissioners were to be appointed to hear and determine all claims to lots of ground in the Town of Galena, Illinois, and to give a certificate in favor of each person having the right of preemption.

Where a person presented his claim as the legal representative of a settler, obtained the certificate, and afterwards a patent to the legal representatives, it inured to the benefit of the person who had presented the claim, obtained the certificate, paid the money, and procured the patent.

Where this person acted for himself individually, and also as the administrator of his co-tenant who was dead, it was his duty and right under the laws of the state to pay both shares of the purchase money.

One standing outside, who took no interest in the claim for many years after it was passed and then claimed under a deed made by the settler in 1829, alleging that he was the proper legal representative, had not such a title as would enable him to maintain an action of ejectment.

The cases under incipient Spanish titles do not apply to this case, because the United States were the absolute owners of the lots in question, and could dispose of them at their pleasure.

Phelps, who was the plaintiff in the court below, brought an ejectment for the undivided half of two lots in the Town of

Page 62 U. S. 295

Galena, Illinois, viz., lots number eight and nine, each lot fronting forty-seven feet, more or less, on Water Street.

Upon the trial, Phelps made out his title as follows:

1. A deed, or rather notification in his favor, addressed to the superintendent of lead mines from R. P. Guyard, dated November 8, 1829.

2. A certificate of the register of the land office at Dixon, dated October 3, 1850, stating that the legal representatives of R. P. Guyard and D. B. Morehouse did, on the 20th of February, 1838, purchase of the general government lots number eight and nine.

This certificate was issued under the following acts of Congress, viz.,

The Congress of the United States, by an Act approved February 5, 1829, provided for the laying off of a town at and including Galena, Illinois, under the direction of the Surveyor General for the States of Illinois, Missouri, and the Territory of Arkansas. The act further provided that the lots should be classed &c., and, previous to their sale,

"each and every person, or his, her, or their legal representative, or representatives, who shall heretofore have obtained from the agent of the United States a permit to occupy and lot or lots in the said Town of Galena, or who shall have actually occupied and improved any lot or lots in the said town, or within the tract of land hereby authorized to be laid off into lots, shall be permitted to purchase such lot or lots by paying therefor in cash,"

&c., being the certain amounts specified in the said act, according to the class in which the same fell.

It not being practicable to carry this act into effect, Congress, on the 2d day of July, 1836, passed an amendatory act, by which it was further provided &c.:

"That all acts and duties required to be done and performed by the surveyor of the states of Illinois and Missouri and the Territory of Arkansas, under the act to which this is an amendment, shall be done and performed by a board of commissioners, three in number, any two of whom shall form a quorum to do business; said commissioners to be appointed by the President of the United States, and shall, previous to their

Page 62 U. S. 296

entering upon the discharge of their duties, take an oath or affirmation to perform the same faithfully and impartially."

And it was further enacted

"That the said commissioners shall also have power to hear evidence and determine all claims to lots of ground arising under the act to which this is an amendment, and for this purpose, the said commissioners are authorized to administer all oaths that may be necessary, and reduce to writing all the evidence in support of claims to preemption presented for consideration; and when all the testimony shall have been heard and considered, the said commissioners shall file with the register and receiver of the land office at Galena the testimony in the case, together with a certificate in favor of each person having the right of preemption, and upon making payment to the receiver at Galena for the lot or lots to which such person is entitled, the receiver shall grant a receipt therefor and issue certificates of purchase, to be transmitted to the General Land Office, as in other cases of the sale of public land."

3. Patents, issued for the lots on the 1st of January, 1846, stating that the lots had been purchased by the legal representatives of Guyard and Morehouse, and granting the land to said representatives.

4. The record book of the commissioners, deciding that the legal representatives of Robert P. Guyard were entitled to a preemption to one undivided half of lots number eight and nine, and Dickerson B. Morehouse the other half of said lots.

5. The acts of Congress above mentioned.

6. Evidence respecting the location of the lots.

The defendant then offered the following evidence:

1. The letters of administration, granted in March, 1836, to Morehouse, upon the property of Guyard.

2. The acts of Congress before referred to.

3. The evidence of one of the commissioners, showing that Morehouse appeared before the board and filed his claim, and that the deed to Phelps was never before the board or offered in evidence before the commissioners.

4. The certificate of the commissioners that the legal representatives

Page 62 U. S. 297

of Guyard and Morehouse were entitled to the preemption of lots number eight and nine.

5. The record and proceedings of the General Land Office showing that they had improved the lots and paid the money due on them.

6. The petition of Morehouse, as administrator, for leave to sell the real estate of Buyard in order to pay the debts of the estate.

7. The deposition of Hempstead that as agent for More house, he procured the patents.

8. The patents issued, as before stated.

9. Other evidence, to show that Morehouse had always been in possession.

There were nine prayers to the court offered by the counsel for the plaintiff, and two by the defendant, the following being one of the prayers offered on behalf of the plaintiff, which was given, together with the second prayer asked by the defendant, and refused, appears to state the principal points in the case, upon which the decision of the court below turned:

"6th. The legal representatives, as used in this law, is the party in interest whose identity was uncertain, and who succeeded to the rights of Guyard. It means the party who legally represents the interest which was once vested in Guyard and by virtue of which right the law authorized the lots to be entered, and if the jury believe from the evidence that Guyard was entitled to a preemption to the lots in controversy and parted with all his interest to Phelps by his deed in 1829, then Phelps is the legal representative, and the jury should find for the plaintiff."

"2d. That if the jury find from the evidence that Dickerson B. Morehouse was, as stated in the first instruction, the sole administrator of Guyard, and that in that capacity he claimed, before the commissioners appointed under the Supplementary Act of the 2d July, 1836, to be entitled to the lots in dispute by preemption title, and that the said commissioners heard and considered all the evidence offered in support thereof, and that neither the plaintiff nor any other person ever claimed the same before said commissioners at any time, and if they further

Page 62 U. S. 298

find that the commissioners did thereupon decide said administrator to be entitled to said lots as the legal representative of Guyard, and did file with the register and receiver at Galena the testimony in this case, together with their certificate in favor of said administrator, and that he did thereupon, and as administrator of Guyard, pay the purchase money for said lots to such receiver, and obtain his receipt therefor, and his certificate of purchase, and that these were by him transmitted to the General Land Office, and the patents issued offered in evidence by said defendants were sent to him, and have been in his possession ever since, claiming to be owner of the lots therein mentioned, and that these are the lots in dispute in this case; that then the said defendant is the owner of said lots by virtue of said facts, and according to the construction of the said acts of Congress of the 5th February, 1829, and the 2d July, 1836, and that therefore the plaintiff is not entitled to recover."


The jury found a verdict for the plaintiff; and the case being carried up to the supreme court upon exceptions, the judgment was there affirmed.

A writ of error brought the case up to this Court.

Page 62 U. S. 302

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