Before 1813, Mackay had a claim to land in Missouri under a
Spanish grant, and in that year gave a bond in the nature of a
mortgage on a part of the land to Delassus.
In 1836, Congress confirmed the claim to James Macky or his
legal representatives. This enured to the benefit of the claimants
under the mortgage, rather than to the heirs of Mackay.
An imperfect Spanish title claimed by virtue of a concession
was, by the laws of Missouri, subject to sale and assignment, and
of course subject to be mortgaged for a debt.
This case was brought up from the Supreme Court of Missouri by a
writ of error issued under the 25th section of the Judiciary
Act.
The record was very voluminous, as it traced the title to land
for a number of years. It is not necessary to follow this.
Page 65 U. S. 363
Mackay was the holder of a grant of land from Spain for 30,000
arpents, prior to 1819. In that year he gave a bond, by way of
mortgage, in which he promised to convey fourteen-thirtieths of the
land to Delassus, who assigned his interest in it to Leduc. In
1822, Mackay died, leaving a widow and eight children. In 1836,
Congress confirmed the claim to Mackay or his legal
representatives. In 1842, Leduc died, devising all his property to
Hypolite Papin. Afterwards, in the same year, Papin died, devising
all his property to his children equally. In 1854, Joseph L. Papin,
one of the children, and the defendant in error, foreclosed the
mortgage against the heirs and administrators of Delassus. It was
sold, and Papin became the purchaser of fourteen-thirtieths of the
30,000 arpents. Papin then claimed a partition, which was resisted
by Massey and others, who claimed under the heirs of Mackay. The
Supreme court of Missouri decided in favor of Papin, and the case
was brought up to this Court, where it was argued by Mr. Blair for
the plaintiffs in error, and Mr. Glover for the defendant.
MR. JUSTICE CATRON delivered the opinion of the Court.
In 1806, James Mackay presented his claim before the board of
commissioners, sitting at St. Louis, to have confirmed to him
30,000 arpents of land. In 1809, the board rejected the claim.
In 1819, Mackay gave a bond in the nature of a mortgage on
14,000 arpents of the land to Delassus. Papin claimed as assignee
of the mortgage, which he caused to be foreclosed, and purchased in
the land, and took a title from the sheriff. Massey and others
claim under Mackay's heirs.
The Supreme Court of Missouri decided that Papin, claiming under
the mortgage of Mackay to Delassus, had a better title than Massey,
who claimed under the heirs. And to reverse this decision, this
writ of error is prosecuted.
The board of land commissioners of 1809 refused to confirm the
claim; they were acting on the title as between the United
Page 65 U. S. 364
States and the claimant. The government had the power to grant
the land in fee regardless of the opinion of the board.
Accordingly, in 1832, an act of Congress was passed organizing
another board to examine this description of Spanish claims, which
had been rejected by the old board. The new board, in October,
1832, recommended the claim for confirmation "to said James Mackay,
or his legal representatives." James Mackay had died, and his heirs
presented the claim the second time, and it is insisted that the
confirmation to them by the act of 1836 rejected the mortgage of
Delassus, and that the heirs took the unencumbered legal title
discharged of the mortgage.
An imperfect Spanish title, claimed by virtue of a concession,
was, by the laws of Missouri, subject to sale and assignment, and
of course subject to be mortgaged for a debt. The heirs of Mackay
took the lands by descent, with the encumbrance attached, and held
them in like manner that their ancestor held. The grant of the
lands to the heirs by the act of 1836 carried the equities of the
mortgagee with the legal title, of which he took the benefit -- a
consequence contemplated by the mortgage itself -- and if the
assignment had been in its form a legal conveyance of the lands,
the grantee would have taken a legal title. And to this effect are
the cases of
Bissel v.
Penrose, 8 How. 317, and
Landes v.
Brant, 10 How. 348.
It is ordered that the judgment be affirmed.