1. A patent for a quarter section of land subject to French
claims, confirmed by Congress in 1823, is not a good title for a
lot within the quarter section as against a French claimant under
the confirming act whose survey of the lot was made in 1840 and his
patent issued in 1846.
2. But if the patentee of the quarter section was in possession
of part and claimed the whole of it under his patent for more than
seven years before suit brought, and the claimant of the lot was
not in possession at all, the party so in possession is protected
by the Illinois statute of limitations.
3. If the title to land be cast by descent on a married woman,
her husband having a life estate, may bring ejectment; if he fails
to do so for seven years, the statute of limitations will bar his
right; and if he and his wife convey their title to another, their
grantee cannot recover after the expiration of seven years from the
time when the limitation first began to run against the
husband.
4. Whether a child born in Missouri before the marriage of her
parents, when the civil law prevailed in that territory, can
inherit the lands of her father in Illinois, where the common law
was in force at the time of the father's death,
quaere.
By an Act of Congress approved May 15, 1820, all persons
claiming lots in the Village of Peoria, Illinois, which had just
been destroyed by fire, were required to furnish to the register of
the land office at Edwardsville a written notice of their
respective claims before the first of the ensuing October. It was
made the duty of the register by the same act to report to the
Secretary of the Treasury a list of these claims, with the
substance of the evidence in support of them and his opinion of
their value, and this report the Secretary of the Treasury was
directed to lay before Congress for its determination. On the 3d of
March, 1823, Congress confirmed, under certain restrictions, to the
persons in whose favor the register at Edwardsville had reported
the lots they claimed. Among the persons
Page 66 U. S. 151
entitled to lots under the act of 1823 was Antoine Roi, who
claimed lot 33, the same which is now in dispute. A survey was made
of these lots in 1840, and a patent issued to the legal
representatives of Roi in 1846. On the 20th of June, 1849, Mary
Gendron, claiming to be the only heir of Antoine Roi, by a joint
deed of herself and Toussaint Gendron, her husband, conveyed the
lot in question to Tesson and Rankin for the consideration of fifty
dollars, and in 1854 Tesson brought this ejectment in the circuit
court against Richard Gregg, who claimed the same lot and held
adverse possession of it under Charles Ballance. Ballance had
obtained a patent in 1838 for a fractional quarter section of land,
comprehending the lot afterwards patented to Roi. But Ballance's
patent was expressly "subject to the rights of any and all persons
claiming under the Act of Congress of 3 March, 1823." Ballance and
his tenants had been in possession of the fractional quarter
section patented to him about twenty years at the time when this
suit was brought.
That Mary Gendron was the lawful child and heir of Antoine Roi
was matter of fact asserted on one side and denied on the other.
She was born in Missouri, in 1814, and there was some evidence that
Antoine Roi acknowledged her and married her mother about three
months after her birth.
The court instructed the jury that the title of Ballance, under
his patent, did not include and was not intended to include the lot
in controversy, if there was anybody capable of taking it under the
act of 1823; that until there was a survey made and approved of
these French lots, the statute of limitations would not begin to
run; that Ballance's possession of a part of the quarter was not in
law a possession of the whole, and the statute therefore did not
protect him against the plaintiff's better right; that Mrs. Gendron
was legitimate in Missouri if her parents were married there after
her birth, and being legitimate in Missouri, she could inherit her
father's land in Illinois.
These rulings being excepted to, and the verdict and judgment
being for the plaintiff, the defendant took this writ of error.
Page 66 U. S. 152
MR. JUSTICE NELSON.
The action was ejectment, brought by Tesson against Gregg, to
recover possession of lot No. 33, the claim of Antoine Roi, as
reported under the confirmatory Acts of Congress of 15 May, 1820,
and of 3 March, 1823, in respect to French inhabitants or settlers
of lots in the Village of Peoria. A survey was made of these lots
in 1840, and a patent issued to the representatives of Antoine in
1846.
The plaintiff claims under this title.
The defendant sets up a right to the possession under Charles
Ballance. The latter claims title under a patent from the
government in 1838 of the southwest fractional quarter section
nine, in township 8 north, range two east, in the district of lands
subject to sale at Quincy, Illinois. This patent contained the
following saving clause:
"Subject, however, to the rights of any and all persons claiming
under the act of Congress of 3 March, 1823, entitled 'An act to
confirm certain claims to lots in the Village of Peoria in the
State of Illinois.'"
The French lot No. 33, in question, confirmed by the Act of 3
March, 1823, is within this fractional quarter section above
patented to Ballance.
If the question in the case stood upon the mere paper title to
this lot, there could be no great difficulty in disposing of it,
for although the patent of Ballance is the elder, yet, as he took
it subject to the French confirmed title, the latter must
prevail.
But this Court held, in the case of
Bryan v.
Forsyth, 19 How. 334, for the reasons there given,
that the patent of the fractional quarter section to Ballance,
though subject to the saving clause mentioned, afforded ground in
favor of persons claiming under it of an adverse possession within
the statute of limitation of Illinois against the French lots after
the survey
Page 66 U. S. 153
and designation of them in 1840. Several cases have arisen since
that decision in the state courts of Illinois, and also in this
Court, and the doctrine of the case of
Bryan v. Forsyth
adopted and applied.
Landers v. Kidder, 23 Ill. 49, and
Williams v. Ballance, ib., 193;
Mechan v.
Forsyth, 24 How. 175; and
Gregg v.
Forsyth, 24 How. 179
The act of limitations of Illinois, Rev.Stat., 349, sec. 8,
protects the claim of persons for lands which has been possessed by
actual residence thereon, having a connected title in law or
equity, deducible of record from that state or the United
States.
The question contested upon this statute since the case of
Bryan v. Forsyth has been as to the nature and character
of the possession of Ballance, and those claiming under him,
required by the statute, which is essential to constitute the bar.
On the part of those claiming under the French lots, it has been
insisted that the
actual residence thereon for the seven
years must have been on the French lot, and that an actual
residence on the fractional quarter section under the by virtue of
the patent to Ballance, claiming at the time the whole section, did
not raise an adverse possession within the act. But the court of
the State of Illinois, in the two cases above referred to, adopted
the broader construction, and this Court agreed with them in the
two cases already referred to.
As we understand the cases both in this and in the state court
of Illinois, they hold that the actual residence of Ballance, by
himself or by his tenants under him, upon the fractional quarter
section, cultivating and improving the same, and claiming title to
the whole under his patent, for the period of seven years since the
survey and designation of the French lots in 1840, operate as a bar
to the right of entry within the true meaning of the seven years'
statute of limitations. These cases have been so often before the
Court and so fully considered heretofore that we shall do no more
than state the principles decided in them.
The suit in this case was commenced in 1854, and the actual
residence of Ballance, by himself and tenants, began in 1834 and
continued down to the commencement of the suit.
Page 66 U. S. 154
A point has been made on the part of the plaintiff that the
statute cannot run against him, on the ground that at the time of
the commencement of the adverse possession, Mrs. Gendron, the
daughter and heir of Antoine, and through whom the plaintiff
derives title, was a
feme covert and within the saving
clause of the statute of limitations, and that the seven years has
not elapsed since she parted with her title. But the answer to this
is that her husband, who joined her in the deed, is still alive,
and as he had a life estate in the lot and was competent to sue for
the recovery of it, the statute ran against him, and the purchaser
from or through him took the estate subject to the operation of
this limitation. Mrs. Gendron and husband conveyed in 1849, while
the statute was running against the husband. The grantee or those
coming in under him should have brought the suit for the husband's
interest within the seven years. After the termination of the life
estate, the person holding the interest in remainder may then bring
a suit to recover the estate of the wife.
The defense in this case was placed also upon another ground
which it may be proper to notice. Mrs. Gendron, through whom and
her husband the plaintiff derives title, was the daughter of
Antoine, the French claimant, and was born, as alleged, some three
months before the marriage of Antoine to the mother, was therefore
illegitimate and incapable of inheriting the lot from her father,
who, it is supposed, died about 1820. The birth and subsequent
marriage, however, took place in the Territory of Missouri in 1814,
when the civil law prevailed in that territory, which legitimates
the child by a subsequent marriage. But as the lands in question
are situate within the State of Illinois, in which state and in the
territory preceding it, the common law, as alleged, prevailed at
the time of the death of Antoine, and the descent cast, it is
claimed, within the case of
Birth Whistle v. Vardell, 5
Bar. & Cross 430, and 7 Clark & Finnelly 895, which held
that a child born in Scotland, where the civil law prevails, and
which was legitimated by the subsequent marriage of the parents,
could not inherit lands in England, as, in case of an inheritance
at common law, the child must be born within lawful
Page 66 U. S. 155
wedlock. Mrs. Gendron did not inherit the lot in question, and
hence the deed from her and husband conveyed no title to the
plaintiff.
How the law may be on this subject in the State of Illinois we
do not deem it material to inquire, as the evidence in the case is
not sufficiently full nor exact to raise the question. The
Territory of Illinois was admitted as a state into the Union in
1818. The time of the death of Antoine is not proved; whether
during the territorial government or the state is uncertain. Until
that fact is established, it would be difficult, if not impossible,
to determine the state of the law at the time of the descent cast,
on the subject.
This question has been one of great difficulty in England, but
was ultimately decided against the Scotch heir, with the
concurrence of all the judges. The difficulties attending the
question in this country, when it arises, will not be diminished,
unless settled by the express law of the state within which the
lands may be situate.
As it will be seen, on reference to the instruction given to the
jury, that they are in conflict with the views expressed of the law
on the question of adverse possession, the judgment must be
reversed, and the case remitted for a
venire de novo.
Judgment reversed and venire facias de novo.
