1. An exception taken to the ruling of a court before the
retirement of the jury from the bar may be drawn out in form and
sealed by the Judge afterwards.
2. The time within which it may be so drawn out and presented to
the court must depend upon the rules and practice of the court, and
the judicial discretion of the presiding justice.
3. A patent for land adjoining Peoria, subject to the rights of
all persons (French Villagers) claiming under the Act of 1423,
confers, notwithstanding that reservation, a title in fee simple
upon the patentee.
4. The title under such patent may be superseded and annulled by
a survey under the Act of 1823, but it is in the meantime good on
its face, and will afford protection to the patentee in possession
under it.
5. The clause making the patent subject to claims under the
act
Page 67 U. S. 564
of 1823, was intended to exonerate the United States from
liability in case a better title should be proved, and does not
create a trust in the patentee for the use of any villager who may
afterwards get it surveyed to himself.
6. If the patentee takes possession of the land and holds it
under the patent, his possession is adverse, and not subservient to
a claimant under the act of 1823.
7. Although a confirmed claim under the act of 1823 is on its
face a better title than that acquired under a patent issued before
the confirmation of, but subject to that claim, yet if the patentee
has been in possession seven years before suit brought, the
Illinois statute of limitation will protect him.
8. A patentee of a quarter section is secure in his title to the
whole of it if he has been in possession of a part, claiming the
whole for seven years, though it has been subdivided into lots upon
some of which he had no actual residence or occupancy.
MR. JUSTICE CLIFFORD.
This was an action of ejectment, and the case comes before the
Court upon a writ of error to the Circuit Court of the United
States for the Northern District of Illinois. Suit was brought in
the court below by the present defendant against John Dredge, John
A. Keys and Jesse Hester, to recover possession of a certain parcel
of land described in the declaration as part of claims forty-five
and sixty-nine, and part of claims sixty-two and sixty three, in
the Village of Peoria, in the State of Illinois, and also by metes
and bounds. Plaintiff alleged that on the first day of July, 1855,
he was possessed of the described tract, and that the defendants on
the following day entered into the premises, and have ever since
that time unlawfully withheld the same. Defendants appeared and
pleaded the general issue, any by consent of parties their
landlord, Charles
Page 67 U. S. 565
Ballance, was, on the twenty-third day of July, 1856, made a
co-defendant in the suit. Issue being joined, the parties went to
trial, and the jury returned their verdict in favor of the
plaintiff, and judgment was subsequently entered on the verdict;
but upon motion of the defendants and satisfactory proof exhibited
by them that they had paid all the taxable costs, the judgment was
vacated and set aside by the order of the court, and a new trial
was granted. No further proceedings were had in the cause until the
July Term, 1857, when the parties again went to trial upon the
general issue. Title was claimed by the plaintiff under a patent
from the United States to the legal representatives of one Antoine
Lapance, who was an inhabitant or settler within the purview of the
act of the third of March, 1823, entitled "An act to confirm
certain claims to lots in the Village of Peoria, in the State of
Illinois."
He accordingly introduced the patent, and deraigned his title
from the patentees therein described. Recurring to the patent, it
will be seen that it bears date the first day of February, 1847,
and was issued for a certain lot of land surveyed and designated,
as covered by claims sixty-two and sixty-three, in the southwest
fractional quarter of fractional section nine, in township eight
north, of range eight east, of the fourth principal meridian, in
the State of Illinois. Survey on which the patent is founded was
approved on the first day of September, 1840 and it is not
controverted that the ancestor of the patentees was one of the
inhabitants or settlers described in the act of Congress under
which the patent was granted. Two plats were also introduced by the
plaintiff, which were objected to by the defendants upon the ground
that they were certified by the Surveyor of Public Lands, and not
by the Secretary of the Treasury. One was a plat of the Village of
Peoria and the other was a plat of claim or lot sixty-three; but
the court overruled the objections of the defendants and the plats
were admitted in evidence. Certain portions of Edward Cole's
report, made to the Secretary of the Treasury on the tenth day of
November, 1820, were also offered by the plaintiff, to be read in
evidence, as appears in the third volume of American State Papers,
relative to the public lands. Objection
Page 67 U. S. 566
to the admissibility of the volume was duly made by the
defendants on the ground that it was not properly authenticated,
but the court overruled the objection, and so much of the report as
relates to the claim in controversy was read to the jury. Various
deeds also from the heirs of Antoine Lapance to the plaintiff, or
to those under whom he claims, were given in evidence by the
plaintiff, and he also introduced a duly certified copy of a
certain chancery proceeding for partition, which resulted in a
decree of sale of the interests of several of the parties under
whom the plaintiff derived his title as a purchaser. Those
proceedings were introduced to show that the interests of parties
owning one-third of the premises in common with the plaintiff were
duly sold by a commissioner of the court in which the proceedings
took place, and that the same became vested in the plaintiff, as a
purchaser at a legal sale. Such was the substance of the evidence
offered by the plaintiff, as more fully set forth in the
transcript. On the other hand, the defendants claimed title under a
patent dated the twenty-fourth day of January, 1838, as issued to
Charles Ballance, granting to him the southwest fractional quarter
of section nine, in township eight north, of range eight east, in
the district of lands subject to sale at Quincy, Illinois,
"subject, however, to the rights of any and all persons claiming
under the Act of Congress of the third of March, 1823," to which
reference has already been made. They accordingly gave the patent
in evidence, together with a duplicate of the receipt given by the
receiver of the Land Office, and the certificate of the register,
on which the patent is founded. Relying on these evidences of
title, the defendants also offered evidence tending to show that
Charles Ballance, or those claiming under him, had been in
possession of the premises, claiming title to the same, from 1842
to the commencement of this suit. Much testimony was taken as to
the possession of the premises, but inasmuch as the plaintiff now
concedes that the defendants occupied the same from 1842 to the
commencement of the suit, the testimony will not be very fully
reproduced.
On this state of the case, the defendants requested the court to
instruct the jury: 1. that the title exhibited by them was
Page 67 U. S. 567
superior in point of law to that exhibited by the plaintiff; 2.
that the title of the defendants was a regular chain of title,
deducible of record from the United States, and if they believed
from the evidence that the defendants, and those under whom they
received the possession, had been in actual possession, by
residence, of the premises more than seven years immediately
preceding the commencement of the suit, and were still in
possession when the suit was brought, then the plaintiff was not
entitled to recover in this action. Other prayers for instruction
were also presented by the defendants, but in the view we have
taken of the case it will not be necessary to refer to any other at
the present time. Both of these requests were refused by the court,
and the jury, among other things, were told:
1. That the defendant, Ballance, acquired no absolute title to
the lot in question under his patent from the United States; but
that the other title, under the act of 1823, was the paramount
title.
2. That in order to be protected under the law of 1835, he or
those claiming under him must have had possession by actual
residence on the land in controversy for seven years next preceding
the commencement of this suit. Under these instructions and others
which need not be noticed, the jury found that the defendants were
guilty of unlawfully withholding from the possession of the
plaintiff so much of claim sixty-three as is covered by the
southwesterly half of lot numbered one in block forty-seven in
Ballance's addition to the Town of Peoria.
1. Verdict was rendered on the 3d day of August, 1857, but the
bill of exceptions was not filed in court until a subsequent day in
the same term, and it is contended by the plaintiff that the record
does not show that the exceptions were duly taken before the jury
retired from the bar of the court. But the objection is entirely
without merit so far as respects the prayers for instruction
presented by the defendants and the instructions given to the jury,
as will appear by an examination of the statement which immediately
precedes the bill of exceptions as well as by the closing paragraph
of the same. Just preceding the formal part of the bill of
exceptions is the statement in the record that "the following
exceptions were made by the defendants
Page 67 U. S. 568
upon the trial of this cause," and that the same "were allowed
by the court," and immediately following the instructions given to
the jury is the additional statement that the "defendants then and
there excepted" to the decisions and rulings of the court.
Undoubtedly the rule is that the record must show that the
exception relied on was taken and reserved by the party at the
trial; but it is a mistake to suppose that it has ever been held by
this Court that it must be drawn out and sealed by the judge before
the jury retire from the bar of the court. Great inconvenience
would result from such a requirement, and in point of fact there is
no such rule. On the contrary, it is always allowable, if the
exception be seasonably taken and reserved, that it may be drawn
out in form and sealed by the judge afterwards, and the time within
which it may be so drawn out and presented to the court must depend
on the rules and practice of the court and the judicial discretion
of the presiding justice. Such was the rule laid down by this Court
in
United States v.
Brietling, 20 How. 254, and we see no reason to
qualify it on the present occasion.
See
also Phelps v.
Mayer, 15 How. 160;
Turner
v. Yates, 16 How. 28.
2. Certain exceptions were also taken by the defendants to the
ruling of the court in admitting evidence offered by the plaintiff,
as before explained, but inasmuch as the objections are the same as
those which came before the Court in
Gregg v.
Forsyth, 24 How. 179, we do not think it necessary
to give them any further examination, and they are accordingly
overruled.
3. Repeated decisions of this Court also have settled the
question that the presiding justice was correct in refusing to
instruct the jury that the paper title of the defendant was
superior in point of law to that of the plaintiff. Although the
patent under which the defendants claim is the elder, yet as the
patentee took it subject to the confirmed title under which the
plaintiff claims, this Court has uniformly held, and now holds,
that the latter, independently of any question of adverse
possession, must prevail.
Bryan v.
Forsyth, 19 How. 334;
Mehan v.
Forsyth, 24 How. 175;
Gregg v.
Tesson, 1 Black 150.
Page 67 U. S. 569
4. Suit was commenced in this case on the 9th day of July, 1855,
and the evidence shows that Charles Ballance or those claiming
under him were in possession of the premises in controversy as
early as 1842, and were also in possession when the suit was
commenced. Ballance commenced building a dwelling house on a part
of the same quarter section in the year 1842, and in the early part
of 1844 moved into it with his family, and since that time has
continued to reside in that house. Some of the witnesses testify
that he claimed to be the owner of this fractional quarter as early
as 1832, and that he has cultivated part of it from that time to
the date of the writ, but it will be sufficient to state that the
evidence clearly shows that he has had his residence on the quarter
section since the year 1844, and that he or those claiming under
him have been in the possession of the lot in question in this case
throughout the entire period of his residence in his present
dwelling house. Assuming the fact to be so, then it is clear that
the presiding justice erred in refusing to given the second
instruction requested by the defendants, as well as in the
instruction given upon that subject. No person who has any right of
entry into any lands, tenements or hereditaments of which any
person may be possessed by actual residence thereon, having a
connected title in law or equity from the state or the United
States, can make any entry therein under the limitation law of that
state passed in 1835, except within seven years of the time of such
possession being taken. Sess.Laws 1835, 42.
When the patent under which the defendants claim was issued, no
survey of any lots granted to the inhabitants or settlers in the
Village of Peoria had been made. Those persons therefore held but
an inchoate right, which must first be surveyed and designated
before the right granted to them would supercede the title acquired
under the defendant's patent. They might never make any claim, and
in that event the other title would be valid. Consequently this
Court held in
Bryan v.
Forsyth, 19 How. 338, that, subject to that
contingency, the patentee under whom the defendants claim took a
title in fee till 1840, when the title to the village lots was by
the survey and
Page 67 U. S. 570
designation then made, ripened into a better title; but the
Court also held at the same time that the patentee was a fee simple
title on its face, and as such was sufficient to afford protection
to one claiming title under it if accompanied by proof of such
possession for seven years, as is required by the Illinois statute
of limitation.
5. Reference is made by the plaintiff to the reservation
contained in the patent and the argument is that the defendants
held possession of the land subject to the rights of the plaintiff,
and consequently that their possession was subservient and not
adverse to the plaintiff's title. But the proposition cannot be
sustained, as is obvious from the language of the patent. Fee
simple title is granted to the patentee and his heirs of the
described tract to have and to hold the same, together with all the
rights, privileges, immunities, and appurtenances, subject,
however, to the rights of any and all persons claiming under the
before-mentioned act of Congress. Looking at the language of the
patent, it is clear that the saving clause was designed merely to
exonerate the United States from any claim of the patentee or his
assigns in the event that any other person should prove a superior
title. Such was the view taken of that clause by this Court in
Mehan v.
Forsyth, 24 How. 178, and in several other cases
involving the same question, and we have no doubt that such is the
construction of the clause.
Gregg v.
Tesson, 1 Black 150. Applying these principles to
the present case, the conclusion necessarily follows that the
presiding justice erred both in refusing to instruct the jury as
requested and in the instruction given upon the subject.
Gregg v.
Forsyth, 24 How. 174.
6. Where a quarter section, as in this case, has been subdivided
by the occupant and claimant into lots, it is not necessary, under
the Illinois statute, in order to secure the benefit of the
limitation of seven years, that the claimant should have an actual
residence on each lot of the subdivision in the sense in which
those terms are ordinarily understood, but it is sufficient if he
shows an actual residence for the entire period on someone of the
lots claiming the whole under the same title, and
Page 67 U. S. 571
that the lot in controversy was and is in the possession of his
tenant under his title and pursuant to his claim.
Gregg v.
Tesson, 1 Black 150;
Lindor v. Kidder, 23
Ill. 51;
Williams v. Ballance, 23 Ill. 197;
Gregg v.
Forsyth, 24 How. 179. For these reasons
The judgment of the circuit court is reversed and the cause
remanded with instructions to issue a new venire.