A. having, prior to July, 1801, an inchoate title to lands in
the then French Territory of what is now Missouri, agreed in July
of that year to sell it, on certain conditions of improvement
required by the government, to B. On B.'s making the required
improvements, the land was to "belong to him in full
proprietorship," and A. bound himself, his heirs, and assigns,
"to solicit title from the government, and to make a regular
transfer to the said B. without any further cost on his part,
except the expenses of the necessary deed."
The said French territory, having
Page 86 U. S. 139
passed to the United States in 1803 and commissioners having
been appointed in 1805 by act of Congress "to ascertain and adjust
titles and claims" to lands within the newly acquired territory, B.
appeared before the board in April, 1811, with his conditional
transfer from A., and the board, as a record in their minute book
showed, "grant to A.
or his legal representatives" the
land thus claimed, and order the same to be surveyed "so as to
include
his improvements." In the June following, the
commissioners issued their
certificate, in which they say,
"We . . . have decided that the legal representatives of A.,
original claimant, are entitled to a patent," &c., for the
land, "and order the same to be surveyed so as to include his
improvements," &c. The land thus granted having been injured by
earthquakes, and Congress, in February, 1815, having authorized
persons whose land had been thus injured to make new locations of
the same quantity of land on any of the public lands then open for
sale in the same territory, it appeared by different records that
A., asserting that his land had been thus injured, claimed new
land, and also that A.
"or his legal representatives"
claimed it. A patent was finally issued reciting that in pursuance
of the Act of Congress of February, 1815, there had been located
for A.
"or his legal representatives" a tract described,
the
habendum of the patent being to the said A.
"or
his legal representatives and to his or their heirs and assigns
forever."
Held that the title enured to B. and his legal
representatives, and that no other representative of A., whether
hereditary or by contract, had any right, legal or equitable, to
the premises.
Carpenter brought ejectment against Rannels in one of the
circuit courts of Missouri to recover possession of two hundred
arpents or acres of land in the County of St. Louis, located under
a New Madrid certificate of relocation, No. 511, which was issued
under an Act of Congress of February 17, 1815, [
Footnote 1] and acts supplementary thereto, in
lieu of lands in New Madrid County which had been injured by
earthquakes and upon which certificate a patent issued, dated March
30, 1833, to "John Butler or his legal representatives."
The plaintiff claimed, under the confirmation and patent,
directly through the heirs of this John Butler.
The defendant claimed also through the confirmation and patent
to Butler, but asserted that the same had in law
Page 86 U. S. 140
passed the equitable title to one James Bankston, hereinafter
mentioned, and whom he asserted to be the "legal representative" of
the said Butler, and he gave evidence tending to show derivative
title under Bankston.
The cause was submitted to the court without the intervention of
a jury. The court found and gave judgment for the defendant, and
that judgment being affirmed in the supreme court of the state,
[
Footnote 2] the plaintiff
brought the case here for review.
MR. JUSTICE SWAYNE stated the case, and delivered the opinion of
the Court.
John Butler had an incloate title derived from the Spanish
government, acting through its authorized agents. Upon this subject
there is no controversy between the parties. It is the common
source of the derivative titles upon which they severally rely.
On the 23d of July, 1801, Butler entered into an agreement with
James Bankston to the following effect:
Butler leased the land to Bankston for three years from the date
of the contract. Bankston agreed,
"during the three years, to erect on said tract all the
improvements and establishments -- to break up the ground, and to
make the Royal road and other improvements required by law; to be
enabled at the and of three years from the petition for said land
to obtain the title of proprietorship from the government of the
province."
Butler acknowledged the payment of forty piasters by Bankston.
On condition that Bankston, at the end of the three years, should
have made the improvements stipulated for, the land was to "belong
to him in full proprietorship," and Butler bound himself, his heirs
and assigns,
"to solicit the title from the government, and to make a regular
transfer of said land to the said James
Page 86 U. S. 141
Bankston, without any further cost on his part, except the
expenses of the necessary deed,"
and
"Bankston . . . promised to fulfill and execute all the said
clauses and conditions, under penalty of the forfeiture of the
advantages which might result in his favor."
This instrument shows that so far as Butler was concerned the
entire consideration of the transaction had been paid. What
remained for Bankston to do was wholly for his own benefit, and not
for Butler's. If he fulfilled, a perfect title was to be acquired
from the government; not for Butler, but for himself. It was
implied that the title was to emanate in Butler's name. He
stipulated to apply for it and to convey it to Bankston without
expense to the latter except for the necessary conveyances.
The state of Missouri is a part of a larger territory which
belonged to France, then to Spain, and again to France. France
ceded it to the United States in 1803. The United States stipulated
that the inhabitants of the ceded territory should be protected in
the free enjoyment of their property. The law of nations would have
given this guaranty if the treaty had been silent upon the subject,
and the result would have been the same if the territory had been
acquired by conquest and not by cession. The new government took
the place of that which passed away, and was clothed with the same
duties and obligations as to all rights of property subsisting when
the dominion of the latter was withdrawn. [
Footnote 3]
Congress, by the Act of March 2, 1805, [
Footnote 4] provided for the examination and adjustment
of claims of title like the one here in question, and created a
board of commissioners for that purpose. Other acts were passed
relating to the subject, but it is not necessary particularly to
advert to them. This title came before the commissioners in the
year 1811, and the result of their action is the hinge of the
controversy between these parties. The question to be determined
is
Page 86 U. S. 142
whether it was confirmed to Butler or to Bankston. This renders
it necessary to examine that part of the record which relates to
the subject. It consists of a transcript of the proceedings of the
commissioners and of the evidence before them. We shall itemize as
we proceed.
(1) "John Butler claims two hundred arpents of land in the
District of New Madrid, under the second section of the Act of
Congress made and provided."
(2) An order, dated April 16, 1801, from Peyroux to Story to
survey two hundred arpents of land for Butler. This was before the
date of the contract between Butler and Bankston.
(3) A plat of the survey made by Story and a certificate by him
that he made it at the request of Butler, who claimed the land by
virtue of a grant from Peyroux while commandant of the District of
New Madrid, and in virtue of the second section of the Act of March
2, 1805. This certificate is dated February 2d, 1806.
(4) The contract between Butler and Bankston already adverted
to.
(5)
"
Friday, April 12, 1811. -- Board met: Present, John B.
C. Lucas, Clement B. Penrose, and Frederick Bates,
commissioners."
"James Bankston, assignee of John Butler, claiming two hundred
arpents of land, situate in Cypress Swamp, District of New Madrid,
produced to the board an order of survey dated 16 April, 1801, a
certified copy of a conditional transfer from Butler to claimant,
dated 23 July, 1801, and a plat of survey dated 2 February,
1806."
"The board grant to John Butler,
or his legal
representatives, two hundred arpents of land, and order that
the same be surveyed as nearly in a square as may be, and so as to
include his improvements."
"Board adjourned till Monday next, nine o'clock A.M."
Signed by the commissioners. "
See Board Minute-Book,
No. 5, pages 145, 148, and 149."
(6)
"
Thursday, June 20, 1811. -- Board met: Present,
Clement B. Penrose, Frederick Bates, commissioners. John
Page 86 U. S. 143
B. C. Lucas, commissioner, appeared at the board and took his
seat."
"Cert. No. 1103,
John Butler's legal representatives,
Book 5, page 148."
"Survey at expense of the United States. Board adjourned till
tomorrow, eight o'clock A.M."
Signed by the commissioners. "See Board Minute-Book, No. 5, page
187, 188, and 193."
(7)
"Louisiana Commissioners' Certificate No. 1103, June 20th,
1811."
"We, the undersigned, commissioners for ascertaining and
adjusting the titles and claims to lands in the Territory of
Louisiana, have decided
that the legal representatives of John
Butler, original claimant, are entitled to a patent under the
provisions of the second section of an act of Congress of the
United States, entitled 'An act for ascertaining and adjusting the
titles and claims to land within the Territory of Orleans, and the
District of Louisiana, passed the 2d day of March, one thousand
eight hundred and five,' for two hundred arpents of land, situate
in the District of New Madrid, Cypress Swamp, and order that the
same be surveyed as nearly in a square as may be, and so as to
include his improvements, by virtue of a permission from the proper
Spanish officer, and also of actual inhabitation and cultivation
prior to, and on, the 20th day of December, one thousand eight
hundred and three."
Signed by the commissioners. "See certificate on file."
So far as the name of Butler appears in these documents, as the
claimant, it is to be borne in mind that he was bound by his
contract with Bankston to procure the emanation of the final title
for the benefit of the latter. It is shown that Bankston produced
to the commissioners a copy of his contract with Butler; that the
board granted to Butler,
or his legal representatives, the
land claimed; that it was ordered to be surveyed in the name of
"John Butler's legal representatives;" that there were improvements
made by permission of the proper Spanish officer, and "actual
inhabitation and
Page 86 U. S. 144
cultivation on and prior to the 20th of December, 1803;" and
finally, that the board "decided that the
legal
representatives of John Butler, original claimant, are
entitled to a patent under the second section of the Act of March
2, 1805." There is no evidence that Butler or anyone else
questioned the claim of Bankston before the commissioners.
The Act of Congress of February 17, 1815, [
Footnote 5] declared that any person owning lands
in the county of New Madrid, in Missouri Territory, which land had
been injured by earthquakes, might "locate the like quantity of
land on any of the public lands of said territory the sale of which
is authorized by law." In the event of such location's being made,
the title of the owner to the lands injured was to revert to the
United States. In the proceedings under this act the following
testimony is found in the record:
(1) A, a line in a tabulated statement, showing that Butler
claimed that the land in question was injured, and had relinquished
the title to the United States.
(2) A, in line in a like statement that Butler was the claimant,
and that a certificate of injury had been delivered to James
Evans.
(3) A, a line in a like statement that Butler, or his legal
representatives, claimed, and that a patent certificate was
prepared accordingly by the recorder of land titles under the Act
of 1815 and the supplementary acts, and that it was delivered to
William Smith, of St. Louis.
The only other testimony in the record necessary to be adverted
to is:
(1) A power of attorney from Butler to James Evans, dated
February 9, 1819, authorizing him, as the attorney of Butler, to
sell
"a certificate of location for two hundred arpents obtained from
the recorder of land titles for the Territory of Missouri, or to
locate the same as he should think proper."
(2) A deed from Evans, as such attorney, dated January 1, 1819,
whereby he assigned the certificate to Henry
Page 86 U. S. 145
Waddle. It is described as
"a New Madrid certificate, issued by Frederick Bates, recorder
of land titles for the Territory of Missouri, No. 511, dated
December 31, 1818, whereby it is certified, among other things,
that John Butler, or his legal representatives, is entitled to
locate two hundred arpents of land."
(3) A patent from the United States to John Butler, or his legal
representatives, dated March 30, 1863. It recites that, in
pursuance of the Act of February 17, 1815, there had been located
"for John Butler, or his legal representatives, a certain tract of
land, described," &c. A full description is then given. The
habendum is, "to the said John Butler, or his legal
representatives, and to his or their heirs and assigns
forever."
This is the land in controversy in this case.
In the opinion of the court in
Hogan v. Page, [
Footnote 6] it is said that at an early
period there was difficulty as to the form of patent certificates
and of patents, arising out of applications to have them issued in
the name of the assignee or present claimant, thus imposing upon
the office the burden of deciding as to the validity of the
derivative title. The same difficulty, it is said, existed in
respect to the boards of commissioners appointed to adjust French
and Spanish claims. The result, after consulting the Attorney
General, was that the Commissioner of the Land Office recommended
that in such cases the patent certificate or the patent should be
issued to the original
grantee, or his legal
representatives, and that this suggestion was adopted by the
several boards of commissioners. It is added:
"This formula,
'or his legal representatives,' embraces
the representatives of the original grantee of the land by
contract, such as assignees or grantees, as well as by operation of
law, and leaves the question open to inquiry in a court of justice
as to whom the certificate, patent, or confirmation should
enure."
This is decisive of the case before us. There it was argued
Page 86 U. S. 146
that "the confirmation to the representatives of Auguste Conde"
enured to his heirs. In the case before us, Butler was living at
the time of the confirmation. He and Bankston were before the
commissioners. Bankston produced his contract. It does not appear
that Butler made any objection to his claim, and the commissioners
adjudged in his favor. The omission of Butler's name in the patent
certificate, under the circumstances, closed the door finally
against any claim thereafter on his part touching the property by
virtue of his original title. The commissioners must have found
that Bankston had done all that he was bound to do by his contract.
An act done by a public offcer which presupposes another act is
presumptive proof of the latter. [
Footnote 7]
The certificate issued by the recorder of land titles under the
Act of 1815, the location of that certificate and the patent,
enured to Bankston and his legal representatives. [
Footnote 8] No other representative of
Butler, whether hereditary or by contract, has any right, legal or
equitable, to the premises. The testimony in the record is
conclusive upon the subject.
Judgment affirmed.
[
Footnote 1]
3 Stat. at Large 211.
[
Footnote 2]
45 Mo. 584.
[
Footnote 3]
Soulard v. United
States, 4 Pet. 512;
Strother v.
Lucas, 12 Pet. 436.
[
Footnote 4]
2 Stat. at Large 324.
[
Footnote 5]
3 Stat. at Large 211.
[
Footnote 6]
69 U. S. 2
Wall. 607.
[
Footnote 7]
Bank of the United States v.
Dandridge, 12 Wheat. 70;
Lessee of Ward v.
Barrows, 2 Ohio St. 242.
[
Footnote 8]
Bissell v.
Penrose, 8 How. 338;
Hogan v.
Page, 2 Wall. 605;
Papin v. Massey, 27 Mo,
445;
Boone v. Moore, 14
id. 420;
Carpenter v.
Rannells, 45
id. 591;
Page v. Hill, 11
id. 149.