source: Caselaw Access Project

author: Mr. Justice CATRON Mr. Justice McKINLEY.

license: Public Domain

text:
    James Barry, Plaintiff in error, v. Hamilton R. Gamble.
    Under the act of 1815, a New Madrid certificate-could be located upon lands before .they were offered', at public sale under a proclamation of the President, or even surveyed'by the public surveyor.
    The act of 1822 recognised locations of this hind, although they disregarded the sectional lines by which thé surveys were afterwards made. •
    Under the acts of 1805, 1806, and 1807; it was necessary to file the evidences ■ of an incomplete claim under French or Spanish authority, which bore date '•' anterior to the ist of October, 1800, as well as those which were dated subsequent to that day; and in case-of neglect,-the bar provided in the acts applied to both classes.
    A title resting on a permit to settle and warrant of survey, dated before the 1st of October, 1800, without any settlement or survey having been .made, was an incomplete title apd within these acts.
    And although the acts of 1824 and 1828 removed the bar as it respected the United States, yet, having excepted..such lands as had been-sold or otherwise disposed of by the United States, and saved the rights or title, of adverse claimants; these acts protected a New Madrid claim which had been located whilst the bar continued.
    This case .was. .brougbt-up from the. Supreme--Ctrart of Missouri, • by a writ of error issued under the.25th section of the Judiciary áct of 1789.
    ' It was an ejectment brought by- Gamble, the defendant-in error,, against Barry, to recover possession .of a tract of land in St. Louis county, Missouri.

      . The question was one of title. Gamble, the plaintiff below, ¡claimed under a grant issued to Baptiste Lafleur in conformity with the New Madrid act passed in 1815, and Barry, under the titieof Mackay, which was before the Supreme Court of the United States in 1836, and is reported in 10 Peters, 340. In the court below the parties entered an agreement upon record,’ in the following" words: —“It is agreed that'the ..title of theplaintiff (Gamble) to the land in the declaration mentioned, is the title under the patent issued to Baptiste Lafleur, or his legal representatives, and that the title of the defendant (Barry) is .the. tide under'the confirmation to the legal representatives of James Mackay; find if it shall be adjudged that the patent is a better title than the confirmation, then the plaintiff, shall recover the lan^l in the declaration mentioned; and if the confirmation shall be adjudged ..the better tide, then the defendant shall have judgment.”
    On the 13th of September, 1799-, Mackay presented.the following petition:
    “ To Ojiarles Dehault Delassus, lieutenant-colonel attached to the first regiment of Louisiana, and commander-in-chief of Upper " Louisiana.
    “ James Mackay, commandant of St. Andre, of Missouri, being established at the. said village of St: Andre, on the bank of the Missouri, but having the intention of establishing a habitation in the neighbourhood’ of Mr. Papin, between Sf. Louis and the river Des Peres, he prays you to grant him, in entire property, 800 arpents of land, in superfices, bounded on die south by land of Mr. .Papin and Madame (widow,) Ghduteau; on the east by the lands of. the common field of Kietcereau, l’Anglois Taillon, and others, at the Great Marais; on the west by James McDaniel; and on the north and northeast by the land of Mr. Chouteau and the domain of the king. Knowing the zeal and fidelity of the suppliant in the service, he hopes this grace of your justice. James Mackay.

      “St. Louis, 13thSeptember, 1799:”
    On the next day, the following order was issued.

      “ St. Louis, of Illinois, 14th Sept. 1799.
    “ The surveyor, D.on Antonio Soulard, will piit the interested party in possession; of the tract of land which he solicits by His memorial; which having done, he shall form a plat, delivering, it to this party," and a certificate, in order that it. may serve to obtain the concession and tide in form from the senior intendant-general of these provinces, to whom, by order o'f- his majesty, belongs particularly the distributing and granting of every class of vacant lands.
    .“Charles Dehault Delassus.”
    In January, 1800, a grant was made to .Chouteau for the land referred to in 1he preceding papers. This circumstance is commented upon by the Supreme Court of the United States in the decision upon Mackay’s case, 10 Peters, 341. J
    On the 2d'of March, 1805, Congress passed an act “for ascertaining and adjusting the titles and claims to land within the territory of Orleans and the district of Louisiana,” the general purport of which was to recognise all existing complete grants. It provided for the appointment of three persons who should examine, and decide on, all claims submitted to them and report the result to thfe secretary of thé Treasury, who was directed to communicate it to Congress. It further provided that all . papers relating to claims should' be delivered ’to the register or- recorder, on or before the 1st of March, I806, for the purpose of being recorded, and-declared that, with: regard to incomplete-titles, any person who. should neglect to deliver notice of his claim, or to cause the written evidence of it to be recorded, should lose his right, and his claim should for ever thereafter be barred.
    . On the 21st of April, 1806, Congress passed an act supplementary to the above, the 3d section of which extended the time for filing written evidences of'claims to the 1st of January , 1807. It further enacted that “the rights of such persons as should neglect so doing, within the time then limited', should be barred, and the evidences of their claims never after admitted as evidence.”
    Neither the concession or claim of Mackay was presented to, or filed with the recorder or board of commissioners, under father of these acts.
    On the 17th' of February, 1815, Congress passed an act declaring that any .person or persons owning lands in the county of New Madrid, in the Missouri territory, with the extent the said county had on the' 10th day of November, 1812, and whose lands had been materially injured by earthquakes, should be and they were thereby authorized to locate the like quantity of land on any of the public lands of said territoiy, the sale of which was authorized by law.
    On the 30th of Novfember, 1815, a certificate was issued to La-fleurj by the United States recorder, Frederick Bates, authorizing him to locate 640 acres on any of the public land of the territoiy of-Missouri, the sale of which was authorize^ by law.
    On the. 7th of July, 1817, Theodore Hunt filed a notice of loca- ■ tion under said certificate, with the surveyor-general..
    In the fall of 1817, (as it' appeared upon the trial from the deposition of Joseph'C. Brown, deputy surveyor of the United States,) the .district embracing the land in question was surveyed under the authority of the United States, but the survey was not dosed until the spring of 1818..' The impression of the witness was, that the return of the surveyor was made to the general land-office in 1820.
    In April, 1818, the survey of Hunt’s location was made by the said Brown, who.placed it in township No. 45 north, range No. 6 and 7 east. It called to begin at the. north-east comer of Papin’s survey, and ran round several courses and distances, disregarding the cardinal points, in a square form, and calling for the lines of -other tracts as boundaries.
    On the 26th of April, 1822, Congress passed an act, directing “that the locations heretofore made of warrants issued under the act-of the 15th of February, 1815, (the New Madrid law,) if made in-pursuance of the provisions of that act in other respects, shall be' perfected into grants, in like manner as if they had conformed to the sectional or quarter- sectional lines of the public surveys.” ' The sé- • cond section directed that those, who located such warrants thereafter • should conform to the sectional and quarter sectional lines of the, public surveys, as nearly as the quantities would admit.
    On the 13th of June, 1823, the President o’f the United States issued a proclamation, directing the public lands in.township No. 45 north, range No..6 and 7 east, (amongst other lands,) 'to be sold on the third Monday of the ensuing Noyember. These ranges included ■ the land'in controversy.
    On'the'20th of May, .1824, Congress passed an act “.enabling thé claimants to lands within the limits of the state of Missouri and • territory of Arkansas to institute proceedings to try the validity of their claims.” It allowed any persons claiming lands under old concessions or surveys, under certain circumstances; to present a petition to the District Court of. the state of Missouri, which court was authorized to give a decree in the matter, reviewable, if need be, by -the Supreme Court of the United States. The 5th section provided that a claim not brought before the District Court in two years, Or not prosecuted to final judgment in three years, should be for ever barred both at law and in equity.. The eleventh section enacted, “that if in any case it should so happen that the lands, tenements,' or hereditaments, decreed, to any claimant under the-provisions óf this act, shall have been sold by the United States, or otherwise disposed of, or if the same shall not-have been heretofore located, in each- and every such case it shall and may be lawful for the party interested to enter, after the same shall have been offered at public sale, the like quantity óf lands, in parcels conformable to sectional divisions and subdivisions, in any land-office in the state of Missouri,” &c. &c.
    On the 26th of May, 1826, an act was passed, continuing the above act in force for two years.
    _ On the 13th of June, 1827,. a patent was issued to Lafleur, and his legal representatives, for the land included in the New Madrid certificate, location, and survey.
    On the 24th of May, 1828, another- act of Congress was passed, by which the act of 1824 was continued in force, for the purpose of filing petitions, until the 26th day of May, 1829, and for the purpose" óf adjudicating upon .the claims until the 26th. day of May, 1830. ■
    Oh thé 25th of May, 1829, Isabella Mackay, widow, and the children and heirs of James Mackay, deceased, filed their petition in the District Court of Missouri, praying for the confirmation of eight hundred arpents of land, referring to the petition of Mackay, the concession and order, above set forth, as the foundation of the claim.
    In February, 183(), the District Court decided against the claim.
    In January, 1831, the heirs of Mackay filed a petition in the Supreme Court of the United States, stating that, by the act of 1824, they were allowed a-year from'the rendition of the decree to'appeal from it, that the District Court of Missouri was closed on the 26th of May,' 1830, and praying to be allowed the benefit of an appeal. The. prayer was granted, and the cause came on for hearing-in 1836. The decision is reported, as before stated, in 10 Peters, 240, by which the decree of the District Court was reversed.
    In 1837, Gamble, claiming title under Láñeur, brought an eject-paent in' the Circuit Court of the state of Missouri, for the county of St. Louis, against Barry. The venue was changed to the county of St. Charles, and afterwards to the county of Lincoln, where it was tried, and on the 2d of September,' 1840, the jury found a verdict for the plaintiff.
    In thé mean time, to wit, on the 31st of March,, 1840, Mackay’s representatives- had obtained a patent from the United Stated for the land in controversy.
    During the trial of the cause, the plaintiff asked the court to give to the jury the following instructions;
    . “-That the title to the premises, in the declaration mentioned, under the patent to1 Baptiste Lafleur, or his legal representatives, is a better title in law than the title under the. confirmation to the legal representatives of James Mackay, deceased;' and, therefore, the plaintiff in this case is entitled, under the agreement of the parties, to recover the possession of the land in the declaration mentioned;” which instruction was given by the court, and excepted to-by the counsel'of the defendant.
    The defendant, by his counsel, then asked the court to .give the following instructions:
    “ That, inasmuch as the confirmation and patent given in evidence by the defendant show the legal estate in the premises to be vested in the widow and heirs of Mackay; and, inasmuch as the plaintiff has not shown any title under said Mackay, or his representatives, the defendant is entitled to a verdict;” which instructions the court refused to give, and the defendant excepted to such refusal.
    The case was carried to the Supreme Court of. the state of Missouri, which,'in September,' 1842, affirmed the judgment of the court helow; and, to review that opinion, a writ of error brought the case before the Supreme Court of the United States.
    The cause was submitted upon printed arguments, by Laioless for the plaintiff in error, and Spaulding for the defendant in error.

      These arguments occupy nearly fifty pages in print, and the Reporter, regrets that his limits will not permit their insertion, in extenso.

      Lawless argued that the power of the government of the United States, after the cession of Louisiana, was not as great over incomplete titles to land as that of the King of Spain; and although it might be true that the latter possessed the power of recalling the title and granting the land to another person, yet the government of the United States was controlled by the treaty of cession, by the law of nations, and by the Constitution and laws of the JJnited States. The question presented to the officers of the United States was not whether the Eng of Spain could have arbitrarily annulled the grant to Mackay, but whether, at the date of the treaty, it was not entitled', under the laws and usages of the Spanish government,.to be consummated and clothed with the forms of a complete title. He then proceeded thus:
    “But it was not merely complete titles that constituted property, and proof of property, in land, under the French and Spanish fovernment in Louisiana; -Those grants and orders of survey, made j the-lieutenant-governor of Upper Louisiana, of which the Supreme Court of Missouri speaks with such contempt, constituted property, and imparted a right of property,.just as much, as a complete title could do. This has-been specifically laid down as law by the Supreme Court of the United States. In every case, on appeal from the United States District Court of Missouri, under the act of 1824, in which the decree of that court was reversed, and the claim confirmed, the Supreme Court of the United States based their confirmation on the ground that such a title created property, and, as such; was protected by the treaty. In. the case of Delassus v. The United-States, and in this very case of MackayVWidow and Heirs v. The United States, Chief Justice Marshall, who delivered the opinion of the court, on this head is unambiguous and-peremptory. ‘In De-lassus’ case,’ says the chief justice, ‘.the language of the treaty excludes every idea of interfering with property — of transferring lands which had been severed from the royal domain.’ In Mackay’s case, the chief justice reiterates this doctrine; indeed, not only the reasoned opinion of the Supreme . Court of the United States in this case, as reported in 9 Peters, treats the grant to Mackay as having constituted property/ and a title to the land described in it at the date of the treaiy, but the formal decree of the court, as. the same is set out'on the present "transcript, exhibits this ground of confirmation.. The court, on turning to this decree, as spread on the transcript, will find these words: ‘It is further ordered, adjudged, and decreed, that the title of the petitioners to” the land described in this petition to the District Court is valid by the laws and treaty aforesaid, and the same is hereby confirmed as therein described, and that the Surveyor of the'public lands in Missouri be, and is hereby* directed- to survey the quantity of land claimed in the place described in the petition and grant, or concession.’
    “It is manifest, from the'terjns of this formal decree,' that the Supreme Court of the United States took a very different, view of the original title of Mackay from that which the Supreme Court of Missouri has presented, Ityis difficult to conceive how tiié Supreme Court of Missouri, with those opinions and the decree in favour- of Mackay before them, could have attributed to the grant to Mackáy such an unsubstantial and shadowy character, as not only to be liable.to be annulled by the order of an absolute king, but by the arbitrary fiat of an intendant-general at New Orleans; and it is still more difficult to conceive how, with the' treaty before them, and the • decree ■ of the Supremq Court based upon that .treaty, they could have come to the conclusion that Mackay had no property in the land described in his petition and concession at the date of the treaty.
    “ It is submitted, therefore, that the- Supreme Court of Missouri, when they treat the grant to Mackay, and his. title under it to the land which it describes, as a something which .Congress might, or might not, as it best pleased them, ani ul or acknowledge, do' notx sufficiently respect the decisions oí' this high court, or do not under-" ■ stand them.
    £rWe have already observed, that whatever might have been the power of the Spanish king over the grant to Mackay, previous to its •being perfected into a complete title at New Orleans, the treaty of cession, and transfer of the province of Louisiana, for ever protected the grantee from its arbitrary exercise, and that no power was imparted to Congress, other than that of confirming the grant if the treaty protected it, and which power has had its final action.
    “But we must deny, with all due respect to the Supreme Court of Missouri, that, previous to the treaty of, cession, the grant to Mackay, and his right and title to the land described in that grant, were so entirely at the mercy of the government, be that government Spanish or French, as the opinion of the Supreme Court would intimate.
    “ The established fact, that Mackay’s grant created a right of property, repels such a doctrine. It is true, that the Bang of Spain was, in a political sense, and as contradistinguished from constitutional sovereigns, an absolute monarch; but it is no less true, that in Spain and her colonies the rights of property were religiously respected and protected. The £ Recopilación,’- the ‘ siete' partidas’ under Spain; the custom- of Paris, under the kings of France, were as protective of private rights, as English or American law could-be, and perhaps more so. When it is considered, that grants and orders of survey in Upper Louisiana were disposed of and adjudicated upon as property ; when the records .of that province abundantly prove, that property of this description was sold and transferred inter vivo-s, and descended, and- became distributable af> intestato, and was the subject-matter of last wills and testaments, it would seem to be a necessary consequence, that such property was protected by law., and that the title to it was not at the mercy either of the King of Spain or the First Consul of France, and still léss of the intendant-general at New Orleans. - -
    “In every case (and few.can be cited) in which land, previously granted by the authorities of Louisiana, has been conceded to a third person, it will be found, either that the first grant was forfeited by the non-performance of.-a condition, or that the land included in it was formally re-united to the royal domain. It will be seen, by reference to all the concessions and grants, even those which have been consummated by the signature of the governor-general previous to 1798, or that of the intendant-general and assessor subsequent to that year, that, so cautious was the government and careful, in their protection of private vested rights, there was uniformly a proviso or saving clause in éach grant, declaring that it should‘prejudice nobody.”

      Lawless then argued, that Congress had-never intended to annul the grant to Mackay; that the 4th section of the act of 1805, and 5th section of the act of Í807, did not include it, because they referred to, and operated upon, only such grants or. incomplete tides as bore -date -subsequent to the 1st of October, 1800, whereas the grant to Mackay was in September, 1799. And admitting, for the sake of argument, that it was affected by those acts, yet the forfeiture was waived by the United States, and his claim placed on a perfect level with every other by the acts of 1824, 1826, and 1828.'
    With regard to the opposing titles, under the New Madrid location, Mr; Lawless contended, that it was void, because laid upon land which was not “public land,” because it belonged to Mackay; or, if it was. public land, it was not land “ the' sale of which had been,authorized by law,” .and referred to the. opinions of Mr. Wirt and Mr. Butler in the “ Opinions of the Attomeys-General of the United States,” edited by Gilpin, pp. 263, 273, 1199; and then-proceeded thus—
    JWe have endeavoured to demonstrate, that the very first element,' the'subject-matter itself, of Lafleur’s location was wanting; that the land covered by his location was not public land, and never has been since the date of the grant of it to James Mackay, in 1799.
    As. to the second requisite, .that the location should be made on land, the sale of which was authorized -by law, the question presents itself, by what law ? The only law that regulated, at that time, the sale of public land, was the act .of February 15th, 1811,(2 Story’s Laws, p. 1178.)
    By the 10jh section of that act, the President of the United States is authorized to’direct suchbf the public lands, as shall have been surveyed to be'offered for sale, with the exception,
    • 1. Of section No. 16 in each township;
    2. Of,a tract reserved for the support of a seminary of learning;

      3; Of all salt springs, lead mines, and lands contiguous thereto ;■
    4. Of all tracts of land, the claim to which has been filed in_due tíme, and according to law presented, to the recorder, for the purpose of being investigated by the commissioners appointed for ascertaining the right of persons claiming lands in the territory of Louisiana : (by the act of Congress, June 4th, T812,' styled, under the new organization, the Territory of Missouri.)
    It must be conceded, that, under-this lOth.section of the act of 1811, the President had no authority to direct that any land should be offered for sale, until after the survey thereof.
    The. object of this inhibition was, manifestly, that the system of surveys should be fully established, and the sales and entries in the land-offices should conform to the sectional divisions and subdivisions.
    It is no less manifest, that another object in thus restricting the power of the President was, to ascertain the precise location of the salt springs and lead .mines in the territory' of Missouri, and the quantity of land contiguous thereto, and which, for the working of those mines, ought to be reserved frond public sale.
    It is .equally clear, that a respect for vested rights, and for .the . treaty 4f cession, dictated the reservation of lands included in claim§ filed, under the requirements of the acts of Congress, in the office of the United Státes recorder.
    .Now, it really seems difficult to comprehend on what principié a New Madrid locator could treat • as land authorized to be sold, and as public land, that very land which the President of the Unite'd States was forbidden so to treat.
    The - counsel for the plaintiff in error respectfully contends,, (with all deference to the Supreme. Court of Missouri,) that the exceptions and reservations, and conditions as to surveys in the 10th section of the act of 1811, are, and were, very good and wise provisions, and that a location, such as that under Baptiste Lafleur, being made in total disregard and violation of those enactments, is not an irregularity merely,- but an absolute nullity.
    The effort by the Supreme Court of Missouri to cure the original defects of the location by the operation of the act of 1822, has been already commented on, and the fallacy of the-reasoning, it is hoped* established. That act certainly did not cure the defect of a location on a salt spring, or a lead mine, or a sixteenth section, still less upon private property.
    It may be that the act of 1822 was concocted and intended to effect' such impolitic and iniquitous results, but, fortunately, the terms of that act do not justify such ah application of its provisions, and certainly the intention of those who applied for and obtained its passage is entitled to no consideration.
    A proclamation by the President of the United States was not issued till. 1823, and of course no . sale of lands till that year took place in Missouri. The surveys were not returned till-1822. It was impossible that the President could have known what .lands he should direct to be' sold until those surveys were returned and examined, and approved at Washington city.-.
    It was under the 3dsection of the act of' 17th of February, 1818, that the President directed the lands in the district of St. Louis to be offered for sale. That law did-not, in any respect, affect the exceptions and reservations in the 10th section of the act of 1811. The 3d section of the above act of 1818 provides, that whenever a land-office shall have been established in any of the -“ districts for the land-office” created by the 1st section, the President shall be authorized to direct so much of the. lands, lying in’such district as shall have been surveyed according' to law, to be offered for sale, with the same reservations and exceptions, and on the same terms and conditions, in every respe.ct, as was. provided by the 10th section of the act of 1811..
    Thus, it may not onlybe contended, that, notwithstanding the act of 1811, the President was not empowered to direct a sale until after the passage of the act of 1818, which created the machinery of sale, and. portioned out.Missouri into í‘ land- districts.”
    There was no law for the sale of the land in .the. St.,Louts district at all in-force at the daté of tthe location by Hunt, under Lafleur, to wit, on the 17th of July, 1817. There was, at-that time, -in exist-, ence, neither a St. Louis land district, -nor a St. Louis land-office, nor, as has been shown, any public survey made according to law. The land in Missouri (at least in that region of it in .whieh Mackayis, grant is located) was, on the 17th of July, 1817, in the same state as on the date of -the last private survey made under the Spanish and American governments respectively.
    How, then, can it be successfully argued, that a location thus premature — thus, not only not authorized, but in- direct violation of tyro acts of- Congress, was only .an “irregularity?” The case of Lindsay and others v. Lessee of Miller,' 6- Peters, 672, and the case of Jackson v. Clark and. others, 1 Peters, 628, have, it is submitted, no bearing or analogy-td the case now before this court. In those cases the question arose on a survey, which was manifestly only irregular from the ■ want of certain technical formalities. The surveys, when made, were made on land which lawfully could have been surveyed. . The surveys were not absolutely void, and the Supreme Court of the United States therefore decided that the act of 1807 protected them, and that no location of a.Virginia military warrant under that act could lawfully be made upon land which had previously been so surveyed.
    If there had b'een a law specifically prohibiting such surveys, or if they had been made-on land not by law susceptible of such surveys, no doubt they would have been void, and the Virginia military warrant, would have-been well laid upon them.

      It may be observed, also, that those surveys, though irregular,' were made officially, ar.d were based on a substantial legal right in the person for whom they were made; whereas the ■ New Madrid location in the-present case was, as has been shown, an ex parte private act .of an interested individual, who had no other colour of claim to the land, and was entirely-at his own risk. If such a location be. declared valid, the locator must necessarily have exercised, in his own case, a high judicial function, namely, the construction of an act of Congress, and not only that, but the functions of a jury of twelve men on a question of fact, and of a witness to prove the fact.
    1st. The “locator” construed the words in the act of 1815, “public land, the sale ef which-is authorized by law,” to mean land which, though not at the date of his location authorized, as public land, tó be sold, might, thereafter, by possibility, be “authorized to be sold.”
    2d. The locator assumed the fact, that land which his location called for was “publicJand.”
    3d. The locator assumed the. fact, that the land located by him contained neither salt spring nor lead mine, nor was “contiguous” to a salt spring or lead' mine. •
    4thu The locator assumed the fact, that, when the public surveys should be made, the land would certainly not include, or interfere with, the sixteenth section.
    5th. That it would not interfere with seminary land..
    6th. That his location would cover no land included in a Spanish or French grant, or.order of survey.
    This would have been a portentous power, indeed, to vest eyen in the New Madrid sufferer; how.much more-productive of injustice . and spoliation, if imparted to a New Madrid speculator!
    The counsel for tire plaintiff in error, therefore, in conclusion, submits—
    1st. That the title to .the specific land in dispute is protected by the treaty of Cession, and could only be affected or divested by judicial action;
    2d. That the title.of James Mackay.and his heirs has been confirmed by the Supreme Court, because of-its original validity, and its being protected and guarantied by the treaty of cession;
    3d. That previous to the confirmation of the .grant to Mackay, the land included in it has never been re-annexed to the royal domain, or to the public land of the United States;
    4th. That the location by Hunt and Lafleur, on the 17th.July, 1817, was not merely “irregular,” but was absolutely -void.
    5th. That Congress has not given, nor could - give, by any-.retroactive law, validity as against a vested right to a location void ah initio;

    6th. That the acts of Congress of 2d March, 1805, section 4, and of March 3d, 1807; section 5, have no operation on the grant to Mackav, inasmuch as this grant bears date previous to the 1st October, 1800;
    7th. That-, even if the acts of 1805 and 1807 here on the grant to James Mackay, the acts of Congress of 1824, and the acts in amendment and continuation of that, have remitted Mackay and his heirs to all their original right and title;
    8th. That die patent, given in evidence by the defendant in error, having been shown to be based on a void location, is itself void at law and in equity;
    9th. That the patent-.having been issued in the.year. 1827, and pending the protective action of the law of 1824, as respects French and Spanish claimants- and grantees, the patentee and his assigns are bound to that act as by a lis.pendehs;

    10th. That the protest filed in the office of the surveyor-general át St. Louis, by the agent of the widow and heirs of James Mackay, being three years before the date of the patent .under Lafleur, is notice to Lafleur and his legal representatives of the claim and' grant of Mackay;
    11th. That the confirmation, by the Supreme Court, of the grant to James Mackay, and the patent in pursuance of that decree, which has been issued to die confirmees, constitute a full and' conclusive proof of title to the land in- dispute, and therefore ought to prevail against.the location under Lafleur, and the patent issued and based upon it; and
    12th. That the judgment and opinion of the Supreme Court of Missouri, being against-a right and title protected by treaty, and specially set up and claimed under a treaty and a decree of the Supreme' Court of the United States, ought tó be reversed,.
    Spaulding, for the defendant in error,
    stated the case, commented on the nature of. an incomplete title, with the power of’the government over it, and proceeded thus:—
    Thé position, then, which I-assume in relation -to the title set. up by the plaintiff in' error is, that under the operation-of different acts of Congress, the negligence of Mackay, the holder, has extinguished the claim. Applying the provisions of these acts of Congress to the title set up by the plaintiff in error,'it is manifest- that Mackay’s olnim was barred, by his own negligence, when the title of Lafleur .was initiated,.and up to the time it- was completed-by the patent.
    The 1st section of the act of 1805, (2’ Story’s Laws United States, 966,) provides for the confirmation of incomplete titles bearing date prior to the 1st of October, 1800; the 2d. section makes grants to settlers who had- made improvements by permission' of the Spanish .officers; the 4th section authorizes those who held land by complete titles, and requires every person who claimed land, either by the 1st section of the act, under ah order of survey, dated prior to October, 1800, or under the 2d section, by a- settlement under permission of the Spanish officers, or by any incomplete title dated subsequent to the 1st day of October, 180Ó, to file, before the 1st day of.March, 1806, with the recorder, a notice in .writing, stating the naturé and extent of his claim, together with- a plat of the tract claimed; and further required that he should, on' or before that day, .deliver to the said recorder, for the purpose of being recorded, every grant,, order of survey, deed, conveyance, or other written evidence of his claim: then, by the proviso to this section, a failure to give the notice, or to record the evidence of title, is made a bar to the claim, and the documents which should have been recorded are never to be received in evidence against a grant from the United States.
    The 4th section of the act-of 1807f (2 Story’s Laws United States, 1060,) extends the jurisdiction of the commissioners to all claims to land in their district, where the claim is made by a person who was an inhabitant of Louisiana, &c.-, and authorizes the commissioners to decide according to the laws..and established usages and customs of the French and Spanish governments, upon all such claims. This section extends die time for filing notices of the claims, and written evidences of claims, to the 1st day of July,. 1808, and de-. dares that the rights of such persons as shall neglect to do so Within the time íimitéd by the act, shall, so far as they are derived from or founded upon any act of Congress, ever after be barred, and become void,- and the evidences of their claims shall never after be admitted ■ as evidence iri any court of law or equity whatever.
    This last section extends the jurisdiction to all descriptions of" claims, and gives the utmost latitude to the commissioners in seeking the rule by which the claims are to be confirmed, while, at the same” time, it is just as imperative as the former law, in requiring the exhibition of the claim and the recording of the written evidence of title. So, the 7th section of the act of 13th June, 1812,. (2 Story’s Laws, 1260,) contains provisions which have the same effect upon claims and evidences of title riot filed and recorded before the 1st of December of that'year, declaring that the evidence of the claims shall never be admitted against any grant from the United States.
    This court has fully considered these acts in the case of Strother v. Lucas, T2 Peters, 448, and, remarking generally upon their provisions, the court says — “ Congress, well aware of the state of the country and villages, wisely and justly went to the extent perhaps of their powers, in providing for the security of private rights, by directing all claimants to file their claims before a board especially appointed to adjust and settle all conflicting claims to lands. They had in view another important object, to ascertain what belonged to the United States, so that sales could be safely made, the country settled in peace, and dormant titled not he permitted either to disturb ancient possessions, or to give to their holders the valuable improvements made by purchasers,- or the sites- of cities which had been built up by their enterprise. Accordingly, we find that, by • various acts, the -time of filing such claims is limited, after which they are declared void, as far as they depend on-any act of Congress, "and shall not be - received in evidence in any court, against any person claiming by a grant from the United States.
    “These are laws analogous to- acts of limitation for recording deeds, Or giving effect' to 'the awards of commissioners, for settling' ■claims to land under the laws of the states; the .time and manner of their operation, and the exceptions to. them, depend on the sound discretion'of .the legislature,-according to the nature of .the titles, the situation of the country, and the emergency which ' calls for their enactment. Reasons of sound' policy have led to"the general adoption of laws of both .'descriptions, and-their validity cannot be questioned, ■ Cases may1 occur where the provisions'of a law may be such as to-call for the interposition of the .courts, but these under consideration do riot. They have been uniformly approved by this court, and ought 'to be considered- as settled rules of decision, in all cases to which they apply.”. -
    The. court,-then,- in applying these laws to -a title as old as 1787, at page 454, says-1-” We must, then, take -the defendant as one holding the premises in dontroversy by á grant from the United States, and, :as their grantee, entitled .to - all'the protection of the laws appropriate to the-case.The plaintiff,-therefore, is brought within, tiie two provisions of the laws; that by Madame Chancellier not having filed her claim within the’ time limited by law, she could not set up any .claim, under any act'of Congress, or be* permitted to give any evidence thereof in any court, against a person having a grant- from-.the’ United States, under the-confirmation of the commissioners and the -act of 1812.”
    In the case now before the court, we have an exemplification of the very evils-which the Court, in the case of Strother v. Lucas, considered these acts-of Congress designed to prevent. We have a man pointing out apportion of unoccupied waste land, ás public land, liable to be appropriated by -the location of a New Madrid certificate-; and after it has been so appropriated and patented by the government, we.have a claim set up, by the heirs of that inan, •under, a dormant tide, 'which had been held back, notwithstanding the imperative-provisions of'these acts of Congress, and stating,1 on the face of their petition, that it had never been presented to any of the-tribunals established for the-investigation of such titles.
    Had the claim of Mackay been exhibited .and recorded as the acts of Congress, required, then the 10th section of the act of 3d March, 1811, (2 Story, 1200;) would have expressly reserved the land from sale, until the final action of Congress upon the claim, mid. .a person attempting to appropriate it, by the location of a New'Madnd certificate, would haye acted with notice .that such claim existed; but, as; it was- not so recorded, there was no evidence upon any land-record of the country that such claim existed; and the land now cláimed appeared to every person who could have access to these records, to be vacant public land, subject to any disposition which could lawfully be made óf any' part of the public domain.

      (Spaulding then proceeded to comment upon the acts of 1824 and 1828, and particularly upon those clauses*which saved the rights of adverse parties; after which he- took up the title of Lafleur under the New Madrid grant, and argued thus:)
    The plaintiff in error, having given in evidence a notice or application made by Theodore Hunt', for the location of the certificate of Lafleur upon the land in' question, 'dated' in July, 1817, and a survey made by a deputy surveyor in April, 1818, with the proclamation of the .President for the sale of the land in the township, to take place in October, 1823, objects to the title of the defendant .in error, on the following grounds: — 1st, That, 'at the timé .of the location, the land-was not public land; 2d, 'jhat, if it was public land, the sale of it was not authorized by law, and therefore it was not subject to. location.
    The first objection of the plaintiff in error, that, at the'time of the location, the land located was not public, láhd, subject to be located, is based upon the assumption that it was Mackay’s land, and involves the consideration' of the argument made against the title of Mackay.' If, by the '.operation of the different acts of Congress, Mackay’s negligencS had barred his claim, and shut out his evidence of title from the consideration of courts of justicej the .land was in eveiy sense public land, subject to such disposition as the government-might think proper to make of it. To say .it was still his land, as against the government anddhe grantees of the government, is to ■ assert that, his title remained valid, notwithstanding enactments which annulled it, on account of his'neglect to comply with the requirement? of law. It. is unnecessary further to pursue the answer to this óbjection-of the plaintiff in error..
    The second objection, upon which most stress is laid, is, .that'at .the time of the location, this land was not of the description liable ta location — that is, land the sale of which was authorized by law.
    - It rnay be of importance to determine, if we can, from the evidence in this case, when the location was made.
    The plaintiff in error has fallen into the mistake of supposing, that the notice or application for the location, made in July, 1817, is die location itself.' This error might have been avqided' by an.examination ófthe decision made by this court in Bagnell and others v. Bro-derick, 13 Peters, 436. ■ In that case, the court held, .that this notice- or application forms no. part of the title, and is not part of the evidence on -which the general land-office acted, but the patent issued on the plat and certificate of the surveyor, returned to- the recorder’s, office, and which was by him reported to, the general land-office. Again, the court says: — SThe only evidence of. the location recog-nised by the government as an appropriation, was the plat and certificate of the surveyor.”
    As the notice or application is not the location, we next look to .the.survey spread bn the record: this is dated in April, 1818, as the time when the deputy surveyor of .the United States made the survey on the ground,,but when this survey was returned to the. office of the surveyor-general, or Mien if was approved , in that office, does not appear, and especially it does not anywhere appear on the record when the surveyor-general returned to the recorder of land-titles the plat with the notice, designating the tract located, as required by the 2d section of the net, nor when the recorder issued the patent certi- • ficate under the 3d section.
    In this state of the evidence, it cannot be known whether the survey made "by the -deputy surveyor, although dated in April, 18Í8, .was returned, or, jf. returned, was approved-in the office of the surveyor-general, at any time anterior tp the proclamation by the President for the sale of the land in the township.
    It appears, by inspection of the survey given in evidence, that it was made after the public surveys had established the townships, &c., as'it describes the land as situated in two townships. The question, therefore, which the plaintiff in error has'attempted to raise, is not presented by the record. But it is not my purpose to avoid the discussion of the question, if wé can really get it into a tangible, form.'
    The. question, if I have understood the argument made in behalf of the plaintiff in error, is, whether the patent issued to Lafleur is not void, because the survey was made for him at a time when the sale ¡of the'land Was not authorized by law?
    If we turn again to the language of the act, we find that the words upon which most stress is laid — “ the sale of which is authorized by law” — are used asidescriptive of the land to be located, and have no reference to time. If there were, then, classes of lands which, by law, Were reserved' from .'sale so that no officer of the government could, without a violation of law, attempt to sell them, and there were other public lands in relation to which the executive of the United States was already intrusted, by law, with the power to direct the survey and sale, so that no farther authority was needed, we have the key to the right understanding of the words employed in the act of 1815.
    The act of- 3d March, 1811, 2 Story, 1197, is that which directs the sale of the public lands, and makes the reservations from sale. It is upon this act, and upon those which establish land-offices in different parts Of Missouri, and refer to this for the direction of the different offices, that the sales of land in Missouri have taken place.
    The 8th section of this act empowers the President to direct the surveyor-general to cause the public lands in the territory of Louisiana to be surveyed.
    The 10th section empowers the President to direct the land, when surveyed, to be offered for sale, and prescribes the duties of the different officers, when the President has designated the days pf sale. This section reserves from sale — 1st,, section number 16 breach township.; 2d, a.tract for- the support of a seminary of learning; 3d, salt springs .and lead' mines, and lands contiguous thereto; 4th; by the proviso *to the section, ‘‘no tract shall be offered for sale, the claim to which has been in due time, and according to jaw, presented to the recorder of land-titles in the district of Louisiana, and filed in his office, for the purpose of being investigated -by the commissioners ap- • pointed for ascertaining the rights of persons, claiming lands-in the territory of Louisiana.” This section authorizes the said of the mass of public land, and forbids the sale of particular descriptions of land-: we have, then, the division of the land into the two classes — those the sale of wHch.is authorized, and those, the sale of which is not authorized; and the.act of 1815 authorizes locations to be made on lands of one class, and not on lands , of the .other.
    This, construction is further .'sustained by the designation of. land, subject to the location, in the present .tense: “the sale of which is authorized'by’law.”. In 1815, when this law-was passed, a very large portion of the land in the territoiy of Missouri had not been surveyed, so that if .théintention-of Congress was to make a survey ■of the public lands a pre-requisite to legal locations, by the use of these words, then, as it was evidently designed to give a range for •these locations as extensive, as the territory, the language employed,, instead of being “the salé of whieh is authorized-by law,”'would have'.been, the sale of which, is or. hereafter shall he authorized by law.
    As the act speaks of the authority then, existing by law for the sale of the public land, it evidently excludes,the,idea that.the sale was only authorized when the President had issued his proclamation for the Sale: for at that-time.the President had never issuéd any proclamation for any sale in the territory of Missouri.
    The other .interpretation of these words, will, as I believe, be con-ridered as expressing the meaning of Congress; that is, that they refer. to the two classes ef land, one of which was> then authorized by láw to he sold, arid the other was expressly, by law, -reserved froto sale.
    ■I airi aware that great reliance has been , placed on the .official opinions of Mr. Wirt, when he was attorney-general, given in relation to these -locations, and also upon the opinion of Mr. Butler, given upon this very claim.of Mackay,. after its confirmation, and upon the opposing claim. These were, certainly, gentlemen eminent in the profession, whose opinions- are entitled to high- consideration, but still they are not conclusive authority.
    I have but. a single remark , to make upon Mr. Butler’s opinion, and that is, that he is totally, mistaken as to a cardinal, foot in the case. He assumes that Mackay’s claim was filed and recorded according to law, so that the land was expressly reserved from sale by the .KWh section of the act of 1811, and that therefore it was not Subject to location. Now, if Mr. Butler had read the petition on which .the confirmation was procured, he would have seen it there : stated, that the claim had never been filed nor recorded according to daw, and that, therefore, the land was not only by law public land, but that it was not, and never had been, reserved from sale.
    On the opinion of Mr. Wirt, I hav,e to remark, that he appears to have fallen into the mistake of supposing, that the notice, or application of the party'for a location was the location itself, and to have directed -his arguments chiefly against that instrument. It is true, that Mr.’ Wirt argues against surveys made under New Madrid certificates which did not conform to-the lines of the public surveys: hiit it is to be observed, that this conformity to the public surveys is nowhere required in the law which regulates these locations; .and although it may be very convenient, and be very consistent with the general purposes of the gqvemment, in maintaining regular subdivisions of the public lands, it is‘nowhere required as necessary to the validity of a location.
    - The effect produced by the opinions of Mr. Wirt was .the passage of. the act of 26th April, 1822, 3 Story, 1841, which directed, that locations made under these certificates, if made in pursuance of the provisions of the act of 1815 in other respects, should be perfected into grants, in like .manner as if they had conformed to the sectional or quarter-sectional lines of the'pubhc surveys, and the sales of. the fractions made by such locations should be as valid against the United States as if the fractions had been made by .rivers or other ■natural obstructions.
    The great argument of Mr. Wirt against the locations, which were made before the public surveys was, that they would not conform to •the legal subdivision of the public lands, when they should be surveyed, and tiius confusion would be introduced into the system. ■Now, this act of 1822 takes the location as made, and the confusion ..as existing; and directs the issuing of ^patents, notwithstanding this -want of conformity to the lines o"f Sections. _
    _ Yet it is argued, that because this act ratifies the locations which do not conform- to the pubhc surveys, only when they are, in other ■respects, in pursuance of the act of 1815, the objection stih is to bé made, that they were made on land which was not surveyed, and •the sale of which was consequently not authorized by law.
    "This is only coming back again to- the discussion of what lands were authorized to be sold; which, I think I have .shown, was all Sot reserved from sale. It is beyond dispute that the land in controversy was not reserved from sale.
    But what is the real extent of the objection we are considering? It is this: applications were made to locate portions of the pubhc lands before the pubhc surveys; locations have been so made, and they do not conform to the' sectional fines, when they have been. afterwards' run. The act of Congress declares that this shall" be no objection to the locations, yet it is agreed now, that although the act has waivéd all objection to the result produced, it still-retains, the objection to the cause which produced it; so. that, substantially;, the act has accomplished nothing, and the United States, although they have sold the surrounding fractions, and have waived all objection to the want of conformity m the location to sectional lines, and have •patented the land as located,-may still, in ■ all cases where the applications were made before the public surveys* come in and claim the land; of, that an intruder.or. trespasser on the land-which the. government has thus patented* may show that the application for the location of the land was thus made before the-public' surveys,- and set up the pretence that the"patent is void.
    This case would present some most remarkable features, if such an objection could prevail.
    Here is an application for the location of a tract of land, bounded on three sides by known Spanish surveys, and to run to a" point in tire line of another Spanish survey. . The only, new line to be run is that on one side, which is necessafy to- fix the quantity. A survey is made under that application calling for the townships and ranges,. which shows that the survey was not-made before the United States surveys. A patent is issued by the government, and' in a suit brought by a purchaser, under that-paient it is objected, not that the land was reserved from salé — not that locatioti Could have been dif-. ferently made if the government .surveys had been a! thousand times run — not that it does not conform to boundaries which, would have fixed its limits whenever it might have been made, (seeing" that it is bounded on three tides by established Spanish surveys,) butthat the ápplication was made prior to the public surveys, therefore-the application was void, and die survey was void, and- the .location was void, and the patent was void, and but forMackay’s confirmátion, the land would be mere vacant, unappropriated land; and though an owner of part of the land, under íhé Láfleür patent, has been more than twenty years in possestion' unde'r the title óf Lafleuf, he-has all the time been a mere trespasser! '
    The- cases in which the validity of patents have been examined in suits at law, aré too familiar to' the. court to need any extended-remark from the counsel. - From the .case of Polk’s Lesseé v. WerideH, to the present time, the principles upon -which patents have been adjudged void, have been where the state has'not had. title to the land Eanted; where the officer had no authority to issue it; where the ad has been appropriated by á species of tide which could not by law appropriate it; where the patent has issued-against some express prohibition of law, or for land -reserved' froin the disposition ofit attempted by the patent. The patent' to Lafleur- is within neithér-of these classes. The whole of the objections now made to.it would be -answered to the satisfaction of the plaintiff in error, if the deputy surveyor in 1823 had run aroundthe same lines which, were jam in 1818, and then had sat down and made precisely the-same plat, and the sanie' field-notes. And how is.it known that he did not? - The purchaser.under Lafleur gave no evidence about a survey. Thesur-vey.of 1818 was given m evidence ttrimpeach the patent; the pa- - tent itself implies that all was done which, was, necessary. to. its being regularly issued.
    I ready feel that I would.be trifling with the court to make a more extended argument in the case.
    , The propositions I maintain are the following;—
    1. That, iipon this record the,Mackay title commences, as against the defendant in error, with the confirmation, as. no. document is shown anterior to that confirmation; and the -confirmation does not, as against thedefendantin error,..establish.the existence of any prior claim-
    2. That if the' -existence of a genuine Spanish order of survey should be assumed,;as. against the defendant .imem>r, all claim under it was barred by the aets of Congress. .
    s 3. That if tfie. existence qf such , order of- survey. should be assumed, whether-the claim, under it .were bailed or not, the confirmar tion of the claim is, by the act under which it was obtained, express-ly postponed to the Lafleur title,
    4. That ..the. patent of Lafleur is.the better legal title, unless there is some defect thát. renders the. patent void. . ' 1
    5. That the Lafleur title is 'above,exception* regular, mid effectual.
   Mr. Justice CATRON

delivered the opinion of the court.

Tim first question in order is, whether ;the patent to Lafleur is a valid title as die United. Státec, when standing aloné.

"By the the recorder of land-titles-at St. Louis,Lafleur was entitled to 640 acres of-land in compensation for lands of his injured, by the earthquake' in New Madrid county. ■ On this, the survey of April, 1815, is founded. Its.retum by the surveyor, with notice of location, to the 'office of thé recorder, was the first appropriation of -the land; and not the "notice to the surveyor-general’s office.requesting the survey to be made, as this-court held in Bagnell v. Broderick, 13 Peters, 450.

Township 45, in which the land granted to Lafleur lies, was laid off into sections in 1817, and 1818; and we-suppose before the survey for Lafleur-was .made,' as his patent, and the.survey .on which the patent is founded both refer to the township by number as including the land. . When the return of the township-survey was made to the surveyor-general’s office does not distinctly appear, although it is. probable it was after Lafleur’s location had been made with the recorder. •

The location was in irregular form, and altogether disregarded.the section lines, and ordinary- modes of entry under'the laws of the United States. ' This circumstance lies at the bottom of the controversy. The general land-office at Washington refused to issue a patent on New'Madrid locations thus surveyed.: The secretary of-the Treasury on the 11th of May, 1820, and. again on the 19th of June, 1820, called on the attorney-general' for his opinion on the validity of such locations, (2 Land-Laws-and Opinions, 9, 10,) this officer replied — “That the authority given is,to make these loca--tions on any of the public lands of the territory, the sale of which is authorized by law; but the sale is not authorized by law until the sectional lines are run, and- consequently all locations previously made by these sufferers are unauthorized.”

To cure this defect, the act of 1822 was passed, whifh provides, that locations made before that time, under the -act of 1815, if made in pursuance of the act in other respects, should be perfected into grants in like manner as if they had conformed to thé sectional and quarter-sectional lines of the public surveys; and -.that the fractions previously created by such locations should be deemed legal ■ fractions, subject to sale: But that after the passing of the act, (26th April, 1822,) no location of a New Madrid claim should be permitted that did not conform to' the sectional and quarter-sectional lines. The opinion of the attorney-general appears to have (been favourable to locations in conformity to the public surveys actually made, before their return; until returned however, and received at the surveyor-general’s office, they could not be recognised as legal public surveys; and in this sense Congress obviously acted- on the opinion,' and course of the general land-office, in pursuance of it. .

The principal difficulties standing in the way of issuing patents, seem to have been the following: There were New Madrid locations made on lands not then surveyed; locations made after the lands had been surveyed, but before the surveys were returned; and loca.tions made on lands surveyed,- and the surveys -returned; in each case, disregardful of the section lines. But all of them'were on lands that had been surveyed, and the- surveys duly returned and sanctioned, when the act of-1822 was passed. - On- this state of facts Congress acted. No distinction was made among the claimants; all fractions created .by prior locations, in existing public surveys, were declared-legal, and subject to sale; the fractions produced, could not be legal unless the locations producing them were equally so: In this respect, therefore, such locations were binding on the United States from the date of the act. It is insisted, however, that until section Not 45 had been offered for sale by the proclamation of the President, ño entry could be made on it by a New Madrid warrant; and in this respect Lafleur’s location was void before,- and not •cured by, the act of 1822, but expressly .excepted: that Congress only acted on one defect, that of disregarding the sectional lines,and exclud- ' ed all others. Township No. 45 was first advertised for sale in 1823.

In addition to what has been said in answer to the. argument, .it may be remarked, that- the New Madrid, sufferers were preferred claimants; like others having a legal preference, they had a right'to buy, so soon as'the officers of the government had by law the power to sell; and sales could be made founded on public surveys. It ■ could, not have been intended by Congress that the sufferer should surrender his injured claim, get his warránt from, the recorder, and then be compelled to wait--until after the public sale, which might sweep all the lands out of which he could obtain a new home. And. so the act of 1815 was construed and acted on at the general land-office. No objection seems to have been made there on the groundr that these claims had been entered on lands not previously, ofiéréd fór sale at auction; as the President might, or might not order the sale. We think this plainly inferrible from the following order. On the 9th of April, T818, an act was passed limiting applications to the recorder, for New Madrid warrants of survey, to the 1st of January, 1819. The commissioner of the land-office here,, wrote to the recorder at St. Louis, enclosing a copy of .the act, a few days after it was passed, saying:

This act authorizes the reception of claims'to the 1st of January next; but as several public sales will take place previous to that day,you must not issue any.patent certificates tó those claimants after the commencement of such sales, unless the claimant produces a certificate from the register of the land-office to show that the land has not been sold. Should you issue any patent certificate to those claimants previous to the public sales, you will furnish the register of the land-office for the district in which the lands lie with a list of the tracts .for which you have issued patent certificates, that he may., reserve them from sale.”

The 3d section of the act of 1815 makes it the duty of the recorder to deliver to the claimant a certificate stating the circumstances of the. case; .that is, that the claim had been allowed, surveyed, and recorded in due form, and that he was entitled'to a patent for the tract designated: this was to be filed with the recorder if satisfactory to the claimant. Then the recorder was bound to issue the “ patent certificate,” above spoken of, in favour of the party, which, being trans-. mitted to the commissioner of the general land-office, entitled the claimant to a patent from the United States.

By. the foregoing instructions, patent certificates, previous to the public sales, were contemplated as due to claimants for lands entered but not previously offered.for sale; and we cannot doubt did existr in large numbers. They, of course, were sanctioned at the land-office. Nor is-the consideration of this question presented to this court for the first time. Pettier’s claim, in the case of Stoddard v. Chambers, 2 How. R. 317, was like this in all its features except one. It had been located on the same land covered by Bell’s concession made by the Spanish government, which had been filed-and recorded jn 1808, but not recommended for confirmation by the commissioners at St.-Louis,'for want of occupation and cultivation. By the act of 1811, until the decision of Congress was had, the land covered by the Spanish claim could not be offered for sale, and this restriction was continued. Pettier’s New Madrid location was made in 1818, on the land reserved from sale in favour of Bell’s.concession, and this court held the Néw Madrid locatioh, and the patent founded on it, void, because the sale of the land was not authorized by law,” and the title of Pettier in violation of the act of 1815. But the cofirt says: — “ Had the entry been made or the patent issued after the 20th of May, 1820, when the reservation ceased, and before jt was revived, by the act .of 1832, the title of the. defendant could not be contested;”

' For the reasons assigned, the court was of opinion Pettier’s claim would have been valid, had Stoddard’s not been interposed. It also lies in township No. 45.- So our opinion is, that Lafleur’s claim was rendered valid by the act of 1822, unless it can be overthrown by the interpoátion of Mackay’s.

■ 2. This raises the inquiry into its validity in opposition to Lafleur’s. That, standing alone, Mackay’s. was valid against the United States, is in effect, decided by this court in Pollard v. Kibbe, 14 Peters, 355, and Pollard v. Files, 2 How. 601, and is free from doubt.

Lafleur’s location-was made in 1818, and his patent 1827. Mackay’s claim was first fifed for adjudication before the District Court (U.'S.) of Missouri in Í829. Up to this date it had stood as an incomplete claim, requiring confirmation by this government before the title could pass from the United States; to accomplish which a decree in its favour was sought in the District Court, and finally obtained here on appeal; in conformity to which a patent was obtained.

As the proceeding under the act of 1824 was ex parte, Lafleur was not bound by it any further than the legislation of Congress af-. fected’ his rights; and’the questiontis, how far were they protected, as against' incomplete titles brought before the District Court.

By the act of March 2d, 18Ó5, sec, 4, certain French and Spanish claimants were directed, on or before the 1st day of March, 1806, to deliver to the register of .the land-office, or recorder of land-titles, within whose district the land might lie, every grant, order of survey, deed, conveyance, or other written evidence of claim, to be recorded in books kept for the purpose. “And if,” says the act, “such person shall neglect .to deliver such notice in. writing of his claim, or cause to be recorded such written evidence, of the same, all his right, so far as the same is derived from the two first sections of this act¿ shall become void, and &r ever thereafter be barred; nor shall any incomplete-grant, warrant, order of-survey, deed of conveyance, or other written' evidence, which shall not be recorded as above directed,- ever after be considered or admitted as .evidence, in any court of the United States, against any grant derived/rom the United States.”

, By the act of April 21, 1806, sec. 3, supplemental to the act of 1805, the time for filing notices of claims and the evidence thereof, was exténded to the first day of January, 1807: but the rights of such persons as shall neglect so doing within the time limited by the act, it, was declared should be barred, and the evidence of their claims never after be admitted as evidence; in the same manner as had been provided by the 4th section of the act to which that was a supplement.

By the 5th section of the act of March 3, 1807, further time fpr filing notices and evidences.of claims was given till the 1st day of July, 1808: But all benefit was cut off from the claimant, if he failed to give .notice of his claim; and- file his title papers; so far as the acts .of Congress operated in giving the title any sanction through the agency of commissioners — arid ever after the first of July, 1808, the claim was barred.

It is insisted, however, Mackay’s claim is not embraced by the act of 1805, and- to which the acts of 1806 and 1807 refer. The act of 1805 does govern the future legislation, interposing a. bar. By section 4,. French or Spanish grants made and completed before the 1st day of October, 1800, might, or might not, be filed; as the treaty of 1803 confirmed them, they needed no further aid: But complete grants issued after the 1st- day of October, 1800 — and incomplete titles, beating date after that time, “ shall be filed,” says the act. Mackay’s claim is of neither description; it was an incomplete tide'; - being a permit to settle and warrant of survey, without any settlement or survey having been made; but dated before the 1st of October,-1800.

The act of 1805, section 4, further provides, that every person claiming lands by virtue of the two 'first sections of that act, should, by the 1st day of March, 1806, file his notice of claim, title papers, &c., otherwise the claim should be barred. Mackay’s claim “ was á duly registered warrant of survey,” within the words of the 1st section of the act. That' the United States had the power to pass such' a law wé think free from doubt; it being analogous to an ordinary act of limitation, as this court held in Strother v. Lucas, 12 Peters, 448, to which nothing need be added here.

As to the United States, and - all persons claiming under them, Mackay’s claim stood barred from the 1st of July, 1808, until the passing of the act of May 26, 1824, by which the bar was removed so far as the government was concerned. The time for filing claims under this uct was extended by another passed in 1826, and again by that of May 24,1828, to the 26th day of May, 1829; béfore.the expiration of which time Mackay’s claim was filed in the District Court -(U. S.) of Missouri, and,eventually confirmed in this court on appeal: And the question is, did the acts of 1824, and 1828, and. the proceeding had under them, affect Lafleur’s title. _ By the 11th section of the- act of 18¿4, it is provided* “ That if in any case it shall so happen, that the lands, tenements, or hereditaments decreed to any claimant under the provisions of this act, , shall have been sold by the United States, or otherwise disposed of, it shall be lawful for the party interested to enter the like quantity of lands, in parcels conformable to sectional divisions and sub-divisions, in any. land-office in the state of Missouri.”

The act of 1828, to continue in force the act of 1824 for a limited time, and to amend the same, declares (in section 2) — “ That the confirmations had by virtue of said act, and the‘patents issued thereon, shall operate only as a relinquishment of title,on part of the United States, and shall no wise affect the right or title, either in law or equity, of adverse claimants of the same land.”

The foregoing are the conditions on which the bar was removed; these Congress certainly had right to impose, and thereby give a preference to an intervening title acquired during the existence of the bar.

Lafleur.was a claimant with a good tide in equity,.when. the act of 1824 was passed; this he well might perfect into a patent, as hjs equity Was expressly protected by the-act of 1828, and by implication in that of- 1824, (section 11;) neither the patent or entry was affected by the proceedings had on Mackay’s- claim in'fhe District Court of Missouri, and in this court; nor by his patent issued pursuant thereto :■ It follows Lafleur’s is the better title, and that the decision of-the Supreme Court of Missouri must be affirmed.

Mr. Justice McKINLEY.

I dissent from the opinion of the majority of the court, in this case, for the following reasons:

First. According to the act of the 17th of February, 1815, chap. 198, “persons owning lands in the county of New Madrid, in the Missouri territory, with the extent the said county had" on the 10th day of November, 1812, and whose lands have been materially injured by earthquakes, shall be, and they are hereby authorized to locate the like- quantity of land on any of the public lands of said territory, the sale of winch is authorized by law.” ■ The.section lines of the land had not been run on the 7th of July, 1817, -when the location on the New Madrid certificate, under which Gamble claims,was made. The sale of the land, including this location, was not authorized by law', until the year 1823. The 1st section of the act of the 26th April, 1822, chap. 40, could not have legalized the location, because the land was not then subject to sale; and because that section only authorized grants to issue in like manner,, as if the-location had conformed to the sectional or quarter-sectional lines of the public surveys, if made in other respects, in pursuance of the act of the 17th of February, 1815. Now as the location had not been made in pursuance of that act; and as the 2d section of the act of ■the 26th of April, 1822, declared “.That hereafter the holders and locators of such warrants shall be bound, in locating them, to con-. form to the sectional and quarter-sectional lines of the public surveys, as nearly as the respective quantities of the warrants will admit, and all such warrants shall be located within one -year after, the passage of this act; in default whereof tire same shall be -null and void and as no location and survey were made in conformity with the 2d Section, the warrant,' survey, and patent, are utterly void. See Lindsey v. Miller, 6 Peters, 675.

. Secondly. The decree confirming the claim of Mackay’s heirs, by. the Supreme Court of the United States, under the treaty, was a full and ample admission, that, the United States had no right to the land covered by that claim. The title which they acquired to this land,, under the treaty, was, therefore, held by them in trust for Mackay’s heirs, or any other person having a better tiñe, under'the-treaty. The decree of confirmation related back to the date of the concession, by the Spanish government,- to. Mackay, and made the tiñe as complete as if it had been completed by that government before the treaty, notwithstanding the several intervening acts of limitation passed by Congress.

■ Thirdly. The location, survey, and patent, under which Gamble claimed, being void, the 11th section of the act of the 26th of May, 1824, chap. 178, did not apply to this case. Because, in the language of the section, it did not “so happen that the land” had been sold or otherwise disposed of by the United States. Therefore, Mackay’s. heirs, or those claiming under them, were not authorized, and much less bound to enter other land in lieu of that confirmed and granted, to them by the decree and patent.

Mr. Justice Story and Mr. Justice Wayne concur in these reasons.


author: Mr. Justice McKINLEY

text:
    James N. and Levi Dickson, Plaintiffs, v. William H. Wilkinson, Administrator of John T. Wilkinson, deceased.
    There was a judgment against an administrator of assets guando acciderint.

    Upon this judgment a scire facias was issued, containing an averment that goods, chattels, and assets had come to the hands of the defendant.
    .Upon this, scire facias there was a judgment by default; execution was issued,' and returned “ nulla bona.”

    A scire facias was then accorded against the administrator to show cause why the plaintiffs should not have execution “de bonis propriis.”

    was too late to plead that the' averment in the first scire facias did not •state that assets had come into the hands of the administrator subsequent to the judgment guando.

    A judgment by default against an executor or administrator, is an admission of Assets to the extent charged in the proceeding against him.

      If a-party fail to plead matter in bar to the original action, and judgment pass against-him, he cannot .afterwards plead it in another action founded on that, judgment; nor in a scire facias. ' „ • •
    A demurrer reaches no further back than the proceedings remain in fieri, or under the control of the court.
    This, case came up from the Circuit Court olf the United States for the.middle district of Tennessee, upon a certificate.of division in opinion between the judges. ’ -
    All the facts which are necessary to" an understanding of-the point are stated in the certificate,,as follows::—
    ' The plaintiffs, at September term, 1837, with the defendant’s-consent, had a judgment of assets• quando acciderint. .On'the 2d of October, -1838, upon their suggestion of-assets come to the defend-. ant’s hands, a scire facias was accorded them to be made known to the defendant to show cause why they should not have execution of those assets. . This scire facias was issued on th&lOth of January, 1839, and after reciting the judgment quando, it contained the-following,and no other, averment of the coming of assets to the'defendant’s hands: — “And whereas, afterwards, to wit, on the 2d day of October, 1838, it was suggested to the said court, on behalf of the said plaintiffs, that goods, chattels, and assets-had come to the hands of the defendant, sufficient to satisfy.the said judgment; and it was thereupon ordered, by said court, that a scire facias issue, -and we therfeore hereby command you, &c.” ■ This-writ was made known to the defendant, and the plaintiffs, .thereupon, by his default, at September term, 1839, had judgment of execution of the intestate’s goods .in the defendant’s hands .to be administered, if so much, and if .not, then the costs de bonis propriis.' £)nthe 9th of October, 1839‘, execution was issued accordingly, and returned to March rules, 1840, nulla bona, except as to the costs, which were levied da bonis propriis. A scire facias was now accorded' against the defendant to show cause why the plaintiffs should not have execution of their demand de bonis propriisand this writ was issued, made known to the defendant, and returned to September’ term, 1840,. when he appeared, and pleaded to it fully administered, and a-special plea, that , the insolvency of the intestate’s estate had been suggested to the proper Tennessee authority, and a bill in equity filed in a. state court.to administer hid effects according to the laws of Tennessee. To these pleas the plaintiffs demurred, and on the argument of the demurrer, the defendant’s counsel, against awarding execution de bonis propriis, showed for cause, that the judgment by default upon the first scire . facias did not establish the fact, that any goods, &c., had come to •the defendant’s hands since the judgment.of. assets quando acciderint; because the said first scire facias did not aver that goods,-&c.,.had comedo the defendant’s, jiands ánce the said judgment quando, but only that those goods had come to his hands, without saying when, and a judgment by default only admits such 'facts as are alleged’; thqt unless the record shpwed that assets had come to his hands since the said 'judgment qiiando, and that such assets had been - eloigned and wasted, no execution c.ould issue'against the defendant to be levied de bonis propriis. „And the counsel for the plaintiffs insisted that advantage should have been taken of the alleged defect, in the first scire facias at "the term to which it was returnable, arid returned, by plea or demurrer; that the judgment by default was a waiver of errors .in the process,- and so that the said error, if it be one, could not be reached by the demurrer. aforesaid 1
    “ And upon said point; whether advantage’ could be taken of the aforesaid defective averment in the .first scire facids, upon the plain-' tiffs1 demurrer to -the defendant’s pleas to the second scire facias, the opinions of the judges are opposed. - ’
    “And it is thereupon ordered, that the foregoing statement of facts, involving said point, upon which said disagreement occurs, made under the direction of the judges,-and at the request of the plaintiffs by their attorney, be certified to the Supreme Court for their opinion - upon said point, according to the' act of Congress in that case made ■ and provided.” '
    •'The case was argued by Mr. Francis Brinl'ey, for the plaintiffs,
    who made the -following-points:—
    1. The first scire Jactas was sufficiently accurate as to form. It avers that bn the-4th of‘September, 1837, Judgment was rendered for the plaintiffs against the assets quando acciderint. It then avers tiiát afterwards, on the 2d of October, 1838, (more than a year,) .the plaintiffs suggested that assets had come into the hands of the defen* daht, sufficient to satisfy the judgment. The two facts together .'form the .connected- proposition, that assets had come into the hands , of.the defendant, since'the.judgment quando. In the case of Platt v. Robins et ah; 1 Johns. C..276; there is no better averment; yet no objection was taken to .the form. “ Diverse goods and chattels which were of- the. intestate, to the-amount of the damages recovered, had come-to the hands-Of the defendants,” is the language in that case.
    ■_ ’ 2. If the averment in the first scire facias be imperfect, the -objection cannot now be taken ;, ittshould have been made by plea, when that writ was returnable: The general rule is, that if a party do. not avail himself of the’ opportunity of pleading matter in bar to the original action, he" cannot . afterwards plead it, either in another action founded.on it, or in a .scire facias.. Cook v. Jones, .2 Cowper, 727; Wheatley v. Lane, 1 Saunders; 216, note 8, -by’ Williams.'
    3. The-defendant cannot plead any plea to the second scire'facias .which puts his defence upon tiié want of assets; for such plea would be contrary to what is admitted by. his default in thej first scire facias: The defaults’ ah admission of assets. -Treil v, Edwards, 6 Modem; 308; Rock v.. Leighton; 1 Salk. 310; Platt v. Robins et ah, 1 Johns. Cá. 276:- Skelton v. Howling, 1 Wilson, 258; Ruggles et ah v.
      Sherman, 14 Johns. 446; The People v. The Judges of Erie County, 4 Cowen, 446. This last case shows the practice to be to issue execution de bonis propriis, whether nulla bona or devastavit be returned by the sheriff. Iglehart v. Slate, for the use of 'Mackabin, 2 Gill & Johns. 235; Griffith v. Chew, 8 Serg. &.Rawle¿ Í7. A cognovit actionem, by. executor, is an admission of assets. Den v. De Hart, 1 Halsted, 450.
    4. The point raised by the special plea is as to the effect of the proceedings in insolvency in the local court's. If the proceeding be in the nature of a commission of insolvency, thén the pendency of such commission is no bar to a seire facias against the administrator, in a judgment had against him. . Hatch v. Eustis, 1 Gall. 160.
   Mr. Justice McKINLEY

delivered the opinion of the court.

This case is brought before this court upon a certificate of division of opinion of the Circuit. Court for the middle district of Tennessee.

The plaintiffs had judgment against the defendant for.$1169 88 debt, and $110 94 damages. “And it appearing to thé satisfaction of the court, by the admisáon of the plaintiffs, that no assets .of the intestate had come to thé hands of the defendant,” it was adjudged, that the plaintiffs have ‘ execution to be.levied of the goods and chattels, and assets, which might thereafter come to the hands of the defendant to be administered.” Upon this judgment afi.fa. issued to be levied of the assets of the testator, which might thereafter come to the hands of the defendant to be administered:- which fi. fa. was returned by the marshal nulla bona. On the 10th day of January-, 1839, a scire facias issued against the defendant, upon suggestion that assets of the intestate, sufficient to satisfy the judgment, had come to the hands of the defendant. Upon this scire facias there was judgment against the 'defendant by default, to be levied of the goods and chattels of the intestate, in his hands to bé administered. A f. fa. issued upon this judgment, which was also returned nulla bona.

And thereupon another scire facias issued against the defendant to have judgment against him de bonis propriis, to which he pleaded, first, plene administravit; secondly, that no assets ever came to his hands; and thirdly, that the estate of the intestate was insolvent at the time the letters of administration were granted; and that in'pursuance of the act of the General ’ Assembly in such case made and provided, he had suggested, to the clerk of the county court, the insolvency of said estate, &c. To these pleas the plaintiffs demurred, and in argument the counsel for the defendant inásted “ that the judgment by default upon the first scire facias did not establish’ the fact, that any goodsj &c., had come, to the hands of -the defendant, since the judgment'of assets quando acdderint; because the said first scire facias did not aver, that goods, &c.-, had come to the defendant’s hands since the said judgment 'quando; but only, that said .goods, &c., had cometo his hands, '-without sayjng when; and a, judgment by default only admits such facts as are alleged. ' That un-' less the record showed that assets had .come to his hands since the judgment guando, and that such assets had been wasted, no execution could issue against the-defendant to be levied de bmis propriis.” And the counsel for the plaintiffs iñsisted “ that the alleged' defect, 'in the first scire facias, should have been taken advantage of at the first term to which it was, returnable, by plea or demurrer;, that the judgment by default was a-waiver of errors in the process; and so the error, if it be one, eould not be' reached by the demurrer.”

“ And upon said point, whether advantage could be taken of the aforesaid defective averment , in the first scire facias, upon the plaintiffs’ demurrer to the defendant’s pleas to the second sdre facias, the opinions of the judges were opposed.” .

A sdre fadas is an action to which the defendant may plead any legal matter of defence. And in this case the .defendant might have ’ pleaded the same matter in bar to the first sdre fadas, which' he offered to plead to’the'second. ,Ot if he considered the first ¿¿fare fa* das insufficient in. law, he might have demurred to it. Having done*. neither, judgment by default was properly taken against him-. And it is well settled, that a judgment by default -against an executor, or administrator, is an admission of assets to the extent charged in the proceeding against him, whether it be by action on the original judgment or by sdre fadas. Ewing’s Executors v. Peters, 3 Term R. 685; The People v. The Judges of Erie, 4 Cowen, 446. Failing to make the money out of the assets of the intéstate, on the first • scire facias., the .plaintiffs prosecuted the second to have judgment agaipst the defendant, to be levied of his own. proper goods, &c. To this he-pleaded the three pleas before mentioned.

It is a universal rule of law, that if .the party fail to plead matter in ' bar to the original"action, and judgment pass against him, that he cannot afterwards plead it in another action founded on that judgment; nor'in a scire facias., (see the authorities above cited.) The demurrer of the plaintiffs to the defendant’s pleas was, therefore, well taken. And although either party may¿ orí a demurrer, take advantage of any defect or fault in' pleading, in the previous proceedings in the suit, the demurrer can reach no further back than the proceedings .remain in fieri, and under the control of the court. . The judgment on the first sdre fadas, although ancillary to. the original judgment, • and the foundation of the proceeding on the second sdrefadas, was, nevertheless, a final judgment, and, in that count, conclusive upon the parties.; and opposed an insuperable bar to añy plea of either party, whether of law or of fact, designed to go beyond it.

. It is the opinion of thig court, therefore, that advantage could not be taken of any defective averment in'the first sdrefadas, upon the demurrer of the-plaintiffs to the pleas of the defendant; which is ordered to be^-certified to said Circuit.Court.