text:
Kissell v. St. Louis Public Schools

THIS case was brought up from the supreme court of Missouri by a writ of error issued under the 25th section of the judiciary act.

It was an ejectment, brought by the board of school commissioners, to recover from Kissell the following lot in St. Louis county, namely: Beginning on the west side of a street running parallel with and next east of Carondelet Avenue, called Lawrence street or Short street, at a point 120 feet south of the intersection of said street with Wood street; thence westwardly in a line parallel with Wood street 120 feet to an alley; thence southwardly along the said alley 90 feet; thence easterly in a line parallel with Wood street 120 feet, and thence to the place of beginning.

The suit was brought in the St. Louis circuit court, (state court,) where there was a judgment for the plaintiffs. Kissell carried it to the supreme court, where the judgment was affirmed, and a writ of error brought the case up to this court.

The school commissioners claimed title under the three acts of congress mentioned in the head note of the case, and the survey made in 1843, a copy of which was produced in court. Kissell claimed under an entry of fractional section 26, made by Robert Duncan, on the 2d of May, 1836, by virtue of a preemption right.

Without a copy of the map, it is difficult to convey to those members of the profession who are not familiar with Missouri land cases, a clear idea of the nature of this case. It may be proper, however, to mention that it contained numerous long and narrow parallelograms, which, it was contended, were the only lots referred to by the statutes as out-lots, &c., whilst the pieces of land designated by the surveyor as school lands were in detached pieces, scattered about in various places.

It was argued by Mr. Lawrence and Mr. Johnson, for the plaintiff in error, for whom there was also a printed argument filed by Mr. Thomas C. Johnson, of St. Louis. For the defendants in error, it was argued by Mr. Geyer.

The points made on behalf the plaintiff in error, were: 1. That, by the terms of the act of 1812, lots reserved for school purposes were such only as had a previous existence under the Spanish government. 2. That it was to the limits of the Spanish, and not to the limits of the American town, that reference is made in the proviso to the second section, limiting the lots reserved for the support of schools to one twentieth of the land within such town or village; and, 3. That by the term 'out boundary,' used in the first section, reference is not made to a continuous out boundary or 'ring survey,' but to the out boundary respectively of the town, common-fields, and commons, separately.

The points made by Mr. Geyer were the following, namely:

1. The act of congress of the 13th of June, 1812, making further provision for settling the claims to land in the Territory of Missouri, and the acts supplementary thereto, of the 26th of May, 1824, and 27th of January, 1831, together with the certificate of the surveyor-general of the survey, designation and setting apart of the land in controversy, for the support of schools, constitute a complete legal title, equivalent to a patent, conclusive upon the United States, to which the mere entry of the same land with the register and receiver must yield.

2. The survey of the out-boundaries of the town of St. Louis, given in evidence, having been made and certified by the surveyor general, in pursuance of authority vested in him by law, neither its accuracy nor its validity was open to question in the case at bar.

3. The certificate of the surveyor-general, of the survey, designating and setting apart the land in question, is evidence not only that it is within the out-boundaries, but that it was, at the time of designation, a vacant lot, reserved by the act of 1812, had not been selected for military purposes by the President, and does not, together with the lands before assigned, exceed the maximum limit; and, unless it appeared that the United States had no title, or the surveyor-general no authority to make the survey and designation, it is conclusive, upon a principle applicable alike to all official acts of public officers in the disposition of public lands.

4. The 'Plat and description of the survey of the outboundaries of the town (now city) of St. Louis,' made and certified by the surveyor-general, if not absolutely conclusive, is at least prim a facie evidence that it is in conformity with the requirements of the act of 1812, and, for the purpose of this case, that is all-sufficient. No evidence is necessary to support the survey, and there is none on the record competent to overthrow it.

5. If the survey and designation of the lot in question to the use of schools shall be held to be subject to review in a collateral action at law, still, it requires the production of no evidence in aid of it. It stands for proof until it is rebutted; and, in this case, there is no testimony produced by the defendant below, competent to repel or impair its force.

Mr. Justice CATRON delivered the opinion of the court.

title: Kissell v. St. Louis Public Schools


text: Talk:Kissell v. St. Louis Public Schools

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Kissell v. St. Louis Public Schools/Opinion of the Court

In this case, the school commissioners were plaintiffs in their corporate capacity, and, in order to eject the defendant below, were bound to produce a legal title to the land claimed. Their title depends on three acts of congress, passed in 1812, 1824, and 1831. The act of 1812 confirmed, to private owners at St. Louis and other villages in Missouri, town lots, out-lots, and common-field lots, in, adjoining, and belonging to the towns, and it also confirmed to the towns their commons.

This act made it the duty of the principal surveyor to survey, or cause to be surveyed and marked, (where the same had not already been done according to law,) the out-boundary lines of the said several towns and villages, so as to include the out-lots, common-field lots, and commons thereto respectively belonging.

The second section provides, 'that all town or village lots, out-lots, or common-field lots, included in such surveys, which are not rightfully owned or claimed by any private individuals, or held as commons belonging to such towns or villages, or that the President of the United States may not think proper to reserve for military purposes, shall be, and the same are thereby, reserved for the support of schools in the respective towns and villages: Provided, the whole quantity of land contained in the lots reserved for the support of schools shall not exceed one twentieth of the whole lands included in the general survey of any town or village.'

The first section of the act of the 26th of May, 1824, requires the owners of lots which are confirmed by the act of the 13th of June, 1812, within eighteen months after the passage of the act, 'to designate their said lots by proving, before the recorder of land titles, the fact of inhabitation, cultivation, or possession of their said lots, and the boundaries and extent of each claim, so as to enable the surveyor-general to distinguish the private from the vacant lots appertaining to said towns and villages.'

The second section of this act makes it the duty of the surveyor general, immediately after the expiration of the time allowed for private owners to prove the inhabitation, cultivation, and possession of their lots, 'to proceed, under the instruction of the commissioner of the general land-office, to survey, designate, and set apart to the said towns and villages, respectively, so many of the said vacant town or village lots, out-lots, and common-field lots, for the support of schools in said towns and villages, respectively, as the President shall not, before that time, have reserved for military purposes, and not exceeding one twentieth part of the whole lands included in the general survey of such town or village, according to the provision of the second section of the act of the 13th of June, 1812; and also to survey and designate, as soon after the passage of this act as may be, the commons belonging to the said towns and villages, according to their respective claims and confirmations under said act of congress, where the same has not already been done.' By the third section of the act, the recorder of land titles is required to issue a certificate of confirmation for each (private) claim confirmed, 'and, as soon as the said term (eighteen months) shall have expired, furnish the surveyor-general with the list of lots proved to have been inhabited, cultivated, or posessed, to serve as his guide in distinguishing them from the vacant lots to be set apart as above described, (for the use of schools,) and shall transmit a copy of such list to the commissioner of the general land-office.'

On the 27th of January, 1831, an act of congress was passed, for the purpose of transferring the title of the United States (if any) remaining in the property belonging to the several towns and villages embraced by the act of the 13th of June, 1812.

The first section relinquishes to the inhabitants of the several towns and villages all the right, title, and interest of the United States in and to the town and village lots, out-lots, and common-field lots confirmed to them by the first section of the act of the 13th of June, 1812. The second section relinquishes all right, title, and interest of the United States in and to the town and village lots, out-lots, and common-field lots reserved for the support of schools, by the act of 1812, in the respective towns and villages, and provides that 'the same shall be sold or disposed of, or regulated, for the said purpose, in such manner as may be directed by the legislature of the State of Missouri.'

The defendants in error were incorporated by a public act of the legislature of Missouri, approved the 13th of February, 1833, entitled 'An act to establish a corporation in the city of St. Louis, for the purpose of public education.' By the ninth section of this act, the title, possession, charge, and control of all lands and lots in or near St. Louis, granted to the inhabitants for school purposes by any act of congress, is vested in the board of school commissioners, with power to dispose of and apply the same to the purpose of education.

At the trial, the (then) plaintiff gave in evidence the following documents, among others:--

1. A plat called and known as map X, being certified by the surveyor-general to be 'a plat and description of the survey of the out-boundary lines of the town (now city) of St. Louis, in the Territory (now State) of Missouri, as it stood incorporated on the 13th of June, 1812, including the out-lots, common-field lots, and commons thereto belonging, made in pursuance of the first section of the act of congress approved the 13th of June, 1812, entitled 'An act making further provision for settling the claims to land in the Territory of Missouri,' which was approved and certified by the surveyor-general, December 8, 1840.' 2. A certificate of the surveyor-general, in pursuance of instructions of the commissioner of the general land-office, as follows:--

'Office of the surveyor of public lands in the States of Illinois and Missouri, St. Louis, June 15, 1843.'

'Under the instructions of the commissioner of the general land-office, the piece of land, the survey of which is herein platted and described, has been legally surveyed, and under the instructions aforesaid it is hereby designated and set apart to the town (now city) of St. Louis, for the support of schools therein, in conformity with the second section of the act of congress, approved the 26th of May, 1824, entitled an act supplementary to an act passed on the 13th day of June, one thousand eight hundred and twelve, entitled 'An act making further provisions for settling the claims to land in the Territory of Missouri;' the said piece of land hereby designated and set apart as aforesaid is situated within the bounds of the survey directed to be made by the first section of the act of the 13th of June, 1812, aforesaid, so as to include the town-lots, out-lots, common-field lots and commons of the town of St. Louis; and is also within the limits of the said town of St. Louis, as it stood incorporated on the 13th day of June, 1812; and does not, together with all other land designated and set apart to the town of St. Louis for the support of schools, under the aforesaid second section of the act of congress of the 26th of May, 1824, amount to one twentieth of the whole lands included in the general survey directed to be made of said town of St. Louis, by the aforesaid first section of the act of congress of the 13th day of June, 1812; the said piece of land was not, so far as the records of the office show, rightfully owned or claimed by any private individual on the said 13th day of June, 1812; nor was it held as common belonging to the said town of Saint Louis; neither has it been reserved by the President of the United States for military purposes.'

Similar certificates are found in the record for other parcels of lands assigned to the use of schools, but not involved in controversy.

When Louisiana was acquired, the lands included in the out-boundary survey, comprising St. Louis, its fields and commons, were held by imperfect rights, the legal title being vested in the United States, as they had previously been in the government of Spain. As this government could not be sued in its own courts, nor coerced to perfect equitable claims and rights, claimants had to rely on its justice; and as congress had the full and sole power by the constitution to dispose of the public lands, and to make needful rules and regulations for that purpose, it followed that those who sought titles must obtain them on the terms that congress might prescribe; and more especially were the donations made by the act of 1812, to promote education, regulated by this rule.

By the act of 1812, the towns acquired the promise of, and an imperfect title to, certain vacant lands that might be found to exist within an out-boundary survey, but the government reserved to itself the power to make this survey, and the board of school directors was therefore compelled to remain passive until it was completed, and the private claims within it ascertained, and until the United States designated the school lands comprehended within it.

This survey was completed in 1840 by the surveyor-general, and in 1843 he fulfilled the duty of designating the school lands, whereby they became vested in the authorities of Missouri. These proceedings exhausted the powers of the surveyor-general under the acts we have quoted; and whatever controversies may now arise, in reference to these lands, must be subject to judicial cognizance. See Elliott v. Piersol, 1 Pet. 341.

Our opinion is, that the school lands were in the condition of Spanish claims after confirmation by the United States, without having established and conclusive boundaries made by public authority, and which claims depended for their specific identity on surveys to be executed by the government. The case of West v. Cochran, 17 How. 413, lays down the dividing line between the executive and judicial powers in such cases, to wit: That until a designation, accompanied by a survey or description, was made by the surveyor-general, the title attached to no land, nor had a court of justice jurisdiction to ascertain its boundaries.

We are furthermore of opinion that the certificate of the surveyor-general, above set forth, and which was accepted by the grantees, is record evidence of title, by the recitals in which the government and the board of school directors are mutually bound and concluded. And this instrument, declaring that the land prescribed was reserved for the support of schools, and the courts of justice having no power to revise the acts of the surveyor-general under these statutes, as respects the school lands, it is not open to them to inquire whether the lands set apart were or were not lots of the description referred to in the statutes. The parties interested have agreed that this land was a school lot, and here the matter must rest, unless some third person can show a better title. And the plaintiff in error insists that he has shown a better one by the production of Duncan's entry covering the land. It was allowed by the register and receiver at St. Louis, May 2, 1836, for the fractional section No. 26, by virtue of a pre emption claim set up by Duncan.

Of this land, the designated school lot claimed by the plaintiff below includes five acres and 66/100ths of an acre.

The entry was contested, and was brought to the consideration of the commissioner of the general land-office, and upon August 1, 1845, he instructed the register and receiver that only 8 20/100 acres was vacant at that spot; the residue of the 35 49/100 acres surveyed as fractional section 26, had been located on private claims; nor was there evidence that any part of the 8 66/100 acres had been inhabited as required by the pre emption laws. This inquiry, he remarks, was however unnecessary, because the 8 66/100 acres had been reserved for the support of schools in the town of St. Louis by the act of 1812, and a selection of said land, for that purpose, having been made under the act, 'it cannot, therefore, be subject to the operation of the subsequent pre emption laws of 1814 and 1816.'

He further declared: 'In addition to the above objection, the said land is within the corporate limits of the city of St. Louis, as established in 1809, and, if not so reserved, would not have been subject to pre emption subsequent to that time-the principle having been early settled in a pre emption case for land within the limits of the town of Mobile, that the right of preemption, designated for the benefit of agriculturists, could not be regarded as applicable to residents within the bounds of an incorporated city or town.' For the foregoing reasons, the entry of fractional section 26, for 35 49/100 acres, was cancelled, and the register and receiver were ordered to refund the purchase-money.

On these facts, the circuit court gave to the jury the following charge:--

'The court is asked to instruct you, that the claims of the respective parties to the land in controversy must depend mainly upon the question, whether the land was reserved for the use of schools by the act of the 13th of June, 1812. In this view the court concurs; but without advising you more at large upon that subject, as requested, gives the case the direction indicated by two of the propositions submitted, one on either side, designed to effect a comparison between the titles of the parties. These are as follows:--

'On the part of the defendant, 'that the pre emption to Robert Duncan conferred a valid claim under the pre emption laws, and that he, having settled upon the land before any survey thereof was actually made, is entitled to hold it, and that the persons deriving title from said Duncan have a title superior to the plaintiffs.'

'On the other hand, it is insisted 'that the title of the plaintiffs, under the act of the surveyor-general, designating and setting apart the ground in controversy to the plaintiffs, is superior to the title of the defendant, under an entry with the register and receiver of the land-office;' and of this opinion is the court. The jury is therefore instructed, that, upon the titles exhibited in testimony by the parties, the plaintiff is entitled to recover.

'The court adds, that the defendant has the right to impeach the title of the plaintiff, the same and to the same extent as if the entry of Duncan, under which he claims, had not been vacated by the commissioner of the general land-office. And the court further instructs the jury, that no evidence has been adduced on the part of the defendant competent to invalidate or overthrow the plaintiff's title, and therefore the jury should find for the plaintiff.'

The conflicting titles both depend on acts of congress, and are submitted to this court on the whole record; and which we are called on to compare, as was done in the cases of Matthews v. Zane, 4 Cranch, 382; Ross v. Barland, 1 Pet. 664; and Jackson v. Wilcox, 13 Pet. 509. This follows from the instruction given, which maintains that the title of the board of public schools, under the certificate of the surveyor-general, setting apart the land in dispute to the plaintiffs below, was superior to the defendants' title under Duncan's entry with the register and receiver; and that, therefore, the jury was directed to find for the plaintiff. This general instruction raises the question, whether the land was subject to sale, to one claiming a preference of entry under the pre emption laws.

To which it may be answered, that when the act of 1812 dedicated certain lands for the purposes of education to the use of the village of St. Louis, and the act of 1831 vested the title to these lands in the city, such lands were appropriated, and not subject to sale; they were beyond the reach of the officers of the government, nor could their action lawfully extend to them, with the exception that they could be ascertained and designated within the power reserved. Nor could Duncan be heard to say that he did not know that this parcel of land was reserved. The same excuse might be made, and with a much greater claim to justice and propriety, by one who obtained an entry on land reserved from sale for military purposes, or for some other public use, by the President; the fact of which reservation was hardly known beyond the general and local land-offices; yet such entries have constantly been set aside as absolutely void, or as voidable, by the department of public lands. The case of Wilcox v. Jackson, 13 Pet., was an instance of the first kind, where the entry was pronounced as absolutely void, it being in the notorious limits of a reservation for military purposes; and so here the entry of Duncan was within the notorious limits of the city of St. Louis, according to the record of incorporation made by the court of common pleas for St. Louis county, in 1809, and which city limits are recognized by the department of public lands and by the out-boundary survey, as the existing limits when the act of 1812 was passed. This appears from the documents offered in evidence, on which the instruction to the jury was founded. We, therefore, concur with the views expressed by the state courts and those of the commissioner of the general land-office, that Duncan's entry was invalid.

As this concurrence with the state courts is conclusive of the controversy, we do not deem it necessary to examine further into the titles and instructions given to the jury.

It is proper to remark, that we are here dealing with the survey, (marked X,) and ascertaining its effect as regards the lands granted and allotted for school purposes, and are not to be understood as having expressed any opinion on the effect of this out-boundary survey on titles situated beyond it, and claimed to have been confirmed by the act of 1812, or which were subject to be identified by the recorder of land titles, under the act of 1824.

For the reasons above stated, it is ordered that the judgment of the supreme court of Missouri be affirmed.


text:
Page:Florence Earle Coates Mine and Thine 1904 020.jpg

20


text: Talk:Kissell v. St. Louis Public Schools/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Underdown, Thomas


text:
Isaac Hartshorn v. Horace H Day

THIS case was brought up, by writ of error, from the circuit court of the United States for the District of Rhode Island.

The defendant in error filed the record, and docketed the case on the 24th of November, 1855, and on the ensuing 1st of December the plaintiff in error filed his copy of the record, within the period allowed him by the 63d rule of court.

Mr. Gillett, for the defendant in error, moved the court for leave to withdraw the record filed by him in order to have the same forthwith printed at his own expense.

Upon which motion, Mr. Justice McLEAN delivered the opinion of the court.

title: Isaac Hartshorn v. Horace H Day


text: Talk:Isaac Hartshorn v. Horace H Day

title: Talk:Isaac Hartshorn v. Horace H Day


text:
Isaac Hartshorn v. Horace H Day/Opinion of the Court

In the above case, a motion was made by the defendant that he be permitted to withdraw the record filed and docketed by him, and have it printed at his own expense, without losing its place on the docket.

Rule 63, published in 16 How. requires that, when an appeal on writ of error shall be taken to this court thirty days before the commencement of the ensuing term, the record shall be filed within the first six days of the term; and if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the cause docketed and dismissed, upon producing a certificate of the clerk of the court wherein the judgment or decree was rendered, stating the cause, and certifying that such writ of error or appeal has been duly sued out and allowed.

But the rule states, the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of the court; and if the case is docketed and a copy of the record filed with the clerk of this court, by either party, within the periods of time above limited and prescribed by this rule, the case shall stand for argument at the term.

The above case was docketed in this court, by the defendant in error, before the expiration of the time allowed the plaintiff to file the record.

The plaintiff in error filed the record and had the cause docketed, before the expiration of the six days after the commencement of the term; he was therefore within the rule, and was guilty of no laches. Had he failed to do this, the defendant, on the certificate of the clerk, might have docketed and dismissed the cause, or he might have procured the record and docketed the case which, under the rule, would stand for argument at the present term. But the case cannot be dismissed or docketed by the defendant, unless the plaintiff in error or appellant shall be in default.

The above cause is, therefore, dismissed.

Mr. Gillett, of counsel for the defendant in error having moved the court on a prior day of the present term, for leave to withdraw this record in order to have the same printed forthwith, and it appearing to the court that this record was filed and docketed at the instance of the defendant in error, on the 24th day of November last, and it also appearing that the plaintiff in error had filed the record and docketed the case, on the 1st of December last, within the period allowed him by the 63d rule of court, it is considered by the court that this cause was filed and docketed prematurely by the defendant in error, and should be dismissed-whereupon it is now here ordered by this court that this cause be stricken from the docket and that the record thereof be delivered to the defendant in error.


text: Talk:Isaac Hartshorn v. Horace H Day/Opinion of the Court


text: United States v. Fremont

title: United States v. Fremont


text: Talk:United States v. Fremont

title: Talk:United States v. Fremont


text: Dictionary of National Biography, 1885-1900/Underhill, Cave


text:
United States v. Fremont/Opinion of the Court

THIS was an appeal from the district court of the United States, for the northern district of California, and was a sequel to the same case reported in 17 How. 553.

As the case involved a principle somewhat novel, and especially an important point of practice, the reporter thinks it proper to insert the papers upon which the motion to dismiss the appeal was founded.

The appellee, J. C. Fremont, (by his counsel,) moves to dismiss this appeal, and brings here in to court the certificate of the clerk of the district court of the United States for the northern district of California, stating the case, and certifying the appeal as prayed, allowed, and sued, (at the instance and prayer of the attorney for the United States for the district aforesaid,) for and on behalf of the United States, in the month of July of the present year 1855—

And for causes of dismissal, the following are assigned and shown.

1. That the said appeal is, in fact and truth, nothing but an appeal from the opinion and decree and mandate of this supreme court of the United States pronounced between the same parties, at December term, 1854, (reported in 17 How. 553, 576,) entered of record in the said district court of the United States for the northern district of California, in strict conformity with the opinion and mandate of this supreme court, and made the decree of said district court. Wherefore the appeal, so as aforesaid prayed and allowed, is subversive of order and due subordination, in derogation of the supreme judicial power and authority of the supreme court of the United States as established by the constitution, unlawful in the inception, tending in its consequences, (if indulged,) to vexatious delay and endless litigation.

2. Because the party appellant has failed to docket the case and file the record thereof with the clerk of this court within the first six days of this term, as required by the rules of this court.

The appellee further moves for permission to take out a copy of the dismission, when granted, forthwith, in order to prevent further delay.

JONES, CRITTENDEN, and BIBB, for Appellee.

Dec. 14, 1855.

The President of the United States of America, to the Honorable the judge of the district court of the United States for the northern district of California:

Greeting:--

Whereas lately, in the district court of the United States for the northern district of California, before you, in a cause between the United States, appellants, and John C. Fremont, claimant and appellee; the decree of the said district court was in the following words, namely:--

This cause coming on to be heard at the above stated term, on appeal from the final decision of the commissioners to ascertain and settle private land claims in the State of California, under the act of congress approved March 3, 1851, upon the transcript of the proceedings and decision, and the papers and evidence on which said decision was founded, and also upon the testimony and depositions taken before this court, and the arguments of counsel for the United States and for the claimant being heard, it is ordered, adjudged, and decreed, that the decision of the said commissioners be in all things reversed and annulled, and that the said claim be held invalid and rejected, 'as by the inspection of the transcript of the record of the said district court which was brought into the supreme court of the United States, by virtue of an appeal agreeably to the act of congress in such cases made and provided, fully and at large appears.

And whereas in the present term of December, in the year of our Lord one thousand eight hundred and fifty-four, the said cause came on to be heard before the said supreme court on the said transcript of the record, and was argued by counsel, on consideration whereof it is the opinion of this court that the claim of the petitioner to the land as described and set forth in the record is a good and valid claim. Whereupon it is now here, ordered, adjudged, and decreed, by this court, that the decree of the said district court in this case be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said district court for further proceedings to be had therein, in conformity to the opinion of this court.

You, therefore, are hereby commanded that such further proceedings be had in said cause, in conformity to the opinion and decree of this court as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding.

Witness the Honorable Roger B. Taney, chief justice of said supreme court, the first Monday of December, in the year of our Lord one thousand eight hundred and fifty-four.

WM. THOMAS CARROLL, Clerk Supreme Court of the United States.

Indorsed: Filed, June 4, 1855.

JOHN A. MONROE, Clerk.

By W. H. CHEVERS, Deputy.

The United States, appellant, }

v.      }

John C. Fremont, appellee. }

Stated term, June 27, 1855.

Comes now the said John C. Fremont, by his attorney, and the United States by theirs, also come, and the mandate of the supreme court of the United States having been filed in this court, duly authenticated under the seal of the said supreme court, and certified by the clerk thereof-whereby it appears that at the December term of said supreme court, 1854, that is to say, on the 10th day of March, 1855, upon the appeal by the said John C. Fremont, from the decree of this court, reversing the decision of the said commissioners, and holding invalid and rejecting the claim of the said John C. Fremont, (the said appeal having come on to be heard before the said supreme court, upon the transcript of the record of this court,) the said supreme court rendered, and pronounced a judgment and decree in the following words to wit: 'It is the opinion of this court that the claim of the petitioner to the land as described and set forth in the record, is a good and valid claim. Whereupon, it is now here adjudged and decreed by this court that the decree of the said district court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said district court for further proceedings to be had therein in conformity to the opinion of this court.

It is therefore ordered, adjudged, and decreed, by this court, that the claim of the said John C. Fremont, to the land as described and set forth in the record, is a good and valid claim, and that the said claim be and the same is hereby confirmed to the extent of ten square leagues, the quantity specified in the original grant, set forth in the record, and within the limits therein mentioned, the said land to be surveyed in the form and divisions prescribed by law for surveys in California and in one entire tract.

M. HALL MCALLISTER, Circuit Judge United States District of California.

OGDEN HOFFMAN, Jr. United States District Judge.

Indorsed: Filed June 27, 1855.

JOHN A. MONROE, Clerk.

By W. H. CHEVERS, Deputy.

District court of the United States in and for the northern district of California.

The United States, appellants,    }

v.   }

John C. Fremont, appellee. }

Sir: The United States intend to appeal from the final decree of the court in this cause.

S. W. INGE, United States District Attorney.

TO JOHN A. MONROE, Esq., Clerk.

Indorsed: Filed, June 27, 1855.

JOHN A. MONROE, Clerk.

By W. H. CHEVERS, Deputy.

District court of the United States in and for the northern district of California.

The United States, appellants,    }

v.   }

John C. Fremont, appellee. }

Sir: The United States intend to appeal from the final decree of the court in this cause.

S. W. INGE, United States District Attorney.

TO VOLNEY E. HOWARD, ESQ.

I served this notice in person, by copy, on V. E. Howard, this 27th day of June, 1855.

W. H. RICHARDSON, United States Marshal.

By Q. E. SEWELL, Deputy.

Indorsed: Filed, June 28, 1855.

JOHN A. MONROE, Clerk.

By W. H. CHEVERS, Deputy.

In the district court of the United States for the northern district of California.

v.

John C. Fremont.

Appeal from the board of commissioners to ascertain and settle private land-claims in California.

Bill of exceptions.

Be it remembered that on the return of the mandate from the supreme court of the United States, (in the appeal from the decision of this court heretofore rendered in this cause,) the said John C. Fremont moved the court to pronounce a decree in pursuance of said mandate, in the form of the decree in that behalf in the record of this cause appearing, (excepting the following words, to wit: 'The said land to be surveyed in the from and divisions prescribed by law for surveys in California, and in one entire tract,') to which motion the attorney for the United States objected, and after arguments, the court, on June 27, 1855, refused to reder the decree as prayed by the said John C. Fremont, but added thereto the words above quoted, as to the mode of survey, and rendered the decree in this behalf accordingly, to which decision of the court (adding the above quoted words) and to the said portion of said decree directing the mode of survey, the said John C. Fremont by his counsel, at the proper time, duly excepted, and prayed that this his exception be signed and sealed by the court, and made a part of the record of this cause, which is accordingly done.

M. HALL MCALLISTER, Circuit Judge United States for the District of California, and Presiding Officer United States District Court.

OGDEN HOFFMAN, Jr. United States District Judge, Northern District of California.

Indorsed: Filed, June 28, 1855.

JOHN A. MONROE, Clerk.

By W. H. CHEVERS, Deputy.

At a stated term of the district court of the United States of America, for the northern district of California, held at the courthouse in the city of San Francisco on Monday, the 23d day of July, in the year of our Lord one thousand eight hundred and fifty-five.

Present:--

HON. M. H. McALLISTER, Circuit Judge.

HON. OGDEN HOFFMAN, JR., District Judge.

The United States, appellants,    }

v.   }

John C. Fremont, appellee. }

In this case, on application of the United States attorney, made in open court, it is ordered by the court, that an appeal on behalf of the United States from the final decision of this court rendered in said cause at the present term be and the same is hereby granted.

And that a certified transcript of the pleadings, evidence, depositions, and proceedings in the said cause be sent to the supreme court of the United States, without delay.

Indorsed: Filed July 23, 1855.

JOHN A. MONROE, Clerk.

by W. H. CHEVERS, Deputy.

UNITED STATES OF AMERICA.

I, John A. Monroe, clerk of the district court of the United States of America for the northern district of California, do hereby certify that the annexed pages from one to one hundred and twenty inclusive, contain a full, true, and correct transcript of the record on file from the Board of Land Commissioners, together with the pleadings, depositions, orders, opinion, decrees, bond, mandate of the supreme court of the United States, and the proceedings thereon in this court, filed in this office in the case entitled: The United States, appellants, v. John C. Fremont, appellee.

In testimony whereof I have hereunto set my hand and affixed the seal of the said court, this 18th day of October, in the year of Lord one thousand eight hundred and fifty-five, and of our Independence the eightieth.

JOHN A. MONROE, Clerk.

by W. H. CHEVERS, Deputy.

Mr. Justice McLEAN delivered the opinion of the court.

This is an appeal from the northern district of California.

A final decree was entered in this case at the last term, and a mandate was issued to the district court, directing such further proceedings in conformity to the opinion and decree of this court, as according to right and justice, and the laws of the United States, ought to be had.

This court reversed the decision of the district court, and ordered, adjudged, and decreed, that the claim of the said John C. Fremont, to the land as described, and set forth in the record, is a good and valid claim; and that the said claim be, and the same is hereby confirmed to the extent of ten square leagues, the quantity specified in the original grant, set forth in the record and within the limits therein mentioned, the said land to be surveyed in the form and divisions prescribed by law for surveys in California, and in one entire tract.'

The mandate was filed in the district court, and the counsel of Fremont, moved the court for an order in pursuance of said mandate, in the form of the decree in that behalf elsewhere in the record of the case appearing, excepting the following words, 'the said land to be surveyed in the form and divisions prescribed by law, for surveys in California, and in one entire tract,' which motion was opposed by the district attorney of the United States. The district court entered the decree upon its record, refusing to omit the words, moved by the appellee, and to this refusal his counsel excepted.

No further proceedings were had, as appears from the record; and at a subsequent day of the district court, the attorney of the United States applied for an appeal in open court, in behalf of the United States, from the final decision of that court, at the above term, which was granted.

The appeal was allowed the 23d of July, 1855, more than three months before the commencement of the present term of this court; and no record of the case having been filed within six days, after the commencement of the term, as the rule requires, a record of the case being filed by the appellee, a motion is made to dismiss the appeal on the ground that there was no action of the district court on which an appeal could be taken. And also, on the ground that the appellants have failed to file the record within the rule.

It was the duty of the appellants to file the record and docket the cause, within the first six days of the present term; the decree appealed from having been entered sixty days before the commencement of the present term. With the exception of California, Oregon, Washington, New Mexico, and Utah, appeals or writs of error allowed are required to be docketed within the first six days of the term, if entered or allowed, thirty days before its commencement.

The appellants having failed to file the record, it was filed by the appellee, which entitles him, under the rule, to have the cause dismissed.

But the counsel for the appellee insist that the appeal should be dismissed, on the ground that it was taken with the intent to bring before this court a review of its decree entered at the last term. As there was no action by the district court, except the entry of the mandate upon its records, the appeal brings before us only, that which was transmitted to the district court by the mandate. This is an irregular procedure; and it must have been entered without a particular examination by the court.

The appeal is dismissed, and the clerk is directed, forthwith, to certify this decision to the district court.

Mr. Justice CATRON.

I agree that, by the 19th, 30th, 43d, and 63d rules governing the practice of this court, the record presented was not filed in time, and that therefore the appeal must be dismissed for want of prosecution. But I do not concur that, on the present motion to dismiss, we ought to decide the question, whether the district court could or could not allow the appeal on the decree made there, on the ground that the decree did not conform to the mandate of this court.

The motion to dismiss for want of prosecution, and the motion to dismiss for want of jurisdiction, to entertain the appeal, are different and distinct in their character; the one only dismisses the appeal and allows a second; and the other bars it.

The practice has been, when the record was not filed in time, for the defendant in error, or appellee, to produce a certificate from the clerk, or a copy of the record duly certified, showing that the writ of error or appeal had been taken, and that it operated as a supersedeas, when the cause was docketed and dismissed. But when a motion was made to dismiss the cause for want of jurisdiction in this court to entertain the writ of error or appeal; or in other words, want of authority in the court below to allow it, (which is the question here,) then the record was ordered to be printed, briefs filed, and the question discussed in the usual way. Nor has it ever occurred in my experience in this court, to set down a cause to be heard at the same time, on both motions. The consequence must be in such a proceeding, that if the plaintiff in error is turned out of court for his neglect, in not filing the record in time, he has no power to move for a certiorari to amend the record, filed by the other side, and then this court bars a second appeal by further adjudging that no jurisdiction existed in the inferior court to allow it. And such is the judgment in this case.

Some of the most stringent controversies that have come before us, have arisen on motions to dismiss for want of jurisdiction, and especially in causes brought here from state courts under the 25th section of the judiciary act.

The idea in such cases, that a state court decision should in effect, be affirmed, and the plaintiff in error barred, by dismissing case for want of jurisdiction, on the presentment of a manuscript record, without furnishing the court with even a brief (as was done here) is not only contrary to our established practice, but is calculated to do great mischief to suitors.

In the instance before us, I never saw the papers until after I heard the opinion of the majority of the court read. I deemed it unimportant, on the first question, to read the record, as it had not been filed in time, nor was a valid excuse offered for the delay. On the second question, I had then formed no opinion. In his remarks, the attorney-general referred us to a letter of the district attorney of the United States for the northern district of California, which was officially written to the secretary of the interior, and presented to us, as part of the attorney-general's argument, setting forth the reasons why the appeal was prosecuted. These reasons, in substance, are, that this court, in its opinion delivered by the chief justice at the last term, (17 How. 565,) remanded the cause, and directed the court below to enter a decree conformably to that opinion; which opinion (ibid. 558) declared: 'That if any other person within the limits where the quantity granted to Alvarado should be located, had afterwards obtained a grant by specific boundaries before Alvarado had made his survey, the title of the latter grantee could not be impaired by any subsequent survey for Alvarado; and that as between individual claimants from the government, the title of the party who had obtained a grant for the specific land would be the superior and better one.'

And it is insisted, in this argument, that the district court should have inserted in its decree, the foregoing conclusions, and have protected individual titles and rights, in the region of country where Colonel Fremont's claim might be located, ordering that such lands should be excluded from the survey as Fremont's land, although they were embraced within its outboundaries. And, secondly, that, in the opinion of this court, the district court was directed to cause the grant to Alvarado to be surveyed, 'in the form and divisions prescribed by law for surveys in California.' But that it had made no decree as to the form of the survey, and disregarded the instruction, leaving it to the surveyor to ascertain the law, and to locate the land, according to the law of California, whether it was Mexican or United States law; whereas, it is insisted that the true construction of the grant to Alvarado, (as to the manner in which it shall be surveyed,) was a judicial question; and that, as the concession was for the purposes of cultivation and pasturage, a survey should be made of lands suited to these purposes, and that the district court ought so to have adjudged and decreed, and to have excluded a survey of barren mountains, including improved gold mines, contrary to the plain intention of the parties to the grant as originally made.

The questions presented were supposed to be of grave importance and much difficulty, and, therefore, no imputation of unfair and oppressive conduct should be cast on the officer of the government who prayed this appeal, under the express sanction of the district court.

It is manifest that Fremont, the appellee, believed he might appeal, if he saw proper to do so. He took a bill of exceptions, and had it signed by the court, to its ruling, that his claim should be surveyed in one tract. As no bill of exceptions lies, in cases of this description, an appeal could have been prosecuted, on the affirmative fact, that too much had been inserted in the decree, contrary to the mandate of this court; so, on the other hand, if not enough was put into the decree, to execute the mandate, an appeal would equally lie. As a general rule, this is undoubted. It is plainly apparent that both parties, and the court, believed that an appeal would lie.

I hold it to be true, however, that the appeal should not have been allowed. By the treaty of peace with Mexico, the legal title to the public lands in California was vested in the United States, onerated with private claims to parts thereof. Alvarado's claim was presented as one of this character, and being brought before this court, was pronounced to be a good and subsisting claim; and furthermore, that all the conditions it contained were subsequent conditions, which, by the treaty, ceased to have any binding force; and, therefore, they were struck from the grant as being no necessary part thereof. It was also held, that the claim, in this condition, was assignable, and properly assigned to Colonel Fremont; and, as there was no grant to any specific tract of land, that Colonel Fremont held a common interest in the public lands generally, lying within a large section of country described in the grant.

This decision reduced the claim to the condition of a mere floating land warrant, that could not be located by judicial authority, more than an ordinary floating warrant can be located by the decree of a court, and, therefore, when seeking location, it must, of necessity, address itself to the executive or legislative power.

The district court, having entered the decree as directed, had no jurisdiction to take any further step in the cause. It follows that the executive department must determine for itself whether any law exists authorizing that branch of the government to ascertain and survey the land, and issue a patent for it, by which the title of the United States will be devested, and transferred to the grantee.

This cause came on to be heard on the transcript of the record from the district court of the United States for the northern district of California, filed by the appellee, John C. Fremont, and, on the motion of Messrs. Crittenden and Bibb, of counsel for the appellee, to docket and dismiss this appeal, pursuant to the 63d rule of this court, and was argued by counsel, as well against as in support of the said motion. On consideration whereof, it appearing to this court that the appellants have altogether failed to prosecute their appeal pursuant to the rules of this court. And, also, as the mandate only was entered on the records of the district court, no action being had thereon, that there was no ground for an appeal in this cause from the said district court, it is thereupon now here ordered, adjudged, and decreed by this court, that this appeal be and the same is hereby docketed and dismissed, and that this cause be and the same is hereby remanded to the said district court, with directions to proceed therein according to law and in conformity to this decision. And it is further ordered by this court here, that the clerk do forthwith issue a writ of procedendo in this cause to the said district court.


text: Talk:United States v. Fremont/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Underhill, Edward


text:
Ex parte Sturgess

Mr. Lawrence, of counsel for the plaintiffs in error in these cases, filed certificates of the clerk of the circuit court of the United States for the eastern district of Louisiana, stating that judgments were entered against the plaintiffs in error in that court, on the 16th day of November, 1855, and that writs of error were duly applied for, and allowed on the 21st of November, 1855, returnable to the December term, 1855, of the supreme court of the United States. The certificates further stated that the clerk could not, consistently with the other duties of his office, make out and have ready the transcripts of the records and proceedings at the opening of the term of the supreme court, nor within less than ninety days thereafter.

Whereupon, Mr. Lawrence applied for an extension of time under the 63d rule of this court.

Mr. Justice McLEAN delivered the opinion of the court.

title: Ex parte Sturgess


text: Talk:Ex parte Sturgess

title: Talk:Ex parte Sturgess


text:
Ex parte Sturgess/Opinion of the Court

In the above cases writs of error were allowed on the 21st day of November last, the judgments having been entered on the 16th of that month. The clerk of the circuit court certifies that he cannot, consistently with the other duties of his office, make out and have ready the transcript of the record and proceedings in the said causes, in time for the same to reach Washington City at the opening of the term of the supreme court, nor within less than ninety days thereafter.

On this statement of the clerk, a motion is made for longer time to certify the record.

At the December term, 1853, this court adopted a rule requiring, where a judgment or decree was entered thirty days before the succeeding term of this court, that the writ of error or appeal should be entered on the record of this court, and the record filed within the first six days of the term. But if less than thirty days intervene, between the entry of the judgment or decree, and the sitting of this court, the case should be entered on the docket of this court, and the record filed, within thirty days from the commencement of the term.

The above rule was adopted to prevent unnecessary and improper delays, in prosecuting writs of error or appeals in this court from the inferior courts. Thirty days from the commencement of this term affords ample time to the clerk, to make out and forward the records in the above cases. The rules of this court can, in no respect, depend upon the convenience of the clerks of the inferior courts.

Extension denied, and motion overruled.

title: Ex parte Sturgess/Opinion of the Court


text: Talk:Ex parte Sturgess/Opinion of the Court


text:
Peck v. Sanderson (59 U.S. 42)

THIS case was argued and decided at the last term, and is reported in 17 Howard.

Mr. Rush, of counsel for the appellee, now stated to the court that a petition from the appellee was on file, verified by affidavit, and moved for a rehearing, which was opposed by Mr. Wahr, counsel for the appellant.

Mr. Justice McLEAN delivered the opinion of court.

title: Peck v. Sanderson (59 U.S. 42)


text: Talk:Peck v. Sanderson (59 U.S. 42)

title: Talk:Peck v. Sanderson (59 U.S. 42)


text:
Peck v. Sanderson (59 U.S. 42)/Opinion of the Court

This case was decided at the last term, on an appeal from the circuit court of the United States for the eastern district of Pennsylvania, and a motion is now made by Mr. Rush, counsel for the appellee, for a reargument, on the ground that he was prevented by sickness from attending the court at the time of the hearing.

It is a subject of regret that any cause should be heard in the absence of counsel, and especially where the cause of absence, by a failure in the mail, was unknown to the court.

In the above case, the brief of the counsel was before the court, and it is not probable that an oral argument would have changed the result.

But in the case of Browder v. McArthur, 7 Wheat. 58, it was held that this court cannot grant a rehearing in a case which has been remitted to the court below; and in the case of the Washington Bridge Company v. Stewart, et al. 3 How. 413, the same principle was recognized. The motion is overruled.


text: Dictionary of National Biography, 1885-1900/Underhill, John (d.1672)


text: Talk:Peck v. Sanderson (59 U.S. 42)/Opinion of the Court


text:
Barnard v. Ashley

THIS was an appeal from the circuit court of the United States for the southern district of New York.

The case is stated in the opinion of the court.

It was argued by Mr. Pike, for the appellants, and by Mr. Lawrence and Mr. Crittenden, for the appellees.

The points of law made by the respective counsel were so interwoven with the facts, that they cannot be explained without an elaborate statement of the case.

Mr. Justice CATRON delivered the opinion of the court.

title: Barnard v. Ashley


text: Dictionary of National Biography, 1885-1900/Underwood, Michael


text: Talk:Barnard v. Ashley

title: Talk:Barnard v. Ashley


text:
Barnard v. Ashley/Opinion of the Court

The proceedings in the court below consisted of a bill filed by Barnard against Ashley and Craig, praying that certain patents for lands issued to the defendants might be decreed to be cancelled, upon the ground of a violation of pre emption rights on part of the complainant, to the following tracts, namely: N. E. 1/4 and S. W. fr. 1/4 of sec. 27; S. E. fr. 1/4 of sec. 28, T. 18 S., R. 1 W.; S. W. fr. 1/4 of sec. 15, T. 19 S., R. 1 W.; S. E. 1/4 of sec. 22, T. 18 S., R. 1 W.; and a cross-bill on part of Ashley to be quieted in his title to the S. E. qr. of sec. 22, against the right set up by Barnard to that tract, under a junior patent therefor, upon the ground that Barnard had no right to this tract, and that the patent was issued to him improperly.

The title of Ashley and Craig (the appellees) to the first four tracts is derived from a sale to them of the land in controversy by the governor of Arkansas, in consequence of a selection made by him of the land under certain provisions of the acts of congress of the 2d of March, 1831, and the 4th of July, 1832, (4 Stats. at Large, 473, 563,) upon which selection and sale patents were issued by the United States. The title to the S. E. 1/4 of sec. 22, T. 18 S., R. 1 W., is derived from the location of what is called a 'Lovely donation claim' on this quarter section, by virtue of the provisions of the 8th section of the acts of the 24th of May, 1828, (4 Stats. at Large, 306,) and 6th of January, 1829, (Ibid. 329.)

According to the conceded facts, it is insisted, on the part of Ashley and Craig, that the register and receiver having, on due proof and examination, rejected Barnard's claims to a preference of entry of the four quarter sections, he is thereby concluded from setting them up in a court of equity, because the register and receiver acted in a judicial capacity, and their judgment, being subject to no appeal, is conclusive of the claim. And the cases of Jackson v. Wilcox, and Lytle v. The State of Arkansas are relied on to maintain this position.

In cases arising under the pre emption laws of the 29th of May, 1830, and of the 19th of June, 1834, the power of ascertaining and deciding on the facts which entitled a party to the right of pre emption was vested in the register and receiver of the land district in which the land was situated, from whose decision there was no direct appeal to higher authority. But, even under these laws, the proof on which the claim was to rest was to be made 'agreeably to the rules to be prescribed by the commissioner of the general land-office;' and, if not so made, the entry would be suspended, when the proceeding was brought before the commissioner by an opposing claimant. In cases, however, like the one before us, where an entry had been allowed on ex parte affidavits, which were impeached, and the land claimed by another, founded on an opposing entry, the course pursued at the general land-office was to return the proofs and allegations, in opposition to the entry, to the district office, with instructions to call all the parties before the register and receiver, with a view of instituting an inquiry into the matters charged; allowing each party, on due notice, an opportunity of cross examining the witnesses of the other, each being allowed to introduce proofs; and, on the close of the investigation, the register and receiver were instructed to report the proceeding to the general land-office, with their opinion as to the effect of the proof, and the case made by the additional testimony. And, on this return, the commissioner does in fact exercise a supervision over the acts of the register and receiver. This power of revision is exercised by virtue of the act of July 4, 1836, § 1, which provides 'that, from and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands; and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government of the United States, shall be subject to the supervision and control of the commissioner of the general land-office, under the direction of the President of the United States.' The necessity of 'supervision and control,' vested in the commissioner, acting under the direction of the President, is too manifest to require comment, further than to say that the facts found in this record show that nothing is more easily done than apparently to establish, by ex parte affidavits, cultivation and possession of particular quarter sections of land, when the fact is untrue. That the act of 1836 modifies the powers of registers and receivers to the extent of the commissioner's action in the instances before us, we hold to be true. But if the construction of the act of 1836, to this effect, were doubtful, the practice under it for nearly twenty years could not be disturbed without manifest impropriety.

The case relied on, of Wilcox v. Jackson, 13 Pet. 511, was an ejectment suit, commenced in February, 1836; and as to the acts of the register and receiver, in allowing the entry in that case, the commissioner had no power of supervision, such as was given to him by the act of July 4, 1836, after the cause was in court.

In the next case, 9 How. 333, all the controverted facts on which both sides relied had transpired, and were concluded before the act of July 4, 1836, was passed; and therefore its construction, as regards the commissioner's powers, under the act of 1836, was not involved. Whereas, in the case under consideration, the additional proceedings were had before the register and receiver in 1837, and were subject to the new powers conferred on the commissioner.

In Lytle's case, we declared that the occupant was wrongfully deprived of his lawful right of entry, under the pre emption laws, and the title set up under the selection of the governor of Arkansas was decreed to Cloyes, the claimant, this court holding his claim to the land to have been a legal right, by virtue of the occupancy and cultivation, subject to be defeated only by a failure to perform the conditions of making proof and tendering the purchase-money. There the facts were examined to ascertain which party had the better right; and, following out that precedent, we must do so here.

Governor Pope was authorized to select lands equal to ten sections in the Territory of Arkansas, in tracts not less than a quarter section each, and to sell the same for the purpose of raising a fund to erect public buildings in the territory. The three first-named quarter sections lie in township 18, the survey of which was made and returned to the local land-office, and approved June 4, 1834, when the lands therein were subject to entry by the governor.

He made his final amended selections of the three tracts in township 18, June 6, 1834. The bill claims title to these tracts under the occupant law of June 19, 1834. As Governor Pope's assignees, Craig and Ashley had a vested right when the act of June 19 was passed; it did not operate on these lands, which were appropriated to the use of the United States; and patents for them were properly awarded to the purchasers from the governor.

The condition of the S. W. quarter of sec. 15, T. 19, differs from the preceding lands in this: the township survey of No. 19 was found to be inaccurate when first returned to the land-office at Little Rock, and a resurvey was ordered as to some of the section lines, which were not finally adjusted till the 19th of July, 1834.

Governor Pope had selected the S. W. quarter of sec. 15 on the 29th of May preceding, relying on the inaccurate survey; and it is insisted for Barnard's heirs, that the selection was invalid, as it could not be made of unsurveyed lands; and that township No. 19 could not be legally recognized as surveyed, until the survey was settled and adopted by the surveyor-general of the district.

Our opinion is, that the selection could only take effect from the 19th of July, 1834; when the township survey was sanctioned, and became a record in the district land-office. As the occupant law passed June 19, 1834, Barnard's assignor, Richmond, could lawfully enter the quarter section, if he had occupied the same as required by law; that is to say, if he was in possession when the act was passed, and cultivated any part of the land in the year 1833.

The bill alleges that Richmond occupied the quarter section June 19, 1834; that he had cultivated the same in 1833, and made due proof of his right of pre emption.

It is further alleged, that on the 20th day of January, 1834, some five months before the occupant law was passed, Barnard purchased from Richmond the quarter section in dispute, and took his title bond for a conveyance when Richmond should obtain a patent for the land; and by force of this bond the bill prays to have the patent to Craig and Ashley adjudged to have been for Barnard's benefit, and that the land be decreed to Barnard's heirs.

The act of 1834 revived the act of 29th of May, 1830, 'to grant pre emption rights to settlers.' That act provides, (§ 3,) 'that all assignments and transfers of rights of pre emption given by this act, prior to the issuing of patents, shall be null and void.'

The act of January 23, 1832, allowed a transfer of the certificate of purchase. Here, however, the assignment was made in January, 1834, when no law allowing of a preference of entry existed; but, as no reliance seems to have been placed in the pleadings on this ground of defence, we will not rest our decree on it.

As respects Richmond's occupation according to the act of 1834, John Monholland, Edward Doughty, and Daniel Kuger each swear, in similar language, 'that Richmond, in the year 1833, cultivated part of the S. W. fractional quarter, sec. 15, in T. 19 S., R. 1 W. of the principal meridian, and raised a corn crop on the same in that year, (1833,) and was in possession of the same on the 19th day of June, 1834.' Kuger says Richmond had his dwelling-house on the quarter section, and resided there on the 19th of June, 1834.

Jacob Silor, examined on part of the respondents, Ashley and Craig, states that he resided on Grand Lake, quite near the quarter section in dispute, since 1830. He says: 'In February, 1833, when I arrived on the aforesaid lake, there was a turnippath on the southwest fractional quarter of fractional sectin 15, in township 19 south, of range 1 west, claimed by one Edward Doughty, which I believe he abandoned in consequence of the location of the ten-section claim on the land. After Doughty left the aforesaid fractional quarter, William Richmond, in December, 1833, built a cabin where the turnip-patch claimed by the said Edward Doughty was made, and planted some eschallots. The aforesaid William Richmond lived in the same township, on the Mississippi River, on the lands owned by Mr. Cummins or Mr. Shaw, on the 19th of June, 1834; and never did live on section 15, from the time I went on the lake to the present day.'

Benjamin Taylor deposes, that he settled with his negroes on township 18, in February, 1834; that in the spring of that year he examined with care the several tracts of land of Ashley and Craig, with a view to purchase them; and, being asked what the situation of the southwest quarter of section 15 was, when he examined it, answers, that 'there was a small burn of cane, perhaps twenty yeards square, uninclosed, without the appearance of ever having been cultivated, and no house was thereon.' We suppose that it had been burnt up by fire in the woods, or removed during the winter of 1833, 1834.

We hold the truth to be, that Richmond built a cabin in 1833, and in January, 1834, sold out his improvements to Barnard and removed away, and resided elsewhere in June, 1834, and consequently was not entitled to a preference of entry.

The next subject of controversy is the S. E. qr. of sec. 22, T. 18. Ashley, by cross-bill, prayed to have his title quieted to this quarter section against Barnard's heirs, and the circuit court granted him the relief he asked.

The half of section 22 was entered by Ashley on a floating warrant, known as a Lovely claim. By the act of January 6, 1829, no one was permitted to enter the improvement of an actual settler in the territory, by virtue of such floating warrant; and it is alleged that Barnard was such an actual settler, and had an improvement on the S. E. qr. sec. 22, T. 18, before Ashley entered it.

The cross-bill alleges that Barnard had improvements on sec. 23, but that they did not extend to the S. E. qr. of sec. 22 previous to the 4th of June, 1834, when Ashley entered the land. It was shortly before that time that Martin had corrected the eastern boundary of sec. 22, locating it about one hundred yards further west, and which was adopted as the true line at the land-office. In support of the bill, Benjamin Taylor deposes, as already stated, that he removed to the immediate neighborhood of the lands in dispute in February, 1834, when he examined the half sec. 22, with a view to purchase it from Ashley. He states that Thomas Barnard cultivated the S. W. qr. of fractional sec. 23, in 1834; but that his cultivation and improvement did not extend to the south half of sec. 22, nor had any other person residence or cultivation thereon.

Philip Booth states that Barnard showed him (Booth) an improvement on the S. E. qr. of sec. 22 early in 1834; thinks it was an extension of his farm of two or three acres. It had been cleared the year before, but there was no cultivation. The witness does not recollect whether the clearing extended beyond the old line or the new one.

Silas Craig, who was a competent witness for Ashley in this separate proceeding, deposes that he was with Martin, the surveyor, when the lines were run and adjusted, late in February, 1834; that the new and proper line bounding the section east is about one hundred yards west of the first line, which was rejected by the surveyor-general; that when he was at the southeast corner of the section, he examined Barnard's improvement, and ascertained that it did not extend west to the new line at any place. He seems to have made it his business to see if the improvement of Barnard extended to the S. E. qr. in dispute.

Romulus Payne was called on to prove the value of mesne profits and improvements; he says that Barnard commenced the cultivation on the S. E. qr. of sec. 22, in 1837.

John Monholland, Edward Doughty, and several other witnesses, swear on behalf of the defendants to the cross-bill, in general terms, that Barnard had possession of the S. E. qr. sec. 22, on the 19th of June, 1834, and that he had an improvement on part of it in 1833.

Barnard, in proving up his pre emption right, swore that he was cultivating the quarter section in 1833, and in possession on the 19th June, 1834. And this affidavit is indorsed by two witnesses, Harrison and Butler, who merely say that they have heard Barnard's affidavit read, and that it is true.

So, likewise, Jacob Silor indorsed William Richmond's affidavit, made before a justice of the peace, and intended to secure a preference of entry for Barnard in Richmond's name, and which was declared sufficient by the register and receiver; and yet, when Silor was re examined as a witness in this cause, he conclusively proved that Richmond left the land, and resided elsewhere when the occupant law of June 19, 1834, was passed.

The ex parte affidavits of Butler and Harrison, and those of Monholland and Doughty, were obviously written out for them to swear to as matter of form, but made with so little knowledge, on part of the witnesses, of the section lines, and the number of quarter sections on which they deposed improvements existed in 1833 and 1834, as to be of little value. And the same may be safely said of other witnesses whose affidavits were taken without cross-examination.

It is most obvious that these loose affidavits obtained by the interested party have been made, as to the improvement being on the quarter section claimed, on the information of him who sought the preference of entry; the witnesses not knowing, of their own knowledge, where the true section line was, over which they swear Barnard's improvement extended in the year 1833.

When the last examination was had before the register and receiver in 1837, Barnard's own witnesses, Philip Booth and John F. Harrison, swore the facts to be, that Barnard had 'deadened the timber and cleared away the cane,' on a part of S. E. qr. sec. 22; that he fenced it early in 1834, and made a crop of corn on it that year, and was in possession June 19, 1834. Booth, in a subsequent affidavit, contradicts his first statement. That there was no cultivation on the quarter section in 1833, we think is satisfactorily established; nor had Barnard any right to enter it. And such was the final opinion of the register and receiver, which the commissioner of the general land-office reversed, and ordered a patent to issue to Barnard.

The circuit court were obviously of opinion, as appears from the decree it made, that Craig and Taylor's evidence established the fact that Barnard had no part of the quarter section in possession in 1833 or 1834, and hence decreed for the complainants in the cross-bill. And, in the doubtful state of the evidence, who are not prepared to say that this court can hold otherwise, and, therefore, affirm the decree, and order the cause to be remanded for further proceedings, as respects the profits and improvements.

title: Barnard v. Ashley/Opinion of the Court


text: Talk:Barnard v. Ashley/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Unton, Henry


text:
Wright v. Mattison

THIS case was brought up by writ of error from the circuit court of the United States for the district of Illinois.

The case is stated in the opinion of the court.

It was argued by Mr. Browning, for the plaintiff in error, and Mr. William, for the defendant in error.

Mr. Browning said that he felt some embarrassment in consequence of the decision of this court in Moore v. Brown, 11 How. 434; but he thought that a different construction had since been given to the statute by the supreme court of Illinois, in Irving v. Brownell, 11 Illinois, 402, 414. These cases were then discussed.

Wright also claimed under an auditor's deed in 1833, which was within the protection of the act of 1835, and which would have furnished a sufficient defence, if he had been in possession for seven years. Whether he was so or not, was a question of fact for the jury. But the court withdrew it from them. Wright had clearly had possession of one and a half acres, and yet the court decided that he was entitled to the protection of the statute of 1835, or that of 1839.

Mr. Browning then contended that Wright was within the act of 1839, holding under claim and color of title made in good faith, and cited Cro. Jac. 122; 9 Watts, 73; 5 Barr, 300; 3 Serg. & Rawle, 298; 6 Barr, 325; 8 ibid. 506; 7 S. & R. 173; 2 Caines, 183; 4 Johns. 202; 9 Cow. 557; 4 Paige, 199; 6 Johns. 47; 16 ibid. 299; 18 ibid. 44, 360; 13 ibid. 119; 3 Conn. 246, 402; 4 Georgia, 115; 4 Hayw. 185; 5 ibid. 288; 5 Pet. 402; 11 ibid. 41; 10 ibid. 442; 8 ibid. 244, 253.

Mr. Browning then commented on Irving v. Brownell, admitting that the court said in that case that the words, 'claim and color of title made in good faith,' in the statute of 1839, meant title of higher character and superior dignity to that intended by the words, 'connected title in law or equity, deducible of record,' in the statute of 1835. But he contended that this dictum was virtually overruled by Davis v. Easley et al. 13 Illinois, 192, 199; and then cited cases to show that the title of Wright was acquired in good faith. 16 Johns. 299; 8 Pet. 253; 9 Cow. 558.

Mr. Williams contended that the acts of 1835 and 1839 require occupancy under a title prim a facie good; the first-named act requiring residence on the land, and the other the payment of taxes, and that the claim of title be made in good faith. It is not denied that this construction is according to the fair import of the terms of these acts, nor that it is the settled construction of the Kentucky limitation law, from which the terms, 'a connected title in law or equity, deducible of record,' &c., are copied, as well as of similar acts in Kentucky, Louisiana, and Tennessee. Moore v. Brown et al. 11 How. 424; Skyle's Heirs v. King's Heirs, 2 A. K. Marsh. 387; Frique v. Hopkins et al. 4 Martin, N. S. 224; Barlow v. Bill, 4 Bibb, 106; Clay v. Miller, ibid. 461; Young v. Murray, 3 A. K. Marsh. 58; Powell v. Harrison, 2 Pet. 241; Walker v. Turner, 5 ibid. 668; Poage's Heirs v. Chinn's Heirs, 4 Dana, 50.

He then argued to show that the following consequences did not result from his construction of the laws, as was contended for by the opposite counsel:--

1. That it renders the acts altogether inoperative.

2. That it was obviously the intention of the legislature to protect the possession of a person purchasing upon the faith of conveyances made by the officers of the State who were authorized to sell and convey lands.

3. That these acts were intended to protect actual settlers and cultivators, whose titles were liable to exception, against speculators having better titles.

Mr. Justice DANIEL delivered the opinion of the court.

title: Wright v. Mattison


text: Talk:Wright v. Mattison

title: Talk:Wright v. Mattison