44 U.S. 32
3 How. 32
11 L.Ed. 479
JAMES BARRY, PLAINTIFF IN ERROR,
HAMILTON R. GAMBLE.
January Term, 1845
,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 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 title of Mackay, which was before the Supreme Court of the United States in 1836, and is reported in 10 Pet., 340. In the court below the parties entered an agreement upon record, in the following words: ‘It is agreed that the title of the plaintiff (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 title under the confirmation to the legal representatives of James Mackay; and if it shall be adjudged that the patent is a better title than the confirmation, then the plaintiff shall recover the land in the declaration mentioned; and if the confirmation shall be adjudged the better title, then the defendant shall have judgment.’
On the 13th of September, 1799, Mackay presented the following petition:
‘To Charles Dehault Delassus, lieutenant-colonel attached to the first regiment of Louisiana, and commander-in-chief of Upper Louisiana.
‘James Mackay, commandant at 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 neighborhood of Mr. Papin, between St. Louis and the river Des Peres, he prays you to grant him, in entire property, 800 arpents of land, in superfices, bounded on the south by land of Mr. Papin and Madame (widow) Chouteau; on the east by the lands of the common field of Kiercereau, 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.
‘St. Louis, 13th September, 1799.’
On the next day, the following order was issued.
‘St. Louis, of Illinois, 14th Sept., 1799.
‘The surveyor, Don Antonio Soulard, will put 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 title in form from the senior intendent-general of these provinces, to whom, by order of 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 the preceding papers. This circumstance is commented upon by the Supreme Court of the United States in the decision upon Mackay’s case, 10 Pet., 341.
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 recognize 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 the Secretary of the 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, 1806, 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 either 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 territory, the sale of which was authorized by law.
On the 30th of November, 1815, a certificate was issued to Lafleur, by the United States recorder, Frederick Bates, authorizing him to locate 640 acres on any of the public land of the territory of Missouri, the sale of which was authorized by law.
On the 7th of July, 1817, Theodore Hunt filed a notice of location 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 closed 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 corner 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 second 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 of 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 November. These ranges included the land in controversy.
On the 20th of May, 1824, Congress passed an act ‘enabling the claimants to lands within the limits of the state of Misouri 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 forever 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 of 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 of lands, in parcels comformable 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 of adjudicating upon the claims until the 26th day of May, 1830.
On the 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, 1830, 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 Pet., 240, by which the decree of the District Court was reversed.
In 1837, Gamble, claiming title under Lafleur, brought an ejectment 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 the mean time, to wit, on the 31st of March, 1840, Mackay’s representatives had obtained a patent from the United States 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 to 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 below; 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 Lawless 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 United States. The question presented to the officers of the United States was not whether the King 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 government in Louisiana. Those grants and orders of survey, made by 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 Mackay’s Widow and Heirs v. The United States, Chief Justice Marshall, who delivered the opinion of the court, on this head is unambiguous and peremptory. ‘In Delassus’ 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 Pet., treats the grant to Mackay as having constituted property, and a title to the land described in it at the date of the treaty, 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 terms of this formal decree, that the Supreme Court of the United States took a very differnet view of the original title of Mackay from that which the Supreme Court of Missouri has presented. It is difficult to conceive how the Supreme Court of Missouri, with those opinions and the decree in favor of Mackay before them, could have attributed to the grant to Mackay 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 Supreme 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, annul or acknowledge, do not sufficiently respect the decisions of this high court, or do not understand them.
‘We 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 King 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 ‘Recopilacion,’ 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 vivos, and descended, and became distributable ab 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 less 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 each 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 1807, did not include it, because they referred to, and operated upon, only such grants or incomplete titles 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 Mackey; 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 Attorneys-General of the United States,’ edited by Gilpin, pp. 263, 273, 1199; and then proceeded thus:??
We have endeavored 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 10th Section of that act, the President of the United States is authorized to direct such of 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 time, 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, 1812, styled, under the new organization, the Territory of Missouri.)
It must be conceded, that, under this 10th 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 sub-divisions.
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 from public sale.
It is equally clear, that a respect for vested rights, and for the treaty of cession, dictated the reservation of lands included in claims filed under the requirements of the acts of Congress, in the office of the United States recorder.
Now, it really seems difficult to comprehend on what principle a New Madrid locator could treat as land authorized to be sold, and as public land, that very land which the President of the United 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 an 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 3d section 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 respect, as was provided by the 10th section of the act of 1811.
Thus, it may not only be 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 ‘land districts.’
There was no law for the sale of the land in the St. Louis district at all in force at the date of the location by Hunt, under Lafleur, to wit, on the 17th of July, 1817. There was, at that time, in existence, 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 which Mackay’s 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 two acts of Congress, was only an ‘irregularity?’ The case of Lindsay and others v. Lessee of Miller, 6 Pet., 672, and the case of Jackson v. Clark and others, 1 Pet., 628, have, it is submitted, no bearing or analogy to 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 been 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, and 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 color 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 of which is authorized by law,’ to mean land which, though not at the date of his location authorized, as public land, to 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 ‘public land.’
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.
4th. 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 even in the New Madrid sufferer; how much more productive of injustice and spoliation, if imparted to a New Madrid speculator!
The counsel for the 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 ab 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 Mackay, inasmuch as this grant bears date previous to the 1st October, 1800;
7th. That, even if the acts of 1805 and 1807 bore 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 the 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 pendens;
10th. That the protest filed in the office of the surveyor-general at 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 the 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 to 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:??
The 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 claim 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 an 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, 1800, to file, before the 1st day of March, 1806, with the recorder, a notice in writing, stating the nature 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 1807, (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 the time for filing notices of the claims, and written evidences of claims, to the 1st day of July, 1808, and declares that the rights of such persons as shall neglect to do so within the time limited 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 in 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 not 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, 12 Pet., 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 titles not be 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 may occur where the provisions of a law may be such as to call for the interposition of the courts, but these under consideration do not. 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?’We must, then, take the defendant as one holding the premises in controversy by a 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 the 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 a portion of unoccupied waste land, as 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 man, under a dormant title, which had been held back, notwithstanding the imperative provisions of these acts of Congress, and stating, 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, and a person attempting to appropriate it, by the location of a New Madrid certificate, would have 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 claimed 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 of 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 time of the location, the land was not public land; 2d, That 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 land, 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 negligence had barred his claim, and shut out his evidence of title from the consideration of courts of justice, the land was in every 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 and the grantees of the government, is to assert that his title remained valid, notwithstanding enactments which annualled it, on account of his neglect to comply with the requirements of law. It is unnecessary further to pursue the answer to this objection 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 to location?that is, land the sale of which was authorized by law.
It may 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 the location itself. This error might have been avoided by an examination of the decision made by this court in Baynell and others v. Broderick, 13 Pet., 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:?’The only evidence of the location recognized 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 on 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 when it 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-tites the plat with the notice, designating the tract located, as required by the second section of the act, nor when the recorder issued the patent certificate 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, 1818, was returned, or, if returned, was approved in the office of the surveyor-general, at any time anterior to 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 we 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 as descriptive 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 of sale. This section reserves from sale?1st, a section number 16 in each 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 law, 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 appointed for ascertaining the rights of persons claiming lands in the territory of Louisiana.’ This section authorizes the sale 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 which 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 territory of Missouri had not been surveyed, so that if the intention 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 sale of which is authorized by law,’ would have been, the sale of which is or hereafter shall be 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 issued any proclamation for any sale in the territory of Missouri.
The other interpretation of these words will, as I believe, be considered as expressing the meaning of Congress; that is, that they refer to the two classes of land, one of which was then authorized by law to be sold, and the other was expressly, by law, reserved from sale.
I am 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 fact 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 10th 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 law, 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 have 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; but 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 government, 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 public 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 thus 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 of sections.
Yet it is argued, that because this act ratifies the locations which do not conform to the public surveys, only when they are, in other respects, in pursuance of the act of 1815, the objection still is to be 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 not 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 public lands before the public surveys; locations have been so made, and they do not conform to the sectional lines, 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 waived 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 in 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; or, 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 the line of another Spanish survey. The only new line to be run is that on one side, which is necessary 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 patent it is objected, not that the land was reserved from sale?not that location could have been differently 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 sides by established Spanish surveys,) but that the application wsa made prior to the public surveys, therefore the application was void, and the survey was void, and the location was void, and the patent was void, and but for Mackay’s confirmation, the land would be mere vacant, unappropriated land; and though an owner of part of the land, under the Lafleur patent, has been more than twenty years in possession under the title of Lafleur, he has all the time been a mere trespasser!
The cases in which the validity of patents have been examined in suits at law, are too familiar to the court to need any extended remark from the counsel. From the case of Polk’s Lessee v. Wendell, 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 granted; where the officer had no authority to issue it; where the land had been appropriated by a species of title which could not by law appropriate it; where the patent has issued against some express prohibition of law, or for land reserved from the disposition of it attempted by the patent. The patent to Lafleur is within neither 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 around the same lines which were run in 1818, and then had sat down and made precisely the same plat, and the same field-notes. And how is it known that he did not? The purchaser under Lafleur gave no evidence about a survey. The survey of 1818 was given in evidence to impeach the patent; the patent itself implies that all was done which was necessary to its being regularly issued.
I really 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 upon 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 the defendant in 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 in error, all claim under it was barred by the acts of Congress.
3. That if the existence of such order of survey should be assumed, whether the claim under it were barred or not, the confirmation of the claim is, by the act under which it was obtained, expressly postponed to the Lafleur title.
4. That the patent of Lafleur is the better legal title, unless there is some defect that renders the patent void.
5. That the Lafleur title is above exception, regular, and effectual.
Mr. Justice CATRON delivered the opinion of the court.
The first question in order is, whether the patent to Lafleur is a valid title as against the United States, when standing alone.
By the certificate of 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 return by the surveyor, with a notice of location, to the office of the recorder, was the first appropriation of the land;4 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 Pet., 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 locations 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, which 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 the 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 favorable 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 recognized 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 locations 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 No. 45 had been offered for sale by the proclamation of the President, no 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 excluded 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 warrant 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 ground that these claims had been entered on lands not previously offered for 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, 1818, 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 to 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 favor of the party, which, being transmitted 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 exist 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., 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 in 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 favor of Bell’s concession, and this court held the New Madrid location, 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 court says:?’Had the entry been made or the patent issued after the 20th of May, 1829, when the reservation ceased, and before it 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 interposition 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 Pet., 355, and Pollard v. Files, 2 How., 601, and is free from doubt.
Lafleur’s location was made in 1818, and his patent issued in 1827. Mackay’s claim was first filed for adjudication before the District Court (U. S.) of Missouri in 1829. Up to this date it had stood as an incomplete claim, requiring confirmation by this governmet before the title could pass from the United States; to accomplish which a decree in its favor was sought in the District Court, and finally obtained here on appeal; on 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 affected his rights; and the question is, how far were they protected, as against incomplete titles brought before the District Court.
By the act of March 2d, 1805, 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 for 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 from 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 extended 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 for 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?and 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 confirmed them, they the 1st day of October, 1800?and incomplete titles, bearing date after that time, ‘shall be filed,’ says the act. Mackay’s claim is of neither description; it was an incomplete title; 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 a 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 we think free from doubt; it being analogous to an ordinary act of limitation, as this court held in Strother v. Lucas, 12 Pet., 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 act was extended by another passed in 1826, and again by that of May 24, 1828, to the 26th day of May, 1829; before 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 1824, 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 title in equity, when the act of 1824 was passed; this he well might perfect into a patent, as his 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 the 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 th 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 which 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 conform 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 the 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 Pet., 675.
Secondly. The decree confirming the claim of Mackey’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 title, under the treaty. The decree of confirmation related back to the date of the concession, by the Spanish government, to Mackay, and made the title 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. 173, 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.
FOLLOWED. Rector v. Ashley, 6 Wall., 150; Frisbie v. Whitney, 9 Id., 197; Mackay v. Easton, 19 Id., 633.