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BISSELL V. PENROSE, 49 U. S. 317 (1850)
U.S. Supreme Court
Bissell v. Penrose, 49 U.S. 8 How. 317 317 (1850)
Bissell v. Penrose
49 U.S. (8 How.) 317
A concession, having no defined boundaries, made by the Lieutenant governor of Upper Louisiana in 1799, but not surveyed, cannot be considered as "property," and as such protected by the courts of justice, without a sanction by the political power, under the third article of the Treaty with France made in 1803.
The Lieutenant Governor of Upper Louisiana had the authority, as a subdelegate, to grant concessions, direct surveys, and place grantees in possession, but no perfect title to the land passed until the concession and a copy of the survey were delivered to the Intendant General at New Orleans, and also a proces verbal attesting the fact that the survey was made in the presence of the commandant or in that of a syndic and two neighbors. On these the legal title was founded and then perfected and recorded.
The mere circumstance that another plat, containing different land, was upon the same sheet of paper which contained the genuine plat, and which was filed in the recorder's office, was not sufficient to invalidate the claim, because the name of the claimant was written upon the face of the one describing the tract claimed, and that was the only one before the commissioners.
This was one of those land cases which arose from a conflict of title between an old Spanish concession, confirmed under the various acts of Congress upon the subject, and a title derived under a New Madrid grant. All these acts of Congress bearing upon both titles are set forth in the case of Stoddard v. Chambers, 2 How. 284, and the substance of them need not be repeated here. The following is a list of them:
This was an action of ejectment brought in the circuit court by Mary B. Penrose, the defendant in error, who claimed under the Spanish concession, against Bissell, who claimed under the New Madrid certificate which was located upon the land in controversy in March, 1818. We will first state the title of the plaintiff below, and then that of the defendant.
The petition and concession were as follows, viz.:
"The sons of Vasquez, claiming 800 arpens each"
"To Don Carlos Dehault Delassus, Lieutenant Governor of Upper Louisiana"
"SIR -- Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, all of them sons of Don Benito Vasquez, captain of militia of this town, brevetted by his Catholic Majesty, full of confidence in the generosity and benevolence of the government under which they are born, hope that you will be pleased to take into consideration the unfortunate situation in which they find themselves by the want of means of their family, which has been living for some time in distressing circumstances, and unable to give them the necessary education; therefore, wishing to procure to themselves, in the course of time, an independent existence, they think of forming an establishment which may one day insure their welfare. They flatter themselves, sir, that the services of their father will assure to them your protection, and the goodness of your heart will lead you to grant their demand; consequently they supplicate you to grant to each of them eight hundred arpens of land, in superficie, making altogether the quantity of four thousand arpens, which they wish to take in one or several places of the vacant lands of the King's domain. Favor which your petitioners presume to hope from your justice."
"St. Louis, February 16, 1800"
"St. Louis of Illinois, February 17, 1800"
"After seeing the precedent statement, and the laudable motives which animate the petitioners, and considering that their family is one of the most ancient in this country, and worthy of all the benevolence of government, as much for their personal merit as on account of the services [of the] father of the petitioners, I do grant to said petitioners, for them and their heirs, the land which they solicit, if it [is] not prejudicial to
anybody; and the surveyor, Don Antonio Soulard, shall put the interested party in possession of the quantity of land asked for, in one or two vacant places of the royal domain, after which he shall draw a plat, which he shall deliver to the interested parties, with his certificate, to serve them in obtaining the concession and title in form from the Intendant General, to whom alone corresponds, by royal order, the distributing and granting all classes of lands of the royal domain."
"CARLOS DEHAULT DELASSUS"
"A true translation."
"JULIUS DE MUN"
"St. Louis, October 27, 1832"
On 11 February, 1806, Benito Vasquez, the eldest son, assigned his 800 arpens to Rudolph Tillier.
On 27 February, 1806, a survey and plat of the land was made by James Mackay, locating it about two miles northwest of St. Louis, as appeared by the following certificate:
"I do certify, that the above plat represents 800 arpens of land, French measure, situated in the district of St. Louis, Louisiana territory, and surveyed by me at the request of the proprietor, who claims the same by virtue of a Spanish grant."
"Given under my hand at St. Louis, this 27 February, in the year of our Lord 1806."
"Received for record, St. Louis, February 27, 1806"
"Surveyor General Territory Louisiana"
On 25 August, 1806, Tillier filed his claim before the First Board of Commissioners. There were two plats filed, covering different tracts of land, both of which plats were upon the same sheet of paper; but upon the face of one of them was written the name of the claimant at full length. This one included the land in controversy, and was the only one considered by the commissioners.
On 22 September, 1810, the board decided that this claim "ought not to be confirmed."
On 3 October, 1832, this claim was brought before another board of commissioners, which, on 2 November, 1833, passed the following order:
"Saturday, November 2, 1833"
"The board met pursuant to adjournment. Present, Lewis F. Linn, A. G. Harrison, F. R. Conway, Commissioners. "
"The sons of Vasquez, each claiming 800 arpens of land under a concession from Charles Dehault Delassus. See page 17. The board remark that they can see no cause for entertaining the idea that the said concession was not issued at the time it bears date, as intimated in the minutes of the former commissioners."
"The board are unanimously of opinion, that this claim ought to be confirmed to the said Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, or their legal representatives, according to the concession."
"The board adjourned until tomorrow, at 9 o'clock A.M."
"L. F. LINN,"
"F. R. CONWAY"
"A. G. HARRISON"
This claim was confirmed by the Act of Congress of 4 July, 1836, and again surveyed by the United States surveyor on 29 March, 1842, according to the original survey of Mackay, filed with the claim in 1806. The claim was assigned by Tillier to C. B. Penrose, who conveyed it to Mary B. (the plaintiff below) and Anna H. W. Penrose, on 20 February, 1823.
The title of Bissell, the defendant below, was as follows.
The defendant produced and read in evidence:
1. A certificate issued by the recorder of land titles, No. 164, dated 4 November, 1816, whereby it is certified, that, in conformity to the provisions of an act of Congress of 17 February, 1815, John Brooks, or his legal representatives, is entitled to locate 709 arpens on any of the public lands of the Territory of Missouri, the sale of which is authorized by law.
2. The location and survey thereof, No. 2541, made in March, 1818, which includes the land in controversy.
3. A patent certificate, No. 308, issued by the recorder of land titles, 17 November, 1822, whereby it is certified, that, in pursuance of an Act of Congress passed 17 February, 1815, a location certificate, No. 164, issued from the office of the recorder, in favor of John Brooks, or his legal representatives, for 709 arpens of land, that a location had been made by the plat of survey, No. 2541, and that the said John Brooks, or his legal representatives, is entitled to a patent for the said tract, containing, according to the location, 603 14/100 acres, in township 45 north, range 7 east.
It was admitted that the title of John Brooks was vested in the defendant below, by mesne conveyances, on 14 February, 1824, and it was proved that one Brady, under whom the defendant below acquired title, had his mansion house
adjacent to the land in controversy, and occupied a part thereof before the year 1824, and that the same has been ever since occupied; that the defendant Bissell extended his improvements over the whole fifty-five acres as early as 1829 or 1830.
The defendant then asked the following instructions, which the court refused to give, and each of them; to which refusal the defendant by his counsel excepted, which instructions are in the words and figures following:
"1. That the land sued for in this action was not reserved from sale by the Act of Congress of 3 March, 1811, in consequence of the filing of the claim of Rudolph Tillier, with the concession to Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, and other documents, with the recorder of land titles, as given in evidence in this case."
"2. That the confirmation by the Board of commissioners to Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, given in evidence in this case, ratified by act of Congress of 4 July, 1836, did not vest any title in the land sued for in this action in the plaintiff."
"3. That the plaintiff has shown no title on which she can recover of the defendant the land sued for in this action, or any part thereof."
"4. That the plaintiff, if entitled to recover in this action, can recover only the undivided tenth of so much of the land sued for as the defendant was in possession of at the commencement of this suit."
"5. If the jury find from the evidence that Rudolph Tillier, under whom the plaintiff in this case claims the land in question, filed his claim with the recorder of land titles, and, as a part of the evidence of his claim, filed two plats of the land claimed, one of which plats would embrace the land now in the defendant's possession, and the other would not embrace that land, then there is no reservation of the land in defendant's possession from sale, which would prevent the location of the land in question, under the certificate in favor of John Brooks, or his legal representatives."
"6. That the confirmation of the claim of Benito Vasquez and others, given in evidence by the plaintiff, being according to the concession, is in itself a rejection of the survey made by Mackay, which has been given in evidence; and under that confirmation there is no authority for a survey upon the land located under the certificate in favor of John Brooks, or his legal representatives. "
"7. That the survey given in evidence by plaintiff, of 800 arpens, made by Mackay in 1806, being a mere private survey made of a part of the public domain, in violation of an act of Congress prohibiting such surveys at that time under severe penalties, is not in law any part of the claim filed before the recorder of land titles, and cannot come in aid thereof, so as to work a reservation from sale, under the Act of Congress of 3 March, 1811, of said 800 arpens."
The plaintiff then asked the following instruction, which the court gave; to the giving which the defendant, by his counsel, excepted. Which instruction is as follows:
"That the land included in the survey given in evidence, and which was made for Rudolph Tillier, assignee of Benito Vasquez, on the 27 of February, 1806, by James Mackay, and which was officially resurveyed in conformity to the Act of Congress of 4 July, 1836, and which resurvey is numbered 3,061, and was approved by Jos. C. Brown on 29 March, 1842, was reserved from location and sale at the time McNight and Brady's location, under a New Madrid claim, was made, and therefore the location under said claim is invalid as against the title of said Vasquez, or those claiming through him, to the extent that the two claims cover the same land, and that the land included by both the surveys aforesaid is the land confirmed to Benito Vasquez, or his legal representatives, by the Act of Congress of 4 July, 1836, and that the confirmation operated as a grant to said Vasquez, or his legal representatives, such being the legal effect of the acts of Congress, records, and title-deeds given in evidence."
"And the defendant prays the court to sign and seal this his bill of exceptions, which is done accordingly."
"J. CATRON [L.S.]"
Upon this exception the case came up to this Court.
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