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GAZZAM V. LESSEE OF PHILLIPS, 61 U. S. 372 (1857)
U.S. Supreme Court
Gazzam v. Lessee of Phillips, 61 U.S. 20 How. 372 372 (1857)
Gazzam v. Lessee of Phillips
61 U.S. (20 How.) 372
The decision of this Court in the case of Brown v. Clements, 3 How. 650, reviewed and controlled.
The quantity of land granted to a patentee in pursuance of a preemption right under the act of 29th May, 1830, must, in an action at law, be ascertained from the description in the patent, and cannot be controlled by any supposed original equity to the whole of a quarter section to which a claim might have been made before the register and receiver.
Some latitude of discretion is allowed to the Surveyor General under the Act of 24th April, 1820, and the instructions of the land office, in the subdivision of fractional sections containing more than one hundred and sixty acres, and he is not obliged, absolutely, and under all circumstances, to lay off a full quarter or half quarter section, though the fraction is capable of such a subdivision.
The parties claimed under the same titles which were before this Court in the case of Brown v. Clements, reported in 3 How. 650. A diagram is there given, explanatory of the mode in which the fractional section was divided between Stone and Etheridge.
The present suit was an ejectment brought in 1850, by Phillips and Etheridge, who claimed under Etheridge's title against Gazzam, who claimed under that of Stone.
The suit was brought in the Circuit Court of the County of Mobile, state court, where the verdict and judgment were for the plaintiffs, in 1855. The charge of the judge to the jury was in conformity with the opinion of this Court in the case of Brown v. Clements, accompanied with the remark that such would not have been his charge, if it had not been for the decision of this Court in that case.
In March, 1856, the Supreme Court of Alabama affirmed this judgment, and Gazzam sued out a writ of error to bring the case to this Court.
The case of Brown v. Clements was argued and decided in
this Court at the term which commenced in December term, 1844. In the 24th vol. of Alabama new series 354, containing the decisions of the supreme court at January term, 1854, there is the following opinion delivered by Chief justice Chilton:
"Doe ex dem Brown v. Clements, Chilton, C.J. This Court having rendered a judgment of affirmance in this cause, it was taken by the plaintiff in error to the Supreme Court of the United States, where the judgment of this Court was reversed, and the cause ordered to be remanded for further proceedings. The judgment of reversal was rendered in December, 1844, but the mandate or certificate of reversal did not reach this Court until recently, when the cause was ordered to be placed upon the docket &c."
"It is the duty of the Clerk of the Supreme Court of the United States to forward to this Court the evidence of the reversal of the judgment, in order that the same may be disposed of in conformity to the decision of that court &c."
"That the failure of the clerks to do their duty, in not placing causes on the docket, shall work no prejudice to the parties, &c."
Upon this matter, the Reporter has received from the clerk of this Court a communication, which will be found in a note. *
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