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Ballance v. Forsyth et al.

Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said Supreme Court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per centurn per annum.

CHARLES BALLANCE, PLAINTIFF IN ERROR, v. Robert FOR

SYTH, LUCIEN DUMAIN, AND ANTHONY R. Bovis.

On the 15th of May, 1820, Congress passed an act (3 Stat. at Large, 605,) for the

benefit of the inhabitants of the village of Peoria, by which every person claiming a lot in the village, was to give notice to the register of the land-office, whosc re

port was to be laid before Congress. On the 3d of March, 1823, Congress passed another act, (3 Stat. at Large, 786,)

granting to each of the French and Canadian inhabitants, and other settlers according to the report, the lot upon which they had settled ; and directed the surveyor of the public lands to make a plat of the lots, for which patents wero to be

issued to the claimants. This survey and plat were not made until April and May, 1837. In November, 1837, a person who was not a settler, purchased at the land-office at

private entry, the fractional quarter of land which included some of the ahove lots, and soon afterwards obtained a patent. Both the certificate and patent reserved

the rights of the claimant under the acts of Congress above mentioned. In 1845 and 1847, these claimants obtained patents. They were entitled to recover in ejectment from the persons who held under the pri

vate entry and patent. The title of the plaintiffs was not divested by a tax sale in 1813. The whole frac

tional quarter section was taxed and one acre off of the east side sold. This salo was irregular.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Illinois.

It was an ejectment brought by Forsyth, Dumain, and Bovis, to recover two lots of ground, viz., Nos. 47 and 65, in the town of Peonia. The bills of exceptions extended over thirty-sevenpages of the printed record, and included deeds and depositions and proceedings under a tax sale, &c. &c. It is, therefore, im. possible to insert them. The following is a summary notice of the evidence offered on the trial by plaintiffs and defendant. .

Plaintiff's Evidence. 1. The act of Congress passed on the 15th of May, 1820, (3 Stat. at Large, 605.) It directed that every person who

Ballance v. Forsyth et al.

claimed a lot in the village of Peoria, should give notice of his claim to the register of the land-office, whose report should be laid before Congress.

2. An act of Congress passed on the 3d of March, 1823, (3 Stat. at Large, 786,) after the report of the register had been received. It granted to such of the French and Canadian inhabitants and other settlers in the village, as had settled there, prior to the 1st of January, 1813, the lot so settled upon and improved. The second section of the aet required the surveyor of the public lands to cause a survey to be made of the several lots, and to designate on a plat thereof the lot confirmed and set apart to each claimant, and to forward the same to the Secretary of the Treasury, who should cause patents to be issued in favor of such claimants, as in other cases.

This survey and plat were not made until April and May, 1837.

3. A patent to Boushier for lot No. 47, issued on the 27th of March, 1847.

4. A plat of the village. 5. A plat of lot No. 47.

6. Testimony taken under a commission relative to the settlement of the lots.

7. Deed to plaintiffs, 11th December, 1836. 8. Patent for lot No. 66, December 16, 1845. 9. Plat of lot No. 65. 10. Deed to plaintiffs, September 16, 1836. 11.

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Plats of an addition to the town. 12. 13. An agreed statement of certain facts.

Defendant's Evidence. 1. A certificate from the register, showing, that on the 15th of November, 1837, John L. Bogardus entered and purchased the south-east fractional quarter of section, No. 9, containing 23 macres.

This included the lots in question. 2. Deed from Bogardus to Underhill of the whole south-east fractional quarter.

3. Two deeds from Underhill to Ballance, the plaintiff in

error.

4. Proceedings relative to a tax sale. The taxes were assessed on the fractional quarter, and an “acre off east side” was sold to Ballance.

5. Deed under the sale from the sheriff conveying the land in dispute.

6. An award between Ballance, Bigelow, and Underbill, whereby the lots in dispute were assigned to Ballance

Ballance v. Forsyth et al.

7. Copies of certificates relative to Bogardus's preëmption. 8. Patent to Bogardus, January 5, 1838.

The plaintiffs then offered in evidence a copy of the certificate of entry which the register gave to Bogardus, and which contained the following reservation:

“ Now therefore be it known, that, on presentation of this certificate to the Commissioner of the General Land-Office, the said John L. Bogardus shall be entitled to receive a patent for the lot above described, subject, however, to the right of any and all persons claiming under the act of Congress of 3d March, 1823, entitled 'An Act to confirm claims to lots in the village of Peoria, in the State of Illinois.'

SAMUEL LEECH,

Register.

The patent contained a similar reservation.

The above was all the material evidence given in the case. Each party saved the right on the argument of the cause to object to any of said evidence on the ground of the incompetency or effect of the evidence, but not to make merely formal objections, such as proof of authenticity of papers offered.

It was further agreed that the property in controversy was worth more than two thousand dollars ; whereupon the court instructed the jury to bring in a verdict for the plaintiffs, as by law they were entitled to recover on the above facts. To all of which opinions of the court the defendant excepted, and prayed this, his bill of exceptions, be sealed, signed, and made of record, which is accordingly done, &c.

Natu'l Pope. (SEAI..]

Upon this bill of exception, the case came up to this court.

It was argued by Mr. Ballance, for the plaintiff in error, and Mr. Gamble, for the defendants in error.

Mr. Justice McLEAN delivered the opinion on the court.

This cause is brought before us, from the District of Illinois, by a writ of error.

It is an action of ejectment to recover the possession of three lots, numbered 47, 65, and 68, in the town of Peoria, under the act of Congress of the 3d of March, 1823; entitled "An act to confirm certain claims to lots in the village of Peoria.” The claim 47 contains twenty-seven thousand four hundred and forty-nine square feet and seven hundreths; surveyed and desig. nated as covered by claim 47, in the south-east fractional quarter of fractional section nine, in township 8, north of range eight, and east of the fourth principal meridian, &c.

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Ballance v. Forsyth et al.

Lots 65 and 68 contain the same number of square feet, and, in fact, constitute but one lot, situated in the same fractional quarter section. Separate suits were brought for these lots, but, being consolidated, they are included in one. The defendant below pleaded not guilty.

At the trial exceptions were taken to the rulings of the court, which present the points of law to be decided.

The whole of the evidence was copied into the bill of exceptions, on which the court instructed the jury to find a verdict for the plaintiffs, as by law they were entitled to recover on the facts, to which instruction the defendant excepted.

The parties must have considered this case as a demurrer to the evidence, or as a special verdict. As there was evidence on both sides, some of which was conflicting, it could not be considered as strictly a demurrér to evidence. Nor was it strictly a special verdict, as the instruction was given before the jury found the facts.

From the whole of the evidence being set out in the bill of exceptions, we may suppose it to have been the intention of the parties to treat the facts as agreed or undisputed, in order that the law applicable to them might be pronounced by the court.

In sustaining the jurisdiction of this case, it is not to be considered as a precedent. It imposes a labor on the court which they are not bound to incur. But, as there seems to be not much difficulty in the facts, the court will decide the questions of law, as far as it shall be necessary to examine them.

By the act of the 15th of May, 1820, Congress provided that every person, or the legal representative of every person, who claims a lot or lots in the village of Peoria, shall, on or before the first day of October next, deliver to the register of the landoffice, for the district of Edwardsville, a notice of his claim, and the register was required to examine the evidence in snpport of the same, and report to the Secretary of the Treasury such as in his opinion should be confirmed ; and the secretary was required to lay the same before Congress for its determination.

On the 3d of March, 1823, an act was passed granting to each of the French and Canadian inhabitants, and other settlers in the village of Peoria, whose claims are ascertained in a report made by the register of the land-office at Edwardsville, in pursuance of the act of 1820, and who had settled a lot in the village prior to the 1st of January, 1813, &c., where the same shall not exceed two acres; and when the same shall exceed two acres, more than four acres shall not be confirmed. “ Provided nothing in this act contained shall be so construed as to

Ballance v. Forsyth et al.

affect the right, if any such there be, of any other person or persons to the said lots, or any part of them, derived from the United States or any other source whatever, or as a pledge on the part of the United States to make good any deficiency," &c.

And the surveyor of the public lands was required to survey the lots, designating those confirmed, which survey and plat were to be returned to the secretary, who was required to issue patents to the claimants. The surveys, it appears, were not executed for several years; but, at length, having been made and forwarded to Washington, a patent was issued to the legal representatives of Louis Le Boushier for lot No. 47, the 27th of March, 1847. The proviso in the act of 1823 was copied into the patent.

A plat was in evidence showing that lot No. 47 was situated in the south-east fractional quarter, section 9.

Testimony was introdued to show that this lot was inhabited by Le Boushier prior to 1813. On the 11th of December, 1836, Joseph Touchette and Madeline, his wife, who was the daughter of Le Boushier, and his only living child and heir, executed a deed to plaintiff for the above lot.

A patent was also read to Antoine Bourbonne, or to his legal representatives, dated the 16th of December, 1845, for lot 65, also covered by claim 68. By the recitals in this patent, it appeared that this claim had been presented to the register, at Edwardsville, and recommended by him for confirmation, on which the grant was issued under the act of 1823. A plat was introduced, showing the locality of this lot to be in the same fractional quarter section as No. 47, and also a description of its boundary

A deed from Bourbonne to the plaintiffs was in evidence for the above lot, dated 16th September, 1836.

Charles Ballance was admitted to defend in the place of Lincoln, that suit having been consc lidated with the one brought by the plaintiffs against Goudy fo the other lot. Ballance ad. mits himself to be in possession of lots No. 47 and 65-68, described in the declaration.

It was agreed that Ballance was in possession of that portion of said premises covered by lots one and two in block 51, more than seven years before the commencement of this suit, by actual residence with his family thereon, up to 1845, and from that time by his tenants; and that portion of said premises, north-west of Water Street, in Bigelow and Underhill's addi. tion to Peoria, was possessed more than seven years by the inclosure and cultivation of the same as a garden.

It was agreed that J. L. Bogardus, in 1832, was in possession of the south-east fractional quarter of section 9, township 8,

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