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Ballance v. Forsyth et al.

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north of range 8, east of the 4th principal meridian, and continued in possession until 1834, when Isaac Underhill went into possession under Bogardus, and that Ballance was in session of the premises in dispute under title from Bogardus; neither of them resided on the premises, but had tenants.

On the 15th of November, 1837, Bogardus purchased the south-east fractional quarter of section No. 9. A deed for the same was made by Bogardus to Isaac Underhill, dated the 5th of August, 1834. On the 7th of July, 1841, Underhill and wife conveyed to Ballance, lots Nos. 8, 9, and 7, in block No. 34, and lots 5 and 6, in block No. 38, in the above addition to the town. And, on the 1st of February, 1842, Underhill and wife conveyed to Ballance lot No. 3, in block 51, in the above addition to the town.

A record and proceeding of the county commissioners of Peoria county, showing that a tax was laid upon real property in the county, for 1843, and that such tax was imposed on the south-west and south-east quarters of said section, and that, on a return of the collector, that the owner had no personal property in the county out of which the taxes could be made, a judgment was rendered against the land by the Circuit Court, under the statute of Illinois, and an order was issued to the sheriff, directing him to sell the delinquent land to such person as should pay the tax for the smallest quantity of the tract.

And the defendant offered to read a deed from the sheriff on said tax sale to Charles Ballance, covering a part of lot No. 65, which was objected to by the plaintiffs, and the court sustained the objection, on the ground that the sale was contrary to law, to which decision the defendant excepted.

As there appears to have been no specific exception taken, and as we have not the opinion of the court, except that the evidence was defective, and could not sustain the tax-title, we are' left to conjecture as to the particular ground of the decision.

One acre of land was sold by the sheriff, “off of the east side of the south-west and south-east fractional quarters of section number nine,” &c. In these two fractional quarters there appear to have been about one hundred and fifty acres. It is not said in what form the acre was to be surveyed. Certainty, in such a case, is necessary to maki the sale valid, for on the form of the acre its value may chiefly depend. And there is nothing on the face of the deed or in the proceeding previous to the sale which supplies this defect.

It is singular that the land should be sold in the name of Ballance, and that he should become the purchaser; especially as he appears to have been in possession of the land as owner.

Ballance v. Forsyth et al.

Although the right of Bourbonne to lot 65 was recognized by the government, by the act of Congress of 1823, yet, until the public surveyor marked the lines, its position and extent could not be ascertained. And it appears that this duty was neglected by the public surveyor for many years. The patent was not issued until in 1845, two years after the tax was assessed. And it is not perceived how the specific lot could be taxed when its boundaries were not known. . It seems to have been included in the south-east fractional quarter section, but it was not taxable as a part of that tract. Both the entry and the patent of Bogardus for the fractional quarter section contained an exception of the rights of all persons claiming under the act of Congress of the 3d of March, 1823. So that the whole or any part of the lots claimed by the plaintiffs, which may have been included in either of the fractional quarter sections, both having the same exception, the claim to such lots was not affected by the patent. And, consequently, neither of the lots were liable to be sold for the taxes on the tracts which included them.

The court will not, unless fraud be shown, look behind the patents for the lots in controversy. That the patents cover the lots, as surveyed, seems not to be disputed. We cannot, therefore, in an action at law, inquire whether the lots, as originally claimed, are accurately described in the patents. The survey having been made by a public officer and sanctioned by the government, the legal title must be held to be in the patentee.

If the patent to Bogardus be of prior date, the reservation in the patent, and also in his entry was sufficient notice, that the title to those lots did not pass. And this exception is sufficiently shown by the acts of the government.

These lots were surveyed before the taxes were assessed for 1843; but the assessments were made on the fractional quarter section, without regard to the lots reserved. Such lots were neither assessed nor sold for the taxes due 0.1 them, and they were not liable for the taxes due on the quarter section.

That Ballance, being liable for the tax, should permit his own land to be sold, and purchase one of the lots, or a part of it, to pay the taxes on the larger tract would seem to require explanation. Had a stranger purchased at this sale a part of the quarter sections, from the irregularity of the procedure, it is not perceived how the tax-title could have been sustained. But, however this may be, we are clear that the sale of lot sixty-five, or a part of it, under the circumstances, is void, and, consequently, that the sheriff's deed on such sale was properly rejected. As the whole law of the case seemed to have been submitled to the court, the deed, if admitted as prima facie evidence, could not have changed the result.

Doe v. Beebe et al.

The statute did not protect the possession of the defendant below. His patent excepted these lots; of course he had no title under it, for the lots excepted.

The judgment of the Circuit Court is affirmed with costs.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Illinois, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.

John Doe, Ex. Den. Hallett & Walker, ExEJUTORS OF

Joshua KENNEDY, DECEASED, PLAINTIFFS IN ERROR, V. ALFRED R. BEEBE, GEORGE W. HILLIARD, ALEXANDER M. CARR, CHARLES T. KETCHUM AND John HORSFELDT.

The principles established in the cascs of 3 How. 212, and 9 How. 477, again affirmed,

viz., that after the admission of Alabama into the Union as a State, Congress could make no grant of land situated between high and low water marks.

Tuis case was brought up from the Supreme Court of Alabama by a writ of error issued under the 25th section of the Judiciary Act.

The plaintiff in error brought an ejectment in the Circuit Court of Mobile county, under the circumstances stated in the opinion of the court. The judgment of that court was against them, and they then appealed to the Supreme Court of Alabama, where the judgment was affirmned. They then brought the case up to this court.

It was argued by Mr. Campbell, for the plaintiffs in error.
Mr. Chief Justice TANEY delivered the opinion of the court.

This is an action of ejectment; and the plaintiffs in error claim title to the premises under a contract of sale made by Morales, the Spanish Intendant at Pensacola, with a certain William McVoy, for twenty arpents of land on the west side of the River Mobile, bounding on the river; which contract was afterwards confirmed by an act of Congress.

The contract with McVoy was made in 1806. He subsequently assigned his interest to William J. Kennedy and Joshua Ken

· VOL. XIII.

McCormick v. Gray et al.

nedy, and the latter became the sole owner by an assignment from the former. An act of Congress was passed in 1832, confirining the title of Joshua Kennedy upon two conditions : 1st. That the confirmation should amount to nothing more than the relinquishment of the right of the United States at that time in the land; and, 2dly, That the lands before that time sold by the United States, should not be comprehended within the act of confirmation. And in 1837, a patent was issued to Joshua Kennedy, reciting in full this act of Congress under which it was granted.

It is admitted in the record, that the land in question was below high-water mark when ihe United States.sold the land on which Fort Charlotte stood, in the town of Mobile. These lands were divided into lots and sold in 1820 and 1821, and patents were issued to the purchasers in the year last mentioned. The defendants made title to three of these lots, which bounded on the river, and it was admitted that at the time of the sale high water extended over their eastern limits; and that the land now in controversy was reclaimed from the water and filled up by those under whom the defendants claimed.

The question, therefore, to be decided in this case is, whether the title obtained under McVoy's contract, confirmed by the act of Congress in 1832; or the title obtained under the sale of the lots in 1820 and 1821, is the superior and better title.

The principles of law on which this question depends, have already been decided in this court in Pollard v. Hagan, 3 How. 212, and in Goodtitle v. Kibbe, 9 How. 477, 478. And, according to the decisions in these two cases, the title under the sale of the lots is the superior one.

The judgment of the Supreme Court of the State of Alabama must, therefore, be affirmed.

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.

Cyrus H. McCORMICK, APPELLANT, CHARLES M. GRAY, AND

William B. OGDEN.

Where two partners assigned all their partnership property to a trustee with certain

instructions how to dispose of it, and afterwards agreed between themselves to

McCormick v. Gray et al.

appoint an arbitrator, recognizing in their bonds the directions given to the trustee, the arbitrator had no right to deviate from these directions, and make other disposition of the property. The reason given by the arbitrator, that he preferred creditors before awarding a cer

tain sum to one of the partners, is insufficient. Nor had the arbitrator a right to depart, in any particular, from the arrangement of

the property which the partners had desiguated in their deed to the trustee.

This was an appeal from the Circuit Court of the United States for the District of Illinois.

McCormick was the inventor of " McCormick's patent Virginia Reaper," and being desirous of manufacturing the same for sale in the States of Illinois and Wisconsin, entered into partnership with Gray. The articles were very specific, but too long to be inserted here. The object was to manufacture five hundred reapers for the harvest of 1848, and the partnership was formed on the 30th of August, 1847. Three lots of ground were purchased in Kenzie's addition to Chicago, and the manu. facture was commenced.

Some disagreement afterwards occurred, and both parties united in transferring all the assets of the firm to William B. Ogden, and a settlement was to be made according to the award of Judge H. T. Dickey. The principal parts of the assignment to Ogden, are recited in the opinion of the court, and need not be repeated.

Afterwards, on the 20th of December, 1848, they formally agreed to the reference to Judge Dickey, and exchanged arbitration bonds. By these bonds it was made an express condition of the reference that the award to be made by the arbitrator should not in any way alter or affect the demands of property and assets in the hands of William B. Ogden, as the trustee of said parties, or the agreements between said parties relative to the collection and disposition of said deniands, assets, and property, but the same shall remain under the provisions of said contract.” The time for making the award, as originally limited, was afterwards extended to sixty days from the 20th of January, 1849.

The referee, on the 20th of March, 1819, made his award, which was as follows: “ Award between Cyrus H. Mc Cormick and Charles M, Gray.

It having been submitted to me, by Cyrus H. McCormick and Charles M. Gray, by articles of agreement and submission dated the twentieth day of December, in the year of our Lord one thousand eight hundred and forty-eight, and a supplement thereto dated 19th (nineteenth) January, one thousand eight hundred and forty-nine, to arbitrate and determine certain differences and disputes between them growing out of the partnership

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