John McLean

“ To the objection, that the location was a departure from the concession, I answer,--
1st. That it is immaterial if it were so; for, the location having been made, the survey filed with the claim became a part of it. Altogether, it was the claim; and whether good or bad, it was not for a stranger, but for the United States, to determine. This land, then, was claimed; and being so, was reserved from sale by the act of 1811. Finally, the Board of Commissioners, and Congress acting on their report, determined that the land ought to be held according to the survey. ”

“ It was not 'reasonable' to suffer those depositions to remain four years on file without objection, and then take exception to them for form merely, at such time as would compel a continuance of the cause, to the great inconvenience of counsel and with expense to the parties, especially as nothing was to be gained by it except this inconvenience and expense.
2d. That the conveyance by two of the plaintiffs of their interest in the land, after action brought, bars the recovery in ejectment as to all, and that the court erred in not so instructing the jury. ”

“ That the court, to give the saving effect, and thus conform to the intent of the legislature, must apply it to this class of cases, there being no others, as it is said, to which it can apply.
This is a mistake in point of fact. From May 26th, 1829, to July 9th, 1832, there was no reservation of these lands from sale or location; and during part of this time the law allowed the location of New Madrid warrants. The saving would very properly apply to a location made during that time, which, without it, would not prevail against the confirmation, by law, of the elder title. ”

“ The plaintiffs brought an action of ejectment in the Circuit Court, to recover three hundred and fifty arpens of land in the neighborhood of St. Louis, which they claim under a concession made by the Spanish government, in 1800, to Mordecai Bell. Bell conveyed his right to James Mackay on the 20th of May, 1804, and on the 20th of September, 1805, Mackay conveyed the same to Amos Stoddard, the ancestor of the plaintiffs. A plat and certificate of the survey were certified and recorded by Antoine Soulard, as Surveyor-General, the 20th of January, 1806. ”

“ It was held in that case that the location 'under any law,' saved in the second section of the act of confirmation of July 4th, 1836, must be a location in conformity with it; and unless the location of the defendant shall have been made agreeably to law, or the patent were so issued, the reservation does not affect the title of the plaintiffs. (p. 317.) And that the location of the New Madrid warrant, being made on lands reserved from sale, was not authorized, but forbidden, by law. The saving was therefore held not to protect the claimant under the warrant. ”

“ That a few years after he was married, Santiago Mackay repeatedly asked deponent to petition the Spanish government for a grant of land; that some two or three years after deponent was married, Mackay told him that he, deponent, had a head right, and that he, Mackay, wished to change a tract of land for his head right, which he, deponent, did; that he never petitioned the Spanish Governor for any grant of land in or in the neighborhood of the town of St. Louis, nor was there any granted him to the best of his knowledge ”

“ But this action, wronged and mutilated as it is, is still ejectment, and the court will deal with it according to its substance, without regard to the form which it is constrained to assume.
In this action the courts have long done on the trial, and on motion, what, in other real actions, used to be done by summons and severance; that is to say, they have freed the case of parties who ceased to have an interest in its prosecution. ”

“ The acts of Congress requiring the exhibition and recording of Spanish claims are analogous to registry acts. Strother v. Lucas, 12 Pet., 510. Recording a document, not required by law to be recorded, gives it no additional legal effect. 5 Shep. (Me.) , 418; 23 Pick. (Mass.) , 80; 3 A. K. Marsh. (Ky.) , 220.
5. Where a claim to a tract of land had been filed and recorded according to law, the proviso only suspended the sale until the decision of Congress upon the report to be made by the commissioners; and this decision was made before the location of Peltier's warrant. ”

“ If this were an action of trespass in legal effect, as it is in form, the conveyance by the two plaintiffs would not listurb the case in the slightest degree. The sale of the land is not a release of the action ”

“ Louis, and bounded as follows, beginning at the southeast corner of the location, under a New Madrid certificate issued to Eustache Peltier, or his legal representatives, where the said corner is fixed upon the line of a tract, formerly the Mill tract of Auguste Chouteau, deceased; thence, with the southern line of said location, as the same runs westwardly, seven chains ”