John McLean

“ There is nothing in the position of the defendant, who rather represents a New Madrid speculator than a New Madrid 'sufferer,' to call for any liberality of construction in his favor, especially when that liberality is avowed to be called for in order to effect a forfeiture, as against a party whose original right to his land has been solemnly recognised, first, by a board of commissioners, and afterwards by the Congress of the United States. ”

“ The counsel for the plaintiff in error, while they admit that a United States' land-patent constitutes a prima facie title, and that a party cannot at law get behind it, and avoid it on the ground of irregularity in the previous formalities, do respectfully contend, that, when the proceedings on which the patent is founded are utterly void, or where it is shown that the United States had no estate in the land, or no right to grant the land, the prima facie case made by the patent is rebutted. ”

“ But it is said by the counsel on the other side, that the deed of exchange between Bell and Mackay is a mutual warranty, which is an estoppel, and that an estoppel will support an ejectment. But this is not a case of estoppel, which is binding only on the donor and his heirs. If one makes a deed when he has no title and afterwards acquires one, he is estopped; but if he acquires a lesser estate than he has conveyed, there is no estoppel. ”

“ The sovereign who acquires an inhabited territory, acquires full dominion over it; but this dominion is never supposed to divest the vested rights of individuals to property. The language of the treaty ceding Louisiana excludes every idea of interfering with private property; of transferring lands which have been severed from the royal domain.'
The question of the inviolability of the right of Amos Stoddard, under Mordecai Bell, is settled by the highest possible authority, legislative and judicial. ”

“ If the title of Amos Stoddard under Bell was still in being on the 4th July, 1836, it is manifest that it must be still in being, inasmuch as no act of Congress can, constitutionally, deprive a citizen of his lawful estate in land by a mere enactment. The second section of the act of 1836 pre-supposes that the sale or location, or other disposition of the land included in ths grant confirmed by the first section, were such sales, locations, or other disposition as the act of Congress and the law in force at this date justified. ”

“ On the 26th of May, 1824, Congress passed another act, 'enabling the claimants to lands within the limits of the state of Missouri and territory of Arkansas to institute proceedings to try the validity of their claims.' It allowed any persons claiming lands under old grants or surveys, under certain circumstances, to present a petition to the District Court of the state of Missouri, which court was authorized to give a decree in the matter, reviewable, if need be, by the Supreme Court of the United States. ”

“ If some degree of regularity and form were observed in regard to public grants, technical and legal forms cannot be required in the transmission of claims to land, among a people, the great mass of whom were ignorant of the forms of titles, and indeed, of almost every thing which pertained to civil government. ”

“ A patent is utterly void and inoperative, which is issued for land that had been previously patented to another individual. The fee having been vested in the patentee by the first patent, the record could convey no right. It is true a patent possesses the highest verity. ”

“ The concession was good. It is settled that Delassus had a right to grant. Land Laws, 542; 9 Pet., 146.
The defendant cannot now go behind the confirmation by the commissioners and by Congress. The claim was guarantied by treaty, and although no survey had taken place, Congress indirectly required us to make it. The act of March 2, 1805, ch. 86, directs all grantees from the Spanish government, including orders of survey, to file a plat, &c. It is true that there was no public survey made under the authority of Congress, for there was no public officer to do it. ”

“ It is true, that time is of great value in sustaining the muniments of title, where the property has been for a long time enjoyed: but in this case, the party two claims under this instruction never was in possession.
Secondly. As to Mordecai Bell's claim, which was confirmed by the board of commissioners on the 8th June, 1835, the plaintiffs, in their statement, say it was that identical claim which had been filed by Soulard with the recorder of land-titles, on the 29th June, 1808, laid before the board for their action, and rejected by them on the 10th October, 1811 ”

“ The plaintiffs brought an action of ejectment for 350 arpens of land, situated near St. Louis. Their title was founded on a concession by Delassus, lieutenant-governor, to Mordecai Bell, the 29th of January, 1800. Bell conveyed the same to James Mackay, the 29th of May, 1804, and on the 26th September, 1805, he conveyed to Amos Stoddard. A plat and certificate of the survey were certified and recorded by Antoine Soulard, as surveyor-general, the 29th of January, 1806. ”

“ The people had been transferred often from one power to another, and must have been uncertain sometimes to whom they belonged. They executed deeds before any high officer whom they could find. Moralez implies that commandants might take acknowledgments of deeds. The syndic was next in authority to the commandant, with whom he acted sometimes as judge. ”

“ They cite the very words of this court in the above cases. 'In the first case,' say they, 'the Supreme Court lays it down that 'orders of survey, made by the lieutenant-governor of Upper Louisiana, are the foundation of title, and are capable of being perfected into complete titles; that they are property capable of being alienated; and is, as such, to be held as sacred and inviolate as other property." They also cited the language of the Supreme Court in the former case of Delassus v. ”

“ In these cases the claim is made by the assignee, and the confirmation is to the original party or to his legal representatives. As to the meaning of this expression, see 12 Pet., 458, Strother and Lucas.
Bell is estopped, or rather rebutted from saying that the confirmation is not to Stoddard, for he had conveyed to Stoddard with warranty, which amounts to an estoppel. Co. Litt., 174 a, 384 b; 12 Johns. (N. Y.) , 201; 13 Id., 316; 14 Id., 193; 1 Miss., 217. Title by estoppel is sufficient to maintain an ejectment. ”

“ As has been observed, it is in evidence in this case, that the surveys of the township in which the land in dispute is situated were not returned till 1822, and that, at the date of those locations under Peltier and Coontz, respectively, no survey at all had been made by the United States.
The court is also referred to the opinion of the attorney-general, Wirt, in his letter of the 10th October, 1825, (p. 558,) which is adverse to the legality of locations on land included in a claim duly filed. Mr. ”