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AM ED EE MENARD'S HEIRS, PLAINTIFFS IN ERROR, v. SAMUEL MASSEY.

January 1, 1850

AM ED EE MENARD'S HEIRS, PLAINTIFFS IN ERROR,
v.
SAMUEL MASSEY.



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

It was one of those cases arising from a conflict between an old Spanish concession and a title otherwise acquired. The acts of Congress, passed from time to time to regulate these claims, are all set forth in the report of the case of Stoddard v. Chambers, 2 How., 317, and need not be repeated. It is only necessary now to state the respective titles of the plaintiffs and defendant, as exhibited by themselves.

This was an action of ejectment brought by Am ed ee Menard, a citizen of the state of Illinois, as assignee of Pascal L. Cerr e, against the defendant, Samuel Massey, a citizen of the state of Missouri, for the recovery of a piece of land situated in the county of Crawford, and state of Missouri, containing three thousand and one acres and seventy-five hundredths of an acre, being survey number three thousand one hundred and twenty, of three thousand five hundred and twenty-eight arpens of land orginally granted to Pascal L. Cerr e, in township thirty-eight north, of range five west, and townships thirty-seven and thirty-eight north, of range five west, of the fifth principal meridian. This tract of land was confirmed by the act of Congress of the 4th of July, 1836, to Pascal L. Cerr e, the grantee, or his legal representatives, who conveyed to Am ed ee Menard, the plaintiff. Menard died during the pendency of the suit, and his heirs at law were made parties to the suit, all of whom were residents of the state of Illinois. A verdict and judgment were rendered against the plaintiffs in the Circuit Court, the case is brought to this court by the plaintiffs in error.

The case, on each side, as it appears in the transcript, is as follows:–– On the 5th of November, 1799, one Pascal Leon Cerr e presented his petition to Don Carlos Dehault Delassus, Lieutenant-Governor and Commander-in-Chief of Upper Louisiana, for seven thousand and fifty-six arpens of land, to be taken in two different places, as follows: the half of said quantity, or three thousand five hundred and twenty-eight arpens, to be taken at the place commonly known by the name of the Great Source of the River Maramee; the other half on the head-waters of the Gasconade, and those of the Maramee, known by the name of La Bourbeuse.

On the 8th day of November, 1799, the Lieutenant-Governor, Charles Dehault Delassus, in pursuance of said petition, gave a concession for the quantity of land asked for by the petitioner, reciting that he was well convinced of the facts set forth and stated by the petitioner, and stated further in the grant, that, as it was situated in a desert where there was no settlement, and at a considerable distance from the town of St. Louis, he was not compelled to have it surveyed immediately, 'but as soon as some one settles on said place,' in which case he was required to have it surveyed without delay.

The said Pascal Leon Cerr e, the grantee, produced a letter from Manuel Gayoso de Lemos, Governor-General at New Orleans, to Monsieur Gabriel Cerr e, the father of the petitioner, dated New Orleans, 28th April, 1798, in which he acknowledged the many services which the said Gabriel Cerr e had rendered the government, and his claim to the generosity of the same; and that the said Lieutenant-Governor, seeing the letter of the Governor-General Gayoso, inquired of said Gabriel Cerr e in what manner he might reward him; and that said Cerr e replied, that he was then advanced in years, and had a sufficiency of lands, and recommended his son, who was the head of a family, said Pascal Leon Cerr e, who had then received no grant for any land, to the bounty of the government.

The concession was registered, by order of the Lieutenant-Governor, in the Book of Concession, and presented to the first Board of Commissioners for confirmation, by the grantee, September 15th, 1806; who reported against its confirmation, September 28th, 1810; and the claim was again presented for confirmation, 5th October, 1832, supported by documentary and oral testimony, and was unanimously recommended for confirmation by the Board of Commissioners, October 31st, 1833, and was confirmed by the act of Congress of the 4th of July, 1836, to the said Pascal L. Cerr e, or his legal representatives.

The land as confirmed was surveyed under the authority of the United States, by Deputy-Surveyor Joseph C. Brown, from the 18th to the 20th of June, 1838, under instructions from the surveyor of the public lands in the states of Illinois and Missouri, dated the 6th of June, 1838.

On the 26th of February, 1844, by deed of that date, Pascal L. Cerr e conveyed said lands, as granted, located, and surveyed, to Am ed ee Menard, under whom the present plaintiffs claim as heirs at law.

By the act of Congress of the 4th of July, 1836, the above decision of the Board of Commissioners, under the acts of 1832 and 1833, was affirmed, and thereby, the title under said grant was confirmed.

The defendant admitted that he was, before and at the time of the commencement of this suit, in possession of the whole of section one, township thirty-seven north, range six west, except the west helf of the southwest quarter of said section, containing eighty acres, which were the same premises on which 'the Big Spring,' at the source of the Maramee, is located.

The heirs at law of Am ed ee Menard, deceased, were admitted, from a statement made by Judge Pope, to be the present plaintiffs.

The plaintiffs gave in evidence a letter from the Secretary of the Treasury of the United States to the Commissioner of the General Land Office, dated 10th June, 1818, in which he was directed and instructed to furnish the receiver and register of the land office at St. Louis, Missouri, with a descriptive list of the land claims which had been presented and registered under the different acts of Congress for confirming the rights of individuals to lands that had not been confirmed, situated within said land district, with instructions to withhold from sale all such lands, until otherwise directed.

The land confirmed to Pascal L. Cerr e, and now sued for, was then within the district of St. Louis. The letter of the Secretary of the Treasury was the official copy, transmitted by the Commissioner of the General Land Office to the register at St. Louis, and was produced by the said register, in whose possession the same was.

The plaintiffs gave in evidence, also, a list of claims which had been made out by Frederic Bates, former recorder of land titles at St. Louis, and which had been presented for confirmation, but not finally acted on by Congress; which list was also produced by the register of the land office at St. Louis, and taken from the files in his office, and on said list was this claim, since confirmed to Pascal L. Cerr e.

Accompanying said list was a certificate made out by Frederic Bates, former recorder of land titles at St. Louis, under date of 10th July, 1818, in which he states,–'The foregoing is a list of claims regularly entered in this office,' and which were supposed to be situated and intended to be located within the county of St. Louis, and which was no doubt made out, in pursuance of the instructions and directions from the Commissioner of the General Land Office, under the direction of the Secretary of the Treasury, reserving said lands from sale.

The plaintiffs also gave in evidence a proclamation of the President of the United States, dated June, 1823, and published in the summer and autumn of 1823, for the sale of public lands, on the third Monday of November in that year, at St. Louis, which were situate in the township and range in which the lands sued for in this action are located, and in which the lands sued for, and contained in the list made out by the recorder of land titles, as above stated, are reserved from sale.

The property in dispute was admitted by the defendant to be worth more than two thousand dollars.

The plaintiffs also proved, by the testimony of Augustus H. Evans, that this claim was located at 'the Big Spring' on the Maramee. And, by the testimony of Henry A. Massey, that, between the years 1826 and 1828, Samuel Massey, in speaking of the works at 'the Big Spring' on the Maramee, said there was an old claim on the land, which he understood had not been allowed, and authorized Major Biddle at that time to try and buy up that old claim.

The plaintiffs also established, by the testimony of Joseph C. Brown, the United States deputy surveyor, that he made the survey of this claim, at 'the Big Spring,' 'as the source of the claim.'

There was offered in evidence, on the part of the plaintiffs, Plat No. 2 from the register's office, and a copy of the original diagram, as certified by F. R. Conway, surveyor of the public lands in the states of Illinois and Missouri, dated Surveyor's Office, St. Louis, 11th April, 1846; which were objected to on the part of the defendant, and the objection sustained by the court; to which decision of the court plaintiffs' counsel excepted.

The above facts, and also a certified survey, under the act of 1836, constitute the title of the plaintiffs in error.

The evidence on the part of the plaintiffs was here closed.

The defendant, as it appears from the transcript, gave in evidence seven patents from the President of the United States, all issued on the 20th of December, 1826, to Samuel Massey and Thomas James, five for eighty acres of land each, and one for eighty-two and ninety-six one hundreths acres, and one other for eighty-one and twelve one hundreths acres of land; and all of said patents covering a part of the same land included in the survey of Pascal L. Cerr e, under the confirmation made to him at the great source of the Maramee.

The evidence on both sides being closed, the counsel for the defendant then prayed the court to direct the jury,––

1. That the plaintiffs in this case cannot recover against the defendant for any land embraced within the patents given in evidence by the defendant.

2. That the plaintiffs cannot recover in this case against the defendant, on account of any land within the plaintiffs' survey, without proof that the defendant, at the commencement of this suit, was in possession thereof; and the fact that the defendant had cut wood upon such land is not sufficient to authorize a recovery for the land upon which the wood was cut, if these were merely temporary trespasses and occupation of the land.

These instructions the court gave to the jury; whereupon the counsel for the plaintiffs excepted, and upon this exception the case came up to this court.

It was argued by Mr. Lawrence and Mr. Badger, for the plaintiffs in error, and Mr. ...


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