BARRY V. GAMBLE, 44 U. S. 32 (1845)

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U.S. Supreme Court

Barry v. Gamble, 44 U.S. 3 How. 32 32 (1845)

Barry v. Gamble

44 U.S. (3 How.) 32


Under the act of 1815, a New Madrid certificate could be located upon lands before they were offered at public sale under a proclamation of the President, or even surveyed by the public surveyor.

The act of 1822 recognized locations of this kind, although they disregarded the sectional lines by which the surveys were afterwards made.

Under the acts of 1805, 1806, and 1807, it was necessary to file the evidences of an incomplete claim under French or Spanish authority, which bore date anterior to 1 October, 1800, as well as those which were dated subsequent to that day, and in case of neglect, the bar provided in the acts applied to both classes.

A title resting on a permit to settle and warrant of survey, dated before 1 October, 1800, without any settlement or survey having been made, was an incomplete title and within these acts.

And although the acts of 1824 and 1828 removed the bar as it respected the United States, yet, having excepted such lands as had been sold or otherwise disposed of by the United States, and saved the rights or title of adverse claimants, these acts protected a New Madrid claim which had been located whilst the bar continued.

This was an ejectment brought by Gamble, the defendant in error, against Barry, to recover possession of a tract of land in St. Louis County, Missouri.

Page 44 U. S. 33

The question was one of title. Gamble, the plaintiff below, claimed under a grant issued to Baptiste Lafleur in conformity with the New Madrid Act passed in 1815, and Barry, under the title of Mackay, which was before the Supreme Court of the United States in 1836, and is reported in 35 U. S. 10 Pet. 340. In the court below, the parties entered an agreement upon record, in the following words:

"It is agreed that the title of the plaintiff (Gamble) to the land in the declaration mentioned, is the title under the patent issued to Baptiste Lafleur, or his legal representatives, and that the title of the defendant (Barry) is the title under the confirmation to the legal representatives of James Mackay, and if it shall be adjudged that the patent is a better title than the confirmation, then the plaintiff shall recover the land in the declaration mentioned, and if the confirmation shall be adjudged the better title, then the defendant shall have judgment."

On 13 September, 1799, Mackay presented the following petition:

"To Charles Dehault Delassus, lieutenant colonel attached to the first regiment of Louisiana, and commander-in-chief of Upper Louisiana."

"James Mackay, commandant at St. Andre, of Missouri, being established at the said Village of St. Andre on the bank of the Missouri, but having the intention of establishing a habitation in the neighborhood of Mr. Papin, between St. Louis and the River Des Peres, he prays you to grant him, in entire property, 800 arpents of land in superfices, bounded on the south by land of Mr. Papin and Madame (widow) Chouteau; on the east by the lands of the common field of Kiercereau, l'Anglois Taillon, and others, at the Great Marais, on the west by James McDaniel, and on the north and northeast by the land of Mr. Chouteau and the domain of the King. Knowing the zeal and fidelity of the suppliant in the service, he hopes this grace of your justice."


"St. Louis, 13 September, 1799"

On the next day, the following order was issued.

"St. Louis of Illinois, 14 Sept., 1799"

"The surveyor, Don Antonio Soulard, will put the interested party in possession of the tract of land which he solicits by his memorial; which having done, he shall form a plat, delivering it to this party, and a certificate, in order that it may serve to obtain the concession and title in form from the senior intendent general of these provinces, to whom, by order of his majesty, belongs particularly the distributing and granting of every class of vacant lands."


In January, 1800, a grant was made to Chouteau for the land referred to in the preceding papers. This circumstance is commented

Page 44 U. S. 34

upon by the Supreme Court of the United States in the decision upon Mackay's Case, 10 Pet. 341.

On 2 March, 1805, Congress passed an act "for ascertaining and adjusting the titles and claims to land within the Territory of Orleans and the District of Louisiana," the general purport of which was to recognize all existing complete grants. It provided for the appointment of three persons who should examine, and decide on, all claims submitted to them and report the result to the Secretary of the Treasury, who was directed to communicate it to Congress. It further provided that all papers relating to claims should be delivered to the register or recorder, on or before 1 March, 1806, for the purpose of being recorded, and declared that, with regard to incomplete titles, any person who should neglect to deliver notice of his claim or to cause the written evidence of it to be recorded, should lose his right, and his claim should forever thereafter be barred.

On 21 April, 1806, Congress passed an act supplementary to the above, the 3d section of which extended the time for filing written evidences of claims to 1 January, 1807. It further enacted that

"the rights of such persons as should neglect so doing, within the time then limited, should be barred, and the evidences of their claims never after admitted as evidence."

Neither the concession or claim of Mackay was presented to, or filed with the recorder or board of commissioners, under either of these acts.

On 17 February, 1815, Congress passed an act declaring that any person or persons owning lands in the County of New Madrid, in the Missouri Territory, with the extent the said county had on 10 November, 1812, and whose lands had been materially injured by earthquakes, should be and they were thereby authorized to locate the like quantity of land on any of the public lands of said territory, the sale of which was authorized by law.

On 30 November, 1815, a certificate was issued to Lafleur, by the United States recorder, Frederick Bates, authorizing him to locate 640 acres on any of the public land of the Territory of Missouri, the sale of which was authorized by law.

On 7 July, 1817, Theodore Hunt filed a notice of location under said certificate, with the surveyor general.

In the fall of 1817, as it appeared upon the trial from the deposition of Joseph C. Brown, Deputy Surveyor of the United States, the district embracing the land in question was surveyed under the authority of the United States, but the survey was not closed until the spring of 1818. The impression of the witness was that the return of the surveyor was made to the General Land Office in 1820.

In April, 1818, the survey of Hunt's location was made by the said Brown, who placed it in township No. 45 north, range No. 6 and 7 east. It called to begin at the northeast corner of Papin's

Page 44 U. S. 35

survey, and ran round several courses and distances, disregarding the cardinal points, in a square form, and calling for the lines of other tracts as boundaries.

On 26 April, 1822, Congress passed an act, directing

"That the locations heretofore made of warrants issued under the Act of 15 February, 1815 (the New Madrid law), if made in pursuance of the provisions of that act in other respects, shall be perfected into grants, in like manner as if they had conformed to the sectional or quarter sectional lines of the public surveys."

The second section directed that those who located such warrants thereafter should conform to the sectional and quarter sectional lines of the public surveys, as nearly as the quantities would admit.

On 13 June, 1823, the President of the United States issued a proclamation, directing the public lands in township No. 45 north, range No. 6 and 7 east (amongst other lands), to be sold on the third Monday of the ensuing November. These ranges included the land in controversy.

On 20 May, 1824, Congress passed an 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 concessions 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. The 5th section provided that a claim not brought before the district court in two years, or not prosecuted to final judgment in three years, should be forever barred both at law and in equity. The eleventh section enacted

"That if in any case it should so happen that the lands, tenements, or hereditaments, decreed to any claimant under the provisions of this act, shall have been sold by the United States, or otherwise disposed of, or if the same shall not have been heretofore located, in each and every such case it shall and may be lawful for the party interested to enter, after the same shall have been offered at public sale, the like quantity of lands, in parcels comformable to sectional divisions and subdivisions, in any land office in the State of Missouri,"


On 26 May, 1826, an act was passed continuing the above act in force for two years.

On 13 June, 1827, a patent was issued to Lafleur, and his legal representatives, for the land included in the New Madrid certificate, location, and survey.

On 24 May, 1828, another act of Congress was passed, by which the act of 1824 was continued in force, for the purpose of filing petitions, until 26 May, 1829, and for the purpose of adjudicating upon the claims until 26 May, 1830.

On 25 May, 1829, Isabella Mackay, widow, and the children

Page 44 U. S. 36

and heirs of James Mackay, deceased, filed their petition in the District Court of Missouri, praying for the confirmation of eight hundred arpents of land, referring to the petition of Mackay, the concession and order, above set forth, as the foundation of the claim.

In February, 1830, the district court decided against the claim.

In January, 1831, the heirs of Mackay filed a petition in the Supreme Court of the United States, stating that, by the act of 1824, they were allowed a year from the rendition of the decree to appeal from it, that the District Court of Missouri was closed on 26 May, 1830, and praying to be allowed the benefit of an appeal. The prayer was granted, and the cause came on for hearing in 1836. The decision is reported, as before stated, in 35 U. S. 10 Pet. 240, by which the decree of the district court was reversed.

In 1837, Gamble, claiming title under Lafleur, brought an ejectment in the circuit court of the State of Missouri, for the County of St. Louis, against Barry. The venue was changed to the County of St. Charles, and afterwards to the County of Lincoln, where it was tried, and on 2 September, 1840, the jury found a verdict for the plaintiff.

In the meantime, to-wit, on 31 March, 1840, Mackay's representatives had obtained a patent from the United States for the land in controversy.

During the trial of the cause, the plaintiff asked the court to give to the jury the following instructions:

"That the title to the premises, in the declaration mentioned, under the patent to Baptiste Lafleur, or his legal representatives, is a better title in law than the title under the confirmation to the legal representatives of James Mackay, deceased; and, therefore, the plaintiff in this case is entitled, under the agreement of the parties, to recover the possession of the land in the declaration mentioned,"

which instruction was given by the court, and excepted to by the counsel of the defendant.

The defendant by his counsel, then asked the court to give the following instructions:

"That, inasmuch as the confirmation and patent given in evidence by the defendant show the legal estate in the premises to be vested in the widow and heirs of Mackay, and inasmuch as the plaintiff has not shown any title under said Mackay, or his representatives, the defendant is entitled to a verdict,"

which instructions the court refused to give, and the defendant excepted to such refusal.

The case was carried to the Supreme Court of the State of Missouri which, in September, 1842, affirmed the judgment of the court below, and, to review that opinion, a writ of error brought the case before the Supreme Court of the United States.

Page 44 U. S. 51

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