BALLANCE V. FORSYTH, 54 U. S. 18 (1851)

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U.S. Supreme Court

Ballance v. Forsyth, 54 U.S. 13 How. 18 18 (1851)

Ballance v. Forsyth

54 U.S. (13 How.) 18


On 15 May, 1820, Congress passed an Act, 3 Stat. 605, for the benefit of the inhabitants of the Village of Peoria by which every person claiming a lot in the village was to give notice to the register of the land office, whose report was to be laid before Congress.

On 3 March, 1823, Congress passed another Act, 3 Stat. 786, granting to each of the French and Canadian inhabitants, and other settlers according to the report, the lot upon which they had settled, and directed the surveyor of the public lands to make a plat of the lots, for which patents were to be issued to the claimants.

This survey and plat were not made until April and May, 1837.

In November, 1837, a person who was not a settler purchased at the land office at private entry the fractional quarter of land which included some of the above lots, and soon afterwards obtained a patent. Both the certificate and patent reserved the rights of the claimant under the acts of Congress above mentioned.

In 1845 and 1847, these claimants obtained patents.

They were entitled to recover in ejectment from the persons who held under the private entry and patent.

The title of the plaintiffs was not divested by a tax sale in 1843. The whole fractional quarter section was taxed and one acre off of the east side sold. This sale was irregular.

This was an ejectment brought by Forsyth, Dumain, and Bovis to recover two lots of ground, viz., Nos. 47 and 65, in the Town of Peoria. The bills of exceptions extended over thirty-seven pages of the printed record, and included deeds and depositions and proceedings under a tax sale &c. It is therefore impossible to insert them. The following is a summary notice of the evidence offered on the trial by plaintiffs and defendant.

Plaintiff's Evidence

1. The Act of Congress passed on 15 May, 1820, 3 Stat. 605. It directed that every person who

Page 54 U. S. 19

claimed a lot in the Village of Peoria should give notice of his claim to the register of the land office, whose report should be laid before Congress.

2. An Act of Congress passed on 3 March, 1823, 3 Stat. 786, after the report of the register had been received. It granted to such of the French and Canadian inhabitants and other settlers in the village as had settled there prior to the 1st of January, 1813, the lot so settled upon and improved. The second section of the act required the surveyor of the public lands to cause a survey to be made of the several lots, and to designate on a plat thereof the lot confirmed and set apart to each claimant, and to forward the same to the Secretary of the Treasury, who should cause patents to be issued in favor of such claimants, as in other cases.

This survey and plat were not made until April and May, 1837.

3. A patent to Boushier for lot No. 47, issued on 27 March, 1847.

4. A plat of the village.

5. A plat of lot No. 47.

6. Testimony taken under a commission relative to the settlement of the lots.

7. Deed to plaintiffs, 11 December, 1836.

8. Patent for lot No. 66, December 16, 1845.

9. Plat of lot No. 65.

10. Deed to plaintiffs, September 16, 1836.

11. }

}Plats of an addition to the town.

12. }

13. An agreed statement of certain facts.

Defendant's Evidence

1. A certificate from the register showing that on 15 November, 1837, John L. Bogardus entered and purchased the southeast fractional quarter of section, No. 9, containing 23 93/100 acres. This included the lots in question.

2. Deed from Bogardus to Underhill of the whole south-

east fractional quarter.

3. Two deeds from Underhill to Ballance, the plaintiff in error.

4. Proceedings relative to a tax sale. The taxes were assessed on the fractional quarter, and an "acre off east side" was sold to Ballance.

5. Deed under the sale from the sheriff conveying the land in dispute.

6. An award between Ballance, Bigelow, and Underhill,

whereby the lots in dispute were assigned to Ballance.

Page 54 U. S. 20

7. Copies of certificates relative to Bogardus' preemption.

8. Patent to Bogardus, January 5, 1838.

The plaintiffs then offered in evidence a copy of the certificate of entry which the register gave to Bogardus, and which contained the following reservation:

"Now therefore be it known that on presentation of this certificate to the Commissioner of the General Land Office, the said John L. Bogardus shall be entitled to receive a patent for the lot above described, subject, however, to the right of any and all persons claiming under the Act of Congress of 3 March, 1823, entitled 'An act to confirm claims to lots in the Village of Peoria, in the State of Illinois.'"

"SAMUEL LEECH, Register"

The patent contained a similar reservation.

The above was all the material evidence given in the case. Each party saved the right on the argument of the cause to object to any of said evidence on the ground of the incompetency or effect of the evidence, but not to make merely formal objections such as proof of authenticity of papers offered.

"It was further agreed that the property in controversy was worth more than two thousand dollars, whereupon the court instructed the jury to bring in a verdict for the plaintiffs as by law they were entitled to recover on the above facts. To all of which opinions of the court the defendants excepted, and prayed this, his bill of exceptions, be sealed, signed, and made of record, which is accordingly done &c."


Upon this bill of exception, the case came up to this Court.

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