Berthold v. McDonald

Soott, Judge, delivered the opinion of the court. This is a case of the first impression in our courts. We have not found one in which there has been in our tribunals a con [131] troversy as to the relative merits of two confirmations for the same tract of land under the act of Congress of the 3d of March, 1807. We are not prepared to acquiesce in the correctness of the assumption that the principle of the case of Landes v. Brant, (10 Howard, 348,) is applicable to that now under consideration. The rule there maintained is, that when the commissioners under the act of Congress of the 3d of March, 1807, for the adjustment of land titles in Missouri, decided in favor of a claim, and issued a certificate accordingly, this decision settled two points, viz : first, that the claimant was the proper person to receive the certificate ; and second, that the title so confirmed was better than any other Spanish title. It is maintained that the commissioners, acting under the act referred to, have confirmed the same tract of land to two different individuals. Hence it may be said of each claimant that he was the proper person to receive the certificate, and that his title, confirmed by the commissioners, is better than any other Spanish title. This being so, it would seem that priority in the act of confirmation, or the relative merits of the two titles, must give the rule for ascertaining which of them shall prevail. We do not consider that the ease of Landes v. Brant furnishes any ground by which •it can be maintained that the confirmation to Gratiot was a superior title to that conferred on Jeannette by her confirmation. A confirmation under the act of 1807 is conclusive against the United States, and is also conclusive against all those who did not file notices of their claims prior to July 1, 1803 ; for the fifth section of the act of 1807 bars and makes void the rights of all those neglecting so to do. The claim of Clamorgan, which was the subject of litigation in the suit of Landes v. Brant, was confirmed in 1811; and being conclusive against the United States, the confirmation was also conclusive against all Spanish claims, notice of which had not been given to the recorder prior to July 1, 1808. It not appearing that any other claim had been preferred to the tract confirmed to Cla-morgan, the court was well warranted in employing the lan [132] guage used on that occasion; for all other claims' to the tract being void and made of no avail in law or equity, and the confirmation being in the language of the act final against the United States, the court might well say that the claimant was the proper person to receive the certificate, and that the title so confirmed was better than any other Spanish title. How different are the circumstances of the case-now under consideration from those of that of Landes v. Brant. The elaim of Jeannette was -filed with the recorder before that of Gratiot, and was confirmed by the board only the. day after the confirmation made to him. Both confirmations were made under the second section of the act of 1807'; and as by that section no tract was to be confirmed that was claimed by another, we should regard the two confirmations as leaving the relative merits of the two titles as they stood before any confirmation. The law manifesting this care for the rights of third persons, there is no warrant for the inference that the mere circumstance of one claim being examined and confirmed a day before the other, should give it a conclusive preference. In providing that a tract claimed by any other person should not be confirmed, the law seems to have contemplated that the commissioners should not decide on the relative merits of two claims; but, having confirmed both of them, the question of superiority is left open for the courts. It must be borne in mind, that, by repeated decisions of the Supreme Court of the United States, the legal title or the fee did not pass from the government by a confirmation of the commissioners under the act of 1807; so this is not the case of an elder against a junior patent in an action of ejectment, but it is one presenting the relative merits of two inchoate or equitable titles. In the case of Carmichael v. Brisler, (8 Martin, 727,) there were two confirmations for the same tract of land. The court, speaking of the confirmation of the plaintiff, said, “ the confirmation of his claim by the land' commissioners had the effect of perfecting his title against' the general government, but leaves it to its original value when placed in opposition to [133] the claim and title of an individual. To the same effect is the case of Sanchez and wife v. Gonzales (11 Martin, 212). From the- evidence preserved in the bill of exceptions, to which no objection was taken, it is obvious that the claim of the plaintiffs, in point of equity, can not bear the least examination. In comparison with that of the defendant, it has not the least semblance of jus'tice. The conduct of the mother of the plaintiffs, as administratrix of Joseph Gratiot, a great many years ago, when the details of the transaction were comparatively fresh in the recollection of the parties, in relinquishing all claim to the tract in dispute as originating in mistake, and taking a deed for that really belonging to Floré, must be decisive as to the superiority of the equity of the defendants. Although the mother, by her deed, could not alien the estate of her children derived from their father, and although it may be inoperative for that purpose, yet the transaction is of great force in determining the relative merits of the claims of the two parties. The finding of the facts, embodied in the instruction given by the court, clearly establishes the superiority of the equity of the defendants. Indeed the plaintiffs seem to rely ■solely on the dry technical point, that their’confirmation was prior, in point of time, to that of the defendants ; a view of the case in which we do not acquiesce. As to the objection taken that Jeannette was dead when the claim was filed in her name, and consequently that the confirmation to her was void, we may remark that the same point was made in the case of Mercier v. Letcher, (22 Mo. 66,) and it was determined that the circumstance of a claim being presented in the name of a dead man, no conveyance from him being shown, did not avoid the confirmation, but that it enured to the benefit of his heirs. The judgment is affirmed, the other judges concurring.