Board of President of the St. Louis Public Schools v. Walker

Holmes, Judge, delivered the opinion of the court. The case depends upon the question raised by the instruc — 398 — tion which the court of its own motion gave for the defendants. That instruction declares, in effect, that an inchoate Spanish claim resting upon a concession and survey which had been duly presented for investigation by the Board of Commissioners under the acts of Congress of 1805 and 1807, and was reserved by the act of 1811 and subsequent acts, and was finally confirmed by the acts of Congress of the 4th of July, 1836, was a lot “rightfully claimed” by a private individual, and was excepted as such out of the reservation for schools and military purposes contained in the act of Congress of 13th June, 1812, and was therefore not within the purview of the act of Congress of the 27th of January, 1831, and that the designation and survey of this lot to the schools made by the Surveyor-General on the 31st day of June, 1831, was therefore null and void. It is a question of some difficulty, upon which there has been as yet no authoritative judicial decision. The case of Cabanné v. Walker, 31 Mo. 274, suggests doubts, but really decides nothing’concerning it. In the case'of Hammond v. Public Schools, 8 Mo. 75, the position was taken that by the several acts of Congress relating to the subject the United States had reserved the right of ascertaining what lots were rightfully claimed by individuals, and retained the power of determining who rightfully claimed a lot '(citing the opinion of Baldwin, J., in Strother v. Lucas, 10 Pet. 445); and it was then held that a confirmation, of a town lot by the act of 1816 was a final determination on the part of the Government that such lot had been rightfully claimed, and did not come within the reservation for schools. We see no reason why the same principle should not be applied to this confirmation by the act of 1836 of a claim reserved for a similar purpose, and finally determined by the same authority to have been a lot rightfully claimed by a private individual. Such claims have always been considered by the courts in the light of equities addressed to the justice of Congress, under the obligation imposed on the Government by the treaty of Paris. The filing of such a claim, with the evidences in — 399 — support of it, in pursuance of the provisions of the act of Congress of 1805, and the supplementary acts, where it lias been confirmed, has been regarded as the first act towards a complete conveyance of the title, and as giving an inceptive right derived from an act of Congress, to which the patent related when issued. It has been said by this court, that it was the general design of the act of 1812 to dispose of all the property included within the outboundary of the towns—Kissell v. Schools, 16 Mo. 595. At the date of this act there was a class of claims (of which this of Brazeau was one) then standing reserved by the act of 1811 for the final determination of Congress upon this very question, whether or not they were rightfully claimed by private individuals; So many of the claims filed as were found to come within the provisions of the previous acts had been confirmed by the old board; the remainder were reserved. The act of 1812 disposed of the lots which came within its purview; the rest, which were supposed to be vacant and unclaimed, were, by the second section, reserved for military purposes and the use of schools, with the express exception of such lots as were rightfully owned or claimed by private individuals. This claim of Brazeau had been duly filed with the evidences of its rightful origin, among which was an official Spanish survey showing its definite location and boundaries, and it unquestionably came within the reservation of the act of 1811 and subsequent acts down to the 26th of May, 1828. It had been rejected by the old board because not fulfilling the requisites of existing laws, and not because it was not an authentic grant and a meritorious claim, according to the laws, usages, and customs of the former government. It stood barred between 1828 and 1832, and might then have been treated as having fallen back into the mass of public lands, or as subject to assignment for schools. By the act of 1832 this bar was removed, and it was again recognized by Congress as a rightful claim still subsisting, and was confirmed as such by the act of 1836. It was thus finally de — 400 — termined by the political power that this land always had been rightfully claimed. The courts have no jurisdiction to investigate the grounds of this action. It was the exercise of the right and power which has been retained by the Government. The mere fact that it had stood barred for a few years is nothing to the purpose. This subsequent recognition and final confirmation of the claim passed the title to tile claimant subject to the conditions imposed by the confirming act, and it was thereby necessarily implied and conclusively determined, as against any one not able to show a better title, that it always had been a lot rightfully claimed, and was one of those which were expressly excepted out of the reservation for schools. It necessarily follows that this land did not come within the purview of the act of 1824 as a “vacant” lot to be set apart for schools, nor of the act of 1881 as a lot “reserved for the support of schools.” The act of the Surveyor-General, therefore, designating and setting apart this land to the schools was without the authority of law, not within the scope of his power, and utterly null and void. It has been decided, and is not open to question, that the designation and survey of a given piece of land to the schools, when executed according to law, brings the lot within the operation of the act of 1831 as a grant of title, and is presumptive evidence that the land so designated and set apart for schools is a lot within the meaning of the acts of Congress, and makes a regular formal title to the property, and that the act of the officer_ will be intended to be within the -scope of his authority until the contrary appears—Eberle v. Pub. Schools, 11 Mo. 264; Kissell v. Pub. Schools, 16 Mo. 550. The essential question in those cases was, whether the land was a lot within the meaning of the reservation; and it was held by the Supreme Court of the United States in Kissell v. Pub. Schools, 1 How. (U. S.) 25, that the court had no power “ to revise the acts of the Surveyor-General under the statutes”; that “ it was not open to them to inquire whether the lands set apart were or were not lots of the de — 401 — seription referred to in the statutes”; that the parties interested (that is, the Government and the Schools) having agreed that the land in question was “ a school lot,” there, the matter must rest, “ unless some third person could show a better title.” The decision proceeds upon the same ground herein taken, that the action of the political power is not subject to review by the courts in favor of any one who cannot show a prior or a better title. This court had made no question but that the lands which the act of eighteen hundred and twenty-four authorized to be set apart for schools, under the limitations of the act of 1812, should be “vacant” and “not rightfully claimed by individuals”—16 Mo. 580. The Government had determined in 1836 that this land had been rightfully claimed by Brazeau, and given him the full title subject to the conditions imposed. The Surveyor-General in 1861, without any special instructions from the Commissioner to that effect, undertakes to review this action of the higher political authority, and determines to the contrary; and the question really is, which was the first binding and conclusive determination. It seems to us that to state this question is to answer it without more. When the matter was once determined, the power of the Government over it was exhausted; the title of the United States had passed to the claimant, or to previous purchasers whose titles were ratified; rights had become vested under; and it was not in the power of the Surveyor-General to divest them, nor to reverse the action of Congress. It has been held that even the head of the Interior Department has no power to reverse or annul the final action of his predecessor in office, in the matter of a survey—U. States v. Stone, 2 Wall, (U. S.) 525. It is contended that the designation and survey relate back to the date of the granting act of 1831, and vest a title in the Schools as of that date; and so, that the plaintiff has the prior and bettter title, and that the land is thus brought in favor of the plaintiff within the exception of the second section of the act of 1836 of lands “previously located” under a law of the United States, or “surveyed and sold by the Uni — 402 — ted States” to the plaintiff—5 U. S. Stat. p. 127, § 2. This would have.been so if the lot had been within the reservation for schools, and if the Surveyor-General had any lawful authority to make an assignment of this land to the schools, and if a better title had not already been conveyed by the United States to another person. A void act can have no relation back. When the grantor has no longer any title to the land, even a patent will be ineffectual and void. Even if it could relate back to the date of the act of 1831, it could not avail the plaintiff; for the confirmation in this case also relates back to the filing of the claim as between the Government and the confirmee or his legal representatives, and the confirmee would have a prior title. In Stoddard v. Chambers, 2 How. (U. S.) 313, where the claim had been filed with definite boundaries and location on which a reservation could operate, and where the land had not been previously sold according to law, the confirmation by this act of 1836 was held to vest the title in the confirmee or his legal representatives, and to enure by estoppel to his grantee by a deed executed in 1804. As between the parties, a patent upon a confirmation by the old board relates back to the filing of the claim as the inception of the title—Landes v. Brant, 10 How. (U. S.) 343. The same doctrine is to be applied here; the principle is the same. This claim was filed and reserved in the same manner and under the same laws as in that case. The successive boards merely took up the claims as originally filed for investigation. The act of the 9th of July, 1832 (4 U. S. Stat. 565), authorized the board “to examine all the unconfirmed claims to land in the State heretofore filed in the office of said Recorder,” and directed them to proceed “with or without any new application of the claimants.” The confirmation and survey were equivalent to a patent, and may just as well have relation back, as a patent would in like case, as against any title which did not intervene during the period when there was no reservation, or which was not a prior or a better title. In Menard’s Heirs v. Massey, 8 How. (U. S.) 293, it was — 403 — decided that the confirmation in that case did not relate back beyond the date of the act, for the reason that, until the survey by the United States, there had been no tract of land with any defined location and boundaries on which the reservation could operate, and therefore that a patent from the United States in 1826 of land not reserved from sale was not.overreached by relation. It was also distinctly held that if the claim had been filed with the Recorder in 1806, with a survey showing its boundaries, so that it would have fallen within the reservation as a defined tract of land, it would still have come within the exception of the second section of the act of the 4th of July, 1836, as land surveyed and sold by the United States. If was said that Congress might confirm these claims on such conditions as they saw fit to prescribe. This decision on this point has been followed by this court—Papin v. Hines, 23 Mo. 274; Papin v. Ryan, 36 Mo. 406. It results from this that the confirmation to Brazeau cannot relate back to overreach the patent to Papin in 1826 for the reason that the land had been previously surveyed and sold to him, and was excepted out of the confirmation as against his patent, which was recognized by the act itself and thus ratified from its date; but between the Government and the confirmee, and as against any one not showing a better title of this kind, it may still have relation. The confirmation is not wholly void by reason of the exception imposed as a condition of the grant. It is invalid only as against such previous sale of this land. There was no previous sale of this land to the Schools for the reason that'it had been rightfully claimed by a private individual, and never came within the reservation for schools. The confirmation is conclusive on this matter. The same act gives to the claimant the right to locate other lands in lieu'of those which had been thus previously sold out of his claim. The validity and rightfulness of the claim were still fully recognized by the Government and thus far made effectual to the claimant. — 404 — Now if the case stood upon the record only as a controversy between the entry and patent and the school title, without reference to the act of 1836, the designation and survey to the schools could not be disputed by the defendants, standing on the entry and patent alone, for the reason that the land at that date as a lot not rightfully claimed by any private individual would have been within the reservation for the schools and military purposes and not authorized by any law to be sold; and the case would have fallen within the decisions in like cases—Kissell v. Schools, 18 How. (U. S.) 27; Jones v. Soulard, 24 How. (U. S.) 41; Jackson v. Wilcox, 13 Pet. 498; State v. Ham, 19 Mo. 602. But the title had passed out of the United States either by the confirmation or by the patent. Possession was evidence of title against all but the sovereign proprietor of the soil; and the defendants were in a position to show a better outstanding title in the representatives of Brazeau, or a better title in themselves. As between Brazeau and the patentee, the confirming act recognizing the claim confirms the land to him, but imposes the condition that the previous sale by entry and patent, though not authorized by any law when made, shall be deemed valid to convey this land to the patentee, and gives Brazeau the right to locate other lands in lieu thereof. The subsequent legislation, according to the decision in Menard’s Heirs v. Massey, 8 How. (U. S.) 293, and in Cabanné v. Walker, 31 Mo. 274, and Papin v. Hines, 23 Mo. 274, makes the patent valid from its date notwithstanding the previous reservation. The defendants, therefore, are in a position to call in question the validity of the assignment of this land to the schools as effectually as Brazeau could have done if no condition had been imposed upon his confirmation. They are able to show a better title than the plaintiff, and having done so the plaintiff is not entitled to recover. Judgment affirmed. The other judges concur.