Peoria County IL Archives Court.....Ballance, V McFadden 1850
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 24, 2008, 2:21 pm

Source: Records Of Cases Illinois
Written: 1850

DECISIONS of the SUPREME COURT of the STATE OF ILLINOIS.
JUNE TERM, 1851, AT OTTAWA.

Charles Ballance, appellant, v. James McFadden, appellee.

Appeal from Peoria.

The act of congress of third of March, 1823, in relation to French claims in 
Peoria, confirmed only such claims as were contained in the report of the 
register. The grant only operated to the benefit of such persons as had 
presented their claims pursuant to the act of the fifteenth of May, 1820. 

Patents under these laws were only to be issued to the claimants or to their 
legal represenatives. (a) 

A person must have been an actual settler, prior to the first of January, 
1823, and one who had not, previous to the third of March, 1821, received from 
the United States a confirmation of a claim, or a donation of a tract of land 
or village lot; and he must, in addition, have claimed the lot, settled upon 
and improved it, in order to bring himself within the confirmatory act of 1823.

A patent issued to a person, or his legal representatlve, who was not the 
claimant of a lot, does not vest any title in the patentee.

If it appears on the face of a patent, or from any legitimate evidence, that 
it was issued in a case not authorized by law, it is inoperative and void, and 
may be impeached collaterally, in an action of ejectment. (b)

This was an action of ejectment, commenced in the Peoria Circuit, for a small 
piece of ground in the city of Peoria, brought by appellee against a servant 
of the appellant, who was in possession. 

The lot claimed was a part of the land known as the French claims, being parts 
of lots 7 and 8 of Bigelow and Underhill's survey.

There is nothing peculiar in the declaration, plea, verdict or judgment.

The land claimed is thus described in the declaration, "beginning at a post 
from which the north corner of French claims numbered 1, 11, 41 and 42, as 
hereinafter described, bears north forty-six degrees thirty minutes west, 
fifty feet, thence south forty-six and one-half degrees east, one hundred and 
ninety feet, to the northwesterly edge of Water street, as laid out by Bigelow 
and Underhill; thence south fifty degrees thirty minutes west, along the 
northwesterly edge of said Water street, twelve feet and eight inches; thence 
north thirty-nine degrees thirty minutes west, one hundred feet, to the place 
of beginning, being part of a certain lot, designated as covered by claims 
number 1, 11, 41 and 42, in the southeast fractional quarter of fractional 
section nine in township eight north, of range eight east of the fourth 
principal meridian, Illinois, according to the survey approved first 
September, 1840, by the surveyor of the public lands in the states of Illinois 
and Missouri."

The cause was heard in Peoria Circuit Court, at August term, 1850, before 
Kellogg, Judge, and a jury, and a verdict was found for claimant, and judgment 
rendered upon the verdict. Ballance prayed and was allowed an appeal.

The facts of the case are fully stated in the opinion of the court.

O. Ballance and T. L. Dickey, for appellant, cited 18 Johnson, 360; 8 Alabama, 
264; 8 Howard, 308; 4 Howard, 462, 436; 12 Missouri, 256; 12 Peters, 454, 456, 
458-9; 8 Howard, 337-8; 5 Conn., 269, 273; 10 Peters, 309; 4 Bin., 235; 8 
Howard, 233, 313-14; 6 Cond. Rep., 357.

N. H. Purple and H. O. Merriman, for appellee, cited 4 Howard, 169; 9 Cranch 
(3 Cond. R.), 286; 2 Peters, 227; 8 Howard, 233, 301; 2 Gill, 602; 3 Mass., 
21; 4 Gill, 270; Dwarris on Stat., 39, 40, 46, 47, 48; 15 Johnson, 379; 4 
Howard, 169, 445, 448; 4 Peters, 173; 7 Howard, 270.

Treat, C. J. This was an action of ejectment brought by James McFadden against 
Charles Ballance, to recover a lot of ground in the city of Peoria. A trial 
resulted in a verdict and judgment for the plaintiff. Various exceptions were 
taken by the defendant during the progress of the trial, and he now brings the 
record into this court by appeal. For a proper understanding of the case, it 
will be necessary to set forth at some length the evidence on which the 
plaintiff's claim of title is founded.

On the fifteenth of May, 1820, congress passed "An act for the relief of the 
inhabitants of the village of Peoria, in the state of Illinois," which was as 
follows; "That every person, or the legal representatives of every person, who 
claims a lot or lots in the village of Peoria, in the state of Illinois, 
shall, on or before the first day of October next, deliver to the register of 
the land office for the district of Edwardsville, a notice in writing of his 
or her claim; and it shall be the duty of the said register to make to the 
secretary of the treasury a report of all claims filed with the said register, 
with the substance of the evidence in support thereof; and also his opinion 
and such remarks as he may think proper to make; which report, together with a 
list of the claims which, in the opinion of the said register, ought to be 
confirmed, shall be laid by the secretary of the treasury before congress, for 
their determination. And the said register shall be allowed twenty-five cents 
for each claim on which a decision shall be made, whether such decision shall 
be in favor of or against the claims; which allowance shall be in full for his 
services under this act."

On the tenth of November, 1820, Edward Coles, register of the land office at 
Edwardsville, made a report to the secretary of the treasury, of his 
proceedings under this act of congress. He reported each claim, and the 
substance of the evidence adduced in its support, but declined to give any 
opinion as to which of the claims should be confirmed. The claims connected 
with this case are thus stated in the report.

"No. 1. Etienno Bernard claims a lot in the village of Peoria, containing 
about one arpent of land, situate about forty or fifty yards south of the lot 
of Joseph Graveline, and bounded eastwardly by a road or street, separating it 
from the lower part of lake Peoria; southwardly by a road separating it from a 
lot occupied by John Baptiste Maillet, and westwardly and northwardly by 
commons or prairie."

"No. 11. Louis Pilette, in right of his wife, Angelica, the daughter of the 
late Francis Wilette, of the village of Peoria, claims a lot in Peoria, 
containing about one-half of an arpent of land, and bounded northwardly by a 
street, eastwardly by a lot of Antoine Deschamps, southwardly by a street 
separating it from the Illinois river, and westwardly by a street."

"No. 41. Felix Fontaine claims a lot in Peoria, of eighty feet in front, by 
three hundred feet in depth (French measure), and bounded eastwardly by a 
street separating it from lake Peoria, northwardly by a lot formerly occupied 
by Antoine Deschamps, but now claimed by him, Fontaine, and to the south and 
west by streets."

"No. 42. Felix Fontaine, in right of his wife, Josette Carsereaudit Fontaine, 
claims a lot in Peoria, of eighty feet in front by three hundred feet in depth 
(French measure), and bounded eastwardly by a street separating it from lake 
Peoria, northwardly by a lot claimed by the heirs of La Bonshier, westwardly 
by a street, and southwardly by a lot on which he (Fontaine) lived."

The proof reported by the register in connection with these claims need not be 
set out. Claim one covers the same ground as claims forty-one and forty-two; 
and claim eleven includes the same ground as claim forty-one. The premises in 
controversy in the present case are a part of claim forty-two.

On the third of March, 1823, congress passed "An act to confirm certain claims 
to lots in the village of Peoria, in the state of Illinois," which was as 
follows:

"Sec. 1. That there is hereby granted to each of the French and Canadian 
Inhabitants and other settlers in the village of Peoria, in the state of 
Illinois, whose claims are contained in a report made by the register of the 
land office at Edwardsville, in pursuance of the act of congress, approved May 
the fifteenth, one thousand eight hundred and twenty, and who had settled on a 
lot in the village aforesaid, prior to the first day of January, one thousand 
eight hundred and thirteen, and who have not heretofore received a 
confirmation of claims, or donation of any tract of land or village lot from 
the United States, the lot so settled upon and improved, where the same shall 
not ex ceed two acres, and where the same shall exceed two acres, every such 
claimant shall be confirmed in a quantity not exceeding ten acres: Provided, 
nothing in this act contained shall be so construed as to affect the right, if 
any such there be, of any other person or persons to the said lots, or any 
part of them, derived from the United States, or any other source whatever, or 
as a pledge on the part of the United States, to make good any deficiency 
occasioned by any other interfering claim or claims."

"Sec. 2. That it shall be the duty of the surveyor of the public lands of the 
United States, for that district, to cause a survey to be made of the several 
lots, and designate on a plat thereof the lot confirmed and set apart to each 
claimant and forward the same to the secretary of the treasury, who shall 
cause patents to be issued in favor of such claimants, as in other cases."

The survey required to be made by the second section of this act, was approved 
by the surveyor general, on the first of September, 1840.

On the twenty-eighth of August, 1845, a patent was issued to the legal 
representatives of Francis Wilette, for the lots covered by claims one, 
eleven, forty-one, and forty-two. It recited: "Whereas there has been 
deposited in the general land office, a certificate numbered two of the 
register and receiver of the land office at Edwardsville, Illinois, whereby it 
appears that in the report, dated tenth of November, 1820, of Edward Coles, 
register of the land office at Edwardsville, Illinois, the claim of Etienne 
Bernard is entered as number one; the claim of Louis Pilette in right of his 
wife, Angelica, the daughter of the late Francis Wilette, is entered as number 
eleven; the claim of Felix Fontaine is entered as number forty-one (the said 
numbers eleven and forty-one, according to the survey, being for the same 
land, and covering the southwest part of claim number one), and the claim of 
Felix Fontaine is entered as number forty-two (covering, according to the 
survey, the northeast part of claim number one); and whereas, it further 
appears from the certificate aforesaid, that the said Francis Wilette is the 
inhabitant or settler within the purview of the confirmatory act of congress, 
approved third March, 1823, entitled, "An act to confirm certain claims to 
lots in the village of Peoria, in the state of Illinois;" and that it has 
appeared to the satisfaction of the said register and receiver, that the said 
inhabitant or settler did not prior to the said act of third March, 1823, 
receive "a confirmation of claims, or donation of any tract of land or village 
lot from the United Slates;" and that the legal representatives of the said 
Francis Wilette, in virtue of the confirmatory act aforesaid, are entitled to 
a patent for a certain lot described as follows, to wit: the lot containing 
fifty-four thousand eight hundred and ninety-eight square feet, and fourteen-
hundredths of a square foot, surveyed and designated as covered by said claims 
number one, eleven, forty-one and forty-two, in the southeast fractional 
quarter of fractional section nine, in township eight north, of range eight 
east of the fourth principal meridian, Illinois, according to the survey, 
approved first September, 1840, by the surveyor of the public lands in the 
states of Illinois and Missouri." And the patent then proceeds to grant the 
lot to "the legal representatives of the said Francis Wilette, and to their 
heirs." 

After the introduction of this patent, the plaintiff read in evidence a deed 
from Bartholomew Fortier and Angelica, his wife, dated the seventeenth of 
April, 1849, conveying the premises described in the patent to the plaintiff. 
He then proved by the depositions of Madeline Glodon and Louis Le Compte, that 
Angelica Fortier was formerly the wife of Louis Pilette, and the only 
descendant of Francis Wilette.

It will not become necessary to allude to the evidence introduced by the 
defendant. An exception was taken to the admission of the patent in evidence, 
and that may be considered as presenting the whole merits of the plaintiff's 
case.

The act of congress of the third of March, 1823, confirmed only such claims as 
were contained in the report of the register. The act of the fifteenth of May, 
1820, required his report to be laid before congress for its consideration, 
and the claims included therein were exclusively the subject matter of the 
confirmatory act. The grant only operated to the benefit of such persons as 
had presented their claims to the register, pursuant to the provisions of the 
first act. The lots thus specifically claimed were alone required to be 
surveyed. And patents were only authorized to be issued to the claimants 
thereof, or to their legal representatives. It was not enough, that a person 
was an actual settler prior to the first of January, 1813, and had not 
previous to the third of March, 1823, received from the United States a 
confirmation of a claim, or a donation of a tract of land or a village lot; 
but he must in addition have claimed the lot settled upon and improved, in 
order to bring himself within the provisions of the confirmatory act. No other 
persons were entitled to the benefits of that act. The report of the register, 
and the patent in question, both show that neither Wilette, nor his legal 
representatives, ever made any claim to lot forty-two; but, on the other hand, 
they clearly show that Bernard and Fontaine were the sole claimants. The 
secretary of the treasury, on the assumption that Wilette was the settler 
within the purview of these acts of congress, caused a patent to be issued to 
his legal representatives for this lot. Could a patent issued under such 
circumstances, vest any title in the patentee? We unhesitatingly answer in the 
negative. The secretary clearly exceeded his authority in directing a patent 
to issue to the legal representatives of Wilette. The lot was set apart and 
appropriated to other persons. It belonged either to Bernard or Fontaine 
severally, or to both of them conjointly. And but to one or both of them, 
could the patent properly issue. The patent in question is a mere nullity. It 
has no more force than so much waste paper. It in very true, that a patent is 
evidence of title in the patentee to the thing granted, until the contrary 
appears. It is presumed to have been regularly and rightfully issued. But when 
it appears on the face of the patent, or from any legitimate evidence, that it 
was issued in a case not authorized by law, it is utterly inoperative and 
void, and may be impeached collaterally in an action of ejectment. This 
doctrine, so manifestly just and reasonable, is fully sustained by the 
decisions of the highest courts in the country.

In the case of Stoddard v. Chambers, 2 Howard, 284, the land in controversy 
was reserved from sale at the date of the entry, survey and patent. Of the 
rights acquired under the patent, the court said: "On the above facts, the 
important question arises, whether the defendant's title is not void. That 
this is a question well examinable at law as in chancery, will not be 
controverted. That the elder legal title must prevail in the action of 
ejectment, is undoubted. But the inquiry here is, whether the defendant has 
any title, as against the plaintiffs. And there seems to be no difficulty in 
answering the question, that he has not. His location was made on lands not 
liable to be thus appropriated, but expressly reserved; and this was the case 
when his patent was issued. Had the entry been made, or the patent issued, 
after the twenty-sixth of May, 1820, when the reservation ceased, and before 
it was revived by the act of 1832, the title of the defendant could not be 
contested. But at no other interval of time, from the location of Bell until 
its confirmation in 1836, was the land claimed by him liable to be 
appropriated in satisfaction of a New Madrid certificate. No title can be held 
valid which has been acquired against law; and such is the character of the 
defendant's title, so far as it trenches on the plaintiff's. It has been 
argued, that the first patent appropriates the land, and extinguishes all 
prior claims of inferior dignity. But this view is not sustainable. The 
issuing of a patent is a ministerial act, which must be performed according to 
law. A patent is utterly void and inoperative, which is issued for land that 
bad been previously patented to another individual. (a) The fee having been 
vested in the patentee by the first patent, the second could convey no right. 
It is true, a patent possesses the highest verity. It cannot be contradicted 
or explained by parol; but if it has been fraudulently obtained or issued 
against law, it is void. It would be a most dangerous principle to hold, that 
a patent should carry the legal title, though obtained fraudulently or against 
law. Fraud vitiates all transactions. It makes void a judgment, which is a 
much more solemn act than the issuing of a patent. The patent of the 
defendant, having been for land reserved from such appropriation, is void." 
The cases of Jackson v. Lawton, 10 Johnson, 23; Patterson v. Winn, 11 Wheaton, 
380; and Polk's Lessee v. Wendal, 9 Cranch, 87; and 5 Wheaton, 293, assert the 
same doctrine.

We are clearly of the opinion, that the patent vested no title in the legal 
representatives of Wilette, to the premises in controversy in this case. The 
court, therefore, erred in admitting it in evidence.

The judgment is reversed, and the cause remanded.

Judgment reversed.

-----------------------
(a) Gray v. Mcfadden, post 394; Ballance v. Tesson, post 326; Rankin v.  
Curtenius et al., post 334, accord. 
(b) A patent cannot be impeached by parol, in an action of ejectment: Bruner 
v. Manlove, 1 Scam, 156. 

---------------------
(a) Unless the elder patent was obtained by fraud: Garner v. Willette, 18 
Ill., 455. See Brill v. Stiles, 33 Ill., 305 (annotated edition), and notes.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

File at: http://files.usgwarchives.net/il/peoria/court/ballance141gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 19.2 Kb