23 Ill. 49 | Ill. | 1859
The premises in controversy are a part of the east fractional quarter of section nine, in town eight north, of range eight east of the fourth principal meridian. The plaintiff claims the premises as a confirmed French claim, under the act of Congress approved March 3rd, 1823, and the survey approved September 1st, 1840.
The defendant proved title under John L. Bogardus, to whom the fraction above described was patented by the United States. This patent, after granting the premises to the patentee, contains this clause: “ Subject, however, to the rights of any and all persons claiming under the act of Congress of 3rd March, 1823, entitled 6 An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.’ ” Under this title the defendant had possessed and occupied the premises by actual residence thereon for twelve years, antecedent to the commencement of this action. The only question then is, did the defendant show “ a connected title in law or equity, deducible of record from this State or the United States ?” This question, we conceive, has been distinctly and authoritatively settled by the Supreme Court of the United States, whose decision is paramount and controling upon this court, upon the construction of this act of Congress, and the effect of this patent. In the case of Bryan v. Forsyth, 19 Howard, 334, that court gave a construction to this patent. The court there said: “ When this patent was made in 1838, the village lots had not been surveyed, and those that interfered with the land granted to Bogar dus, might never be claimed. Subject to this contingency he took his patent, and had a title, in fee till 1840, when the village title of Forsyth was ripened into the better right. After that, those claiming under Bogar dus, held the position of one who claims protection under a younger patent against an older one. He has only the appearance of title. The patent to Bogardus was a fee simple on its face, and is such title as will afford protection to those claiming under it, either directly or having a title connected with it, with possession for seven years as required by the statute of Illinois. The court below erred in cutting off this defense.” As before remarked, it is for that court to determine what kind of title was conferred by this patent; and even if we should have arrived at a different conclusion, it is our duty to conform to this decision, as constituting the undoubted law of the case, while we possess the paramount right to construe our own statutes, and among them our laws of limitation. But such a title as is here described, is such a title in law as is contemplated by our statute of limitation of 1835, and to attempt to evade that decision by saying that they had misconstrued our statute, would be but a mere evasion of that decision, unworthy of this tribunal. Under this title the defendant held such a possession as the statute required, and for twice the length of time necessary to constitute a defense.
The judgment must be reversed and the cause.remanded.
Judgment reversed.
