33 Ill. 433 | Ill. | 1864
delivered the opinion of the Court:
This was an action of ejectment for certain lands lying in the county of St. Clair. The plaintiff and appellant claimed title by virtue of two patents issued by the United States, one in 1838 and the other in 1853. The defendants were in possession, claiming the premises through their ancestor George Lunceford, who claimed the same by deed from Nicholas Jarrot, bearing date January 22, 1801. Jarrot derived his title as assignee of Philip Engle, from a confirmation by Governor St. Clair to him, dated February 12, 1799. The question for us to determine, is, what is the effect of the governer’s confirmation of 1799 ?
The answer will be found in the very able and elaborate opinion of this court, pronounced more than thirty years ago, in this same case, by Justice Lockwood, and •which received the concurrence of .the bar and the country at the time it was delivered, and has never been, to our knowledge, called in question. The case in which the opinon was delivered was in name of John Doe ex dem. of Moore and others, heirs-at-law of George Lunceford, v. Hill, and reported in Breese’s Eeports, 304, 2d ed.
We do not perceive any fact in the present case which was not, in that case, calculated to produce a result different from the one there announced. It is true, in that case no objection was made that the patent from the governor wanted a seal. We do not consider it of any importance whatever, whether the governor’s act of confirmation assumed the form of a patent or of a deed under seal. Under the acts of congress giving this power to the governor, he was not required to issue a patent or execute a deed under seal.
Any written evidence, if it amounted to no more than an entry made by him in a memorandum book, of his act of confirmation, would have been a sufficient execution of the power under the law. The governor, however, issued an instrument of writing to the confirmee in the form of a patent, containing words of confirmation with express reference to the acts of congress of 20th of June, and 28th of August, 1788. The effect of this writing is a declaration by the United States, through their authorized agent, that" they had no claim to the land. It was not a grant by the United States, because the title was not in them. One of the objects of the acts of congress and instructions to the governor, was to ascertain the public lands, to find out what portion of the domain ceded by Virginia passed by the cession, and that was easily ascertained, by first establishing the claims of the settlers; the residuum only belonged to the government, subject to be held or otherwise disposed of by them.
The opinion in the case in Breese is so full and satisfactory on all the questions raised in this case, we are content to refer to that, and make it the basis of our opinion. We agree with-the court that congress had no power to organize, years after those titles and possessions were confirmed by the governor, a board of revision to nullify them. Why should the confirmees be required, twenty years after'they had made their proofs before the governor, and he had. acted on them, to produce them again ? In most cases it would be impossible, by reason of death, removal, or other casualties. Justice requires that his official written declaration that the government had no title to the land claimed, and acquiesced in by the government, should protect the confirmee and those claiming under him.
So well satisfied with the decision in this case which we have adopted was the congress of the United States, that an act was passed restoring to the purchasers from them the money they had paid for this land. The act will be found among the private acts passed August 15th, 1849, in vol. 6 of U. S. Statutes at Large. The judgment is affirmed.
Judgment affirmed.
