Carey Bagnell and the Executors of Morgan Byrne, Plaintiffs In Error v. George Broderick, Defendant In Error

• Decision Date: 01 January 1839
• Citation: 38 U.S. 436,13 Pet. 436,10 L.Ed. 235
• Parties: CAREY BAGNELL AND THE EXECUTORS OF MORGAN BYRNE, PLAINTIFFS IN ERROR, v. GEORGE W. BRODERICK, DEFENDANT IN ERROR
• Court: U.S. Supreme Court

38 U.S. 436

13 Pet. 436

10 L.Ed. 235

CAREY BAGNELL AND THE EXECUTORS OF MORGAN BYRNE, PLAINTIFFS IN ERROR, v. GEORGE W. BRODERICK, DEFENDANT IN ERROR.

January Term, 1839

IN error to the Circuit Court of the United States for the District of Missouri.

This was an action of ejectment for a tract of land in the state of Missouri, instituted by George W. Broderick against Bagnell, the defendant, the tenant in possession; and in the progress of the cause, Morgan Byrne, the landlord, was made co-defendant, and he dying, his executors were substituted.

Other actions of ejectment were at the same time instituted by George W. Broderick, for parts of the said tract in the possession of M'Cunie, and of Sampson; and the executors of Morgan Byrne became in the same manner co-defendants in the cases. A verdict, in conformity to the opinion of the Circuit Court, having been given for the plaintiff in each of the cases, on the 10th of April, 1838, the defendants prosecuted writs of error to the Supreme Court; bills of exceptions having been sealed by the Court.

The bills of exceptions show that on the trial of these cases the plaintiff below read in evidence a copy of the patent from the United States to John Robertson, Jr. dated 17th June, 1820, for the tract of land mentioned in the above statements, which, reciting that

John Robertson, Jr. had deposited in the general land office a certificate, numbered 192, of the recorder of land titles at St. Louis, Missouri; whereby it appeared that in pursuance of an act of Congress passed 17th February, 1815, entitled, 'An act for the relief of the inhabitants of the late county of New Madrid, in the Missouri territory, who suffered by earthquakes,' the said John Robertson, Jr. was confirmed in his claim for 640 acres of land, being survey No. 2810, and section 32, township 50 north, and range 15 west of 5th principal meridian; and the United States granted to John Robertson, Jr. in fee, the tract of land described above. Also a deed from John Robertson, Jr. to Augustus H. Evans, dated 11th November, 1830, conveying the same tract of land to the said Evans in fee, expressly stipulating, however, against any warranty. Also a deed from Augustus H. Evans to George W. Broderick, the plaintiff below, now defendant in error, dated 7th June, 1830, conveying the same tract of land to the said Broderick in fee, and proved possession of the premises by the defendants below; at the commencement of the suits respectively, and here closed his testimony.

That the defendants below, now plaintiffs in error, read in evidence a transcript of a notice to the recorder of land title for the United States at St. Louis, taken from the records of the office of the recorder, given by John Robertson, Jr., which states that he claims 750 arpens of land in the Big Prairie, on the ground of inhabitation and cultivation, prior to and on 20th December, 1803, by and with the consent of the proper Spanish officer.

Also copy of proceedings had before the board of commissioners on land claims, on the 11th July, 1811, taken from the minutes of the proceedings of the board for ascertaining and adjusting the titles and claims to lands, which shows that on the claim of John Robertson, Jr. for 750 arpens of land in the Big Prairie, the board granted to John Robertson, Jr. 200 arpens of land. Also a transcript of opinion, and report of the recorder of land titles of the United States at St. Louis, made 1st November, 1815, which, in connexion with act of Congress of 29th April, 1816, entitled, 'An act for the confirmation of certain claims of land in the western district of the state of Louisiana, and in the territory of Missouri,' (see sec. 2 of this act,) shows that the confirmation of 200 arpens, parcel of the claim of John Robertson, Jr. for 750 arpens of land in the Big Prairie, made by the board of Commissioners aforesaid, was extended to 640 acres, and this quantity, 640 acres, was accordingly confirmed to him. Also a deed from John Robertson, Jr. to Edward Robertson, Sr. dated 29th May, 1809, conveying the said 750 arpens of land to the said Edward Robertson, Sr. in fee; reciting in same conveyance that 330 arpens of the said 750 arpens had been surveyed, and how; and specifying the manner of laying off the residue, and authorizing the said Edward Robertson to apply for and receive from government or the proper authorities, a patent in his own name for same; and covenanting on behalf of himself and his heirs, to warrant the title

against all persons claiming under, through, or by the vendor. Also a deed from Edward Robertson, Sr. to Morgan Byrne, dated 30th October, 1813, conveying to the said Byrne, in fee, 300 arpens of land out of a tract of land the head right of John Robertson, Jr. situated and being in the Big Prairie, bounding the part conveyed, parcel of the 750 arpens above described; and covenanting for himself and his heirs to warrant and defend the title against all claims whatever. Also a deed from Edward Robertson, Sr. to Morgan Byrne, dated 11th September, 1816, conveying to the said Byrne in fee 250 arpens of land, part of the head right of John Robertson, Jr. of 750 arpens, situated in the Big Prairie, and containing a covenant for himself and heirs, to warrant the title against all claims whatever. Also a copy of deed from Edward Robertson, Sr. to William Shelby, dated 29th October, 1816, conveying to the said Shelby in fee two hundred arpens of land bounding the same, parcel of the head right of John Robertson, Jr., (and parcel of the 750 arpens above described,) and containing a covenant of general warranty. Also a copy of deed from William Shelby to Levi Grimes, dated 2d December, 1816, conveying to the said Grimes in fee the 200 arpens of land next above described, and containing a covenant of general warranty.

Also a deed from Levi Grimes to Morgan Byrne, dated 26th February, 1817, conveying to the said Byrne in fee the 200 arpens of land next above described, and containing a special warranty.

The defendants also produced in evidence an extract from registry of relinquishments, in office of recorder of land titles for the United States at St. Louis, of lands materially injured by earthquakes, under the act of Congress of 17th February, 1815; which shows that the confirmation aforesaid to John Robertson, Jr. for 640 acres, situated in the Big Prairie, was relinquished by Morgan Byrne, as the legal representative of John Robertson, Jr., and on such relinquishment the location certificate No. 448 issued.

Also a copy of certificate of location, dated September, 1818, and numbered 448, issued by recorder of land titles of United States at St. Louis, which certifies that a tract of 640 acres of land situated in the Big Prairie was materially injured by earthquakes, and that in conformity with the provisions of the act of Congress of 17th February, 1815, the said John Robertson, Jr., (reciting that he appears from the books of his office, recorder of land titles of United States, to be the owner,) or his legal representatives, was entitled to locate 640 acres of land on any of the public lands, &c. Also a copy of the location under the foregoing certificate of location, made 8th October, 1818, which shows that Morgan Byrne, as the legal representative of John Robertson, Jr., entered and located 640 acres of land, by virtue of the certificate of location, commonly called a New Madrid certificate, issued by the recorder of land titles of the United States at St. Louis, dated September, 1818, and numbered 448, so as to include section No. 32, township 50 north, range 15 west of

5th principal meridian, (the same premises in dispute;) and here the defendants below closed their testimony.

The plaintiff below then read in evidence, a copy of notice by John Robertson, Jr., of claim for 330 arpens, and proceedings on same had before the board of commissioners of land claims, on 24th March, 1806, and 15th August, 1811, which show that John Robertson, Jr. filed a notice of claim for 330 arpens, situated in the district of New Madrid, under the second section of the act of Congress of March, 1805, accompanied by a plat of survey of 330 arpens, made by one Joseph Story, at request of John Robertson, Jr., (as the same purports,) who, as the survey recites, claimed the same as part of his settlement right, by virtue of the second section of the act of Congress, of March, 1805; that the board of commissioners on the 24th March, 1806, grant to claimant 750 arpens, and on the 15th August, 1811, reject the claim entirely, saying the claim ought not to be granted. Also, a transcript of opinion, and report of the recorder of land titles of United States, at St. Louis, made 1st November, 1815, which, in connexion with the act of Congress of 29th April, 1816, before referred to, shows that the claim of John Robertson, for 330 arpens, was confirmed to him, and 330 arpens accordingly granted. Also, a copy of certificate of location in favour of John Robertson, Jr. or his legal representatives, dated 18th September, 1818, and numbered 447, issued by the recorder of land titles of the United States, at St. Louis, which certifies that a tract of 330 arpens of land situated on lake St. Marie, had been materially injured by earthquakes, and that in conformity with the provisions of the act of Congress, of 17th February, 1815, the said John Robertson, Jr., reciting that he appears from the books of his office, recorder of land titles of the United States, to be the owner, or his legal representatives, was entitled to locate 330 arpens of land, &c.

The defendants below then read in evidence, an extract from registry of relinquishments, in the office of recorder of land titles of the United States, at St. Louis, of lands materially injured by earthquakes, under the act of Congress of 17th February, 1815, which shows that the confirmation aforesaid, of 330 arpens to John Robertson, Jr., was...