Isabella Mackay, Executrix of James Mackay, Zeno Mackay, George Anthony Mackay, James Bennett Mackay, Reuben Coleman and Eliza Lucy, His Wife, William Coleman and Amelia Ann, His Wife, Louis Guyon and Mary Catherine, His Wife, David Bowles and Julia Jane, His Wife, and Isabella Louisa Mackay By Isabella Mackay Her Guardian v. Patrick Dillon

• Decision Date: 01 January 1846
• Citation: 45 U.S. 421,4 How. 421,11 L.Ed. 1038
• Parties: ISABELLA L. MACKAY, EXECUTRIX OF JAMES MACKAY, ZENO MACKAY, GEORGE ANTHONY MACKAY, JAMES BENNETT MACKAY, REUBEN COLEMAN AND ELIZA LUCY, HIS WIFE, WILLIAM COLEMAN AND AMELIA ANN, HIS WIFE, LOUIS GUYON AND MARY CATHERINE, HIS WIFE, DAVID BOWLES AND JULIA JANE, HIS WIFE, AND ISABELLA LOUISA MACKAY BY ISABELLA L. MACKAY HER GUARDIAN, v. PATRICK M. DILLON
• Court: U.S. Supreme Court

45 U.S. 421

4 How. 421

11 L.Ed. 1038

ISABELLA L. MACKAY, EXECUTRIX OF JAMES MACKAY, ZENO

MACKAY, GEORGE ANTHONY MACKAY, JAMES BENNETT MACKAY,

REUBEN COLEMAN AND ELIZA LUCY, HIS WIFE, WILLIAM

COLEMAN AND AMELIA ANN, HIS WIFE, LOUIS GUYON AND MARY

CATHERINE, HIS WIFE, DAVID BOWLES AND JULIA JANE, HIS

WIFE, AND ISABELLA LOUISA MACKAY BY ISABELLA L.

MACKAY HER GUARDIAN,

v. PATRICK M. DILLON.

January Term, 1846

THIS case was brought up from the Supreme Court of the State of Missouri, by a writ of error, issued under the twenty-fifth section of the judiciary act.

The suit was originally brought in the Circuit Court (State court) for the county of St. Louis, but the venue changed to the county of St. Charles.

It was an ejectment, brought by the heirs of Mackay against Dillon, to recover a tract or parcel of land in the county of St. Louis, containing two hundred arpents or more, bounded on the north by land formerly belonging to Auguste Chouteau, called the Mill tract; on the south by land formerly belonging to Anthony Soulard, deceased; on the east by the road leading from the city of St. Louis to the village of Carondelet; on the west by land formerly of the royal domain.

As the instruction asked by the defendant, and granted by the court, referred to the copy of the claim given in evidence, it is necessary to set forth the whole of this evidence upon which the claim of the defendant rested; and also to state the title of the plaintiffs.

The plaintiffs showed title as follows.

1st. Mackay's will, the production of which was afterwards rendered unnecessary, by the admission of the defendant, that the plaintiffs were the wife and children and sons-in-law of James Mackay deceased 2d. The admission of the defendant, that, at the commencement of the suit, he had in his possession thirty acres, part of the tract in the declaration described, all of which, thus in his possession, laid west of the eastern line of the tract claimed as the commons of St. Louis, and was embraced in the survey of the commons as made by James Mackay in the year 1806.

3d. Mackay's petition for a concession, and the order of the Lieutenant-Governor thereupon, both in 1799, and a survey in 1802.

4th. Proceedings of the board of commissioners established by that act of Congress, passed on the 2d of March, 1805.

5th. Proceedings under the act of Congress, passed on the 13th of June, 1812.

6th. Extracts from the decision of Mr. Bates, under the same act.

7th. Proceedings of the board of commissioners established by the acts of Congress, passed on the 9th of July, 1832, and 2d of March, 1833.

8th. The act of Congress, passed on the 4th of July, 1836.

9th. The certificate of the surveyor of the public lands, dated the 5th of December, 1840.

10th. The deposition of Soulard.

11th. Proof of the location and value of the land.

These points will be taken up in order. Nothing more need be said with regard to the first and second.

3. Mackay's petition for a concession, the order of the Lieutenant-Governor, and survey.

'To Don Charles Dehault Delassus, Lieutenant-Governor and Commander-in-chief of Upper Louisiana.

'James Mackay, commandant of St. Andr e, of Missouri, has the honor to represent, that, having often sundry reports to make to government, on which account his presence is required in this town, he would wish to have a place of residence in the same; therefore, considering that all the town lots are conceded, he has the honor to supplicate you to have the goodness to grant to him, to the south of this town, a vacant tract of land of about two hundred and some arpents in superficie, which tract of land is bounded as follows:—To the north, by the land of Mr. Auguste Chouteau; to the south, by lands of Mr. Antoine Soulard; to the east, by the public road going from this town to Carondelet; and to the west, by his Majesty's domain. The petitioner, confiding in your justice, hopes that his zeal for his Majesty's service, and the small salary which he enjoys, shall be strong motives in the opinion of a chief who, like you, makes his happiness consist in distributing favors to the officers who have the honor to serve under his orders. In this belief, he hopes to obtain of your justice the favor which he solicits.

JACQUE MACKAY.

'St. Louis, October 9, 1799.'

'St. Louis of Illinois, October 9, 1799.

'Cognizance being taken of the foregoing memorial of Mr. James Mackay, and due attention being paid to his merits and good services, the surveyor of this Upper Louisiana, Don Antonio Soulard, shall put the interested party into possession of the land which he solicits, in the place designated in this memorial, and this being executed, he shall draw a plat of his survey, delivering the same to the party, with his certificate, in order that it shall serve to him to obtain the concession and title in form, from the intendant-general, to whom alone corresponds, by royal order, the distributing and granting all classes of lands of the royal domain.

CARLOS DEHAULT DELASSUS.

'Truly translated. St. Louis, 20th February, 1833.

JULIUS DE MUN.'

Translation of the Spanish Survey.

'The bounds and corners are all indicated on the survey. All the line-trees are marked with a blaze above, and two notches below, and the right and left blazed only. Marked in book A, fol. 55, No. 94.

'Don Antoine Soulard, particular surveyor of Upper Louisiana, certify that, on the 24th of this present year, in virtue of the decree which accompanies of the Lieutenant-Governor and subdelegate of the royal estate, Don Carlos Dehault Delassus, in date of the month of October, of the year 1799, I went to the land of Don Santiago Mackay, the admeasurement of which I have taken in presence of the proprietor and of the neighbours who bound thereon, with the perch of Paris of eighteen feet long, according to the custom adopted in this province of Louisiana, and without regarding the variations of the needle, which is seven (7) degrees and thirty (30) minutes, as appears by the plat that precedes; which land is situate to the south of the little river of the mills, situate near the town of St. Louis, bounding north by the lands of Don Auguste Chouteau; south, in part, by another piece of land of Don Antonio Soulard and the royal domain; east, in part, by the land of Don Auguste Chouteau, and by the royal road from the town to the village of Carondelet; west, by the lands of the royal domain; and in order that it may appear when fitting, I give the present with the plat that precedes, in which are indicated the dimensions and natural and artificial limits which surround the said land. St. Louis of Illinois, 17th of December, 1802.

ANTONIO SOULARD Particular Surveyor.'- 4. Proceedings of the board of commissioners established by the act of Congress, passed the 2d of March, 1805.

This act provided for the appointment of three persons, who should examine and decide on all claims submitted to them, and report the result to the Secretary of the Treasury, who was directed to communicate it to Congress.

'July 22d, 1806.

'The board met agreeably to adjournment. Present the Honorable John B. C. Lucas, Clement B. Penrose, and James L. Donaldson, Esquires.

'James Mackay, claiming two hundred arpents of land, or thereabouts, situate in the fields of St. Louis, produces a concession from Charles D. Delassus, dated October 9th, 1799, and a survey of the same, dated the 24th of November, and certified the 17th of December, 1802.

'Auguste Chouteau, being duly sworn, says, that the said tract of land was surveyed in 1804 or 1805; that he never heard of a concession having been granted for the same until the survey was taken; that the said tract is adjoining a tract claimed by the witness, and that the same interferes with a tract claimed by the inhabitants of St. Louis as a common. The board, from the above testimony, are satisfied that the aforesaid concession is antedated. On motion, adjourned to to-morrow, 9 o'clock, A. M. See minutes, No. 1, pp. 412, 413, 417, and 419.'

'Friday, July 31st, 1807. 3 o'clock.

'The board met agreeably to adjournment. Present the Honorable John B. C. Lucas, Clement B. Penrose, and Frederick Bates, Esquires. James Mackay, claiming about two hundred and eighty-two arpents in the common of St. Louis, produces a concession from Charles Dehault Delassus, dated the 9th of October, 1799. Survey and certificate dated the 17th of December, 1802. Laid over for decision. The board adjourned until to-morrow, 9 o'clock.

JOHN B. C. LUCAS.

CLEMENT B. PENROSE.

FREDERICK BATES.

'See book No. 3, pp. 19-21.'

'Saturday, November 4th, 1809.

'Board met. Present, John B. C. Lucas, Clement B. Penrose, commissioners. James Mackay, claiming two hundred and eighty-two arpents of land, situate on the commons of St. Louis. See book No. 1, p. 417; book No. 3, p. 21. It is the opinion of the board that this claim ought not to be confirmed. Board adjourned till Monday next, 9 o'clock, A. M.

JOHN B. C. LUCAS.

CLEMENT B. PENROSE.

'See book No. 4, pp. 185-187.'- 5. Proceedings under the act of the 13th of June, 1812.

'St. Louis, December 28th, 1813.

'James Mackay claims about thirty arpents of land near the town of St. Louis, produces a concession from Charles D. Delassus, Lieutenant-Governor, for about two hundred arpents, dated the 9th of October, 1799. Survey of two hundred and eithty-eight arpents, 17th of December, 1802 (certified).

'M. P. Leduc, as agent of claimant, abandons all but about thirty arpents; the part abandoned supposed to be comprehended by the survey of the commons. It appearing from the minutes, book No. 1, p. 417, that no testimony has been introduced on the merits of this claim. A witness is now admitted.

'Antoine Soulard, duly sworn, says that this claim was granted to claimant by C. D. Delassus, Lieutenant-Governor, on the recommendation of his successor, Z. Suedeau, who had promised the same. It was surveyed under the Spanish government, and...