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LEWIS BISSELL, PLAINTIFF IN ERROR, v. MARY B. PENROSE

January 1, 1850

LEWIS BISSELL, PLAINTIFF IN ERROR,
v.
MARY B. PENROSE, DEFENDANT.



THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Missouri.

It was one of those land cases which arose from a conflict of title between an old Spanish concession, confirmed under the various acts of Congress upon the subject, and a title derived under a New Madrid grant. All these acts of Congress bearing upon both titles are set forth in the case of Stoddard v. Chambers, reported in 2 How., 284, and the substance of them need not be repeated here. The following is a list of them:––

References to Acts of Congress.

Date. Land Laws, Sen. Ed. 1838. U.S. Stat. at Large. Story's Ed. L.U.S.

March 26th, 1804, Vol. 1, page 112 Vol. 2, page 287 Vol. 2, page 933

March 2d, 1805, " 1, " 122 " 2, " 324 " 2, " 966

February 28th, 1806, " 1, " 132 " 2, " 382 " 2, " 986

April 21st, 1806, " 1, " 138 " 2, " 391 " 2, " 1018

March 3d, 1807, " 1, " 155 " 2, " 440 " 2, " 1059

March 3d, 1811, " 1, " 189 " 2, " 620 " 2, " 1193

June 13th, 1812, " 1, " 216 " 2, " 748 " 2, " 1257

March 3d, 1813, " 1, " 230 " 2, " 812 " 2, " 1306

August 2d, 1813, " 1, " 233 " 3, " 86 " 2, " 1384

April 12th, 1814, " 1, " 242 " 3, " 121 " 2, " 1410

February 17th, 1815, " 1, " 255 " 3, " 211 " 2, " 1500

April 29th, 1816, " 1, " 280 " 3, " 328 " 3, " 1604

February 17th, 1818, " 1, " 293 " 3, " 406 " 3, " 1659

April 9th, 1818, " 1, " 299 " 3, " 417 " -, " ----

April 26th, 1822, " 1, " 344 " 3, " 668 " 3, " 1841

May 26th, 1824, " 1, " 385 " 4, " 52 " 3, " 1959

May 22d, 1826, " 1, " 419 " -, " --- " -, " ----

March 2d, 1827, " 1, " 425 " 4, " 219 " 3, " 2048

May 24th, 1828, " 1, " 442 " 4, " 298 " 4, " 2135

March 2d, 1831, " 1, " 488 " 4, " 482 " 4, " 2250

July 9th, 1832, " 1, " 505 " 4, " 565 " 4, " 2305

March 2d, 1833, " 1, " 518 " 4, " 661 " 4, " 2359

July 4th, 1836, " 1, " 557 " 4, " 726 " 4, " 2815 It was an action of ejectment brought in the Circuit Court by Mary B. Penrose, the defendant in error, who claimed under the Spanish concession, against Bissell, who claimed under the New Madrid certificate which was located upon the land in controversy in March, 1818. We will first state the title of the plaintiff below, and then that of the defendant.

The petition and concession were as follows, viz.:––

'The sons of Vasquez, claiming 800 arpens each.

'To Don Carlos Dehault Delassus, Lieutenant-Governor of Upper Louisiana.

'SIR,–Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, all of them sons of Don Benito Vasquez, captain of militia of this town, brevetted by his Catholic Majesty, full of confidence in the generosity and benevolence of the government under which they are born, hope that you will be pleased to take into consideration the unfortunate situation in which they find themselves by the want of means of their family, which has been living for some time in distressing circum stances, and unable to give them the necessary education; therefore, wishing to procure to themselves, in the course of time, an independent existence, they think of forming an establishment which may one day insure their welfare. They flatter themselves, sir, that the services of their father will assure to them your protection, and the goodness of your heart will lead you to grant their demand; consequently, they supplicate you to grant to each of them eight hundred arpens of land, in superficie, making altogether the quantity of four thousand arpens, which they wish to take in one or several places of the vacant lands of the king's domain. Favor which your petitioners presume to hope from your justice.

'BENITO VASQUEZ,

ANTOINE VASQUEZ,

HYPOLITE VASQUEZ,

JOSEPH VASQUEZ,

PIERRE VASQUEZ.

'St. Louis, February 16th, 1800.'

'St. Louis of Illinois, February 17th, 1800.

'After seeing the precedent statement, and the laudable motives which animate the petitioners, and considering that their family is one of the most ancient in this country, and worthy of all the benevolence of government, as much for their personal merit as on account of the services [of the] father of the petitioners, I do grant to said petitioners, for them and their heirs, the land which they solicit, if it [is] not prejudicial to anybody; and the surveyor, Don Antonio Soulard, shall put the interested party in possession of the quantity of land asked for, in one or two vacant places of the royal domain, after which he shall draw a plat, which he shall deliver to the interested parties, with his certificate, to serve them in obtaining 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.

'A true translation.

'JULIUS DE MUN.

'St. Louis, October 27, 1832.'

On the 11th of February, 1806, Benito Vasquez, the eldest son, assigned his 800 arpens to Rudolph Tillier.

On the 27th of February, 1806, a survey and plat of the land was made by James Mackay, locating it about two miles northwest of St. Louis, as appeared by the following certificate:––

'I do certify, that the above plat represents 800 arpens of land, French measure, situated in the district of St. Louis, Louisiana Territory, and surveyed by me at the request of the proprietor, who claims the same by virtue of a Spanish grant.

'Given under my hand at St. Louis, this 27th day of February, in the year of our Lord 1806.

'JAMES MACKAY.

'Received for record, St. Louis, February 27, 1806.

'ANTOINE SOULARD,

'Surveyor-General Territory Louisiana.'

On the 25th of August, 1806, Tillier filed his claim before the first Board of Commissioners. There were two plats filed, covering different tracts of land, both of which plats were upon the same sheet of paper; but upon the face of one of them was written the name of the claimant at full length. This one included the land in controversy, and was the only one considered by the commissioners.

On the 22d of September, 1810, the board decided that this claim 'ought not to be confirmed.'

On the 3d of October, 1832, this claim was brought before another Board of Commissioners, which, on the 2d of November, 1833, passed the following order:––

'Saturday, November 2d, 1833.

'The board met pursuant to adjournment. Present, Lewis F. Linn, A. G. Harrison, F. R. Conway, Commissioners.

'The sons of Vasquez, each claiming 800 arpens of land under a concession from Charles Dehault Delassus. See page 17. The board remark, that they can see no cause for entertaining the idea that the said concession was not issued at the time it bears date, as intimated in the minutes of the former commissioners.

'The board are unanimously of opinion, that this claim ought to be confirmed to the said Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, or their legal representatives, according to the concession.

'The board adjourned until to-morrow, at 9 o'clock, A. M.

'L. F. LINN,

F. R. CONWAY,

A. G. HARRISON.'

This claim was confirmed by the act of Congress of 4th July, 1836, and again surveyed by the United States surveyor on the 29th of March, 1842, according to the original survey of Mackay, filed with the claim in 1806. The claim was assigned by Tillier to C. B. Penrose, who conveyed it to Mary B. (the plaintiff below) and Anna H. W. Penrose, on the 20th of February, 1823.

The title of Bissell, the defendant below, was as follows.

The defendant produced and read in evidence,––

1. A certificate issued by the recorder of land titles, No. 164, dated 4th November, 1816, whereby it is certified, that, in conformity to the provisions of an act of Congress of 17th February, 1815, John Brooks, or his legal representatives, is entitled to locate 709 arpens on any of the public ...


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