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LESSEE OF WILLIAM C. FRENCH AND WIFE, PLAINTIFF IN ERROR, v. WILLIAM H. SPENCER

December 1, 1858

LESSEE OF WILLIAM C. FRENCH AND WIFE, PLAINTIFF IN ERROR,
v.
WILLIAM H. SPENCER, JUN., JOSEPH SPENCER, AND ANNA A. SPENCER.



THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Indiana.

It was an ejectment brought by French and wife, to recover an undivided half of three hundred and twenty acres of land in the county of Vigo, in Indiana.

Upon the trial, the evidence offered by the plaintiff was as follows:

1. Evidence that one Silas Fosgit, who had been a Canadian volunteer in the army of the United States in the last war with Great Britain, had died between the 28th of June, 1816, and the 29th day of June, 1823, and that his only heirs at law were Minerva French, (wife of said William C. French,) residing in the State of Michigan, and one Aruna Fosgit.

2. A copy of a patent, dated on the 26th of October, 1816, to Silas Fosgit, for two quarter sections of land in the district of Vincennes.

The evidence offered by the defendants was as follows:

1. The original patent above mentioned, which had been deposited by one Abraham Markle with George Horner in 1817, who delivered the same to the defendants in 1854.

2. Evidence that they were the only children and heirs at law of one William H. Spencer, sen., who died in 1852, and also that the warrant was located upon the lands in dispute, by Abraham Markle, on the 3d of June, 1816.

3. The deed or assignment from Fosgit to Spencer, duly proved. As the court considered this assignment sufficient to convey the land, it may be as well to insert it, viz:

'Whereas I, the undersigned, Silas Fosgit, late a private in the corps of Canadian volunteers, commanded by Lieutenant Colonel Joseph Wilcox, deceased, lately in the service of the United States of America, according to the provisions of an act of Congress of the United States of America, passed March 5th, 1816, entitled 'An act granting bounties in lands and extra pay to certain Canadian volunteers,' having applied for, have obtained a warrant, issued by the Secretary of the Department of War, for the location of three hundred and twenty acres of land within the Indiana Territory, agreeably to the directions of said act:

'Now, know all men by these presents, that I, the said Silas Fosgit, for and in consideration of the sum of five hundred dollars to me in hand paid by William H. Spencer, Esquire, of Genesee, in the county of Ontario, and State of New York, the receipt whereof I do hereby confess and acknowledge, have assigned and set over, and by these presents do grant, bargain, sell, transfer, assign, and set over, to said William H. Spencer, his heirs and assigns, forever, the said three hundred and twenty acres of land; to have and to hold the same, in as full and ample manner as I, the said Silas Fosgit, my heirs or assigns, might or could enjoy the same by virtue of the said warrant or otherwise. And I do, for myself, my heirs and assigns, hereby authorize and empower the said William H. Spencer, his heirs and assigns, to make location of the said lands under and by virtue of the said warrant, and agreeably to the directions of the said act; and upon location thereof being made as aforesaid, to demand and receive a patent or deed of and for the said lands, in his own name, and for his sole use, benefit, and behoof; to the which end and intent I, the said Silas Fosgit, have and do make, ordain, constitute, and appoint the said William H. Spencer, his heirs and assigns, my true and lawful attorney and attorneys, irrevocable, to ask, require, demand, and receive the said deed or patent of and for the said land, and also to make location thereof, and one or more attorney or attorneys under him to constitute; and whatsoever the said William H. Spencer or his attorney or attorneys shall lawfully do in the premises, I, the said Silas, do hereby allow and confirm.

'In testimony whereof, I have hereunto set my hand and seal, this 28th day of June, 1816.

'SILAS FOSGIT. [SEAL.]

'In presence of––

GEORGE HORNER.'

The counsel for the plaintiff objected to the reading of this deed in evidence, for the following reasons, viz:

1. Because said writing is upon its face void, as being in violation of the acts of Congress touching the subject of bounties in lands for military services, and against the public policy of the United States on that subject.

2. Because said writing, on a fair legal construction of its terms, conveys no legal title (and, indeed, no title at all, of any kind) to the lands in question.

3. Because said writing is irrelevant, and incompetent as evidence in this cause.

But the court allowed it to be read, and instructed the jury that if furnished a conclusive defence to the action. Whereupon the plaintiff objected, and brought the case up to this court.

It was argued by Mr. Thompson for the plaintiff in error, and by Mr. Bennett for the defendants in error.

The counsel for the plaintiff in error contended that the warrant was not assignable by the acts of Congress, under which it was issued; that the deed was not, in point of fact, an assignment of the warrant; that the warrant had been located on the 3d of June, twenty-five days before the paper was executed; that the paper did not amount to a conveyance of land; that it did not purport so to be; and that, if it were intended to be a deed of conveyance, it was void for uncertainty in the designation and description of the land. Upon the point whether the assignment related back to the date of the entry, the counsel for the plaintiff remarked:

But if it had been designed as a deed of conveyance, it did not convey the legal estate to Spencer, for Fosgit, at that time, had no such estate to convey. He could convey no higher estate than he had, and, if he had none in the particular land, he could convey none.

Coke, sec. 446.

Hillard's Ab., 309, sec. 25.

The patent was not issued until October 26, 1816–four months after this paper was executed–and, until then, the legal title was in the United States.

Foley v. Harrison, 15 How., 447.

Dubois v. Newman, 4 Wash. C. C. R., 77.

Wilcox v. Jackson, 13 Pet., 516.

Green v. Liter, 8 Cranch, 229.

Irvine v. Marshall & Barton, 20 How., 558.

If the legal title was in the United States till October 26, 1816, this paper could not have conveyed such a title to Spencer, on the 28th of June before that, as would have availed him then, or his heirs now, in an action of ejectment.

Baynel v. Broderick, 13 Pet., 436.

It is of no avail to say that, the moment the entry was made, the title so vested in Fosgit as that he could convey. What title? Not the legal title, certainly, for that, upon the authority of the foregoing cases, was in the United States. The most that could be claimed for him would be a mere equity; and it might well be questioned, if it were necessary in this action, whether he had even an equitable title to any particular land. The language of the act granting these bounty lands is, that the party 'shall be entitled to three hundred and twenty acres,' &c. This grants nothing; no title passes by it. He shall be entitled to it when he shall get a warrant, select the land, have the selection confirmed, and get a patent. All this has to be done before he can have any title at all, and, until it is done, the title remains in the Government. If, therefore, he could sell or assign anything before all this was done, it could not be any title in the land, whatever else it might be.

If, then, this instrument is a deed of conveyance at all, it conveys at most but an equity, which does not avial the defendants in this action. If that were conceded to be its import, it would amount to nothing more than an executory contract to convey the legal estate, at some future time.

But, again, if it is conceded to be a deed of conveyance, it is a quit-claim merely, by which Fosgit parted only with the equitable estate he possessed at its date. Therefore, the Circuit Court erred in deciding that the subsequent legal estate which Fosgit acquired by the patent had relation back to the date of this instrument, and ripened the equity which Spencer acquired thereby into ...


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