Opinion
DECEMBER TERM, 1856.
Under the circumstances described in the preceding case, if there was no sufficient evidence of a survey under the act of 1823, the title claimed under that act could not be held superior to that claimed under a patent issued in the interval between the act of 1823 and the alleged survey.
It was similar in most of its features to the preceding case, and was argued by Mr. Ballance for the plaintiff in error, and submitted on printed arguments by Mr. Williams and Mr. Gamble for the defendants.
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the northern district of Illinois.
In the case of Charles Ballance against Papin and Atchison, the same title was relied on by the defendant below (Ballance) that was set up in defence in the preceding case of Forsyth v. Brien and Rouse. The plaintiff sued to recover a village lot in Peoria, No. 42, confirmed to Fontaine, in right of his wife, Josette Cassarau, dit Fontaine. A plat of lot No. 42 was given in evidence, and is found in the record, but no certificate of the surveyor accompanies this plat, and without such certificate there is no evidence that lot No. 42 was lawfully surveyed. The act of 1823 (sec. 2) required that a survey should be made of each lot confirmed to the claimant, and a plat thereof forwarded to the Secretary. The evidence of a legal United States survey is not a mere plat, without any written description of the land by metes and bounds; neither the plat, nor less proof than a written description, will make a record on which a patent can issue. That most accurate evidence of separate surveys of the village lots of Peoria exists, we know; but as none is found in this record of lot No. 42, it follows, from the reasons given in the previous case, that no title was adduced in the Circuit Court that authorized it to reject the instructions demanded by the defendant; that, comparing the titles of the parties by their face, the defendant's was the better one. But as the same question of the application of the act of limitations arises in this case as it did in the former one, it must of course have been reversed, had the certificate of survey been found in the record. We therefore order that the judgment be reversed, and the cause remanded for another trial to be had therein.
Mr. Justice McLEAN dissented.