Gregg v. Tesson

Writ of error to the District Court for the northern district of Illinois.

By an act of Congress approved May 15, 1820, all persons claiming lots in the village of Peoria, Illinois, which had just been destroyed by fire, were required to furnish to the register of the land office at Edwardsville a written notice of their respective claims before the first of the ensuing October. It was made the duty of the register by the same act to report to the Secretary of the Treasury a list of these claims, with the substance of the evidence in support of them, and his opinion of their value; and this report the Secretary of the Treasury was directed to lay before Congress for its determination. On the 3d of March, 1823, Congress confirmed, under certain restrictions, to the persons in whose favor the register at Edwardsville had reported, the lots they claimed. Among the persons entitled to lots under the act of 1823 was Antoine Roi, who claimed lot 33, the same which is now in dispute. A survey was made of these lots in 1840, and a patent issued to the legal representatives of Roi in 1846. On the 20th of June, 1849, Mary Gendron, claiming to be the only heir of Antoine Roi, by a joint deed of herself and Toussaint Gendron, her husband, conveyed the lot in question to Tesson and Rankin for the consideration of fifty dollars, and in 1854 Tesson brought this ejectment in the Circuit Court against Richard Gregg, who claimed the same lot and held adverse possession of it under Charles Ballance. Ballance had obtained a patent in 1838 for a fractional quarter section of land, comprehending the lot afterwards patented to Roi. But Ballance's patent was expressly 'subject to the rights of any and all persons claiming under the act of Congress of 3d March, 1823.' Ballance and his tenants had been in possession of the fractional quarter section patented to him about twenty years at the time when this suit was brought.

That Mary Gendron was the lawful child and heir of Antoine Roi was matter of fact asserted on one side and denied on the other. She was born in Missouri, in 1814, and there was some evidence that Antoine Roi acknowledged her and married her mother about three months after her birth.

The court instructed the jury that the title of Ballance, under his patent, did not include, and was not intended to include, the lot in controversy, if there was anybody capable of taking it under the act of 1823; that until there was a survey made and approved of these French lots, the statute of limitations would not begin to run; that Ballance's possession of a part of the quarter was not in law a possession of the whole, and the statute, therefore, did not protect him against the plaintiff's better right; that Mrs. Gendron was legitimate in Missouri if her parents were married there after her birth, and being legitimate in Missouri, she could inherit her father's land in Illinois.

These rulings being excepted to, and the verdict and judgment being for the plaintiff, the defendant took this writ of error.

Mr. Ballance, of Illinois, for the plaintiff in error.

Mr. Browning, of Illinois, contra.

Mr. Justice NELSON.