Mackay v. Dillon

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.