# Berthold v. McDonald

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United States Supreme Court
63 U.S. 334
Berthold v. McDonald
THIS case was brought up from the Supreme Court of the State of Missouri by a writ of error issued under the 25th section of the judiciary act.
It was an action of ejectment brought by Berthold and others against the defendants in error, to recover the possession of a tract of land near St. Louis, containing eighty arpens, equivalent to sixty-eight acres. The action was orginally brought in the St. Louis land court. Under the Spanish Government, there was a common field near to the town of St. Louis, called the common field of the Prairie des Noyers. In this common field were two lots, owned respectively by two negresses, one of whom was named Florence Flore, and the other named Jeannette, or Jeannette Flore. Berthold and the other plaintiffs in error claimed under Florence Flore, and McDonald and Mary McRee under Jeannette. Both claims were confirmed in the manner stated in the opinion of the court. The court before which the case was originally tried left it to the jury to find which of these negresses was the original confirmee of the land in question, and the Supreme Court of Missouir affirmed the correctness of this instruction. The verdict and judgment were for the defendants, and the plaintiffs below brought the case to this court by a writ of error issued under the 25th section of the judiciary act.
The Supreme Court of Missouri was of opinion that the finding of the facts embodied in the instructions given by the court clearly establishes the superiority of the equity of the defendants, and that the plaintiffs seemed to rely solely on the dry technical point, that their confirmation was prior in point of time to that of the defendants-a view of the case in which that court did not acquiesce.
The case was submitted in this court on a printed argument by Mr. Washburne for the plaintiffs in error, and argued by Mr. Blair and Mr. Gamble for the defendants.
The points made by the respective counsel were as follows, viz: by Mr. Washburne for plaintiffs in error:
First Point. The confirmation to Charles Gratiot on the 19th day of November, 1811, was final and conclusive, so that neither the United States nor any person deriving title from the United States subsequently to that date could rightfully claim the land against such confirmation.
Act of Congress, March 3, 1807, sec. 41; 12 Stor. St., 1060.
Strother v. Lucas, 12 Pet., 458.
Chouteau v. Eckhart, 2 How., 344.
Le Bois v. Bramell, 4 How., 449.
Landes v. Brant, 10 How., 370.
Second Point. The claim and confirmation in the name of Jeannette, who was dead at the time, are nullities, and cannot, even if otherwise valid, stand in the way of the confirmation to Gratiot. The court below disposed of this point by a simple reference to a prior decision of the same court, in Mercier v. Letcher, 22 Mo. Rep., 66. The case referred to will be found to be this: Charles Mercier was proprietor of a tract of land, under an imperfect Spanish title. Mercier died in Spanish times, and Courtois married his widow.
Courtois claimed the land in his own name, as representative of Mercier, and filed with the commissioners the evidences of Mercier's title. The commissioners confirmed the land 'to Charles Mercier.' The court decided that Courtois, who made the claim, took nothing by this confirmation; and that the heirs of Mercier, who made no claim, and who, by the force of the act of Congress, were barred of all right in the land two years before the confirmation, took title from it. Both branches of this decision seem to be very questionable.
Third Point. There are no equities appearing in the case that can defeat a recovery by the plaintiffs in the present action, or deprive them of the right to hold the land under the confirmation to their ancestor.
Mr. Gamble said that the following positions were sustained by the evidence and law of the case:
1. The objection to the confirmation in the name of Jeannette, on the ground that she was dead when the claim was filed, is not sustained by the evidence, and if it had been, is not a valid objection in law.
Mercier v. Letcher, 22 Mo. R., 66
2. In this case, the dispute is between parties holding equitable titles, with the legal title outstanding in the United States, and is to be determined in favor of the party having the superior equity.
Bagnell v. Broderick, 13 Pet. R., 449.
Wilcox v. Jackson, ib., 516.
3. The facts in evidence show that if the two confirmations cover the same land, the superior equity is in the defendants.
4. The reliance of the plaintiffs upon the fact that their confirmation is one day older than that of the defendants, is not warranted by any decision of this court, or by any principle of law, and arises from a mere misapprehension of the language found in the opinion in Landes v. Brant, 10 How., 372. No such case as the present ever has been before this court.
Strother v. Lucas, 6 Pet. R., 763.
Strother v. Lucas, 12 Pet. R., 410.
Chouteau v. Eckhart, 2 Howard, 345.
Le Bois v. Bramell, 4 Howard, 449.
Bissell v. Penrose, 8 Howard, 330.
None of these decisions apply to this case, where there are two confirmations by the same board on consecutive days.
5. If the two confirmations are equal as recognitions of the two original titles, then they are to be laid out of consideration, and the parties are to litigate upon their original titles.
Carmichael v. Buster, 8 Martin R., 727.
Sanchez v. Gonzales, 11 Martin R., 212.
In such litigation, the defendants must succeed.
6. The doctrine of relation, as explained and applied in Landes v. Brant, refers each of the confirmations to the time of filing the notice, and in this case the notice in the name of Jeannette was filed first, and the confirmation in her name becomes the elder by relation.
7. The confirmation for Gratiot, if it in fact covers the land confirmed in the name of Jeannette, is void for want of jurisdiction in the commissioners, because the land was claimed and possessed by Jeannette, under the Spanish Government.
2 Stat. United States, 440, sec. 2.
Certainly it was void as against her and her representatives claiming the land according to law.
8. The confirmation, when properly located, does not cover the land in controversy.
Until surveyed, it attaches to no land.
West v. Cochran, 17 Howard, 416.
It was ordered to be surveyed according to the possession of his grantor.
If so surveyed, it would not touch the land in dispute.
It never has been surveyed with reference to that possession.
The survey given in evidence by the plaintiffs is in open disregard of the order of the commissioners, and is a mere nullity.
If a proper survey were made, it would cover the land of Flore, which the heirs of Gratiot have already obtained.
Mr. Justice CATRON delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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