Challefoux v. Ducharme

By an act of Congress approved February 12, 1823, a tribunal was instituted, consisting of a board of commissioners for'the purpose of “ascertaining and deciding upon the rights of persons claiming lands at Green Bay, Prairie du Chien, and the county of Michilimaokinac;’’ these commissioners were required to report their decision to the secretary of the treasury, to be laid before Congress. Held, that these commissioners having decided upon claims, reported, and Congress having confirmed such decision,..this court will not go behind the act of confirmation to examine the evidence on which the report and decision of the commissioners was based. The decision of these commissioners was not final until confirmed by act of Congress, but when so confirmed the court will not look behind the act of confirmation, but consider it final and conclusive, both as to the sufficiency of the evidence on which the report was made, and the capacity oí the confirmee to take the grant under the act. A'grant of land by the government may be made by a law, as well as by a patent pursuant to a law, and a'confirmation of title by law, is as effectual as a grant, as a patent containing direct words of gift and grant. Where the same tract of land was confirmed to two persons, each equally compe-tént to take under the act, each took an undivided moiety of the land as tenants in common. The grant of the lands in the districts aforesaid, is made by act of Congress confirming the report of the commissioners, and takes effect eo imtanti with the act of confirmation. A silent possession by one tenant in commtra, accompanied with no act which can amount to an ouster, will not be construed into an adverse possession.

APPEAL IN EQUITY FROM DODGE CIRCUIT COURT. The bill in this case was originally filed in the Circuit Court of Brown county, and afterwards removed to Dodge county, where the cause was brought to hearing and final decree, from which the complainants appealed. Although a great amount of testimony was taken and used at the hearing in the court below, as the case was determined in this court upon the law, as was manifest from the facts alleged in the bill and admitted in the answers, the evidence is omitted. The bill of complaint avers, that by virtue of an act of the Congress of the United States, entitled, “An act to revive and continue in force certain acts for the adjustment of land claims in the territory of Michigan,” approved Eebruary 21, 1823, one Pierre Challefoux, on the 17th day of September following, made claim to lot numbered twenty-seven, on the plat of private claims situate on the west side of Fox River, then in the township of Green Bay; that in support of said claim he presented the affidavits of Jean Baptiste Brunette and Jean Baptiste Broder, stating that on the first day of July, A. D. 1812, the said Challefoux occupied and cultivated said tract; that, upon consideration of said proofs, the commissioners of the United States, appointed under said act, confirmed said claim, with the proviso that it should not conflict with :any confirmation theretofore made. The bill further avers, that said claim did not conflict with any confirmations • theretofore made, but that on the same day, said commissioners recommended the same tract for confirmation to the defendant Susan Rucharme, then called-Susan La Rose; that the claim of said .Susan described the tract by metes and bounds, and not by the number of the lot; that the only evidence the said Susan produced in support of her said claim, were the affidavits of Joseph Roy and Pierre Oousey, stating that said Susan was the grand-daughter of one Augustin Ashwaubunay; that on the first day of July, A. D. 1812, the said Ashwaubunay occupied and cultivated said tract; that in the -year 1815, he died; that previous to his death he verbally bequeathed the same to the said Susan ; that since said bequest the said tract has been in her possession and under cultivation ; that on the same day claims were recommended for confirmation, by said commissioners, to one Therese La Rose and one Therese Rankin, adjacent to said lot 27, each claim embracing about 640 acres of land, and each claim supported by no other evidence than the affidavits of the said Roy and Oousey, stating the occupancy of said Augustin Ashwaubunay on the first day of July, 1812, his parol devise to said claimants respectively and his death. The -bill further avers, that no such person as Augustin Ash-waubunay ever lived on said land, or in this country; that Susan La Rose was descended from' an Ottawa Indian by the name of Ashwaubunay; that he never bore any Christian name, that he never was a citizen of the United States, nor paid any allegiance to the laws thereof; that in 1821, the said Susan claimed the same tract of land before the same commissioners'; • that in her application she described it as lot 27; that she presented the affidavits of the same Roy and Cousey, stating that on -the first day of July, 1812, said tract was occupied by “Ashwaubunay that upon such testimony said claim was rejected by said commissioners ; that in 1823, the proceedings before the commissioners were ex parte; that the testimony was taken in Brown county and transmitted to the commissioners in Detroit; that said Susan by withholding the number of the lot in her description given in 1823, and by affixing the Christian name of Augustin to the Indian Ashwaubunay, intended to deceive- and-did deceive said commissioners. The bill further avers a general confirmation by Congress, in 1828, of all claims confirmed or recommended for confirmation by said commissioners, with the proviso that the same should not prejudice the rights of third persons, or extend further than to relinquishment by the United States of all title to said lands. The bill avers the death of said Pierre Challefoux in 1824, and traces his title to the premises by inheritance and by purchase to the complainants; also, that one Louis Dubay occupied the same under a parol demise from said Pierre Challefoux at the time of his decease, and continued to occupy the same up to 1835, when he died; that subsequently the said Susan married the said Louis Ducharme, and about the year 1837 took possession of the premises and obtained a patent therefor from the United States; that on the 31st day of October, A. D. 1842, they conveyed to the defendant Ephraim Shaler, the north half of said premises, under whom the other defendants have obtained conveyances to different portions of said north half of said tract, with a description of the several deeds and a reference to the record thereof, .The bill prays, that the defendants may answer; that the patent may be delivered to the complainants; that the defendants may severally be decreed to quit-claim the premises to the complainants ; that their title may be quieted, and for general relief, process, &c. Shaler in his answer, says that he is ignorant, and has not been informed, save by plaintiffs’ bill, and cannot set forth in his belief, or otherwise, whether Pierre Ohallefoux, deceased, did, at some time in September, 1823, or at any other time, claim lot 27 before the commissioners appointed under the act of Congress, approved February 21, 1823; and Nhe is also ignorant, save by complainants’ bill, what evidence was' adduced in support of said claim, or whether said commissioners' -decided that such claim should be confirmed; but this defendant further says, that if any such claim was made by Pierre Ohallefoux, deceased, and recommended for confirmation by said commissioners, such claim -was made subsequent to the clainrof the defendant Susan Du-charme, was supported by faille and fraudulent statements of fact, and interfered and conflicted with the claim previously confirmed to the said defendant, Susan, and was recommended as aforesaid by the commissioners with the express proviso that it should not interfere with any claim previously confirmed. That he is informed and believes the confirmation of the claim of defendant Susan, bears date the 1st of November, 1823, and that the evidence given in favor of said claim consisted of the affidavits of Pierre Cousey and Joseph Roy, and also by the affidavit of John Lawe, -all of whom were highly respectable citizens of Green Bay, and who resided there continually from the year 1800 up to the time when said affidavits were made, in 1853 ; that they were all intelligent and disinterested persons, who must have been well and familiarly acquainted with the facts and circumstances of which they bore testimony. Admits that there were two other tracts confirmed, to Therese Rankin and Therese La Rose respectively, containing each about •one section of land, but whether supported by any or what testimony, this defendant is not informed; but this defendant insists that it is entirely immaterial to the issue in this case, whether the said claims of Therese La Rose and Rankin were confirmed or not, or upon what facts and circumstances they were confirmed, or whether the two claims of the persons above named and the defendant Susan did in the aggregate contain a quantity of land equal to nineteen hundred and twenty acres, as there is' nothing in the laws of Congress, or in the rules of adjudication adopted by the commissioners, prohibiting claimants from being confirmed in as many tracts as bad been occupied and cultivated by them, or by the persons under whom they claimed title. That he is informed and believes that there was a person residing at Green Bay by the name of Ashwaubunay, who occupied the said private claim 27; that he was of the Ottawa blood ; that he was reared in the habits of the mixed blood inhabitants; that he was not a member of any tribe of Indians, but was wholly separated from the Ottawas, with whom he claimed relationship 5 that he was called Augustin by his neighbors and associates; that he was always regarded as a native born citizen of the country, and paid the' same allegiance to the laws of the United States which was paid by other citizens of the country. Admits that Susan put in her claim to said tract 27 in 1821, before the said commissioners, and adduced the testimony of two witnesses, Opusey and Roy, in support of her said claim, and that said claim was not allowed ; but this defendant insists that there is no material variation between the statements made by said witnesses in 1821, and those upon which the claim of said defendant, Susan, was confirmed in 1823; and that' the reason why said claim was not confirmed in 1821, he is informed and believes was because the said defendant, Susan, did no't prove possession in her ancestor from 1796 to 1807, as by the then existing laws was necessary to authorize a confirmation by the_ commissioners. And further, he admits that the testimony taken in 1823 was ex parte as he is informed and believes, and was taken in Brown county and adjudicated upon in Detroit, in the state of Michigan; but this defendant will insist, that the said commissioners were authorized to take, and did take into their consideration the testimony furnished them in 1821, and that the testimony then taken, was taken by an agent of the commissioners publicly at Green Bay, after public notice to all the citizens of said place. Admits that Pierre Challefoux died in or about the year 1824; but this defendant, upon information and belief, denies that the said Pierre Challefoux left any legitimate children at his decease as his heirs at law; and will insist that Pierre, Mary and Charlotte, were the bastard children of the said Pierre Challefoux, begotten of an uncivilized Chippewa squaw. Denies, upon information and belief, that Louis Dubay ever occupied any portion of said P. C. 27 under the said Pierre Challefoux, or in any other manner, except as the tenant at sufferance of the defendant Susan. Denies, upon information' and belief, that Mary Challefoux was ever married to Jean Baptiste G-rignon, but admits that said Mary died in or about the year 1845, and that Mary Grignon is her only surviving child and heir. Says that he is ignorant and not-informed, save, &c., and cannot set forth, &c., whether Charlotte has been heard of since 1828. Says, on information, &c., that Louis and Su'san were married in 1844, but is not informed, &c., save', &c., and cannot set forth &c., whether the said Dubay was then dead or has since died. Says that on the 5th of Nov., 1829, the president of the United States issued to the defendant Susan, by her maiden name, a patent, whereby the United States granted to her, and her heirs and assigns forever, the said, tract of land No. 27, and that said Susan was seized in fee simple thereof. Further says, that on the 81st day of October, 1842, the defendant Susan sold and conveyed to this defendant, by deed, &cf, the north half of the said tract No. 27, &c.; that the consideration for said deed was the sum of $500, which sum was paid by this defendant to the said Susan therefor. And that this defendant never had any notice of the claim of Pierre Challefoux, or of any other person claiming under him, at the time of such conveyance or at any other prior or subsequent time, until the filing of complainants’ bill. And this defendant insists upon these facts, and claims the same benefit as if he had pleaded the same. Says that under and by virtue of the said conveyance, he entered into possession of the north half of said premises, and continued 'to hold and possess the same, and made large and valuable improvements thereon, until the 81st day of January, 1849,' when this defendant conveyed a portion of said premises to Josephine B. Patterson, and the remainder thereof to Oliver W. Shaler; that the improvements consisted of clearing, fencing, and erecting buildings on said premises, and have cost this defendant in the aggregate the sum of $1,000 at least. ■ Says that he believes said improvements were made by him with the knowledge of the said complainants, and of Mary Challe-foux aforesaid, and of Mary Grignon, one of the defendants, and that they well knew at the time he was negotiating for the purchase of said premises his intention of purchasing, and when said negotiation was completed, and the deed aforesaid executed to him by said Susan. Says he is informed and believes that Susan is a descendant of said Augustin Ashwaubunay; says that he is informed and believes that by virtue of the occupancy of the said Ashwaubunay, and of the confirmation and patent hereinbefore referred to, the said Susan continued to claim and hold the said tract of land 27, as of a good and'perfect and absolute estate in fee simple, and under such claim of title was in actual possession, adverse to the said complainants, and those under whom they claim, until she conveyed the north half of said premises to this defendant, as hereinbefore set forth. Says that under the conveyance hereinbefore mentioned he had ever since the date of said deed, claimed the said premises in fee simple, and had been in the actual possession of the same so conveyed to him, adverse to the said complainants, and those under whom they claim, until he conveyed the same to Josephine B. Patterson and O. W. Shaler, as aforesaid, which adverse possession of the said defendant, Susan Ducharme, and this defendant, has continued for more than twenty years preceding the execution of said deeds to Josephine and Oliver, and the filing of the complainants’ bill. And this defendant will resist upon such adverse possession, &c. The answers of Susan and Louis Ducharme, Emma 0. Shaler, Abram 0, Patterson & ux., John L. Monroe & ux., and Francis Desnoyers, are substantially like the answer of E. Shaler, therefore are not abstracted. The bill was taken as confessed.