Challefoux v. Ducharme

Where commissioners appointed under the act of Congress of February 21, 1823, to ascertain and decide on the rights of persons claiming lands at Green Bay, Prairie du Chien, &c., have determined the rights of claimants, and their report is confirmed hy the act of April 17, 1828, this court will not enter upon an examination of the testimony to ascertain what facts are established by it. The court cannot go behind the decision and report of the commissioners and the confirmation of that report by Congress, and inquire into the sufficiency and nature of the evidence introduced before them. The commissioners, in hearing and deciding upon the evidence, acted judicially to some extent, and after their determinations were confirmed by Congress, the decision became final and conclusive of the rights of claimants, as to every fact made necessary by the act of Congress, for them to find. The act of Congress did not seem to confine the benefits of claimants to citizens of the United States alone ; but it would seem an Indian, who had abandoned the savage life, had become a permanent inhabitant, occupied and cultivated the soil, was entitled to take and hold a claim to his land. ■Where the commissioners approved two claims to the same land, and Congress confirmed the report, the claimants being otherwise competent, each took a moiety of the tract granted, and they held as tenants in common. A grant of land from the Government can be made by act of Congress, as well as by patent. Though the commissioners in reporting on these claims, reported the claim to Susan La Bose in absolute terms, and that of Challefoux, “ That it should not conflict with any confirmation previously made by them,” it would make no difference, because they had no authority to make such a report, and because the act of Congress granted the land eo mstcmti to both claimants. The statute of limitations cannot run in favor of one joint tenant against his co-tenant. The possession of one being the possession of both, unless there has been an absolute ouster of the co-tenant. where the patent of a co-tenant on its face conveys the entirety to the land, and the patentee conveys to an innocent purchaser without notice of the other tenant's rights ; such a purchaser will be protected in his title. An act of Congress granted lands to various persons by referring to a report of commissioners who had determined their claims, without naming the persons. The report alluded to is not notice jper se to the purchaser of an adverse claimant’s right; but it would be otherwise if they were named in the act. Where the co-tenant had sold the half of the tract in severalty to an innocent purchaser; the other co-tenant must take from the half unsold, such share as he may be entitled to receive, upon an equitable settlement between the co-tenants respectively.

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 February 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 the 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 confirmation theretofore made, but that on the same day said commissioners recommended the same tract for confirmation to the defendant, Susan Ducharme, 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 Cousey, stating that said Susan was the grand-daughter of one Augustin Ashwabunay; that on the first day of July, A. D. 1812, the said Ashwabunay 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 Cousey stating the occupancy of said Augustin Ashwabunay, 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 Ashwabunay ever lived on said land, or in this country; that Susan La Rose was descended from an Ottowa Indian by the name of Ashwabunay — 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 1S21 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 “ Ashwabunay” — 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 Ashwabunay, intended to deceive and did deceive said commissioners. The bill farther avers a general confirmation by Congress, in 1828 of all claims confirmed or recommended for confirmation by the commissioners, with the proviso that the same should not prejudice the rights of third persons, or extend further than to a relinquishment by the United States of all title to said lands. The bill avers the death of 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 1’835, 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, &c. The answer of Ephraim Shaler, says that he is ignorant, and has not been informed, save by plaintiffs7 bill, and cannot set forth in his belief or otherwise whether Pierre Challefoux, deceased, did, sometime in September, 1823, or at any other time, claim lot 27, before the commissioners appointed under the act of Congress, approved Feb. 21, 1S23 ; and he 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 Challefoux, deceased, and recommended for confirmation by said commissioners, such claim was made subsequent to the claim of the defendant, Susan Ducharme; was supported by false 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 Nov., 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 1823; 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 claim 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 had 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 Ashwabunay, who occupied the said private claim 27; that he was of 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 ; that he was called Augustin by his neighbors and associates; that he was always regarded as a native bom 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 testi-timony of two witnesses, Cousey 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 not 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 private claim 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 Grignon, 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 1823. Says, on information, &c., that Louis and Susan 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 31st day of October, 1842, the defendant Susan sold and conveyed to this defendant, by deed, &c., 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 improvement thereon, until the 31st 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 said 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 Challefoux aforesaid, and of Mary Grignon, one of the defendants, and that they well knew at the time he was negotiating fox 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 Ashwabunay; says that he is informed and believes that by virtue of the occupancy of the said Ashwabunay, and of the confirmation and patent hereinbe-fore referred to, the said Susan continued to claim and hold the said tract of land, 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 the 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 insist upon such adverse possession, &c. The answers of Susan and Louis Ducharme, Emma C. Shaler, Abram C. Patterson & ux., John L. Monroe & ux., and Francis Desnoyers, are substantially like the answer of E. Shaler, and therefore are not abstracted. The bill was taken as confessed as to the other defendants. The case was subsequently removed to the county of Dodge for hearing, by reason of the counsel having been elected judge of the circuit court in Brown county. Upon the hearing the bill of complaint was dismissed; from which decree this appeal was taken. The facts proved are sufficiently stated in the opinion of the court. 1. By the act of Congress of February 21st, 1823, the equitable title to the lands upon Fox River was vested in those and the representatives of those who occupied them on the 1st day of July, 1812, and continued friendly to the United States government thereafter. 2. That those only who were citizens of the United States on the 1st of July 1812, could, receive any benefit from that act. Consequently Indians could neither receive nor transmit any rights under the same. 3. It was the duty of the commissioners under that act to receive and report the evidence (to wit, of occupation and of friendly relations), in favor of each claim. 4. The commissioners being the only tribunal authorized to examine into the validity of the respective claims preferred, no evidence can now be received merely contradictory of the proofs received by them; but the proofs received by them may be impeached, by showing frauds and by evidence of any extrinsic fact, which was not passed upon by the commissioners, and which would invalidate the claim. 5. The proceedings before the commissioners having been ex parte, they will not be deemed to have passed upon any fact which was not distinctly presented to them in evidence, which the citizenship of the said Augustin Ashwabunay was not 6. The Congress of the United States is the best interpreter of its own acts; and it appears, from their uniform course in such cases, that it regarded the conclusions of the commissioners in the light of recommendations merely, and not as final adjudications. Thus Congress, by the act of 1823, confirmed the claims recommended by the commissioners under the act of 1820 ; and by the act of 1828, Congress confimed the claims recommended under the act of 1823. 7. Taking this to be the true scope of the authority granted to the commissioners, the act of 1823, so far as it bears upon or relates to the tract in question, will be best rendered thus: “We hereby grant private claim No. 27 to whomsoever was in actual occupation thereof on the 1st day of July, 1812, provided he was a citizen of the United States and continued friendly to the government thereof; and we appoint A. B and C. commissioners to inquire and report who that person was, reserving to ourselves the right to pass upon the sufficiency of the proofs received. And pursuing the same rule of interpretation, the act of 1828 will be rendered as follows : “ We adopt the report made by the commissioners in relation to private claim No. 27. We admit the sufficiency of the proofs therein adduced, and we quit claim said tract to the parties therein recommended.” The act itself contains only the operative words of the grant, referring to the report for a description of the grantee and of the thing granted; and upon turning to the report, we find both complainant and Susan La Rose named as grantees. If, then, we incorporate so much of the report as bears upon this tract into the act of 1828, and recite the substance of the act of 1823 by way of preamble, we shall read as follows: Whereas, by act of Congress of February 21st, 1823, it was enacted that private claim 27 should be ceedeu to whomsoever should prove, to our satisfaction, that he was in actual occupation of the same on the 1st day of July, 1812, provided he was a citizen of the United States and continued friendly to the government thereof: Now therefore, in consideration that it is proved, to our satisfaction, that both Augustin Ashwabunay and Pierre Challefoux were in the occupation thereof on that day, and that they continued friendly to our government, and that the said Augustin Ashwabunay devised his interest to Susan La Rose, (presuming as we do that both were citizens of the United States,) said claim is hereby quit claimed to the said Pierre and Susan. 8. Now this grant is capable of but four different interpretations. It must either, 1, be declared inoperative as to private claim 27, by reason of uncertainty, or otherwise; or, 2, it must be held to enure to the benefit of Susan, to the exclusion of Challefoux; or, 3, it must enure to the benefit of Pierre, to the exclusion of Susan; or, 4, both must take under it as tenants in common. 9. For the 1st construction, no one contends. It is unnecessary, and so will not be adopted by the court, for this, like all other grants, will be construed so as to give effect to it, if possible. For the 2d construction the defendants contend — but for what reason ? Challefoux is equally capable of taking, and the proofs and the presumptions are quite as strong in. his favor, to say the least. If it is objected that the recommendation in favor of Challefoux was not absolute, but was declared to be subject to any prior confirmation of the tract, we answer there was no prior confirmation. The recommendation to Susan was not a prior confirmation; for, 1st — it was not prior in point of time, but appears to have been eadem temporis; 2d — if prior in point of time, it was not a confirmation, Congress did not so regard it, as we have already shown, and that the commissioners did not so regard it, will appear from their own report; and 3 — if prior in point of time, and if it is to be regarded in the nature of a confirmation, still it is void, because founded upon the gift of one incapable of taking or transmitting a right under the, law. So there is no reason why Susan should take under the act, to the exclusion of Challefoux. For the 3d construction we contend. Because some one must take under the grant, and Susan cannot. But if the 3d construction be not the true one, the 4th must be;' for if Pierre does not take to the exclusion of Susan, he must take jointly with her. And if Susan be capable of acquiring title at all under the devise of an Indian settler, then the act presents the ordinary case of a grant of one single piece of property to two competent persons, in which case each takes an undivided moiety, and they become tenants in common. That title passed to the occupant, under the act of February 21, 1823, and that we are only to look at the report of the commissioners, and the act of confirmation of 1828, in order to ascertain who was the occupant, we cite, Varet Jldrrir vs. N. Y. Ins. Co., 7th Paige 560; Delafield vs. Colden, 1 Paige 139; Comegys vs. Vasse, 1 Pet. 193. That marriage at common law is regarded simply in the light of a civil contract, see 2d Kent’s Comm., 87; Dalrymple vs. Dalrymple, 2 Hazzard’s Consistorial, R. 54, 64; Fenton vs. Reed, 4 J. R. 52. 1. Congress vested in the commissioners the power to decide these claims, and Congress confirmed Susan Ducharme’s claim to tract No. 27, and a Patent was issued to her, Nov. 5th, 1829. Story’s Laws U. S., 2d vol., p. 1057, 1098, 1232 ; Sd vol., p. 1645, 1780, and 1878, and the act of Congress to confirm certain claims to lands in the territory of Michigan, approved April 7, 1828. 2. The decision of the register and receiver, and of commissioners appointed to adjust land claims, is judicial not ministerial; and will hold good until appealed from. Bennet vs. Farrar, 2 Gilman’s Rep., 598; 1 Peter’s, 340, 6.66-8; 2 Pub. Land Laws, 85, 92-3-9, 140, 214. 3. The claim of Susan is proven to have been first made and confirmed. The hill calls for answer on oath, and the answers allege this, and they are not disproved by two witnesses, or one witness and corroborating circumstances. Story’s Eq. Juris., 1528. The confirmation to Susan is absolute. 4 Am. State Papers, 703, 862 ; also see Patent. The confirmation to Challefoux is conditional; Id. 713. 4. The hill charges that there was no other proof to support the claim of Susan before the commissioners, than Roy and Cousey. The answers deny this, and state that John Lawe’s testimony was additional. This is not disproved by the complainants. 4 Am. State Papers, 704. 5. The benefits of the laws of Congress were not confined to citizens of the U. S., but extended to “ every person” who could prove that he occupied and cultivated a claim in July, 1812, and who “submitted to the authority of the United States.” In other words, those who were in open rebellion or resisted the laws of the United States., should not have the benefit But a peaceable alien, or a half breed, or an Indian, was a “ person” under the law, and entitled to take land upon making proof. The term citizen or allegiance is not in the law. 6. A conveyance of wild and vacant lands gives a constructive seizen thereof to the grantee, and gives all the remedies incident to the estate. A fortiori, it applies to a patent, since at common law a patent imports a livery in law. 3 Pet. Cond. Rep., 177; 8 Crunch, 229 to 251; Rev. Stat., 642, § 7, sub div. 3 ; Story’s Eq. PI., § 811; 5 Leigh 389. 7. A court of equity will refuse to interfere where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights. 1 McLean’s Rep., 97; 2 Sto. Eq. Juris., 1520, and cases cited in note 3. Nothing can call the court into activity but conscience, good faith, and reasonable diligence. Idem, 983. 8. The statute of limitations applies equally to courts of equity with courts of law; and more than twenty-one years had elapsed after patent issued and before suit brought. The patent issued Nov. 5, 1829; the suit was commenced April 9, 1851. Mitchell vs. Thompson, 1 McLean, 103; 1 Sto. Eq. Juris., § 64 and 529 ; 2 id. §T520; R. S. chap. 127, § 27. The rule of equity is, that the cause of action arises as soon as the party has a right to apply to the court. 2 Sto. Eq. Juris., § 1521, a, p. 989. To take the case out of this rule, the complainants argue that the fraud was not discovered until recently. There is no allegation of this late discovery in their bill, nor is there any proof on the subject. If the proof shows anything on the subject, it shows enough to warrant the court in presuming that they knew the fraud in the day of it, as well as now; for Geo. Fortier, one of their witnesses, is the brother-in-law of the complainant Challefoux, and the two Grignons are the brothers of the other complainant. Besides, the parties complainants now live and have always lived in the neighborhood of the land in dispute, and must have known it if there had been any fraud. 9.The defendant Shaler and his grantees purchased for a valuable consideration, and without notice, and will be pro-teeted. 2 Sto. Eq. Juris., § 1503; Fonblanque- Eq., 412. 10. Where there is equal "equity the law must prevail, 1 Sto. Eq. Juris., S. 64, c, page 74. And at law the patent is conclusive evidence of title, Burnett’s Rep., Wis. 13; The People vs. Mauran, 5 Denio, 389; 13 Peters, 436-450; 6 Cow., 281. 11. Shaler purchased for a valuable consideration, and having made improvements, with knowledge of complainants, such improvements create an equity, 1 Sto. Eq., § 851. 12. If Ashwabunay was an Indian, the grant by act of Congress to him would have been good, for a patent to him would be good. 20 John. R., 706; 5 Cow., 397,505; 7 Wend., 367. 13. It is claimed by the complainants that Ashwabunay was an Indian, and did not cultivate the land. The proof shows that he did cultivate it. On the other hand there is no proof that Challefoux cultivated the land in July, 1812. Ashwabunay, if of Indian origin, is shown to be separated from his tribe, and to live as the other settlers about Green Bay lived in those days, by raising corn and potatoes, hunting and fishing, and sometimes as a voyageur. 14. The declarations of a tenant must be against his interest, to be admitted as evidence for his landlord, or those claiming under him, 1 Ph. Ev., 258, and cases there cited. The admissions of Dubay, that he was holding the claim for Challefoux cannot be received, because coupled with the further admission that “he was to have a portion of the land,” hence he was interested in the admission or declaration. But when he admits that he is the tenant of Susan and there by Frank’s permission it is against his interest, for he makes himself liable for rent. 15. The laws of Congress do not limit a person to one claim. “No person shall be confirmed in any one claim, that shall exceed 640 acres.” A. may make a claim for himself; B. and C. may employ him to make and hold claims for them —thus A. who is only one person, may act in three capacities. A father may claim and occupy for his children 640 acres for each. The law would not prohibit it. Such, we understand, is the practical working of the law; the interpretation given to it by the department 16. The complainant, Peter L. Grignon, has no equity. A court of equity will not sanction his purchase of a stale claim, for the purpose of litigation. There certainly was no fraud practiced upon him. Sto. Eq. Jur., § 1048, note 2, et seq.