Ballance v. Forsyth et al.

The case of Williams v. Ballance, 23 Ill., 198, involved a controversy similar to that before the court.

The inquiry there was as to the validity of the residence and possession of Ballance to support his defence of the statute of limitations, it being the residence and possession established by the testimony in this suit. The Supreme Court of Illinois inquires whether Ballance occupied the premises described in the patent since 1844, by actual residence thereon. "The fact," says the court, "is that he did, but he did not reside upon every square yard of the premises, nor upon the particular lot. Nor was this necessary. He resided upon the legal subdivision described in the patent, the evidence of his title, and possessed and occupied it by himself and tenants. We think the laying out the land into town lots did not deprive him of the benefit of the statute of limitations of 1835, as to all the fractional quarter, except the particular lot upon which his house stood. He had a right to divide it into as many lots, or portions, or divisions, as he pleased, and put a separate tenant on each, and their occupation would be his possession: and the law only required him to possess and reside upon the premises claimed by his title-papers, but the law does not say upon what portion he should reside, and, above all, it does not declare that he should reside upon every portion of it." The instructions of the Circuit Court are inconsistent with the law as thus laid down by the Supreme Court. In our opinion, the possession established by Ballance in this case was such as placed him under the protection of the statute. Judgment reversed and cause remanded.

CHARLES BALLANCE, APPELLANT, 2. ROBERT FORSYTH, LUCIENS DUMAIN, AND ANTOINE R. BOUIS.

After the mandate went down to the Circuit Court, in the case of Ballance v. Forsyth, 13 Howard, 18, Ballance filed a bill upon the equity side of the conrt, setting forth the same titles which were involved in the suit at law, and praying relief.

Ballance v. Forsyth et al.

It was not allowable for him to appeal from the judgment of the Circuit Court and Supreme Court to a court of chancery, upon the merits of the legal titles involved in the controversy they had adjudicated.

The objections to the title of his adversary should have been urged upon the trial of the suit at law; and if they are founded upon alleged errors in the location and survey, all such questions are administrative in their character, and must be disposed of in the Land Office. He ought to have made opposition there; if he did not, he is concluded by his laches.

In the record there is a paper purporting to be an amended bill. It is doubtful whether this was properly filed; and if it was, it presents no ground of relief.

THIS was an appeal from the Circuit Court of the United States for the northern district of Illinois.

It was a sequel to the case of Ballance v. Forsyth, reported in 13 Howard, 18. After the mandate went down from this court, Ballance filed a bill on the equity side of the court, setting forth the same titles that were involved in the suit at law, and praying relief upon certain special grounds, which it is not necessary to enumerate.

It was argued by the same counsel as the two preceding

cases.

Mr. Justice CAMPBELL delivered the opinion of the court. This is a bill filed by the plaintiff to enjoin the execution of a judgment in the Circuit Court, upon which a writ of error had been taken to this court and affirmed.

The cause in this court was between the same parties, and the decision of the court is reported in 13 How. S. C. R., 18.

The plaintiff sets forth the claims of the respective parties, and insists that his is the superior right, and that he is entitled to have the property. But it is not allowable to him to appeal from the judgment of the Circuit Court and Supreme Court to a court of chancery upon the relative merit of the legal titles involved in the controversy they had adjudicated.

He further objects to the title of his adversaries. Ile insists, that in the location of their claim under the acts of May, 1820, and March, 1823, referred to in the report of the case as the source of their title, there was an erroneous location and sur

Ballance v. Forsyth et al.

vey, and that a larger extent of ground was conceded to them than they were entitled to; that the plan of survey did not conform to the requirement of Congress, and that their proofs were not filed in time. If either of these objections is of sufficient force to invalidate the title and to render it void, it should have been urged upon the trial at law, and it is too late after judgment upon the title to employ it to contest the issuing of the execution. But if they are mere irregularities, the court of chancery has no jurisdiction to notice them. It is the settled doctrine of this court, that in the location and survey, of claims arising under acts of Congress like those of May, 1820, and March, 1823, the Executive Department of the Government has, in general, exclusive jurisdiction, and that all questions arising upon their location and survey are administrative in their nature, and must be disposed of in the Land Office. The plaintiff was aware of the existence of these claims, and of the jurisdiction to which their adjustment was confided.

His patent contains an explicit reservation of the rights of any and all persons claiming under the act of Congress of 3d March, 1823, entitled "An act to confirm certain claims to lots in the village of Peoria, in the. State of Illinois." If he preternitted his opposition to their location and survey before the General Land Office, he is concluded by his laches. If his opposition was made unsuccessfully, the decision of that department upon his objections is binding upon him.

Besides these objections, the plaintiff has introduced into the record a claim for the improvements upon the lots recovered by the judgment of the Circuit Court. It is not at all· clear that the amendments to the bill in which this claim is contained were filed with leave, and form any part of the bill. It is not charged in them that the plaintiffs in the suits at law have opposed any obstruction to his removal of the improvements, and the entire statement of the bill concerning them is vague and unsatisfactory. We are unable to find in them any ground upon which the suspension of the execution of the judgment can be justified.

The decree of the Circuit Court is aflirmed.

Kellogg et al. v. Forsyth.

HENRY M. Kellogg and otHERS V. ROBERT FORSYTH.

The statutes of Illinois require that a declaration in ejectment shall be served upon the actual occupant, and the practice of that State authorizes the appearance of the landlord and his defence of the suit, either in his own name or that of the tenant with his consent.

And when a landlord has undertaken the defence of a suit in the name of the tenant with his consent, the tenant cannot interfere with the cause to his prejudice.

Therefore, when the defendant in ejectment in the court below died after judgment, and his attorney and landlord, who had conducted the suit in the name and with the consent of the deceased, sued out a writ of error in the name of the heirs, gave bond for the prosecution of the writ and for costs, a motion to dismiss the writ will not be entertained, although the heirs of the deceased authorize the motion to dismiss.

It appears to the court that the attorney of the deceased defendant is a bona fide claimant of the land, and prosecuting the writ of error in good faith.

The motion to dismiss the writ of error is therefore overruled.

This was a branch of the three preceding cases, coming up from the same court.

Mr. Williams, counsel for the defendant in error, moved to dismiss the writ for the following reasons, viz:

That it is manifest by the record filed in this court in the said cause that the said writ of error was issued on the 15th day of July, 1859.

That the clerk's return thereto was filed with the clerk of this court on the 3d day of October, 1859.

That said return contains nothing but affidavits of the death, &c., of the original defendant, the writ of error, a bond to prosecute the same, a citation and acknowledgment of the service thereof.

That the detached record filed by the plaintiff, with the said return, was certified by the clerk of the Circuit Court on the 25th day of October, 1856, and is not attached to said return, or in any way referred to therein.

And therefore, he says, for said irregularities in the said proceedings patent on the face of the record of said cause, the said writ of error ought to be dismissed.

Kellogg et al. v. Forsyth.

See Rules, Nos. 8 and 9.

Mr. Justice CAMPBELL delivered the opinion of the court.

The defendant in error recovered a judgment in ejectment in the Circuit Court of the United States for the northern district of Illinois against William Kellogg, deceased, as tenant in possession of a parcel of land in that district. After the judgment, the defendant died. The attorney of the decedent, who was also his landlord, and who had conducted the suit on behalf and in the name of the tenant, with his consent, sued out a writ of error to this court in the name of the heirs of said Kellogg. The bond for the prosecution of the writ, and the stipulation for costs in this court, have been supplied by the said attorney. One of the heirs of Kellogg objects to the prosecution of the writ of error, and alleges, on behalf of himself and his coheirs, that it is prosecuted without authority, and that they have no desire that it should be maintained, and authorize the attorney of the defendant in error to move for its dismissal. It appears to the court that the attorney of the deceased defendant is a bona fide claimant of the land, and that he is prosecuting the writ of error in good faith. That he is responsible for the costs and damages that may arise from the use of the names of the plaintiffs in error. The statutes of Illinois require that the declaration in ejectment shall be served upon the actual occupant, and the practice of the courts of that State authorizes the appearance of the landlord, and his defence of the suit, either in his own name or that of the tenant, with his consent. Williams v. Brunton, 3 Gilman R., 600.

And when a landlord has undertaker the defence of a suit in the name of the tenant, with his consent, the tenant cannot interfere with the cause to his prejudice. Doe v. Franklin, 7 Taun., 9. We think it was competent to the landlord to use the names of the plaintiffs to prosecute his writ of error upor his engagement to bear all the costs and expenses of the suit. Should the judgment be reversed, and the cause remanded to the Circuit Court for further proceedings, he may apply in that