Robert Forsyth, Appellant, v. John Reynolds, Josiah E. McClure, and John McDougall, 15 How. 358

Mr. Justice CATRON delivered the opinion of the court. The bill, seeks to set aside a patent to the legal representatives of. Thomas Forsyth, because he had obtained from the United States two other donations .of land situate in Michigan, previous to his. donation of the village lot in Peoria; and it is alleged that, for this reason, his donation certificate and patent were fraudulent, as against the complainants, and should not be set up to their prejudice; and so the court below held.

Waiving, for the present; all consideration of the fact that Forsyth claimed the tillage lot as assignee of Maillet, who had not obtained any pre ’ous “confirmations, or donation;” and secondly, that the patent to Bogardus was made subject to the rights of all persons claiming lots in Peoria, under the act of 1823; and placing the case on the ground that the Circuit Court did, and then how does the claim to relief stand ?

It was assumed by the court below, that Forsyth had received as a donation, the two tracts of land in Michigan, within the meaning of the act of 1823. ■ That the act contemplated a donation we think is true. A donation is a gift and gratuity, and not a grant of land founded on a consideration, as where the government is bound to make it by treaty stipulation conferring mutual benefits.

Thomas Forsyth and his family were Canadian settlers and British subjects, residing on our side of the line, established by the treaty of peace of 1783.; they professed allegiance to Great Britain, as all tliat population did at the date of Jay’s treaty, in 1794, and up to July, 1796. By the sixth

article of the treaty of 1783, it was provided that no one should suffer by reason that they took part with Great Britain in the war, “ in person or property.” As Great Britain held possession of the country in Michigan, regardless of the treaty of 1783, a principal object of Jay’s treaty Was to obtain actual possession, and to do this it was necessary to secure the removal of the British troops, and an evacuation of the military posts of that power from our side of the line. The second

article expressly provided for these objects, and at the same time, and as matter of justice, it was declared, that all settlers and traders, within the precincts or jurisdiction of said posts shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein by the American government; that they may sell their lands and houses, or retain the property thereof at discretion; and that those who continue in the country for. one year, after the date of the treaty, shall be considered as having elected to become citizens of the United States. The 9th

article is reciprocal and general, and further provides that British subjects holding lands in the United States shall continue to hold them, according to the nature and tenure of their respective estates and titles therein, and that they may sell or devise the same as if they were natives. As, from 1783 to 1794, no title could be made by Great Britain to lands on our side of the line, within the jurisdiction of the posts, it was for mere settlers, to a .great extent, that the 2d

article of the treaty provided: persons residing there usually having no other evidence of title than possession, improvements, and actual residence on the land.

To execute in good faith this part of the treaty, Congress provided, by the act of March 3,1807, (sec. 2,) that to every person or persons in possession at that date of any tract of land, in his own right, in Michigan Territory, which tract of land was settled, occupied, and improved by him or them prior to the 1st day of July, 1796, or by some other person under whom he or they hold or claimed the right of occupancy or possession thereof, and which occupancy or possession had been continued to the time of passing that act, then the said tract or parcel of land thus possessed, occupied, and improved, should cb,e granted, and such occupant should be confirmed-in the title to the same as an estate of inheritance in fee-simple.

The act of 1807 pointed out the mode by which those seeking title under it should proceed. Forsyth’s two claims were brought strictly within the terms of the act; he got certificates from the commissioners to that effect, and in 1811 obtained his patents. The larger tract of 600 acres he claimed by a deed of conveyance from his father, William Forsyth; and the other tract for 336 arpens he held, as one of his father’s heirs, by a deed of partition. Both tracts front on lake St. Clair, aid were within the jurisdiction of the British posts.

We suppose it is free from controversy, that these -two tracts of land were the pi operty of Thomas Forsyth, in 1807, by virtue of the treaty of 1794, and just as plainly property as lands held by a concession in Louisiana, under the Spanish government, by force of the treaty of 1803. In neither case could a donation be assumed to have been made.

As Forsyth obtained no donation in Michigan, he was , not within the prohibition prescribed, by the act of 1823, to settlers in the village of Peoria, and, therefore, the decree below must be reversed, and the bill dismissed, but without prejudice to either party, in prosecuting and defending the suit at law, sought to be enjoined by the bill, in fegatd to matters not hereby decided. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the Unibed States, for the District of Illinois, and was argued by counsel.

On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court, in this cause, be, and the the same is hereby, reversed, with costs,, and that this causé be, and the'same is hereby, remanded to the said Circuit Court, with directions to dismiss the bill of complaint without prejudice to either party, in prosecuting and defending the suit at law, sought to be enjoined by the bill, in regard to matters not hareby decided.