Dredge et al. vs. Forsyth. 4. Suit was commenced in this case on the 9th day of July, 1855, and the evidence shows that Charles Ballance, or those claiming under him, were in possession of the premises in controversy as early as 1842, and were also in possession when the suit was commenced. Ballance commenced building a dwellinghouse on a part of the same quarter section in the year 1842, and in the early part of 1844 moved into it with his family, and since that time has continued to reside in that house. Some of the witnesses testify that he claimed to be the owner of this fractional quarter as early as 1832, and that he has cultivated part of it from that time to the date of the writ; but it will be sufficient to state that the evidence clearly shows that he has had his residence on the quarter section since the year 1844, and that he, or those claiming under him, have been in the possession of the lot in question in this case throughout the entire period of his residence in his present dwelling-house. Assuming the fact to be so, then, it is clear that the presiding Justice erred in refusing to give the second instruction requested by the defendants, as well as in the instruction given upon that subject. No person who has any right of entry into any lands, tenements or hereditaments, of which any person may be pos sessed by actual residence thereon, having a connected title in law or equity from the State or the United States, can make any entry therein under the limitation law of that State passed in 1835, except within seven years of the time of such possession being taken. Sess. Laws 1835, p. 42. When the patent under which the defendants claim was issued, no survey of any lots granted to the inhabitants or settlers in the village of Peoria had been made. Those persons therefore held but an inchoate right, which must first be surveyed and designated before the right granted to them would supercede the title acquired under the defendant's patent. They might never make any claim, and in that event the other tile would be valid. Consequently, this Court held in Bryan et al. vs. Forsyth, 19 How., 338, that, subject to that contingency, the patentee under whom the defendants claim took a title in fee till 1840, when the title to the village lots was by the survey and Dredge et al. vs. Forsyth. designation then made, ripened into a better title; but the Court also held at the same time that the patentee was a fee simple title on its face, and as such was sufficient to afford protection to one claiming title under it, if accompanied by proof of such possession for seven years, as is required by the Illinois statute of limitation. 5. Reference is made by the plaintiff to the reservation contained in the patent, and the argument is, that the defendants held possession of the land subject to the rights of the plaintiff, and consequently that their possession was subservient and not adverse to the plaintiff's title. But the proposition cannot be sustained, as is obvious from the language of the patent. Fee simple title is granted to the patentee and his heirs of the described tract, to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances, subject, however, to the rights of any and all persons claiming under the before mentioned act of Congress. Looking at the language of the patent, it is clear that the saving clause was designed merely to exonorate the United States from any claim of the patentee or his assigns in the event that any other person should prove a superior title. Such was the view taken of that clause by this Court in Mehan et al. vs. Forsyth, 24 How., 178, and in several other cases involving the same question, and we have no doubt that such is the construction of the clause. Gregg vs. Tesson, 1 Black., 150. Applying these principles to the present case, the conclusion necessarily follows, that the presiding Justice erred both in refusing to instruct the Jury as requested, and in the instruction given upon that subject. Gregg et al. vs. Forsyth, 24 How., 174. 6. Where a quarter section, as in this case, has been subdivi ded by the occupant and claimant into lots, it is not necessary, under the Illinois statute, in order to secure the benefit of the limitation of seven years, that the claimant should have an actual residence on each lot of the subdivision in the sense in which those terms are ordinarily understood, but it is sufficient if he shows an actual residence for the entire period on some one of the lots claiming the whole under the same title, and Kellogg vs. Forsyth. that the lot in controversy was and is in the possession of his tenant under his title, and pursuant to his claim. Gregg vs Tesson, 1 Black., 150; Lindor vs. Kidder, 23 Ill. R., 51; Williams vs. Ballance et al., 23 Ill. R., 197; Gregg et al. vs. Forsyth, 24 Пlow., 179. For these reasons the judgment of the Circuit Court is reversed, and the cause remanded, with instructions to issue a new venire. KELLOGG vs. FORSYTH, REYNOLDS vs. FORSYTH. 1. If an exception be seasonably taken and reserved, it may be drawn out and sealed by the Judge afterwards, and the time within which it may be so drawn out and presented to the Court, must depend on the rules and practice of the Court and the judicial discretion of the presiding Justice. 2. The doctrine held by this Court in Bryan vs. Forsyth, (19 How., 338,) Mahan vs. Forsyth, (24 How., 175,) and Gregg vs. Tesson, (1 Black, 150,) concerning the effect of the saving clause in patents for claims in Peoria, re-affirmed. Error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Ballance, of Illinois, for Plaintiffs in Error. Mr. Williams, of Illinois, for Defendants. Mr. Justice CLIFFORD. These are writs of error to the Circuit Court of the United States for the Northern District of Illinois. Both suits were brought in the Court below by the present defendant against the respective plaintiffs in error. They were actions of ejectment, and were respectively commenced on the 18th day of November, 1854, to recover posses. sion of certain but different parts of claim numbered seven in the village of Peoria, as confirmed to Thomas Forsyth under the Act of Congress, approved the 3d day of March, 1823, entitle Kellogg vs. Forsyth. an Act to confirm certain claims to lots in the village of Peoria, in the State of Illinois. In each case the defendants pleaded the general issue, and for the sake of brevity, it may be well to say, that the proceedings in the two suits, are so nearly alike that it will be unnecessary to refer to them separately, except in a few particulars, which will be specially noticed. Parties went to trial in both cases at the July Term, 1856, and the verdict in each, under the instructions of the Court, was in favor of the plaintiff, and the respective defendants excepted. Plaintiff claimed title in each case under a patent to the legal representatives of Thomas Forsyth, dated the 16th day of December, 1845, and it was admitted at the trial that the plaintiff had that title. On the other hand, the defendants in the respective suits claimed the premises under a patent issued to John L. Bogardus, dated the 5th day of January, 1838, and granting to him the southeast fractional quarter of section nin in township eight north, of range eight east, in the District, of lands subject to sale, at Quincy in the State of Illinois, subject, however, to all the rights of any and all persons claiming under the Act of Congress of the 3d of March, 1823, entitled as already described. Premises in controversy are included in that patent, and it was admitted at the trial that the defendants in the respective suits have had the actual possession of the land for which they are sued by residences thereon for ten years next preceding the commencement of the suits. Other admissions, as to the possession of the premises by the defendants, were made at the same time, but it is not necessary to refer to them in this investigation. Defendants in the first case requested the Court to instruct the jury that the title under which they claimed was a title deducible of record from the United States, and that the plaintiff, inasmuch as he admits that they had been in posses sion more than seven years before the suit was commenced, is barred by the Illinois Statute of Limitations; but the Court refused the prayer, and among other things instructed the jury that the entry and patent under which defendants claimed were subject to the rights of any and all persons claiming under the Act of Congress of the 3d of March, 1823, so that no one claim Kellogg vs. Forsyth. ing under the patent, and by virtue thereof, could claim under the Statute of Limitations for seven years to have entered into the possession of the lot under the claim or color of title Prayers for instruction substantially the same were also presented by the defendants in the other case, and the record shows that they were refused by the Court, and that the instructions given to the jury were in all respects the same as those already recited. 1. It is insisted by the plaintiff, in the first place, that the bill of exceptions does not show that the rulings of the Court in refusing to instruct the jury as requested, and in respect to the instructions given, were properly excepted to at the time the rulings were made. But sufficient appears to show that the prayers for instruction were presented, and the instructions given before the jury retired from the bar of the Court, and the statement at the close of the bill of exceptions and immediately following the instructions given is, that the "defendants then and there excepted" to the instructions, rulings, and decisions of the Court. Evidently the objection is substantially the same as that considered in the case of Dredge et al. vs. Forsyth, decided at the present term, and for the reasons there given it is overruled. United States vs. Brietling, (20 How., 252). 2. In the second place, it is insisted by the plaintiff that the possession of the defendants were not adverse to the title of the plaintiff. He states the proposition, but furnishes no explanation of the grounds on which it rests. Unless it is founded on the saving clause in the patent of the defendants, there is nothing in either case to give it the slightest support; and if it is founded upon that clause, it is a sufficient answer to it to say, that it proceeds upon an erroneous view as to the legal effect of the patent. Bryan et al. vs. Forsyth, (19 How., 338); Mahan et al. vs. Forsyth, (24 How., 175); Gregg vs. Tesson, (1 Black., 150). 3. Suggestion is also made by the plaintiff that the title of the defendants is not such as is required by law to secure to them the benefit of the seven years Limitation Act of the State of Illinois, but the point has been so frequently ruled otherwise by the State Court, and by this Court, that we do not think it neces |