Boyce v. Papin

Decision Date31 October 1847
PartiesBOYCE v. PAPIN.
CourtMissouri Supreme Court

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

H. S. GEYER, for Plaintiff.

1. The confirmations or grants by the commissioners to Papin, under Hervieux, and to Gratiot, under Rotier, having been made on the 14th December, 1811, take precedence of the confirmation to the plaintiff or those under whom he claims by or under the act of 13th June, 1812. Therefore, if there is found any interference between either of the grants by the commissioners, and that under which the plaintiff claims, the former will prevail, although the possession of Chancellier is anterior to either of the original grants of the other lots. 2 Story's Laws U. S., 1257; Strother v. Lucas, 12 Peters. Nor will such interference authorize a location of plaintiff's confirmation elsewhere.

2. The title of all the grantees depends upon their respective grants or confirmations, and not upon the discretion of the surveyor-general. When a grant is made. the title passes from the United States, and is beyond the control of the United States and their officers. The extent and location of the grant is a judicial question depending on the terms of the grant, or, if they are ambiguous or equivocal, upon facts judicially ascertained. Neither the surveyor-general nor any ministerial or executive officer of the United States is competent definitively to construe a grant or to determine any fact upon which a title depends.

3. Although it has been held and may be conceded, that a survey by the surveyor-general under a confirmation is prima facie evidence of the true location, extent and boundaries of the land confirmed, yet the Court of Common Pleas erred in deciding in this case that such survey is absolutely conclusive. The entire block 89, east of the common fields, had been granted by the United States, by the several acts of the commissioner and recorder given in evidence, or, if there was a lot or part of a lot vacant, it was granted beyond the power and control of the United States and its officers, by the act of 13th June, 1812 (2 Story's U. S. Laws, 1257) and the act of 27th June, 1831, 4 Story's U. S. Laws, 2220) to the inhabitants of St. Louis for the use of schools. The United States, therefore, had no land within the block for the surveyor-general to exercise his discretion upon; at all events, it was competent for the defendant to establish these facts; and to that end, the true location of the several grants was necessarily involved, not to be decided by the surveyor-general, but by the court upon evidence.

4. Assuming that the plaintiff acquires his title under the act of 29th April, 1816, confirming the report of the recorder of land titles, McNair's title under Chauvin is acquired under the same act; the grants, as derived from the United States, are simultaneous for lots adjoining each other--the south boundary of the first being the north boundary of the other; the true location of that division line is the subject of controversy, which can be decided only by a judicial interpretation of the grant upon an inquiry into the facts, and the decision of that question the United States have not, and could not, if they would, commit to the surveyor-general.

5. The barn lot claimed by the plaintiff under Chouteau, appears by the evidence to have been possessed by Chancellier prior to the 6th August, 1773, and by his widow and those claiming under her from Chancellier's death down to and after the 20th December, 1803, and was confirmed according to possession by the act of 13th June, 1812. 2 Story's U. S. Laws, 1257. The subsequent action of the recorder and Congress is inoperative for any purpose other than the ascertainment of boundaries; a grant by either to another person would be void, and neither could change the location. The grant by the recorder, confirmed by the act of 1816, could do, and does, nothing more than was already done by the act of 13th June, 1812, unless it be held that the documents exhibited with the claim ascertain the boundaries; in which case, the court below erred in deciding that the deeds under which plaintiff claimed before the recorder are not to be taken as part of the description of the lot confirmed.

6. The grant of the recorder, confirmed by the act of 1816, is of a claim to a lot by virtue of possession prior to 20th December, 1803, according to the possession of Chouteau, and unless the deeds under which the claim was made are to be taken as part of the confirmation, the boundaries and extent of the lot granted are not ascertained, and it became the duty of the claimant, under the act of 26th May, 1824, to designate his lot by proving before the recorder of land titles the fact of inhabitation, cultivation or possession, and the boundaries and extent of the claim. Congress, then, if it had power to commit the ascertainment of boundaries to any of its officers, has not committed the subject to the discretion of the surveyor, but charged another officer with that duty--commanding the surveyor to survey according to the boundaries ascertained by the recorder, and not according to his discretion, as the court below understands.

7. The survey of the grant under which the plaintiff claims, as given in evidence, was not authorized by any law, because whatever may have been the authority of the surveyor in respect to other lands, or in respect to village lots, prior to the 26th May, 1824, his authority over lots in the villages named in the act of that date in ascertaining boundaries independent of the recorder, his authority afterwards depended upon the previous ascertainment of boundaries and extent by the recorder, and therefore his survev, if evidence at all, is not conclusive in any case.

8. If the surveyor had authority to survey the lot claimed by the plaintiff, his power and his duty extended only to the survey of the lot confirmed--not to transfer it to another place. The lot confirmed was that on which Chancellier's barn stood, and of which Chouteau was possessed under him; the confirmation by the act of 1812, and also that of 1816, is for that lot and no other; neither of them grants a lot to be located at the discretion of the surveyor on any part of block No. 89, as the surveyor and the court below supposed.

9. The testimony offered by the defendant and rejected by the court ought to have been admitted. It was the record of the recorder of land titles, under the act of 26th May, 1824, duly certified, and shows that the representatives of Chancellier did attempt to designate their lot as being in square No. 89, containing 60 feet front by 150 in depth, bounded north by a lot of James Papin. east by Third street, west by Lucas, and south by Cabanne; and that Genevieve Rotier's legal representatives also attempted to designate their lot on block 89, bounded east by Third street, north by a cross-street separating it from the barn-lot of Gabriel Cerre, west by the front line of the common field, south by the barn-lot formerly owned by Pierre Chouteau, sn. This evidence ought to have been admitted, if for no other purpose than as it tended to prove that down to 1825 the claimants under Rotier held the northern lot (A), and those under Chancellier the next adjoining on the south (B), under their respective confirmations. The evidence taken was so taken and recorded under the authority of law, and proves the location of the lots as designated by the claimants. That of P. Chouteau, the plaintiff's grantee, was material and portinent in showing the location of the lot claimed under Rotier, and the whole testimony is pertinent to show the extent and boundaries of the lots authoritatively ascertained under the act of 26th May, 1824, by which the survey was to be governed.

10. The surveys given in evidence by the plaintiff do not appear to have been examined or approved by the surveyor-general; the first is certified to be a plat and description of survey No. 350 of St. Louis lands, in the name of Pierro Papin, &c., “correctly copied from the plat and description thereof on file in this office, as returned by Jos. C. Brown, under his contract of 15th September, 1835;” and the certificate to the second is in these words: “The above plat and description of survey No. 351 of St. Louis lots, is correctly copied from page 371 of the book of field-notes and surveys in St. Louis, Mo., in this office.” Both are returns by a deputy surveyor, without examination or approval by the principal, and therefore of no authority, much less conclusive.

11. The testimony in the record not only tends to show, but establishes beyond any reasonable doubt, that the true location of the lot confirmed to the plaintiff is north of the lot in controversy. The grant to Hervieux was made in 1773, of a lot between Chancellier and Calvet. The proof shows conclusively that the barn of Chancellier was about 80 feet south of Vine street, on the lot (B), and the barn of Hervieux north of that. The grant to Rotier is dated in 1789, when Chouteau was in possession of Chancellier's lot, and grants a lot 60 feet front, bounded on one side by Cerre and on the other by Chouteau; it is so described in the grant and in all the documents, and the oral testimony shows that the barn of Rotier was on the lot (A)--Cerre's grant being bounded on the south by Vine street. The testimony fixes the grant and confirmation to Gratiot under Rotier, as the lot (A), bounded east by Third street, north by Vine, and south by a line 60 feet distant from Vine street, and the lot of the plaintiff, assignee of Chouteau, assignee of Chancellier, as adjoining it on the south; so that the true boundaries of the plaintiff's lot, as possessed by all prior claimants, as conveyed and confirmed to the plaintiff, includes no part of the premises in dispute, so that the recovery below is for land never purchased by or granted to the plaintiff, and his only pretense of title to that lot is the unapproved survey of a deputy...

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7 cases
  • Baird v. St. Louis Hospital Association
    • United States
    • Missouri Supreme Court
    • June 6, 1893
    ...confirmation of the old board of commissioners, or its character, nor the authorized survey thereunder. Brown v. Brown, 45 Mo. 412; Boyce v. Papin, 11 Mo. 16; Archer Bacon, 12 Mo. 149; Ehrhardt v. Hogaboom, 115 U.S. 67. (2) The old board of commissioners, in approving the confirmation, decl......
  • Robbins v. Eckler
    • United States
    • Missouri Supreme Court
    • October 31, 1865
    ...figure, whose boundary lines, by the simple rules of arithmetic, can only contain 162 arpents. (Ott v Soulard, 9 Mo. 581, 603; Boyce v. Papin, 11 Mo. 25; U. S. v. Huertas, 8 Pet. 475; U. S. v. Levi, 8 Pet. 481-2; U. S. v Huertas, 9 Pet. 171; Smith v. U. S. 10 Pet. 326, 331; U. S. v. Forbes,......
  • Wood v. Nortman
    • United States
    • Missouri Supreme Court
    • October 31, 1884
    ...of congress of July 4, 1836, was a public act. Bryan v. Ware, 4 Mo. 106; Ott v. Sanders, 9 Mo. 581; Biehler v. Coonce, 9 Mo. 347; Boyce v. Papin, 11 Mo. 16; Page v. Scherbel, 11 Mo. 167; McGill v. Somers, 15 Mo. 80; Gamache v. Pignignot, 17 Mo. 310; Papin v. Ryan, 32 Mo. 21. Our courts take......
  • Barry v. Blumenthal
    • United States
    • Missouri Supreme Court
    • March 31, 1862
    ...are prima facie evidence. See cases of Vasquez v. Ewing, 24 Mo. 38; Biehler v. Coonce, 9 Mo. 347; Macklot v. Dubreuil, 9 Mo. 477; Boyce v. Papin, 11 Mo. 16; McGill v. Somers & McKee, 15 Mo. 80; and Carondelet v. St. Louis, 29 Mo. 527. The connected plat of the town, above alluded to, is als......
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