Boone v. Moore

• Decision Date: 31 March 1851
• Citation: 14 Mo. 420
• Parties: BENJAMIN BOONE ET AL. v. JAMES D. MOORE.
• Court: Missouri Supreme Court

14 Mo. 420

BENJAMIN BOONE ET AL.

v.JAMES D. MOORE.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. CHARLES CIRCUIT COURT.

CAMPBELL, GLOVER & WELLS, for Plaintiffs.

I. The confirmation of this tract of land was to the man who exhibited it to the board of commissioners as his property and procured its confirmation, and not to David Cole the original grantee who had long before parted with the title, and never set up any claim to it. See Bissell v. Penrose's Heirs, lately decided by the Supreme Court of the United States.

II. It was not necessary for the plaintiffs to produce the original papers constituting the chain of title from Cole to Richardson, but for the purposes of this suit it was sufficient to produce the confirmation procured at the instance and for the benefit of Jesse Richardson, and the conveyance from Richardson and wife to plaintiffs.

III. The copies of the deeds from Cole to Mackay, and from Mackay to Richardson were read to the jury without objection, and do make out a perfect chain of title from Cole to Richardson.

IV. The instruction given by the court to the jury was not warranted by the testimony given in the cause.

V. The instruction given by the court is too broad, and takes the whole case from the jury and leaves nothing for them to decide.

VI. The evidence shows that the defendant claimed the land under Zachariah Moore, as his administrator, who held it by virtue of a title bond from Richardson and wife--that Z. Moore had assigned the title bond to John W. Boone, the father of the plaintiffs, and, that in conformity to that title bond assignment, Jesse Richardson and wife conveyed the land to said John W. Boone. Under these circumstances, it appears that both parties claim the title derived from Z. Moore, and that the title of said Moore was divested in favor of said Boone; and thus the defendant is precluded from going beyond the title of said Z. Moore, and he has given no evidence to impair the validity of the assignment from Z. Moore to John W. Boone, and the deed from Richardson and wife to plaintiffs. In this cause it appears, that the land was confirmed at the instance and as the property of Jesse Richardson, assignee of James Mackay, who was assignee of David Cole. The land was granted to D. Cole in the in the year 1798--the evidence shows that he cultivated it. The deed of transfer from him to Mackay is dated in July, 1799, and it does not appear that D. Cole ever afterwards set up any claim whatever to this land; he took no steps to have it confirmed, but long before the transfer of Louisiana to the United States, he had ceased to be the owner or claimant of said land. He obtained the land in St. Louis district, conveyed to him by Mackay, and with it he appears to have been fully contented, and to have left the land now in controversy to his assignee. In September, 1803, the land was sold by Mackay to Jesse Richardson who thus became the owner thereof, before the country was transferred to the United States. When the United States became the owner of the country, the land in controversy was the property of Jesse Richardson, land he was the person to whom the government was bound to confirm the same. In the year, 1805, the survey of the land was made by Mackay, at the request and as the property of Jesse Richardson, and on the survey it is marked as the property of said Richardson. Neither Cole nor Mackay ever set up any claim to the land after the transfers made to them, and Mackay afterwards surveyed the same as the property of Richardson, and appeared before the first board of commissioners as a witness in behalf of Richardson, the claimant. From the proceedings of the board of commissioners it appears that Jesse Richardson was the first and only claimant of the land--that he exhibited it to the board, claiming it as assignee of James Mackay, the assignee of David Cole--that with it he exhibited the original petition and concession--the certificate and part of survey made at his instance in 1805--a copy of the deed from Cole to Mackay, made in 1799 and of the deed from Mackay to Richardson in 1803, and that the proceedings were conducted and the evidence produced in the name of D. Cole. From the whole proceedings it appears, that Jesse Richardson has been the sole claimant of the property in controversy from the time that the country was transferred to the United States, to the time of its confirmation, and that neither Cole or Mackay pretended to claim the same. It was acted upon by the boards of commissioners at the instance, and as the property of said Richardson. When confirmed to Cole or his legal representatives, under such circumstances, the confirmation enures to the benefit of Jesse R., and the property becomes his absolutely. From the testimony it also appears, that on the 24th day of December, 1810, Jesse R. executed a title bond for said land to Z. Moore, and that said Z. Moore on the 3rd day of July, 1822, did assign said title bond to John W. Boone, and that after the confirmation, the heirs of John W. Boone did pay to said Jesse R. and wife eight hundred dollars, the purchase-money of said land, and did obtain from them a deed of conveyance. The title bond, assignment and deed last named, were all read in evidence without objection; and under such circumstances, the Circuit Court committed a gross error in instructing the jury that the plaintiffs could not recover on the evidence produced. Notice of this claim, together with the survey and documents, must have been filed prior to the 1st of July, 1808, in conformity to the act of Congress; for the first board of commissioners, and also the board of commissioners appointed under the act of Congress of 9th July, 1832, were expressly limited to such claims, and no board of commissioners was authorized to act on any claim of which notice had not been thus filed with the recorder. The commissioners in the discharge of their duty cannot be presumed to have acted on any claim not thus filed with the recorder, and in their general report they stated that they had not acted on any claims except those of which notice was given. No person ever appeared before the commissioners to exhibit this claim, except Jesse R. No other person ever asked them to confirm, and he is the man who is protected by the treaty and laws under it, and he is entitled to the full benefit of the confirmation. Neither Cole nor Mackay ever set up any claim to the land in question, or asked for its confirmation, and the confirmation should not be construed to enure to their benefit: See Exec. Doc. of 1835-6, p. 63, decision No. 10; also, decisions 7, 15, 33, 69; 6 Peters, 766; 2 Peters, 458; 2 Howard, 284.1. The copy of deed from Cole to Mackay having been read without objection, was in evidence and could not be disregarded legally by the court, and the same is true of the deed from Mackay to Richardson. 2. The said copies of deeds were legal and proper evidence. It was required by law to be deposited in the office of the recorder of land titles, and was duly certified by him. Rev. Code, 1845, p. 468, § 11; also, 2 How. 316; 2 Civil Ca. Louis, 348, 350. 3. The copy of the deed from Cole to Mackay was legally proved by the certificate of James Mackay appended to the same as commandant of the post of Saint Andrew. 4. The copy of the deed of Mackay to Richardson was legal evidence by the certificate of F. R. Conway, so that there was no valid objection to the reading the copies offered a second time, except that the same matter was already in evidence. 5. The continued, uninterrupted possession under these deeds and the other circumstances proved, were sufficient to warrant the presumption of the extinguishment of the rights of Cole and Mackay, of themselves: 2 How. 316; 1 Wheat. 292. 6. The defendant having entered under Z. Moore, and as his administrator, who was a mere tenant under Richardson, having had no deed for the land but only an executory agreement from Richardson, was estopped to deny his title which had passed to the plaintiffs: 5 Mo. R. 394; 2 Howard, 316; 2 Mass. R. 242; 7 Mon. 649; Adams' Eject., 50, 51--note (7). 7. The defendant may have had an actual occupation of part of the premises, but there was no evidence showing that his possession was adverse, and if it was it did not last twenty years, and was abandoned in 1844, by which act his only occupation on the tract was that which he held under the plaintiffs' title. 8. The court consequently erred in deciding that the plaintiffs below could not recover. 9. If the presumptions of law are, that Z. Moore was not dead at the time of the execution of the deed by Richardson to his averred assignee as contended by Mr. Coalter, still, as that point was not made in the Circuit Court, the judgment ought to be reversed and the cause sent to that court, where, if the point be made, it may be met with evidence, showing Moore's death prior to the execution of the deed.

COALTER, for Defendant.

I. It is clear that this instruction (“that the plaintiffs were not entitled to recover”), is correct, if either of the two deeds offered in evidence by the plaintiffs were properly regarded by the court; or if the deed from Richardson and wife to the heirs of John W. Boone was inoperative and void, as each of these deeds constitutes a necessary link in the chain of title, and the failure of either would render the instruction correct. 1st. As to the deed from David Cole to James Mackay. I contend that it is clearly inadmissible on general principles--there being no proof whatever, offered of its execution, and the deed not even purporting to be an original, but simply a copy. If it can be admitted at all (not being admissible on general principles), it must be because it comes under some provision of our statute on the subject of evidence, and a clear examination of that statute will...