15 Mo. 80 (Mo. 1851), McGill v. Somers

Citation:15 Mo. 80
Opinion Judge:GAMBLE, J.
Party Name:MCGILL v. SOMERS & MCKEE.
Attorney:HAIGHT, for Plaintiff. SPALDING, for Defendants.
Court:Supreme Court of Missouri
 
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Page 80

15 Mo. 80 (Mo. 1851)

MCGILL

v.

SOMERS & MCKEE.

Supreme Court of Missouri.

October Term, 1851

1. EVIDENCE--CONFIRMATION.

A certificate of confirmation issued by the recorder under the act of 26th May, 1824, is only prima facie evidence of a confirmation under the act of the 13th June, 1812.

2. SAME--DESCRIPTION LIST.

The description list sent to the surveyor's office, by authority of the act, is evidence of as high a character as the certificate would be; and a properly authentic ted extract from it, is entitled to all the effect that the original certificate would have.

3?? SAME--SURVEY.

A survey made under the act of 29th April, 1816, when examined and sanctioned as contemplated by law, is conclusive upon the government, and upon all persons who claim under titles subsequent to the survey; and, of course, upon mere intruders and strangers without title; and it is prima facie evidence of locality against all persons who claim under an opposing title.

4. SAME--CONFLICTING CLAIMS.

When two surveys conflict, the proper locality must be determined by the history of both claims. If it appears that the two titles, when properly located, cover the whole or part of the same land, the right must be determined as a question of law, in favor of the superior title. If the titles are of the same age and description, and there is no evidence to impeach the survey of either; the party in possession cannot be disturbed.

5. SAME.

Surveys covering the same land may be correctly made, and the fact that confirmations embrace the same land, is no impeachment of the survey.

6. CONFIRMATIONS--PRIORITIES.

A confirmation under the first section of the act of 13th June, 1812, if of a common-field lot, is superior to an opposing title, which stands alone upon a confirmation, under the act of 29th April, 1816, and if under the first act the land be granted to one, it cannot, under the last, be granted to another.

7. SAME--NEW MADRID LOCATION,

A confirmation under the act of 1816, when properly surveyed, is superior to a New Madrid ocation.

8. CONVEYANCES--BOUNDARIES.

Known and fixed boundaries and monuments, called for in a grant or deed, control the courses and distances stated in the same instrument.

ERROR TO ST LOUIS CIRCUIT COURT.

HAIGHT, for Plaintiff. 1. It seems unnecessary in submitting a brief in this case to do more than state the points decided. The decision is so grossly wrong that argument would be wasted. The court decided, in refusing the first instruction, that the confirmation to Cottard, and the survey and location under it, did not vest the title to the premises in Cottard if the survey and location were correctly made. 2. The court decided, that if a part of the land confirmed to Cottard was within the survey to Motard, or within the commons, and the land in controversy in this suit was not embraced in either survey, the defendants would be entitled to a verdict. 3. That the title of the representatives of Joachim Roy was a better title than the confirmation to Cottard. 4. That monuments and visible boundaries do not control course and distance. 5. That the commons title and the Motard confirmation would both be set up as outstanding titles, though neither included the premises in question. 6. That the claim of Adams, and the confirmation to him under Motard was an out lot. 7. If the court found the facts to be that no claim had ever been made by Adams to the land in controversy, and that he had accepted a survey and confirmation excluding it, the title of lands would be a bar to the plaintiff in this suit. Other points not less absurd were decided, but these are deemed sufficient for the present purpose.

SPALDING, for Defendants. 1. The plaintiff's first instruction was refused and the court was justified in the refusal of it, because there was evidence that Motard's land was a common-field lot, and in cultivation prior to 20th December, 1803, was proved on the trial. The concession or claim, was seven by forty arpents, and was protected by the common-field fence upon which it bounded. 2. The second instruction of plaintiff was rightly refused. First. It is calculated to mislead the jury. Second. The fact that Cottard's survey was in part embraced in the survey of commons and in that of Motard's may be a conclusive reason why the jury should find for defendants. This depends on the location of the different tracts. 3. The third instruction for plaintiff refused by the court is erroneous. First, because the certificate and evidence under which the survey was made to Joachim Roy, establishes a confirmation to him. 9 Mo. 347, Biehler v. Coonce. The tabular statement from the books of the recorder of land titles showing confirmation of a lot, size, & c., is evidence. This was of an entry by Hunt, the recorder, acting under the act of Congress of 26th May, 1824. 4 U. S. Stat. 65, as to the duty of the recorder of land titles in taking proof of possession, & c. 3 U. S. Stat. 325, act of 29th April, 1816, to provide for appointment of surveyor, & c. It directs him to cause all lands to be surveyed, & c., the " claims to which have been, or hereafter may be confirmed by any act of Congress which have not been already surveyed according to law." 9 Mo. 477, Macklot v. Dubreuil; at page 489, the court hold that a certificate issued in August, 1842, by the recorder of land titles on the proof by Hunt, is valid, and evidence of confirmation under act of 13th June, 1812. 11 Mo. 16,Boyce v. Papin, at page 24, the court say that the recorder had power to confirm town lots, and his acts are evidence of confirmation as full as his certificate under act of 1824. The first instruction given for defendant involves the same question. 4. The fourth instruction asked by plaintiff, lays down certain principles, as to location of land, which if even abstractly right do not belong to the case. The question, or at least one question was whether the Cottard claim had been surveyed at the right place. This did not depend upon monuments and visible boundaries, but upon calls as to other lots and claims. 5. The plaintiff's 5th instruction was not needed in the case. No pretense was set up on behalf of the defendants, that the confirmation of the boundaries or of Motard's claim was an outstanding title to the premises in dispute, lying entirely without...

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