Danjel Strother, Plaintiff In Error v. John Lucas, Defendant

• Decision Date: 01 January 1838
• Citation: 12 Pet. 410,37 U.S. 410,9 L.Ed. 1137
• Parties: DANJEL F. STROTHER, PLAINTIFF IN ERROR v. JOHN B. C. LUCAS, DEFENDANT
• Court: U.S. Supreme Court

37 U.S. 410

12 Pet. 410

9 L.Ed. 1137

DANJEL F. STROTHER, PLAINTIFF IN ERROR v. JOHN B. C. LUCAS, DEFENDANT.

January Term, 1838

[Syllabus from pages 410-412 intentionally omitted] IN error to the district court of the United States for the district of Missouri.

The counsel for the plaintiff in error, exhibited the following statement of the case:——

'This was an action of ejectment brought by Daniel F. Strother, of Kentucky, against Jno. B. C. Lucas, of Missouri, to recover a tract of land particularly described in the declaration, as follows: 'Lying and being in the city and county of St. Louis, state of Missouri, containing two arpents in breadth, by forty in depth, or eighty superficial arpents, French measure; one of which arpents by forty was granted to one Rene Kiersereau and his heirs, by the proper authority; and the other, to wit, the northern of said two arpents, was originally granted to one Gamache and his heirs; and which said two arpents by forty are bounded on the north by a forty arpent lot, originally granted to one Louis Bissonet; and on the south by a forty arpent lot, originally granted to one John Baptiste Bequette; and which said two forty arpent lots, so above bounded, have been confirmed by the authority of the congress of the United States to the legal representatives of the said Rene Kiersereau, and Gamache, respectively.'

The defendant pleaded the general issue, and the cause was tried at the September term, 1835, when there was a verdict for the defendant, and judgment rendered thereon; to reverse which this writ of error is prosecuted.

By the evidence, it appears that in 1764, the post of St. Louis, in Upper Louisiana, was first established by the French, under M Laclede. In May, 1770, the Spaniards, under the treaty of 1762, took possession of St. Louis, and Upper Louisiana. Between the year 1764, and 1772, divers grants of land in Upper Louisiana were made by the French and Spanish authorities, respectively. Amongst those grants were some forty or fifty, containing each from one arpent by forty, to four arpents by forty, located in the prairie immediately west of the then village of St. Louis, and extending some distance north and south of it. These lots extend westward to the uniform depth of forty arpents, being parallelograms whose opposite sides are on the north and south, forty arpents in length; and on the east and west from one arpent to four arpents.

Some time in the year 1772, a survey was made, as above described, of these lots, by Martin Duralde, the authorized surveyor of the post of St. Louis.

About that time a fence was established on the eastern boundary of the above range of lots, which separated them from the village, and what was called the commons; there was no division fence, nor any fence on the western boundary; the lots were contiguous to each other; but each lot was held separately, and cultivated separately, by its proprietor or occupant, who was bound by the regulations of the post, to keep the fence in front of his lot (or of whatever number of lots he occupied,) in good repair.

The surveys so made by Duralde, were entered in a book called the Livre Terrein.

Amongst the lots so surveyed and entered, are the two lots in question, described and bounded as in the declaration in this cause. The surveys so entered, and the grants by virtue of which said surveys were made, were solemnly recognised and affirmed by the Spanish lieutenant governor, Don Pedro Piernas; and by his predecessor, the French commandant, S'Ange de Bellerive.

The entry in the Livre Terrein, No. 2, p. 68, which contains this recognition of said grants and surveys, has been printed by authority of congress, and is to be found in Gales & Seaton's American State Papers, vol. 3, p. 677. In the entry in the Livre Terrein of the survey of Gamache's arpent, the grantee is called 'Joseph' Gamache. This was a mistake, as is shown fully by the evidence in the cause. It is conclusively proved that the name of Gamache, the grantee, was John Baptiste Gamache, and that no such man as 'Joseph' Gamache, existed at that time in Upper Louisiana.

The defendant admits upon the record, that the grantee, Gamache, was known as well by the name of John Baptiste Gamache, and of Baptiste Gamache, as Joseph Gamache; but the fact, as proved in evidence, is that his name was John Baptiste Gamache, and none other.

Immediately after the grants so made to Kiersereau and Gamache, they took possession of their respective lots, and commenced the cultivation thereof, as acknowledged owners and proprietors, by virtue of said grants and surveys. John Baptiste Gamache continued to occupy and cultivate until about January, 1773, when Louis Chancellier took possession; and Rene Kiersereau until about the year 1780, when the said Louis Chancellier succeeded him in the occupation and cultivation of his lot. Louis Chancellier continued in possession and cultivation of both these lots, claiming the same as proprietor thereof by purchase from the original grantees, until his death, in April, 1785. Previous to his death, on his marriage with Marie Louise Dechamp, a marriage contract was executed between him and said Marie Louise, by which a communaute, (partnership) according to the Spanish law, was enacted between them. On the death of her husband, the said Louis Chancellier, the widow, by virtue of her rights under the communaute, was in lawful possession of the common property of herself and husband, and, consequently, of the two arpents by forty in question. On the 8th June, 1785, an appraised inventory 'of all the property, moveable and immovable, which is ascertained to belong to the said deceased, (Louis Chancellier,) and to his wife, Dona Louise Dechamp,' was made in due form of law, by the lieutenant governor, Don Francisco Cruzat.

In this inventory, the two arpents in question are described by their metes and bounds; that is to say, 'two arpents and a half of land in the prairies, bounded on the one side by land of Bequette, on the other by land of Mr. Bijou.' The names of Bijou, or Louis Bissonet, are admitted and proved to mean the same individual.

On the 11th June, 1785, a petition was presented to the lieutenant governor, by said widow and Charles Tayon, the guardian of the property of the infant son of said Louis Chancellier and Marie Louise, praying that said property 'in their possession,' should be sold at public sale; and on the same day, in pursuance of said petition, an order of sale was made; and on the day following, to wit, the 12th June, 1785, the lieutenant governor, Cruzat, proceeded to sell the property described in the inventory, and did actually sell a considerable quantity thereof; and amongst other property, the two arpents described as above, were sold and adjudicated to the said Marie Louise Chancellier, for the sum of one hundred and fifty-five livers.

At the same sale, on the same day, was also sold the slave Fidel, belonging to said estate and described in the inventory, to one Hyacinthe St. Cyr, whose security for the payment of the purchase money, (two thousand one hundred livers,) was August Choteau; the former signing by his mark in the margin of the sale, the latter signing his name in full thereon. The first article sold was said Fidel, and the sixth was the two arpents in question. The sale is declared to have been made at the dwelling of said widow, 'in whose possession are all said goods,' ('bienes' in Spanish, which means 'property' generally). Afterwards, by order of the 14th June, 1785, the sale was suspended for want of competent purchasers, and the balance unsold ordered to be delivered to the widow at the valuation, on condition that she be charged with the same on final partition between her and her son.

On the 8th June, 1786, on petition by the said widow and guardian, a partition was ordered to be made between the widow and said infant; and accordingly an account and partition was made, whereby it appears that said widow was charged with the sum of one hundred and fifty-five livres, being the price of said two arpents by forty, by her purchased at the sale of her husband's property. It appears that the balance coming to the minor, amounting to six thousand three hundred and thirty-four livres, seven sous, six deniers, was duly paid over to his guardian; said Charles Tayon, and the sum of three thousand dollars, (including said lots, valued at one hundred and fifty-five livers,) duly paid to said widow.

This final settlement and partition was made on the 13th day of September, 1787, in pursuance of the decree of the governor general, Don Estaban Miro, bearing 25th February, 1787, all which is set out at large upon the record.

Thus it appears, that in pursuance of a final decree made by the supreme authority in Louisiana, the widow of Louis Chancellier was declared and adjudged to be the lawful owner and possessor of the said two arpents, bounded as described in the declaration in this cause; and that the judgment of partition and final settlement so made, in favour of said Maria Louisa Chancellier, bears date the 13th day of September, 1787.

In addition to the above proof of the title of Marie Louise Chancellier to said two lots, the plaintiff gave in evidence:——

1st. An authentic deed of exchange between Jno. B. Gamache, and said Louis Chancellier, bearing date 23d January, 1773, acknowledged and executed in presence of Don Pedro Piernas, lieutenant governor of Upper Louisiana; whereby said Jno. B. Gamache, as original grantee of said one by forty arpents, conveys the northern half thereof to said Louis Chancellier, in exchange.

2d. An authentic deed, dated 6th April, 1781, acknowledged in presence of Francisco Cruzat, lieutenant governor of Upper Louisiana, whereby Marie Magdalene Robillard conveying to said Louis Chancellier, one arpent by forty, bounded by Jno. B. Bequette, and by Jno. B. Gamache's arpent, being the same granted to Rene Kiersereau....