Bryan v. Wear

Decision Date31 August 1835
Citation4 Mo. 106
PartiesFREDERICK A. BRYAN v. ELIAS N. WEAR AND THOMAS HICKMAN.
CourtMissouri Supreme Court

ERROR TO THE CIRCUIT COURT OF HOWARD COUNTY.

TOMPKINS, J.a1

Bryan commenced his action in the Circuit Court against Wear in ejectment. Hickman was admitted as co-defendant: judgment being given against them they come into this court to reverse it. To establish his right to the land in question, Bryan gave in evidence a certificate of the recorder of land titles for the Territory of Missouri, stating that a lot of one arpent of land in the village of Little Prairie, in the county of New Madrid, which appears from the books of this office to be owned by Lewis St. Aubin, has been materially injured by earthquakes, and that in conformity to the provisions of the act of Congress of the 17th February, 1815, the said Lewis St. Aubin or his legal representatives is entitled to locate any quantity of land not exceeding one hundred and sixty acres on any of the public lands of the Territory of Missouri, the sale of which is authorized by law. He next gave in evidence a certificate of location in the words following, to-wit: Thos. Hickman applies to locate as the legal representative of Lewis St. Aubin one hundred and sixty acres of land, by virtue of a New Madrid earthquake certificate in the name of said St. Aubin or his legal representatives, which said certificate is numbered 195, in the following manner, viz: To include the northwest quarter of section number 17, in township number 49, north of the base line, of range number 16 west of the 5th principal meridian. The plaintiff proved that Lewis St. Aubin resided for some years in the village of New Madrid, in the county of New Madrid, and there owned one lot or more; that before his death he removed to Little Prairie in said county, where he died about twenty-five years ago, leaving six children, two of whom died in their minority without leaving children. The plaintiff also read in evidence two deeds, one made by a son of the deceased, the other made by a daughter of the deceased and her husband, by which deeds they convey their respective shares of the land, located as above mentioned to the plaintiff. On this testimony the plaintiff claims an undivided half of the said tract of land. To the introduction of all which testimony the defendant excepted. The defendant then offered to give in evidence the deposition of the present recorder of land titles to prove that no relinquishment of the land in New Madrid had been made in his office, either by St. Aubin or by those who claim as his heirs. This the court refused to permit. The defendant also offered to give in evidence the deposition of Robert D. Dawson, deputy clerk and keeper of the records in New Madrid county, to prove that no record was to be found in that office of a relinquishment of the land in New Madrid to the United States. The court refused also to allow this evidence to be given and its opinion was excepted to.

The defendant then prayed the court to give many instructions, several of which being but a repetition of each other, will be omitted. The first instruction asked is that they, the jury, must be satisfied that the New Madrid certificate given in evidence in this cause was procured, and that the location on the land was made by the agency and consent of the said Lewis St. Aubin or of his children, or of those claiming under him before they can find for the plaintiff. 2nd. That unless they are satisfied that Lewis St. Aubin or those claiming under him have relinquished their lot in New Madrid county, in lieu of which the said certificate was granted, and by virtue of which the land in controversy was granted, they must find for the defendant. 3rd. That there was no evidence before them to prove that Lewis St. Aubin or those claiming under him, have relinquished to the United States the lot in New Madrid in lieu of which this certificate above mentioned was granted, and by virtue of which the land in controversy was located. 4th. This is the same in substance as the second. 5th. That the plaintiff has given no evidence to support the action of ejectment in this case. 6th. That the New Madrid certificate, and the location under it are void, and cannot support the plaintiff's action. 7th. If they believe that Lewis St. Aubin was dead at the time the certificate in question was issued to him, they must find for the defendant. 8th. Same substantially as the first. 9th. That unless they find that the land in controversy was at the time the location was made, authorized to be sold by the laws of the United States, they must find for the defendant. 10th. That the plaintiff has given no evidence to show that the certificate, and the location under it was obtained or procured by the agency or consent of the said Lewis St. Aubin or of those claiming under him. 11th. That the deed of Martin and wife given in evidence conveys no title to the plaintiff to enable him to recover in this action. 12th. That the plaintiff has given no evidence to show that the lands in controversy were granted to the said Lewis St. Aubin, in lieu of any land he held in New Madrid county. 13th. Same in substance as the 10th. 14th. That the location read in evidence by the plaintiff, is evidence to show that Hickman located for himself and not for Lewis St. Aubin, or those claiming under him. 15th. That there is no evidence to show that the land in lieu of which the land in controversy was granted lay within the limits of the County of New Madrid, on the 10th day of November one thousand eight hundred and twelve. 16th. That there is no evidence to show that Felix St. Aubin and Agatha Martin were the legal heirs of Lewis St. Aubin.” The court gave the first and eighth instructions, and at the same time gave as an explanation of them, the following instructions. 17th. Although the certificate was granted, and the location made without the consent of those under whom the plaintiff claims, yet, if they afterwards consented it is sufficient. It is the same in point of legal effect, as if they had consented at the time--and that there is evidence of such subsequent consent. But the court refused to give the other instructions asked by the defendant. The court then on the plaintiff's motion gave the following instruction: 18th. “That the plaintiff has showed a legal title to the possession of one-half of the land in controversy.” To the opinion of the court in giving the instruction to the jury asked by the plaintiff, and in refusing to give those asked by the defendant, as also to the explanations given by the court to the first and eighth instructions asked by the defendant, he excepted.

The errors assigned by the defendant embrace all the decisions of the court to which he excepted. The points insisted on are as follows: 1st. The court erred in giving the instruction asked by the plaintiff. 2nd. The court erred in receiving in evidence the recorder's certificate, and the certificate of location because they were not duly certified. 3rd. That the certificate of the recorder of land titles, called here the New Madrid certificate, is void for uncertainty. 4th. That said certificate is void because St. Aubin was dead before it was issued, and because the recorder did not pursue the law. 5th. That the court erred in refusing to give the third and fourth instructions asked by the defendant. 6th. That the court erred in refusing to instruct the jury that it was necessary for the plaintiff to show that the location was made by Lewis St. Aubin, his children or those claiming under him....

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