Gurno v. Janis

• Decision Date: 31 May 1840
• Citation: 6 Mo. 330
• Parties: GURNO v. A. & N. JANIS, ADM'RS OF JANIS.
• Court: Missouri Supreme Court

6 Mo. 330

GURNO

v.A. & N. JANIS, ADM'RS OF JANIS.

Supreme Court of Missouri.

May Term, 1840.

COALTER, and H. S. GEYER, for Plaintiff in Error. I contend that the court committed error in refusing the instructions. The second instruction supposes a state of facts, if possible, still stronger against the plaintiffs, for it supposes the said Toussant Lebeau to have been the only person who so inhabited, cultivated, and possessed the premises in question, prior to the 20th December, 1803. The question, then, is, does this make a better itle than the certificate of Recorder Hunt, which is the only title shown by the plaintiff? Story's U. S. Laws, p. 1972.

GEYER, on the same side. 1. The certificate of the recorder is not competent evidence. Rev. Code 1835, pp. 234-251; 3 Story's U. S. Laws, p. 1792. 2. The act of Congress of 13th June, 1812, confirmed the lot--leaving the courts to decide between conflicting claims; and a confirmation by the recorder of land titles could give no better title. Vasseur v. Benton, 1 Mo. R. 296; Salle dit Lajoy, 3 Mo. R. 529; see also Newman v. Studley, 5 Mo. R. 291; 12 Peters' R. 454; 6 Cranch, 128. 3. The instructions prayed for by the defendant ought to have been given. If the facts stated hypothetically be true (and that was a question for the jury), the act of 13th June, 1812, proprio vigere, is a grant to Toussant Lebeau and his representatives, and no subsequent act of the grantor or his agent could divest that title. See authorities on second point. 4. The recorder, by the act of 26th May, 1824, was to ascertain, by evidence, what lots had been confirmed; but he was not authorized to make a grant de novo--much less could he divest the title which, for twelve years, had been vested in another 5. The duty of the recorder was to discriminate between the public and private lots, and when he ascertained that any lot was rightfully claimed, according to the act of 13th June, 1812, he was to certify that it had been confirmed; but he could not decide between individual claimants, which this court has decided as a judicial question. Vasseur v. Benton, 1 Mo. R. 296. 6. The evidence before the recorder, under the act of 1824, was ex-parte, and includes no one except the United States. The question between individual claimants is still to be decided by the courts, according to the evidence before them. 7. If the act of the recorder be regarded as a grant to Janis, still the prior grant of 13th June, 1812, will prevail. 8. If it be true that Lebeau was the only person who inhabited, cultivated or possessed the lot in question, prior to 20th December, 1803, he and his representatives acquired a complete title on the 13th June, 1812, by grant from the United States; and the recorder could no more divest the title under that grant than he could supersede a confirmation by the commissioners, or a patent deed of the United States. Act of 9th March, 1835, Rev. 234. Rev. Code, 251, § 8.

CAMPBELL, for Defendants in Error. 1st. The Circuit Court did not

err in admitting the certificate of confirmation of Theodore Hunt, recorder of land titles, to Antoine Janis, deceased, for the premises in controversy. 2d. The Circuit Court did not err in refusing to give the two instructions prayed for by the defendants. 3d. The certificate of the recorder in this case is evidence of title, conclusive against the United States, and prima facie evidence of title against all persons not having a better title. 4 Mo. R. 458; 2 Story's U. S. Laws, p. 1257; 3 do. p. 1972; Morton v. Blankenship, 5 Mo. R. 346; 1 Mo. R. 296; 2 Mo. R. 529; 4 Mo. R. 458; 5 Mo. R. 236

MCGIRK, J.^a1

The administrators of Janis brought an action of ejectment, in the Circuit Court of St. Charles county, for a lot of ground in the town of St. Charles. The defendant pleaded not guilty. On the trial of the cause the plaintiff had a verdict and judgment. The cause was brought to this court, the judgment was reversed, the cause remanded, and on the trial of the cause the plaintiffs again had judgment, to reverse which the cause is again brought here. On the trial of the cause in the Circuit Court the plaintiffs gave in evidence a certificate of Theodore Hunt, recorder of land titles for the State of Missouri, confirming this lot of ground to Antoine Janis, the intestate. The defendant objected to the giving this certificate in evidence. The objection was overruled, and the paper received and read to the jury. Upon this evidence, after having proved the defendant in possession at the time of bringing the action, the plaintiff rested his case. The defendant then gave evidence to show that prior to the 20th December, 1803, one Toussant Lebeau possessed, inhabited and cultivated the lot in question, and that he, the defendant, had a conveyance from a portion of Lebeau's heirs for their share of the lot, and that the right to the balance was yet in Lebeau's heirs. After the evidence was closed, the defendant moved the court to instruct the jury: 1st. That if they find from the evidence that Toussant Lebeau inhabited, cultivated and possessed the lot in question, prior to the 20th of December, 1803, and that he was an inhabitant of the village of St. Charles on the 13th day of June, 1812, then the plaintiffs are not entitled to recover. 2d. That if the jury find from the evidence that Lebeau was the only person who inhabited, cultivated or possessed the lot in question, prior to the 20th of December, 1803, and that he continued to be an inhabitant of St. Charles until, and on, the 19th of June, 1812, the plaintiffs are not entitled to recover. The Circuit Court refused both these instructions, which refusal is assigned here for error. The plaintiff in error also assigns for error the reception of the recorder's certificate, made in pursuance of the act of Congress of May 26th, 1824.

When this case was before this court on a former occasion, I wrote the opinion of the court, and gave my own views of the act of Congrass of June 13, 1812, 2 Story's L. U. S. 1257, and also my views of the act of 26th of May, 1824, 3 Story's Laws U. S. 1972. The counsel for the plaintiff in error insists now, that the recorder's certificate is no evidence of any confirmation to Janis. First. Because it is no copy of any book, or paper, belonging to the office of the recorder of land titles, and therefore does not come within the act of the General Assembly of January 26, 1835, Revised Code, 250. The 7th section of that act declares, that copies of confirmations had before the board of commissioners for the adjustment of land titles, or before the recorder of land titles, &c., and certified by the recorder, or other person having the lawful custody of the papers. &c., shall be evidence, &c. The objection taken by the counsel for the defendant is, that the certificate given in evidence is no copy of any confirmation, but is an original paper, and therefore is not within the law. To this Mr. Campbell, for the defendants in error, replies, that the paper is evidence as an original paper, the recorder being required by the act of Congress of May 26, 1824, to give a certificate of confirmation in each case of confirmation. I am of opinion this is correct legal reasoning, and that the rule of law is, that whenever the law requires an officer to give a certificate of the existence of any fact, that the certificate so given is to be received in evidence of the existence of the fact.^(a) There is then no error on this point.

The next point is, did the court err in refusing to give the instruction asked by the defendant? My opinion is, that on this point there is error. The opinion in this case, heretofore delivered, established the legal value of the recorder's certificate, as evidence to sustain the action of ejectment on the part of the plaintiff. But now the question is to be decided, what kind of title, on the part of the defendant, is sufficient to defeat the plaintiff's action, notwithstanding the certificate of the recorder. By the act of the 13th of June, 1812, it is enacted, by the 1st section thereof, 2 Story L. U. S. 1257: “That the rights, titles, and claims to town or village lots, out lots, & c., in, adjoining to, and belonging to St. Charles, &c., which lots have been inhabited, cultivated, or possessed prior to the 20th day of December, 1803, shall be, and the same are hereby confirmed to the inhabitants of the respective towns aforesaid, according to their several right or rights in common thereto: provided this act shall not affect any confirmation made by the board of commissioners for the adjustment of land claims,” &c. It was the opinion of this court in the case of Vasseur v. Benton, and in this case when it was up before, that the act of 1812 amounts to a statutory confirmation of the town lots in the respective villages of all those lots, and to all those persons who come within its description, and that the owners or claimants have nothing to do but to show whenever their rights are disputed in courts of justice, that their cases are within the act.^(b)

The act of the General Assembly of Missouri, Rev. Code, p. 231, § 1, declares, that the action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises. This declaration throws but little light on the subject. But the 2nd section declares, that the action may also be maintained in all cases, where the plaintiff claimed the possession of the premises, against any person not having a better title thereto, by virtue of an entry with the register of public lands, a preemption, a New Madrid location, and 4th, a confirmation made under the laws of the United States.

Now in all these cases the plaintiff may maintain his action of ejectment, against any one who has not got a better title than his. But in every case where the defendant has a better title than his, the plaintiff cannot, as against that defendant, maintain his action. In this case the plaintiffs...