Chouteau v. Gibson

Decision Date31 October 1882
Citation76 Mo. 38
PartiesCHOUTEAU et al., Appellants, v. GIBSON.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Glover & Shepley and T. T. Gantt for appellants.

Chas. Gibson and Noble & Orrick for respondent.

NORTON, J.

This cause is here on the appeal of plaintiffs from a judgment of the St. Louis court of appeals affirming the judgment of the circuit court of St. Louis county in dismissing plaintiffs' petition and rendering judgment for defendant. The reason for this action on the part of the St. Louis court of appeals, is given in the opinion rendered by said court in the case of Gibson v. Chouteau et al., reported in 7 Mo. App. 1. The reason therein given is that the same matter sought to be litigated by plaintiffs in their bill, had been litigated in a former suit brought by Gibson v. Pierre Chouteau et al., and reported in 39 Mo. 536; and that all the questions involved in the present suit had been determined in that suit so as to be res judicata between Gibson and Chouteau and all in privity of estate with Chouteau, and that, therefore, plaintiffs were estopped from prosecuting this suit.

The object of the present suit is to divest Gibson of the legal title to sixty-four acres of land in the petition described, upon the ground that at the time Gibson acquired the legal title thereto, the equitable title was in plaintiffs, and that he had knowledge of that fact, and, therefore, took the legal title subject to their equity. Plaintiffs set up in their petition that the sixty-four acres of land in controversy, was a part of 640 acres located by Christian Wilt, in virtue of a certificate of location dated November 30th, 1813, which was issued to James Y. O'Carroll, or his legal representatives, in lieu of 640 acres of land in New Madrid county, which had been confirmed to said O'Carroll, and which had been injured by earthquakes.

The bill sets forth with great particularity the chain of title on which plaintiffs base their equitable claim and may be summarized as follows: 1st. New Madrid certificate No. 150, issued to James Y. O'Carroll, or his legal representatives, authorizing him or them to locate 640 acres of land. 2nd. Deed from said O'Carroll, dated 29th day of November, 1805, acknowledged the same day, and recorded on the 18th day of March, 1809, conveying to George Ruddle 640 acres of land in New Madrid county, in lieu of which said certificate No. 150 was issued. 3rd. Deed of George Ruddle to James Tanner and A. P. Gillespie, dated 7th day of March, 1816, conveying to them, their heirs and assigns, an undivided interest in 550 acres of said tract. 4th. Deed from A. P. Gillespie to James Tanner of all his right, title and interest in and to said O'Carroll tract, acknowledged and recorded on the 18th day of October, 1816. 5th. Deed from said George Ruddle to A. P. Gillespie conveying an undivided interest of 200 arpents of the said O'Carroll tract, executed on the 26th day of May, 1818, and recorded the following June. 6th. Deed from A. P. Gillespie conveying to James Tanner the said 200 arpents in said O'Carroll claim. 7th. Deed from James Tanner in 1819, conveying to Christian Wilt the said 640 acres, it being the O'Carroll tract, and authorizing said Wilt to locate the said certificate 150 issued to said O'Carroll, or his legal representatives. 8th. The location of said certificate and a survey made thereof by Joseph C. Brown, deputy surveyor of the United States, in April, 1818, which survey was not returned to the recorder of land titles till the 10th day of August, 1841. 9th. Deed of trust dated 26th day of October, 1822, made by Joseph Hertzog, conveying to Robert Wash said 640 acres of land located by said Wilt, in trust to pay a debt which said Hertzog owed to one Devotion. 10th. Deed from said Wash, as trustee, dated 27th day of November, 1824, conveying to Pierre Chouteau, father of the plaintiff, sixty-four acres, part and parcel of said tract of 640 acres located by said Wilt. 11th. Sheriff's deed acknowledged May 27th, 1825, and recorded in St. Louis county June 27th, 1825, conveying to Henry Clay all the interest of Joseph Hertzog in said 640 acres located by said certificate No. 150. This sale was made to satisfy an execution which issued upon a judgment obtained by said Clay as executor of William Morrison. 12th. Deed from Henry Clay, acknowledged the 11th day of October, 1839, conveying the said 640 acres of land to Anne McRee, James F. McRee and Samuel McRee. 13th. Deed from Anne McRee, James F. McRee and May, his wife, conveying to Samuel McRee their interest in said land. 14th. Deed from Samuel McRee and wife, acknowledged October 31st, 1839, and recorded November 8th, 1839, whereby he bargained, sold, released and quit-claimed to Pierre Chouteau sixty-four acres, part of the tract located under the New Madrid certificate issued to James Y. O'Carroll, or his legal representatives. 15th. Deed from Charles S. Hempstead, as guardian of George W. Wilt, dated 10th day of September, 1821, (the said Christian Wilt having died previous to that time leaving the said George as his only heir), conveying to Joseph Hertzog the 640 acres of land located by said certificate No. 150. This deed was made in pursuance of a decree rendered by the St. Louis county circuit court in a suit instituted by said Hertzog in which he set up that the right acquired by Christian Wilt to the said 640 acres of land was acquired with partnership funds, and prayed that said Hempstead should be directed to convey to him, as surviving partner of Christian Wilt, the said land. 16th. Decree of the St. Louis circuit court in a chancery suit instituted by Henry Clay against the heirs of Christian Wilt and Joseph Hertzog, and Robert Wash, vesting against the parties named the title in the said land.

After setting out the above chain of title, it is then averred that said Samuel McRee, on the 23rd day of March, 1844, filed his bill in chancery in the circuit court of St. Louis county, against the heirs of Wilt, the object of it being to have vested in him the legal title to the said land located under the said certificate No. 150. It is then averred that he founded his claim to the relief he asked on the deed from Henry Clay to Anne McRee, James F. McRee and Samuel McRee, and on the deed from said Anne McRee and James F. McRee and wife to the said Samuel. It is also averred that such proceedings were therein had, that a decree was made, vesting all the right, title and interest of defendants in and to the said 640 acres in said Samuel McRee. It is then averred that the deed of said Samuel, acknowledged in October, 1839, conveying sixty-four acres of the said 640 acres to Pierre Chouteau operated as an equitable assignment to said Pierre of so much of said certificate No. 150 as covered said sixty-four acres, and that the title secured by said Samuel by virtue of the said decree, to the extent of the said sixty-four acres enured to the benefit of said Chouteau and invested him in equity with the title thereto. It is then averred that said Chouteau entered into the possession of said sixty-four acres in 1824, and remained uninterruptedly in possession till 1860, with the knowledge of said McRee and Gibson. It is then averred that said McRee died in 1849, leaving a will, in which he devised all his estate to Mary McRee, his widow. It is also averred that the patent which issued in 1862 to said Mary McRee, as the legal representative of J. Y. O'Carroll, to the 640 acres located by said certificate 150, in so far as it covered the sixty-four acres in controversy, was issued in fraud of plaintiffs' rights and was procured to be issued by the covin and fraud of said Mary and Gibson, and that said Gibson held the sixty-four acres, part of said tract, conveyed to him by Mrs. McRee, in trust for plaintiffs and to their use, and asks the court so to decree upon final hearing.

Defendant Gibson, in his answer, after denying specifically the allegations in the petition, set up in bar of plaintiffs' action, that he commenced a civil action in the St. Louis land court, in September, 1862, against Pierre Chouteau, (and afterward continued it against these plaintiffs, his devisees,) to establish his title and recover possession of the said sixty-four acres; that said Chouteau and others put in issue, and set up, and had the benefit of the same claim to the equitable right or title that is set up and relied upon in their petition, that the same issue as to the equitable title was involved in that suit which is involved in this suit; that judgment was rendered for the plaintiff by the said land court, which, on appeal to the Supreme Court, was affirmed, where, upon a consideration of the same documentary evidence in that case, which plaintiffs now set up in their petition, it was adjudged that said Chouteau had neither legal nor equitable claim to said sixty-four acres of land. This defense is set up at great length and with great particularity in said answer, but it is substantially as above stated.

To this answer a replication was filed, putting in issue the new matter therein stated.

Upon the trial plaintiffs put in evidence all the deeds and documentary evidence set out in the petition (and referred to in our statement of the case) in support of his equitable claim; and defendant Gibson, in support of his plea of res judicata, put in evidence the record of the suit of Gibson v. Chouteau et al., commenced in the St. Louis land court in 1862, the transcript of the record of said cause upon the appeal from the judgment of said court, transcript of record of the cause on appeal to the Supreme Court of the United States, and also the briefs and argument of counsel. The first question, therefore, which the record before us presents is, whether or not the equitable claim, right and title set up in plaintiffs' petition was passed upon in the said suit of Gibson v. Chouteau, commenced in the St. Louis land cour...

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