Baird v. St. Louis Hospital Association

• Court: Missouri Supreme Court
• Writing for the Court: Black, C. J. --
• Citation: Baird v. St. Louis Hospital Association, 22 S.W. 726, 116 Mo. 419 (Mo. 1893)
• Decision Date: 06 June 1893
• Parties: Baird, et al., Appellants, v. St. Louis Hospital Association

22 S.W. 726

116 Mo. 419

Baird, et al., Appellants, v. St. Louis Hospital Association

Supreme Court of Missouri

June 6, 1893

Appeal from the St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Henry H. Denison for appellants.

(1) Defendant admits title of plaintiffs' ancestor. It cannot then dispute that title, nor question the confirmation of the old board of commissioners, or its character, nor the authorized survey thereunder. Brown v. Brown, 45 Mo 412; Boyce v. Papin, 11 Mo. 16; Archer v Bacon, 12 Mo. 149; Ehrhardt v. Hogaboom, 115 U.S. 67. (2) The old board of commissioners, in approving the confirmation, declared that it should be surveyed according to the seventh section of the act of congress of March 3, 1807, and that the survey must conform to a possession. This was both to prevent interferences and to segregate the tract from the domain of the king; in other words, to give it a definite location and boundaries. It was thereby excluded from the operation of the act of June 13, 1812. Vasquez v. Ewing, 42 Mo. 247; Le Beau v. Armitage, 47 Mo. 138; Le Beau v. Armitage, 56 Mo. 191; Gurno v. Adm'r of Janis, 6 Mo. 330; Le Beau v. Garvin, 37 Mo. 556; Guitard v. Stoddard, 16 How. 511; U. S. v. Lawton, 5 How. 28; Tayon v. Ladew, 33 Mo. 208; Page v. Scheibel, 11 Mo. 183; Papin v. Hines, 23 Mo. 279; Carondelet v. St. Louis, 1 Black, 189; Dredge v. Forsyth, 2 Black, 569. (3) There is no bar to plaintiffs' action by the statute or limitations. Miller v. Dunn, 52 Mo. 216; M'Ilhenney v. Ficke, 61 Mo. 329; Gray v. Burgess, 16 How. 65; Magwire v. Tyler, 8 Wall. 665; Gibson v. Chouteau, 13 Wall. 103. (4) A new survey, and its approval by the proper authority, operates as a disappoval of an earlier survey for the same tract. Snyder v. Sickles, 98 U.S. 203; Magwire v. Tyler, 8 Wall. 665; 1 Black, 195. (5) The sheriff's deed to A. E. Reilhe has neither seal nor acknowledgment, does not purport to convey the property described in the petition, was in pursuance of a sheriff's sale under an execution made after the return day of the execution, and is void. Allen v. Moss, 27 Mo. 354; Ryan v. Carr, 46 Mo. 483; Allen v. King, 35 Mo. 217; Adams v. Buchanan, 49 Mo. 64; Hammond v. Coleman, 4 Mo.App. 307; Speck v. Wohlein, 22 Mo. 310; Miller v. Powell, 53 Mo. 252. (6) The defendant, having based its title upon a sheriff's void deed, the court will not presume that Reilhe ever had a valid deed from Baird. Allen v. Moss, 27 Mo. 354; Reaume v. Chambers, 22 Mo. 53; Brown v. Brown, 45 Mo. 412. (7) There is no evidence that the tract in dispute had an existence as such, under the former government, with a definite location and boundaries.

E. T. Farrish for respondent.

(1) The act of congress of June 12, 1812, acted on the confirmation in favor of John Coons and clothed him with a complete legal title at that date. Ryan v. Carter, 93 U.S. 78; Langdeau v. Hanes, 21 Wall 523; Morrow v. Whitney, 95 U.S. 531; Palmer v. Low, 98 U.S. 17; Whitney v. Monrow, 112 U.S. 695; Tripp v. Spring, 5 Sawyer, 209, 216; United States v. Land Grant Co., 26 F. 120. (2) The lot here in question was not part of the public domain, which vested in the United States absolutely, but was a lot to which the rights of a citizen had attached during the Spanish and French possession of the country, and which, under the treaty between this government and France, under which the territory of Louisiana was ceded to the United States, this government was bound to maintain and protect. (3) When a lot confirmed has such definite boundaries as to locate it, no survey is necessary, and the statute of limitations applies. Aubushon v. Ames, 27 Mo. 89; St. Louis University v. McCune, 28 Mo. 481; McCune v. O'Fallon, 32 Mo. 13; 18 Howard, 412; 8 Wallace, 660. (4) The defendant, and those under whom it claims, having entered under Coons and Baird, under deed from the latter, which gave color of title, the adverse possession which they have held and maintained to the lot not only constituted a complete defense, but such possession vested in defendant the complete title of said Baird, or his heirs, and their assigns, as fully as though defendant had acquired it by deed. Biddle v. Mellon, 13 Mo. 335; Blair v. Smith, 16 Mo. 273; Warfield v. Lindell, 38 Mo. 578; Nelson v. Brodhack, 44 Mo. 600; Wall v. Shindler, 47 Mo. 282. (5) The sheriff's deed of July 13, 1812, recites the confession of judgment by Baird in that year, and it is a fair presumption that he was present at the time of the sale and acquiesced in the sale. He returned in 1821 or 1822, and must have known that parties claiming under said sheriff's sale were in possession, and yet he made no claim, at least there is no evidence that he did.

Black C. J. Barclay, J., not sitting.

OPINION

In Banc

Black, C. J. --

This was an action of ejectment commenced in 1875, to recover a parcel of land in the southern part of block 80 in the city of St. Louis. The record discloses the following facts:

Samuel Solomon by his deed, dated the seventeenth of July, 1804, conveyed to John Coons the following property in the town of St. Louis; that is to say, "a lot of ground one hundred and twenty feet of front upon three hundred feet in depth situate in the Third street of this town, bounded on the southern side by a lot of Louis Baury, on the north by the land of a free mulatress named Esther and behind by the Domain of the King, upon which lot there is a farm house of twenty-five feet of depth by fifteen of width, which the said purchaser acknowledges to have seen and visited." This deed states that Solomon was an inhabitant of the town of St. Louis and that Coons was to be placed in immediate possession.

On the eighteenth of March, 1811, John Coons conveyed the lot to James Baird, describing the premises as "a certain town lot situate in the town of St. Louis, consisting of one hundred and twenty feet in front by three hundred feet in depth, bounded easterly by Third street * * * westerly by the vacant land, northerly by Louis Baury and southerly by a cross-street which separates it from the free mulatto woman, Esther." This deed sets forth by way of recitals that the lot thereby conveyed is the same lot which was conveyed on the eleventh of October, 1795, and on the fifteenth of November, 1798, giving the names of the grantor and grantee in each case, and by a deed from one Vien to Solomon, dated seventeenth of December, 1802, and it also recites the deed from Solomon to Coons, before mentioned, dated seventeenth of July, 1804.

On the tenth of June, 1811, the old board of commissioners granted to Coons the following certificate numbered 938:

"We the undersigned commissioners for ascertaining and adjusting the titles and claims to lands in the Territory of Louisiana, have decided that John Coons, claiming under Samuel Solomon, original claimant, is entitled to a patent under the provisions of the second section of an act of the congress of the United States, entitled 'An act for ascertaining and adjusting the titles and claims to land within the territory of Orleans and the District of Louisiana, passed the second of March, 1805, for one hundred and twenty feet by three hundred of land situate in the district of St. Louis, town of St. Louis, and order that that the same be surveyed conformably to the possession of Samuel Solomon. By virtue of a permission from the proper Spanish officer, and also of actual inhabitation and cultivation, prior to and on the twentieth day of December, 1803."

It may be stated here, as part of the history of this case, that the defendant put in evidence two surveys made by the deputy surveyor in 1835, and designated as surveys 305 and 306. Survey 305 covers 128 feet on Third street, extending west toward Fourth street 160 feet, and does not include all of the ground mentioned in certificate 938 before mentioned, issued by the old board of commissioners on the tenth of June, 1811. This survey was approved by the surveyor general on the eleventh of December, 1861; but on the sixteenth of May, 1862, he made a note thereon to the effect that the survey was erroneous in this, that it should extend west to Fourth street. Survey 306 covers 95 feet by 300 feet, and purports to be a survey of a lot or parcel of land confirmed to Samuel Solomon's legal representatives by the act of congress of thirteenth of June, 1812, "the extent and boundaries of which were proven before Recorder Hunt on the twenty-sixth of November, 1825, pursuant to the act of twenty-sixth of May, 1824." Besides these two surveys put in evidence by the defendants, the plaintiffs put in evidence a survey made in 1874, which was approved by the surveyor general. This survey was made at the request of the plaintiffs for the purpose of correcting survey 305 and of making it correspond with certificate 938 issued by the old board of commissioners. It covers a strip of land 128 feet 4 inches wide, extending from Third street west to Fourth street, a distance of 335 1-2 feet and is bounded south by Almond street.

The plaintiffs in this suit are the heirs and grantees of the heirs of James Baird to whom Coons conveyed the property by the deed before mentioned. The defendant put in evidence a sheriff's deed dated the thirteenth of July, 1812, which professes to convey all the interest of James Baird to one Reihle; also various other deeds constituting a chain of title down to the defendant. All parties, it will be seen, claim under James Baird.

The sheriff's deed was not acknowledged, and for that reason did not convey the interest of Baird. Though invalid as a conveyance, it is good as color of title; and according to the abstracts of the evidence before us, it was admitted on the trial that the defendant and those under whom...