Berthold v. McDonald

• Decision Date: 31 October 1856
• Citation: 24 Mo. 126
• Parties: BERTHOLD et al., Plaintiffs in Error, v. MCDONALD et al., Defendants in Error.
• Court: Missouri Supreme Court

24 Mo. 126

BERTHOLD et al., Plaintiffs in Error,

v.MCDONALD et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1856.

1. Where there are two confirmations under the act of Congress of March 3d, 1807, upon successive days, of the same tract of land to different claimants, the superiority of either title must be determined by the relative merits of the two titles as they stood before the confirmations.

2. A confirmation of a Spanish claim under the act of Congress of March 3d, 1807, is not rendered void by reason of the fact that the person in whose name said claim was presented for confirmation, and to whom it was confirmed, had died previously to its presentation for confirmation; the confirmation will enure to the benefit of his legal representatives.

Error to St. Louis Land Court.

This was an action in the nature of an action of ejectment. Plaintiffs assert title to a tract of two by forty arpens under a confirmation by the old board of commissioners to Charles Gratiot. Defendants claim under a confirmation by the same board to one Jeannette. The following facts appeared upon the trial: Charles Gratiot, claiming a tract of two by forty arpens, situated in the Prairie des Noyers, as assignee of Jeannette Floré, presented his claim for confirmation under the act of Congress of March 3d, 1807. He produced before the board a report of a survey of said two by forty arpens, made in 1788 for one Jeannette; also a deed of transfer of said lots, dated June 11th, 1805, purporting to have been executed by Jeannette Floré. The board on the 19th of November, 1811, confirmcd said lots to Gratiot and ordered them to be surveyed conformably to his possession. A claim to said tract of two by forty arpens was filed, in the name of Jeannette, with the recorder of land titles, prior to the filing of the claim of Gratiot. On the 20th of November, 1811, the board confirmed the said tract to Jeannette. These confirmations were made under the second section of the act of Congress of March 3d, 1807. Evidence was introduced in behalf of defendants, tending to prove that the person named Jeannette, in whose name said tract was confirmed on the 20th of November, 1811, as above stated, was a free negress, who lived in the town of St. Louis, and died there, either before or just after the change of government in the year 1803, leaving one child, Susanne Jeannette; that said Jeannette, and she alone, possessed and cultivated said tract under the Spanish government; that she was never known by any other name than simply Jeannette; that there was not in and about St. Louis, in or before the year 1805, any woman named Jeannette Floré; that there was a woman named Marie Floré, who owned a tract in the Prairie des Noyers of one-half an arpent in front by forty arpents in depth, which lay to the south of and was distinct from the premises in dispute; that neither any person named Jeannette Floré nor the deceased Charles Gratiot, nor any person claiming under him, had ever cultivated or possessed the tract of which the premises in dispute are a part. Gratiot died April 20th, 1817. Previous to his death the deed which had been made to him in the name of Jeannette Floré, and which had been recorded in 1805, was again recorded with a correction which had been made on the 30th of March, 1817; which correction is made under the hand and seal of Florence Floré; and by it she acknowledged that by error in said deed she had been named Jeannette Floré, and that she had executed the deed to Gratiot on the day of its date for the purposes therein contained. Defendants also introduced in evidence a deed of indenture, dated January 13th, 1819. This deed was executed by Florence Floré and by J. P. Cabanne, administrator, and by Victoire Gratiot, widow and administratrix of Charles Gratiot. It recited that there was an error in the deed of June 11th, 1805, in respect to the “quantity of land sold, the situation, limits, and description of said land, as well as in the name of the said Florence Floré.'DD' The deed then proceeds to annul the deed of 1805, and conveys to the heirs and legal representatives of Charles Gratiot, deceased, the tract of one-half by forty arpens in the Prairie des Noyers, situate two and a half arpens south of the Jeannette lot. This tract of one-half by forty arpens was sold in the year 1820, under judicial order, by the administrators of the estate of said Charles Gratiot, and the proceeds appropriated and applied as part of the assets of his estate.

The court, on the motion of defendants, instructed the jury as follows: “If the jury find from the evidence that the tract of land confirmed to Jeannette by the board of commissioners includes the land in controversy, and is the same land which was surveyed for Jeannette by the authority of the Spanish government; that the said Jeannette and those acting for or under her were the only persons who inhabited, cultivated or possessed the said tract prior to the 20th of December, 1803; that the person who executed the deed in the name of Jeannette Floré and filed by Charles Gratiot with the recorder of land titles as one of the evidences of his claim, is not the person for whom the survey of said tract of land was so made, but another and a different person, and that she cultivated and possessed, prior to 20th December, 1803, another and different tract of land in the same common field, surveyed for her by authority of the Spanish government in the year 1788, embracing no part of the land in controversy--the jury ought to find for the defendants.” This was the only instruction given.

The following instructions asked by the plaintiffs were refused: “1. If the jury find that Jeannette was dead before the time of filing the claim in her name with the recorder, then the confirmation to her individually was void, and neither the confirmation nor claim can have any effect on the rights of the parties in this case. 2. The confirmation of the tract, of which the land in controversy is a part, to Charles Gratiot, is in law conclusive as to two facts; first, that he was the true and proper assignee of Jeannette Florè by the deed under which he claimed the land before the board of commissioners; and, second, that he had the oldest and best claim to the land as against every other claimant under the Spanish government. Any subsequent confirmation of the said tract to another person could not defeat that made by Gratiot. 3. The tract confirmed to Charles Gratiot on the 19th of November, 1811, was the same tract described in the Spanish survey for Jeannette, filed and recorded with his claim.”

Drake and Field, for plaintiffs in error.

I. The first confirmation, in point of time, was to Gratiot, and the plaintiffs claiming under him had the elder and better title. (Strother v. Lucas, 12 Pet. 410; Bissell v. Penrose, 8 Howard, 317; Landis v. Brant, 10 Howard, 348; Lebois v. Bramell, 4 Howard, 449; Chouteau v. Eckart, 2 Howard, 344.)

II. There was no power in the court below to correct any error on the part of the commissioners in giving the confirmation to Gratiot. Such a power has always been disclaimed by the courts of the United States. Much less ought such a power to be exercised by a state court. (See cases above cited and Blane v. Lafayette, 11 Howard, 112; 3 Howard, 720; Burgess v. Gray, 16 Howard, 48.)

III. The confirmation to Jeannette (she being dead before any claim made, and in fact before the creation of the board of commissioners) was a nullity. In the case of the death of a claimant during the pendency of the claim before the board, the doctrine of relation will make the confirmation good. So it is understood to have been held, that a claim presented by a living person on behalf of the estate of one deceased is sufficient. But in thls case the claim seems to have been made in the name of a person who did not exist when it was made....