Bird v. Montgomery

• Citation: 6 Mo. 510
• Parties: BIRD v. MONTGOMERY.
• Decision Date: 30 September 1840
• Court: United States State Supreme Court of Missouri

6 Mo. 510

BIRD

v.MONTGOMERY.

Supreme Court of Missouri.

September Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY.

BIRD, in propria persona. 1. That the title under the inhabitants of St. Charles is the better title. Arredondas' case, 6 Peters' R. 727; 10 Martin's R. 416, Baldwin v. Stafford. Act of 13th June, 1812, and letters of Clement B. Penrose and Thomas F. Riddick, 2 U. S. State Papers, pp. 446-7-8-9. 2. If this is not the case, the plaintiff's title under Giguare is better than that of the defendant under Piper. United States v. Perehoman, 7 Peters' R. from 86 to 91; Arredondas' case, 6 Peters' R. 735, 736; Smith v. United States, 10 Peters' R. 330, 331. 3. It was the custom of the Spanish government to grant to every established post, town, or village, land sufficient for commons; and these commons were held so sacred, that by law they were declared inalienable even by the King. Strother v. Lucas, 12 Peters' R. 440, 441; 10 Peters' R. 724-5-6-7, 731, 735-6-7. As to effects of a survey made prior to 10th March, 1804, see act of Congress of 1814; Geyer's Dig. p. 475, and our act of Ejectment. 4. This claim to commons was confirmed by act of 13th June, 1812, and whether it vested in the inhabitants of St. Charles a fee simple, or a mere usu-fructuary estate, it vested in them such a right as would enable them to maintain ejectment. 3 Mo. R. 303, 304, 308, 673; 5 Mo. R. 198; 3 Mo. R. 460. 5. The commons having been so confirmed, could not have been thereafter granted to another by Congress or the recorder. Arredondas' case, 6 Peters' R. 738, and the cases there cited. 6. Piper haying neglected to file and have recorded, before the 1st July, 1808, his notice, and the documentary evidence in support of his claim, his claim is forfeited, and no evidence can be here received in support of it against a grant from the United States; and no subsequent act of Piper, of Recorder Bates, or even of Congress, could so revive his claim as to affect the right of commons already confirmed. Acts of Congress of 1805, 1806, 1807, 1812, 1813, 1814. Geyer's Digest, 454, 459, 461, 462, 464, 470, 471, 474, 475. Also case of Strother v. Lucas, 12 Peters' R. 448, 449. The acts of Congress above referred to in every case (except in favor of those who were, at the time of filing notice, actual settlers on the land claimed), argue that notice should have been filed before the first day of July, 1808. The fact stated by Piper that he offered to file his notice, but the recorder refused to receive it, because unaccompanied by a plat of survey, furnishes no excuse for not filing his notice. The recorder acted as by law he should in refusing to record the notice. The act of 1806 repealed so much of the act of 1805 as required the notice to be accompanied with a plat and survey of the land claimed, and extended the time of filing notice. It was again extended to 1st July, 1808, by act of 1807. And after this no further time for filing notice was given except to those who were in 1812 actual settlers on the land claimed, and the record shows that Piper was not such actual settler, either in 1808 or 1812. Piper's notice not having been filed according to law, must be regarded as not filed at all. 7. The proceedings before the commissioner and the recorder, bear upon their face the most conclusive evidence of fraud on the part of Piper, and that Recorder Bates in reporting this claim as confirmed according to any law, acted most clearly under a mistaken view of his powers, and in manifest violation of the laws under which he acted, and as no patent has issued, courts of justice may look behind the confirmation, and determine who has the better title. Sackett v. Hooper, 2 La. R. 107; 4 La. R. 272; 5 La. R. 177; 7 Peters' R. 738, and the cases there cited. 8. Although it is admitted that neither the claim of plaintiff under Giguare, or the defendant under Piper, is good as against the commons, yet it does not lie in the defendant's mouth to dispute the title of Giguare under which he claims, and procured his confirmation. The claim of the commons aside then, the plaintiff has the better title under the original claimant. 8 Martin's R. 619. 9. The court erred in rejecting the evidence offered as appears by the bill of exceptions.

GAMBLE, for Appellee. First. The claim of plaintiff and defendant under the concession to Giguare: 1. That if the confirmation to Piper could be disregarded, then the plaintiff's claim under Giguare being an unconfirmed claim is barred. Section 4, act of 2nd March, 1805, in 2 Story's U. S. Laws, 967; 5th section act of 3rd March, 1807, in 2 Story's U. S. Laws, 1060; act of June 13th, 1812, Story's U. S. Laws, 1260; act of March 3rd, 1813, Story's U. S. Laws, 1807; act of May 26th, 1824, 3 Story's U. S. Laws, 1959. 2. The confirmation to Piper is conclusive on this title, being equivalent to a grant from the United States, against which this claim of plaintiff's cannot be set up. 12 Peters' R. 454. 3. The plaintiff objects to the notice filed as being without warrant of law. This cannot now be questioned. The boards constituted to act on these claims acted judicially, and no person can question their proceedings collaterally; and further, the notice so far as it was of any importance, is put beyond any question by the act of 1816, which confirms this claim as reported for confirmation, that is as the claim of James Piper

Secondly, we consider the titles as between the commons and the title under the confirmation to Piper. My positions under this second division of the contest are: 1. That no grant of commons has been found. 2. That no use or enjoyment of any specific land as commons has been found. 3. That the survey by Mackay is no legal designation of the claim to commons. 4. That the act of 1812 confirms no claims to commons but such as existed under the Spanish government. 5. That if commons existed under the former government in the inhabitants of St. Charles, it was in connection with other persons owners of property in the vicinity, and consequently the St. Charles part of the commoners could not alien any part of the land. 6. That if the right of common existed, it was an incorporeal right, and was distinct from the fee in the land. 7. That the sovereign, while such right existed, aliened the fee to the persons under whom defendant claims. 8. That if the right of the commoners was alienable, the alienee would only take the incorporeal right, and could not maintain ejectment for a disturbance. 9. That if the claim to commons is asserted as a grant by the act of 1812, then the Spanish law has nothing to do with it, and the rights under such grant are to be regulated by the common law. 10. By the common law, the plaintiff here, as claiming a right against the grantee of the government, has only the easement, and cannot bring an action of ejectment. Authorities on above points: 2 Partidas; Act of 28th Dec. 1832, authorizing the Trustees of St. Charles to sell the Commons; Act 26th March, 1804, § 14; 2 Story's United States Laws, 939.

NAPTON, J.

This was an action of ejectment, for 800 arpents of land, lying in the county of St. Charles. Judgment being against the plaintiff below, he appeals to this court. The Circuit Court found a special verdict, which sets out the following facts: In the year 1806, Edward Hempstead, as agent for the inhabitants of the town of St. Charles, filed a notice with the recorder of land titles of the claim of the inhabitants of said town to fourteen thousand arpents of land, as commons, which notice was recorded. This notice set forth their claim, as under a concession from Don Zenon Trudeau in 1797, and from Charles Dehault Delassus in 1801 and 1804. With this notice Mr. Hempstead filed and had recorded sundry documents: 1. A petition from Charles Tayon, dated 11th January, 1797, to the Lieut-Governor Trudeau for a tract of land fronting on the crooked swamp in the low prairie, and extending to the Missouri, adjoining on one side to Antoine Janis, and on the other side to lands not heretofore granted. 2. An answer of said Trudeau, which states that said land petitioned for “being in the vicinity of the village of St. Charles, and of various farms in the prairie of its dependency which would have to go a great deal further to procure wood, said tract shall remain, as well as all others adjoining, either in ascending or descending the Missouri, and which have been asked by sundry persons addressed to us by Mr. Tayon, to the Royal Domain, and for the common use of the said village of St. Charles, and for the lands already granted in the prairie, and to be granted hereafter; all which Mr. Tayon shall make known to the inhabitants, and especially to those who have asked for land and whose petitions I herewith return.” This letter was dated January 23, 1797.3. The proceedings of the villagers of St. Charles, at a solemn meeting at their government house, in which they resolve to enlarge their commons, and they fix the boundaries. Having determined this matter, it was further agreed, that it was proper that the result of their deliberations should be communicated to the Lieut-Governor, and that he be supplicated to preserve to the said inhabitants of St. Charles of Missouri, their upper and lower commons, in their whole and entire state, and they will bind themselves to enclose the same as they have done heretofore.” This paper was signed by all the inhabitants. 4. The answer of Charles Dehault Delassus, the then Lieut-Governor, is as follows: “St. Louis of Illinois, 26th February, 1801. All concessions and augmentations of property must be granted by the intendant of these provinces, on a petition, which is to be presented by those persons claiming lands; but if the common of the inhabitants of St. Charles is not sufficient for their cultivation, we do permit them provisionally to enlarge the same according to their wishes, without insuring to them the right of property,...