Blair v. Marks

• Decision Date: 31 October 1858
• Citation: 27 Mo. 579
• Parties: BLAIR, Respondent, v. MARKS et al., Appellants.
• Court: Missouri Supreme Court

27 Mo. 579

BLAIR, Respondent,

v.MARKS et al., Appellants.

Supreme Court of Missouri.

October Term, 1858.

1. The fifty-sixth section of the act of July 4, 1807 (1 Terr. Laws, p. 138), authorized the sale, under the order of the general court, of an intestate's estate for the payment of his debts, although he left no lawful issue.

2. The administrator was, in the case of such a sale, authorized to make a deed to the purchaser.

3. After the lapse of forty or fifty years from the date of such a sale, proof of the advertisements and other prerequisites of a legal sale could not be insisted on.

4. Where a party's acts are given in evidence, he may give in evidence, in rebuttal, other acts which are a part of, or connected with and explanatory of, those previously used against him.

Appeal from St. Louis Circuit Court.

This was an action of ejectment to recover a piece of ground at the southeast corner of Main and Bates streets, in the city of St. Louis. Both parties claimed title under Pierre Chouteau. The plaintiff, for the origin of his title, relied on a deed made by Chouteau to Merriwether Lewis, in 1810. The defendants deduced title under a deed from Chouteau to Frederick Bates in 1815. The great question in dispute was the true position of the division line between the Lewis and Bates tracts. This question can be fully understood by examining the report of the case of Evans v. Greene, 21 Mo. 170, and the diagrams contained in that report. If the location of the Lewis tract should be established as marked out by the red lines of the diagram No. 1, the land in dispute would be brought within the Lewis tract.

The court gave the following instruction to the jury of its own motion: “The deed of Chouteau to Lewis having been made on the 3d of August, 1808, the jury must regard Chouteau's claim as it existed at that time; and if his southwest corner was then understood by him and Lewis to be westward of his southwest corner, as it was subsequently fixed by the United States survey, the jury must take it to have been at the place where it was then understood by the parties to be, in ascertaining what land he conveyed to Lewis.”

The following instructions were given at the instance of the defendants: “1. The court instructs the jury that the plaintiff claims title under Merriwether Lewis, and if the land in controversy lies outside of the tract conveyed by Chouteau to Lewis, the plaintiff cannot recover in this action. 2. If the jury find from the evidence that in 1808 there was known, or existed, a line which would answer to the description given in the deed from Chouteau of ‘the line separating the town lots from the lots which have been granted for cultivation,’ then the point in Roy's upper line, which was the beginning point in the description of the Lewis tract, is to be found at the distance of forty-five perches from that separating line, whether the southwest corner of Chouteau's survey be in that line or not. 3. If the jury believe that Risdon H. Price located his tract, acquired from Lewis' administrator, in such manner that the southeast corner thereof was west of Main street, they will regard such location by Price as a practical construction by him of the deeds under which he claimed title; and, if the location of that tract is not otherwise attainable, that practical location will be deemed to be the true one as against Price and those claiming under him. 4. In ascertaining the position of a tract of land conveyed by deed, the highest, and as a general rule the controlling, proof on the subject is the description of its position given by the parties themselves in the deed; and in determining what the parties meant by that description, the jury will pay greater regard to calls for known or ascertained lines or corners, than to calls for the courses of lines and their lengths. 5. If the jury find that Price, while the proprietor of the Lewis tract, in 1817, and Bates, his adjoining proprietor, caused the eastern line of said tract to be established, fixing the same west of the eastern line of the present Main street; that, contemporaneously with such establishment of the eastern line of the Lewis tract, Bates, Smith and Lisa, being proprietors of the adjoining land, with the knowledge and acquiescence of Price, laid out the land east of Main street into an addition to the town, subdividing the same into lots, and selling said lots from time to time to different persons; that for more than fourteen years after the laying out of such addition, neither Price, nor any one under him, laid claim to any part of such addition as being within the Lewis tract; and that the land now in controversy is part of such addition, and is held by the defendant under said Bates, Smith and Lisa, then the plaintiff claiming under Price cannot recover in this action. 6. The jury are instructed that, although in the description contained in the deed from Chouteau to Lewis the quantity of area mentioned is of least authority as a descriptive call, yet, if the jury are in doubt as to the proper location of the tract by all the other calls, they may resort to the call for quantity to assist them in determining the proper location of the tract.”

The following were given on the motion of the plaintiff: “1. If the premises in question are included in the sheriff's deed to Darby, and in Darby's deed to Evans, and Evans' deed to Greene, and his to the plaintiff, and said deeds are genuine, and the title to said premises was in Risdon H. Price at the date of the judgment, execution and levy described in said sheriff's deed, then the plaintiff is entitled to recover, unless the jury should find the facts to be as set forth in instruction No. 5. The rules of location are, 1st, natural boundaries; 2d, artificial marks; 3d, adjacent boundaries; 4th, course and distance; but though these are general rules, they are not inflexible; but an inferior means of location may control a higher, when it is plain there is a mistake. The evidences of location are resorted to in their order, unless it appear from other satisfactory evidence that there is a mistake. 2. A diagram or plat annexed to a deed, and referred to in said deed as describing the premises therein mentioned, is a part of said deed, and must have the same force as if the description on said plat was contained in said deed. 3. The jury are instructed that they are not to regard the eastern line of the land, as conveyed by Post to Bates by deed given in evidence by the defendants, as evidence showing the location by Price of the lines of the Lewis land, unless they find from the evidence that said line was adopted by Price. 4. If the jury find that the tract conveyed by Price to O'Hara, in 1820, cannot be located in the southeast corner of the Lewis tract, without disregarding the courses and bearings of the lines of said tract, as described in the plat accompanying the deed from Price to O'Hara, nor without violating the northern boundary and western boundary as contained in said deed, and the true position of the mounds as then known, they will disregard the words of the general description...