Bogy v. Shoab

• Decision Date: 31 March 1850
• Citation: 13 Mo. 365
• Parties: LOUIS V. BOGY v. JACOB D. SHOAB & CHAS. COLLINS.
• Court: Missouri Supreme Court

13 Mo. 365

LOUIS V. BOGY

v.JACOB D. SHOAB & CHAS. COLLINS.

Supreme Court of Missouri.

March Term, 1850.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

[13 Mo. 627]

This was an action of ejectment brought by the plaintiff against the defendants in error in the St. Louis Court of Common Pleas, to recover a lot of ground in the city of St. Louis, within United States survey No. 671, for Pierre Chouteau. A judgment having been rendered in favor of the defendants, the plaintiff prosecutes his appeal. The questions presented by the record depend upon the construction of deeds and other documents given in evidence at the trial, and will be most readily understood by stating the material parts of these instruments in the order of their dates.

On the 16th of October, 1799, there was granted to Pierre Chouteau, by the ““Lieut-Governor,” a piece of land, bounded north by the line of Mr. Labeaume's tract (now survey 181), east by the river Mississippi, and west by the domain of his majesty--the said land running on the hights and at the distance of six arpents from the river. The surveyor, Don Antonio Soulard, was directed to put the grantee in possession, and deliver to him a certificate thereof. The order was executed--a survey made on the 10th March, and the plat certified on the 18th June, 1803. The survey was made without regard to the variation of the needle, and contains 133 arpents. That survey is represented on a connected plat given in evidence at the trial, exhiting the location of Labeaume's tract on the north of Roy, Eglij and others on the south, and the common fields on the west. By reference to the connected plat, it will be seen that the south line of the Spanish survey, being the north boundary line of Roy and Eglij, surveys No. 181 and 1416, does not extend to the east line of the common fields by one arpent or more, and that the west line crosses the east boundary of the common fields, and includes about eighteen and a quarter acres of the common fields. The north line corresponds with the south boundary of Labeaume's tract, survey No. 2974. It appears by the records of the board of commissioners that Pierre Chouteau, in due time presented his claim, under the concession and survey, to the board, and that on the 9th January, 1809, the claimant relinquished 39 arpents and 39 perches of the land claimed, which interferes with land already surveyed, leaving the quantity at present claimed, 93 arpents and 1 perch.

On the 17th February of the same year, the board, after rejecting an interfering claim by Jacques Clamorgan, assignee of Esther, a mulattress, unanimously confirm to Pierre Chouteau, 93 arpents and one perch, and order them to be surveyed, so as not to interfere with the field lots of the little prairie of the town of St. Louis.

On the 29th May, 1811, the commissioners ordered the survey to be made at the expense of the United States, and on the same day issued a certificate of confirmation and order of survey (No. 671), according to the decision.

[13 Mo. 628]

While the claim was pending before the board, Pierre Chouieau and wife, by deed bearing date the 3rd August, 1808, acknowledged and recorded the same day, conveyed to Merriwether Lewis, in fee, “a tract of land adjoining the town of St. Louis, bounded as follows: commencing at a stone in Antoine Roy's upper line, thence running south 67 deg. 30 min. west forty-five perches, to a stone in the line separating the town lots from the lots which have been granted for cultivation, thence north 21 deg. 30 min. west seventy-two perches, to a stone in said line, thence northeastwardly forty-five perches, to a stone, thence sixty-five perches, to the beginning, containing thirty arpents and ninety-three perches (French measure) in superficie.” This deed contains a covenant against all claims (except of the United States, and a special covenant to defend the consideration money $248), if the claim should not be confirmed by the commissioners.

On the 24th December, 1810, Pierre Chouteau and wife, by deed of that date, conveyed to William C. Carr, in fee, “a certain tract or parcel of land, lying and being in the district of St. Louis, about twelve arpents north of the town of St. Louis, bounded as follows, to-wit: Beginning on the bank of the river Mississippi, at the corner of Mary P. Leduc's tract, and running westerly six arpents in depth, to a stone, thence northerly five arpents and three quarters of an arpent, to a stone, thence easterly six arpents, to the bank of the Mississippi river, and thence with the meanders of said river, to the beginning; said tract containing about thirty-four arpents and a half, being a part of a larger quantity granted to the said Pierre Chouteau by a concession from Charles Dehault Delassus, Lieutenant-Governor, &c.--the 16th October, 1799.” This deed contains a covenant of general warranty--it was acknowledged and recorded the 27th September, 1817.

On the 30th November, 1815, Pierre Chouteau and wife, by deed of that date acknowledged the same day and recorded the next day, conveyed to Frederick Bates, in fee, free and clear of all incumbrances whatever, “a certain tract or parcel of land, containing twenty-one arpents, French superficial measure, be the same more or less, situate, lying and being about twelve arpents north of the aforesaid town of St. Louis, bounded as follows, to wit: eastwardly by the river Mississippi, and southwardly by a tract of one arpent fronting on said river, belonging to the said Pierre Chouteau, sold to Merriwether Lewis, and the field lots or road, if any there be, between the said field lots, and the aforesaid bargained premises, and northwardly by land which the said Pierre Chouteau sold to William C. Carr,” it being a part of a larger quantity granted to the said Chouteau by the concession of 16th October, 1799, and surveyed 10th March, 1803, as bofore mentioned.

The United States survey, No. 671, purported to have been made in conformity with the confirmation to Chouteau, was returned on the 2nd April, 1817. It corresponds with the Spanish survey in the southern and part of the western boundary. It excludes not only all the Spanish survey within the common fields but also about thirteen acres adjoining the southern line of Labeaume, as appears by the connected plat certified be the surveyor general.

On the 10th of August, 1817, Pierre Chouteau and wife by deed of that date, conveyed to Manuel Lisa, a cortain piece of land situate north of the town of St. Louis, bounded and limited as. follows, to-wit: south by lands belonging to Madame Veuve Roy; north by that of Mr. Frederick Bates; west by land formerly owned by (the grantee) sold to Merriwether Lewis: east of the Mississippi “for the said Manuel Lisa, his heirs and assignees, to enjoy in full property, and as a thing to him belonging, the piece of land contained between the lines above described, without the quantity being exactly fixed.” This deed contains a covenant against incumbrances, and was acknowledged on the day of its date, and recorded the 23rd August, 1817.

Pierre Chouteau and wife, by deed dated, acknowledged and recorded 22nd September, 1818, conveyed to Auguste P. Chouteau in fee, a parcel of land, situate “at a place called Lagrange de Terre, in the county of St. Louis, north and near the town of St. Louis, containing twenty arpents in superficie, and bounded on the south by land which the grantors had sold to William C. Carr; east by river Mississippi; west by the forty arpent lots, and north by land which the said Pierre Chouteau acquired of Joseph Brazeau, and the ditch of the land formerly belonging to Louis Labeaume, and in which aforesaid twenty arpents, or more, if it shall be found there, is included all the mound called the Lagrange de Terre, which parcel of land above sold, being the part

[13 Mo. 629]

the most north, and the residue of the concession which was granted to said Chouteau by M. Charles Dehault Delassus, former Lieut-Governor, 16th October, 1799, and surveyed by Soulard, 10th March, 1803.” This deed is made in consideration of $500, and contains a covenant of warranty against incumbrances and all claims whatsoever.

Auguste P. Chouteau, the grantee in the last deed and his wife Sophie Labadie, had entered into a marriage contract previous to their marriage--which contract was given in evidence and bears date the 15th of February, 1809, was executed before a notary and in the presence of the parents and friends of the contracting parties and was recorded on the day of its date in the office of the recorder of St. Louis county. It was formally proved by a subscribing witness on the 21st March, 1838 and again filed for record, and recorded the same day--this instrument after reciting the engagement of its principals and the consent of the parents, provides that after the celebration of the marriage, the future husband and wife shall be one and common, in all property movable and immovable, acquisitions, purchases and things of their own, which they may have acquired during the community which shall be regulated according to the laws. It is then declared that the future husband brings into the community, which is to be established, one thousand dollars, and on the part of the future wife, Pelagie Chouteau, widow Labadie, her mother, gives as a dowry to said future husband, for the benefit always of the future wife, $2,973 18 3/4 in shaved deer skins at 2 1/2 pounds to the dollar, for her part of the succession of Sylvester Labadie.

The future husband then promises to give to the future wife on the day of the nuptial benediction, one thousand dollars to dispose of at her pleasure--which donation shall nevertheless belong to the children which may be born of the marriage; and the future wife shall have the right in renouncing to said community to take back all that she may have brought to said marriage, and that which may come to her by legacies, successions, donations or otherwise, even the thousand...