Brinley v. Forsythe

• Decision Date: 31 October 1878
• Citation: 69 Mo. 176
• Parties: BRINLEY et al., Plaintiffs in Error, v. FORSYTHE.
• Court: Missouri Supreme Court

69 Mo. 176

BRINLEY et al., Plaintiffs in Error,

v.FORSYTHE.

Supreme Court of Missouri.

October Term, 1878.

Error to Jefferson Circuit Court.--HON. LOUIS F. DINNING, Judge.

Thos. C. Fletcher for plaintiffs in error.

Edw. Branch Cowan for defendant in error.

NAPTON, J.

This suit was brought by plaintiffs on the 19th day of May, 1875, as representatives of Pierre Dorian, to recover part of survey 1303. In 1780 Lieutenant-Governor DeLeyba granted to Peter Dorian a tract of land on the Mississippi of four arpens on the river, and forty arpens deep, at the mouth of Little Rock Creek. Upon the death of Dorian, this land was conveyed in 1799 to Joseph Robideaux. Thus far there is no dispute. In the year 1800 a deed is produced, made before the Lieutenant-Governor DeLassus by Robideaux to Juan Arenton. This deed is signed by Joseph Robideaux and Jonathan Hillebran and by the Lieutenant-Governor, Joseph Hortiz, and P. Lafillard as witnesses, and recites that Arenton was present, though his name is not signed as grantee. The plaintiffs then read a certified copy from the office of the recorder of land titles on the 27th day of October, 1808, in which record of the board of commissioners, consisting of Lucas, Penrose and Bates, is a recital that Jonathan Hillebran, assignee of Joseph Robideaux, claiming 240 arpens of land, situate on Little Rock Creek, produces to the board a plat of survey by Soulard, dated 11th day of January, 1806, certified to have been received for record 25th day of February, 1806, a concession from DeLeyba for this land in March, 1780, to Dorian, and proof that Dorian inhabited and cultivated and claimed said land and died on it; and that claimant Hillebran inhabited and cultivated the land eight years before. On June 28th, 1810, the board confirmed this claim to the legal representatives of Joseph Robideaux. The plaintiffs then produced copies of surveys made by Soulard and Langham, the first made at the request of Jonathan Hillebran, who claimed the same as assignee of Joseph Robideaux. This survey was July 11th, 1806. The plaintiffs also produced survey 1303 by Langham made on April 1st, 1818, and declared to be for the legal representatives of Peter Dorian; then a conveyance from Jonathan Hillebran to Mathias Brinley dated 9th day of December, 1811, for the same 240 arpens at Little Rock Creek, certified by the magistrate to have been signed, sealed and delivered, though no seal appears; then patent certificate of the commissioner, dated 28th day of June, 1810, No. 394, to the legal representatives of Joseph Robideaux under Dorian. The plaintiffs then read in evidence the inventory of the land of Mathias Brinley made in July, 1823, which included this tract at the mouth of Little Rock Creek, fronting on the river six arpens, and running forty arpens west; bought of Jonathan Hillebran. The plaintiffs then gave evidence that Mathias Brinley resided on the Dorian survey at the time of his death in 1823, and had lived there for many years previous thereto; and that Brinley left five children, whose names were Elizabeth, Mary, Jacob, Mathias, Jr., and Michael; that Elizabeth married Wm. McMillan; that McMillan administered on the estate and resided on the land after the death of old Mathias; that he made his final settlement in March, 1828; that Jacob removed to Arkansas before the death of his father, and died in Texas in 1861, leaving the plaintiffs the only descendants of said Jacob. It was admitted that McMillan paid taxes on the whole Dorian survey up to 1828, and afterwards claimed and paid taxes on three-fifths of the survey up to 1846; that McMillan had bought the interests of Mathias, Jr., and Michael; that Mrs. Byrd, who was Mary Brinley, retained her interest, and on her death it descended to her heirs; and that in 1846 Skelton Richardson acquired all the title of McMillan and Mrs. Byrd's heirs, and claimed, and was in possession of the whole tract; that about 1849, John Eps Cowan acquired that part of said survey described in the petition by deed from Richardson; that said deed purported to convey the whole of said part, and to warrant the title, and Cowan went into possession, and defendant has acquired by intermediate conveyances the title of Cowan; that defendants' deeds are warranty deeds, and purport to convey the whole of said seventy arpens; that Brinley, before his death, and McMillan from 1828 and Richardson from 1847, and Cowan from 1849, and those under him since, have had possession and paid taxes on said seventy arpens, and since 1847 claimed the whole of it in fee simple, and all under the paper title derived from Hillebran through Brinley. The plaintiff claims only an undivided fifth of the land in controversy.

The evidence offered and read by defendant consisted of the same papers produced by plaintiff, including the deed from Robideaux to Arenton; defendant then read besides a confirmation by the old board dated December 6th, 1811, as follows: Friday, December 6th, 1811. Board met--present J. B. C. Lucas, Clement B. Penrose, Frederick Bates. Certificate 1303. John Herrington, assignee of Joseph Robideaux, assignee of Peter Dorian, claiming 240 arpens of land situate at Little Rock on the Mississippi River, district of St. Louis, produces a concession from Fernando DeLeyba, Lieutenant-Governor, to Peter Dorian, dated 31st day of March, 1780, record of a conveyance from Robideaux to claimant dated 24th day of May, 1800. A majority of the board, John B. C. Lucas, commissioner, dissenting, grant to the legal representatives of Peter Dorian 240 arpens of land, under the provisions of the 2d section of the act of Congress, entitled an act respecting claims to land, and passed 3d day of March, 1807, and order that the same be surveyed conformably to possession, survey at the expense of claimant. Board adjourned till Monday next, 9 o'clock a. m. Signed, John B. C. Lucas, Clement B. Penrose, Frederick Bates.

The defendant then read commissioners' certificate No. 1303, dated December 6th, 1811, as follows: “Commissioners' certificate No. 1303, December 6th, 1811. We the undersigned, commissioners for ascertaining and adjusting the titles and claims to land in the territory of Louisiana, have decided that Peter Dorian, original claimant, or his legal representatives, are entitled to a patent under the provisions of the 2nd section of the act of Congress, entitled ‘An act respecting claims to land in the territories of Orleans and Louisiana,’ passed the 3rd day of March, 1807, for 240 arpens of land situate in the district of St. Louis, Little Rock, on the Mississippi, and order that the same be surveyed conformably to possession. By virtue of ten consecutive years possession prior to the 30th day of December, 1803. Signed, J. B. C. Lucas, Clement B. Penrose, Frederick Bates.”

The defendant then read certificate of survey made April 1st, 1818, by Langham, which has already been recited, and then read Recorder Bates' certificate dated October 30th, 1822, as follows: “No. 49. Office of the Recorder of Land Titles. St. Louis, October 30th, 1822. It is hereby certified that pursuant to acts of Congress respecting claims to land in the territories of Orleans and Louisiana and territory of Missouri, the claim of Peter Dorian's legal representatives for the quantity of 240 arpens, No. 1303, has been duly confirmed, and that on the 1st day of April, 1818, the said tract was regularly surveyed, containing 204 acres and 2-100ths of an acre, as per plat herewith, authenticated by the United States surveyor's office, and designated in the connected plat as No. 1303. Now, therefore, be it known, that the said Peter Dorian's legal representatives are entitled to receive a patent for the tract above mentioned. Signed, Frederick Bates.”

The act of Congress of June 6th, 1874, was read on both sides; and the defendant then read a deed from J. C. Herrington and others to John Eps Cowan dated 14th day of June, 1878, made after the institution...