Cabanné v. Walker

• Citation: 31 Mo. 274
• Parties: CABANNÉ et al., Plaintiffs in Error, v. WALKER, Defendant in Error.
• Decision Date: 31 October 1860
• Court: Missouri Supreme Court

31 Mo. 274

CABANNÉ et al., Plaintiffs in Error,

v.WALKER, Defendant in Error.

Supreme Court of Missouri.

October Term, 1860.

1. The rule requiring depositions taken in another cause to be filed before they are read, may be dispensed with when the ends of justice require it. When the evidence would operate as a surprise, the rule should not be suspended, except on terms which would not work injustice; but if the evidence is merely cumulative and will not surprise, the rule may be dispensed with.

2. The evidence taken before the board of commissioners organized under the act of Congress of July 9, 1832, (4 U. S. Stat. 565,) can not be admitted in evidence in another suit, in proof of the inhabitation, cultivation or possession necessary to show a confirmation under the act of 1812.

3. The act of Congress of July 4, 1836, only gives title from its date, and does not operate retrospectively and give title from the passage of the act of July 27, 1832, organizing the board of commissioners.

4. By the act of Congress of January 27, 1831, the United States relinquished all their right, title and interest in the lands reserved for schools by the act of 1812.

Error to St. Louis Land Court.

This was an action of ejectment, instituted in February, 1855, to recover from defendant a tract of land in the lower part of the city of St. Louis. In support of their claim, the plaintiffs showed a confirmation to the representatives of Pierre François Devolsey, by the act of July 4, 1836, of a tract of land six arpens in front by forty arpens in depth. The record of the proceedings of the commissioners, reporting the same for confirmation, shows a concession to Devolsey of such a tract of land, made September, 15, 1767. In these proceedings is the testimony of Pierre Chouteau, sr., and Laurent Reed. Chouteau testifies “that Devolsey did not settle himself upon said land” at the time of its concession to him, through fear of the Indians, “but cut his wood and made his hay on the same; that any one who wanted to out timber on the same, had to ask Devolsey's permission.” Reed testified that he knew Devolsey, who died about forty years before; (this evidence was given February 15, 1833;) that he knew that one of Devolsey's negroes cultivated a small field in the Little Prairie, but does not remember exactly the place; that said negro cultivated tobacco, melons, and other articles of produce.” Plaintiffs showed a United States survey of said tract, made by virtue of said confirmation. It includes the land in suit, which is at its eastern end. Plaintiffs showed a title in themselves to this confirmation by derivation from said Devolsey. Defendant's possession was admitted. The defendant then offered the following evidence: He showed the land in suit to have been sectionized by the United States, and afterwards entered with the register and receiver of the public lands at St. Louis, and paid for by Joseph Papin, and a United States patent issued to him therefor, dated June 15, 1826; a deed from Joseph Papin and wife to Larkin Deaver, of this land, dated October 30, 1832, and recorded November 14, 1832; a deed from Deaver and wife to Isaac Walker for this land, dated September 25, 1833, and recorded October 10, 1833; a deed from Walker to Spier and Bull, of this land, in trust for the wife of said Walker, dated October 17, 1846, and recorded October 24, 1846. The defendant also gave in evidence a confirmation to Joseph Brazeau, under the act of July 4, 1836, of a tract of land embracing this in suit, predicated upon a concession to him thereof, made November 19, 1799; also a United States survey thereof under said confirmation. The commissioners recommended Devolsey's for confirmation, November 8, 1833, and Brazeau's, November 11, 1833. It was shown that this land was within the outboundaries of the old town of St. Louis. Plaintiff offered to read the depositions of said Chouteau and Julius De Munn, taken in and for and used in the case of Joseph Papin against John B. Sarpy, instituted in the St. Louis circuit court, to recover this land in 1837, and taken in 1840; the plaintiff at the same time offering to prove that the defendant claimed the land under said Papin, and that said Sarpy represented the plaintiffs' title in said suit. The defendant objected thereto, which objection the court sustained, subject to plaintiffs' exception thereto. Chouteau, in said deposition, testifies “that Devolsey never occupied the land, but he got his wood and hay from it” in the years from 1767 to 1775; “that the inhabitants cut wood and hay wherever they pleased, but persons would be prohibited if it were necessary; that the heirs of Devolsey cut wood on the land of Devolsey, but whether on the east or west part, he could not say.” Plaintiff then offered to prove by said deposition of said Munn, and by other evidence, that the land patented to Papin had been withdrawn from sale when it was entered in the name of Papin; that its entry, and the patent therefor, were obtained by Papin by a fraud upon the United States, and that Deaver and Walker were cognizant of it when they respectively made their purchases and took their deeds. Defendant objected to this as irrelevant and incompetent, which objection the court sustained, subject to the plaintiffs' exception thereto.

At the request of the defendant, the court gave the following instruction: “If the jury believe the oral, written and documentary evidence given by the defendant to be true, the plaintiffs can not recover in this action.”

The plaintiffs asked the court to give to the jury the following instructions, which the court refused: “1. If the jury find that there was confirmed to the representatives of Devolsey, under the proceedings of the late board of commissioners and the act of Congress of July 4, 1836, a tract of six by forty arpens, then such confirmation is conclusive evidence against the United States that the tract was rightfully claimed by said representatives; and furthermore, if the outboundary survey of St. Louis, established pursuant to the first section of the act of June 13, 1812, embraces the tract so confirmed, then such outboundary is conclusive evidence against the defendant that the tract was a town or village lot, out-lot, or common field lot, belonging to St. Louis on the 13th of June, 1812; and the title acquired by force of such confirmation and outboundary survey must prevail over an entry and patent subsequent to the 13th of June, 1812. 2. If the jury find that the land embraced in the entry and patent of Papin, under which the defendant claims, lies wholly within the outboundary of St. Louis, as established under the authority of the United States pursuant to the first section of the act of June 13, 1812, then the entry and patent were illegal and void, and no title passed by said entry or patent. 3. If the jury find that the land now in controversy is part of the tract confirmed to the representatives of Devolsey in 1836, and is within said outboundary of St. Louis, the title acquired by such confirmation is good against a party in possession, holding only under the entry and patent of Papin. 4. If the jury find that the land now in controversy was part of a lot of six by forty arpens, granted by the French authorities to one Devolsey, and by him used and possessed prior to the 20th December, 1803, claiming to use and possess the same under said grant, and that said lot was one of a series of lots granted by the same authorities, lying side by side and being within the outboundary of St. Louis, established pursuant to the act of 1812, the said lot was confirmed to the representatives of Devolsey by the act of 13th June, 1812.”

Darby, with Krum & Harding, for plaintiffs in error.

I. The court below erred in excluding the depositions taken in a former suit. 1. The leading purpose for which the depositions were offered was to prove a confirmation of the lot in controversy to the representatives of Devolsey, by the first section of the act of 1812. The deposition of Pierre Chouteau was full and complete. On the direct examination the witness said: “Devolsey never occupied the land, but he got his wood and hay from the same land.” On the cross-examination the witness is more particular. He says: “Pierre Francis Devolsey cut wood and hay off the land above mentioned in the years 1767, '68, '69, '70, '71, '72, '73 '74, and '75.” The witness afterwards says: “The heirs of Devolsey cut their wood and hay; they cut wood on the land of Devolsey, but whether on the east or west part, I can not say.” The proof here of possession prior to 1803 is much stronger than that adduced in the case of Soulard v. Clark, 19 Mo. 570, in which case this court established a confirmation to Cambas in the Little Prairie, the same series of lots to which the lot now in controversy belongs. In that case the only evidence of possession consisted in the declaration of a witness, that “her husband and Cambas picked wild grapes and cut wood and wild hay on the lot conceded to them prior to December 20, 1803.” (See 19 Mo. 572.) 2. The depositions offered in evidence were taken in a suit drawing in question the same title involved in the present suit and in respect to the same land. The parties, though nominally different, were substantially the same, or, in other words, were privies to the former suit. Papin, the plaintiff in the former suit, was the grantor of Walker, the defendant in the present suit. Sarpy, the defendant in the first suit, was the representative by tenancy of the ancestor of the plaintiffs in the present suit. Under such circumstances the rule of evidence is well established that depositions taken in one case may be read in the other. The court is referred to the following authorities: 1 Greenl. on Ev. § 553, 554; 2 Phil. Ev. Cow. & H. notes, 754, 438; Jackson v. Lawrence, 15 J. R. 544; Hacker v. Jamison, 2 Watts & S. 438; Osborn v. Bell, 5 Denio, 370; Clealand v. Huie, 18 Ala. 343; ...