Carpenter v. Rannells

• Decision Date: 31 March 1870
• Citation: 45 Mo. 584
• Parties: C. J. CARPENTER et al., Appellants, v. C. S. RANNELLS et al., Respondents.
• Court: Missouri Supreme Court

45 Mo. 584

C. J. CARPENTER et al., Appellants,

v.C. S. RANNELLS et al., Respondents.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Hill & Jewett, for appellants.

I. The court below erred in holding the confirmation to be to James Bankson, assignee of John Butler. John Butler was the original claimant in 1806; James Bankson was a second claimant in 1811. The first and second claims, if ever made, were directly in conflict, and the board granted the land to John Butler and his legal representatives. It was a direct confirmation to Butler as the original claimant. (Strother v. Lucas, 12 Pet. 453; Bissell v. Penrose, 8 How. 338; Landes v. Brant, 10 How. 370; Hogan v. Page, 2 Wall. 606.)

II. In this case there was an original claimant and an adversary claimant before the same board, if the heading of the minutes of the proceedings is correct, and the adversary claimant asserted that he was assignee of the original claimant by force of the lease and agreement for a sale on condition, not proved before the board to have been performed. The board passed upon these two claims, and confirmed the original claim, and granted the land to John Butler or his legal representatives. It was gross error to say that this confirmation was to the assignee claiming in April, 1811, when his claim was rejected by the confirmation of the claim of the original claimant in express terms. In Hogan v. Page, the Supreme Court of the United States held that where there is only one claimant, “Lamonde, assignee of Aug. Conde, and the board granted to the representatives of Conde forty arpents,” the question as to whom the title should inure to was one for inquiry in the courts, upon the facts proved. The Supreme Court of Missouri, in the same case, held that the confirmation operated as a grant to Conde and his legal representatives. The Supreme Court of the United States modified the State court decision by giving Lemonde the privilege of proving up his title as assignee, although he was the sole claimant before the board. In the case at bar, the original claimant and grantee, and possibly the second claimant, pretending to be assignee, were both before the board claiming the same land; and the board confirms and grants the land to John Butler and his legal representatives, to the exclusion of Bankson.

Glover & Shepley, for respondents.

I. The confirmation in this case was to James Bankson, the claimant before the board. The board itself has determined that matter by the entry of their first action on the claim. The filing of the deed of Butler to Bankson shows that Bankson was the claimant before the board. (Bissell v. Penrose, 8 How. 337-8.) The transfer of Butler to Bankson was efficient to transfer to Bankson the complete, equitable, and indeed legal, title to the land. The equitable title to land in the claimant is just as efficient as a complete legal title to obtain a confirmation, and inures equally to plaintiff, whether his claim be an equitable or legal one. (Papin v. Massey, 27 Mo. 445.) But even if it was questionable what was the situation of the claimant without his showing a compliance, he did show such compliance before the board by showing a constant cultivation of the land. John Butler was never a claimant before the board, and therefore could have no claim conferred to him. (Magwire v. Tyler, 40 Mo. 406.) The claimant Bankson was the person to whom the land was confirmed. (Bissell v. Penrose, 8 How. 338; Boone v. Moore, 14 Mo. 420; Hogan v. Page, 2 Wall. 605; 22 Mo. 55; Connoyer v. Washington University, 36 Mo. 480; Easton v. Salisbury, 21 How. 426.)

II. The equitable owner of the New Madrid land, at the issuing of the New Madrid certificate, is the person to whom it belongs. The title to land under a New Madrid certificate is to be determined in an action of ejectment, according to the equitable rights of the parties. (Sess. Acts 1838-9, §§ 2, 3; R. C. 1845, p. 442, §§ 11, 12; Mitchell v. Tucker, 10 Mo. 260.) The title to the newly-located land belongs only to the person owning the land in lieu of which the newly-located land was located. (Wear et al. v. Bryant, 5 Mo. 147; Kirk v. Green, 10 Mo. 252; Page v. Hill, 11 Mo. 149.)

CURRIER, Judge, delivered the opinion of the court

This is an ejectment suit for two hundred arpents of land in township 45, St. Louis county, located under New Madrid certificate of re-location No. 511. This certificate was issued under the act of Congress of February 17, 1815, and supplementary acts, in lieu of lands in New Madrid county which had been injured by earthquakes. The plaintiffs seek to deduce title to the premises in suit through John Butler, who acquired an interest in the New Madrid lands in virtue of a Spanish permission of settlement granted April 16, 1801. This inception of title is conceded. The defendants, however, contend that Butler, July 23, 1801, by a conditional sale, conveyed his inchoate title to James Bankson; and that Bankson, under the act of Congress of March 2, 1805, filed his claim to the lands with the United States land commissioners, as also his evidence of derivative title, and procured confirmation of the same to himself. The plaintiffs admit the conditional sale, but insist that there is no evidence that the stipulated conditions were complied with, and claim that Butler, in fact, made the claim which was filed with the land commissioners, and secured a confirmation for his own benefit. The effect to be given to the proceedings of the land commissioners determines the disposition to be made of the case; for if Butler was the claimant before the land commissioners, and the confirmation was to him, it is not questioned that the plaintiffs have his title. On the other hand, if Bankson was the claimant, and furnished the evidence of his derivative equitable title, and the confirmation inured to him, and not to Butler, then the plaintiffs have no title. At the trial the court declared, as matter of law, that the “legal effect of the proceedings before the board of commissioners for the adjustment of land titles in 1811, read in evidence by the plaintiffs, is to confirm the land therein mentioned to James Bankson, assignee of John Butler, the assignment by Butler to Bankson having been filed as part of the claim of said Bankson.”

This instruction assumes that Bankson was the claimant before the board. Does the record of the proceedings of the board show this fact? The following entries appear:

“ Claim, Statement, and Notice.--John Butler claims 200 arpents of land situated in the district of New Madrid, under second section of the act of Congress.”

Then follows the record of an order and certificate of survey, the survey being dated February 6, 1806. Then follows Butler's contract of sale to Bankson. The first action which the board appears to have taken on the subject was in April 12, 1811. The record is as follows:

“ Friday, April 12, 1811.

Board met. Present: John B. C. Lucas, Charles B. Penrose, and Frederick Bates, commissioners.

James Bankson, assignee of John Butler, claiming 200 arpents of land situated on Cypress Swamp, district of New Madrid, produces to the board an order of survey dated April 16, 1801, a certified copy of a conditional transfer from Butler to claimant, dated July 23, 1801, a plat of survey dated February 2, 1806.

The board grant to John Butler, or his legal representatives, 200 arpents of land, and order that the same be surveyed as nearly in a square as may be so, and to include his improvements.

Board adjourned till Monday next, 9 o'clock A. M.”

The record is then signed by the commissioners.

The record then shows an entry under date of June 20, 1811, thus: “Board met. Present, full board. Certificate No. 1103. John Butler's legal representatives, book 5, p. 148. Survey at expense of the United States.” Certificate No. 1103 recites that the board had “decided that the legal representatives of John Butler” were entitled to a patent. The certificate is dated June 20, 1811. It is thus seen that the record shows with distinctness that James Bankson, as assignee of John Butler, claimed the land, and “produced” to the board the evidence upon which a confirmation was granted. The memorandum, “John Butler claims,” etc., is evidently an error. When the commissioners took up the claim and acted upon it, they only recognize Butler as the assignor of Bankson. Bankson is recognized as the real claimant, and as the party who in due time and way furnished the evidence on which the action of the board was founded. The conditional transfer from Butler to Bankson was a prominent feature in the evidence, and shows that Bankson was the claimant before the board, and that he was claiming under the conditional conveyance. The transfer furnished a link in his chain of title, and was therefore important to him. Butler's claim rested upon the original permission of settlement and survey. That was his evidence of title. The only effect of the transfer was to show that he had parted with his interest, and that Bankson was the true equitable owner.

Neither Butler nor Bankson had a legal title. The claim originated in a permission of settlement. The legal title did not pass till the claim was confirmed by the United States. The confirmation, therefore, was of an equitable title. But the equitable title, for the purpose of the confirmation, was sufficient. The confirmation inured equally to the claimant, whether the title was legal or equitable, as was settled in Papin v. Massey, 27 Mo. 455.

The contract of sale, given in evidence by the plaintiff, shows that the entire purchase money was paid by Bankson, and that nothing remained for him to do but the performance of the stipulated settlement duties, which were of benefit to him, and of no advantage to Butler, the seller. The performance of these duties constituted no part of the consideration of the sale. They were conditions to be performed in order to the acquisition of a...