Chaput v. Pickel

• Decision Date: 31 May 1913
• Citation: 157 S.W. 613
• Parties: CHAPUT et al. v. PICKEL.
• Court: Missouri Supreme Court

157 S.W. 613

CHAPUT et al. v. PICKEL.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. EVIDENCE (§ 342) — DOCUMENTARY EVIDENCE — ANCIENT GRANTS — COPY.

A concession made by one without authority, and not confirmed by any authorized representative of the foreign government to whom the territory included in the grant then belonged, is not a muniment of title, and under Rev. St. 1909, § 6302, a copy thereof is inadmissible.

2. PUBLIC LANDS (§ 223) — GRANTS — TITLE ACQUIRED — "REPRESENTATIVES."

A grant to a person's representative made many years after his death is not a prima facie grant in favor of his heir, and one claiming under the heir must show that the heir was at the time of the issuance of the patent a representative and entitled to some part or all of the land in controversy; the term "representatives" includes grantees, assignees, transferees, devisees, and other persons in privity.

3. EJECTMENT (§ 9) — TITLE OF PLAINTIFF — NECESSITY.

Where the parties in ejectment do not claim under a common ancestor, plaintiff can only recover on a fee-simple title good against the world.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Alexander Chaput and another against George Pickel. From a judgment for defendant, plaintiffs appeal. Affirmed.

The plaintiffs brought an ejectment against defendant for the possession of lots Nos. 7 and 8 of block No. 3737 of the city of St. Louis, fronting 110 feet on the north line of Finney avenue by a depth northwardly of 145 feet to an alley. The ouster is made as of December 1, 1897. The answer was a general denial, coupled with a plea of the statute of limitation, based on 10 year's adverse possession. Issue was taken. At the conclusion of the evidence, the trial court instructed the jury that plaintiffs were not entitled to recover. Whereupon plaintiffs took a nonsuit with leave, and within four days filed a motion to set the same aside. This motion was overruled, and plaintiffs appealed therefrom to this court. On the trial plaintiffs produced evidence tending to prove that they were the descendants and heirs at law of one Joseph Calve. They then introduced in evidence a concession to Calve of a piece of ground in Grand Prairie April 30, 1768, which was expressed in the following terms, as shown by a copy under a certificate of the Secretary of State of a part of "Livre Terrien" No. 1, p. 17, pertaining to a grant of land issued to Joseph Calve as the same is recorded in Book F, p. 153, of the records of the land titles in the office of the said Secretary of State. The concession so certified is translated into English in the following terms: "Fo. 17, Jh. Calve, on said day on the demand of Joseph Calve habitant at St. Louis we have conceded and concede with title of property a land of two arpens in front by forty arpens in depth, situated at the grand prerie, holding on one side to the widow Marechal, and on the other to the little River, with the conditions that he establish the said land under the year at day given at St. Louis the 30 April 1768. St. Ange-Labuxiere." To the introduction of this paper objection was made by defendant on the ground that it was incompetent and irrelevant, in that the original thereof would be incompetent and irrelevant if offered in evidence, for the reason that its contents failed to show that the persons signing it had any authority to utter it or any right to make a grant or concession according to its terms. This objection was sustained, and the paper was excluded from the evidence in the case. Plaintiffs read in evidence from a book marked: "American State Papers — Public Lands, Vol. 3, p. 279. Confirmation of Village Claims" — what purported to be a concession to Joseph Calve's representatives 2×40 arpens, out lot B, Prairie St. Louis, for acts of ownership by possession and cultivation prior to 1803, with warrant or order for the survey thereof. And plaintiffs also read in evidence a certified copy from the office of the Secretary of State of what appeared to be a copy of the field notes of the survey No. 1583, executed by Joseph C. Brown, deputy surveyor of the United States, September 15, 1835, of this concession of 2×40 arpens to Joseph Calve's representatives in the Grand Prairie common fields of St. Louis. And plaintiffs then introduced in evidence the following patent certificate issued by Theodore Hunt, recorder of land titles, to wit:

                --------------------------------------------------------------------------------------
                        |         |                 |             |          |         |  To Whom
                Date.   |   No.   |    Name.        |   No. Sur.  |  Arpens. |  Acres. |  Delivered
                --------------------------------------------------------------------------------------
                May 24, |  1194   |  Joseph Calve's |    1583     |    80    |  67.71  |  Mr. Schible
                 1845   |         | representatives.|             |          |         |
                        |         | T. 45 N. R. 7 E.|             |          |         |
                --------------------------------------------------------------------------------------
                

Joseph Calve died before 1800 A. D. From the date of the government grant to his "representatives" until the bringing of this suit plaintiffs gave no evidence of any acts of ownership over the land or possession thereof by themselves or any one through whom they claimed. There was evidence of possession by defendants or those under whom they claimed for more than 31 years.

The errors assigned by appellants are the ruling of the court in excluding the copy of what purported to be a concession by St. Ange-Labuxiere, above quoted, and the instruction that plaintiffs could not recover.

Christian F. Schneider, of St. Louis, for appellants. George W. Lubke and George W. Lubke, Jr.,...