Charleville v. Chouteau

• Decision Date: 31 October 1853
• Citation: 18 Mo. 492
• Parties: CHARLEVILLE, et al., Appellants, v. CHOUTEAU, et al., Respondents.
• Court: Missouri Supreme Court

18 Mo. 492

CHARLEVILLE, et al., Appellants,

v.CHOUTEAU, et al., Respondents.

Supreme Court of Missouri.

October Term, 1853.

1. At an executor's sale in Spanish times, no bidder presenting himself for a common field lot which was subject to a charge for keeping the common fence in repair, the same was by the lieutenant-governor transferred to the executor, upon his assuming to bear the charge Held, the transfer was to be regarded as a governmental act, made upon considerations affecting the public, as well as from a regard to the interests of the estate, and did not come within the rule that an executor could not purchase property which it was his duty to administer.

2. A party claiming title under one of two conflieting Spanish grants cannot obtain the benefit of a confirmation upon the other, even though the former may have been illegally purchased by the confirmee before confirmation.

3. As between two Spanish grants, it is well settled that the one first confirmed is the better title.

Appeal from St. Louis Circuit Court.

This was a petition in the nature of a bill in equity, filed against the heirs of Auguste Chouteau, by Victoire Charleville, claiming to be the daughter and sole surviving heir of Victoire Richelet Verdon. The children of Victoire Charleville, claiming under her, were subsequently made parties plaintiff. The suit involved the title to one by forty arpents of land, known as the Laroche arpent, embraced within a tract of eight by eighty arpents, known as the Chouteau Mill tract, which was confirmed to Auguste Chouteau by the first board of commissioners in 1810. The Laroche arpent was reported by the recorder of land titles for confirmation to Laroche's representatives, and confirmed by the act of congress of April 29, 1816.

The petition stated that Victoire Richelet Verdon died seized of the land in controversy, in 1796, and by her last will appointed Auguste Chouteau her testamentary executor; that said Chouteau undertook the trust of executor and also that of guardian of the children of the testatrix; that, on the 30th of October, 1796, the said executor proceeded to make public sale of all the goods, effects and estate of the testatrix, and at said sale became the purchaser of the one by forty arpents in dispute, contrary to law and in breach of his trust as executor; that after the country was transferred to the United States, Chouteau induced the government to confirm the land to him in his own name; and that he and his heirs had since enjoyed the rents and profits, and received the proceeds of sales. The prayer of the petition was for an account, and for the title to that portion still in the possession of the defendants or any of them.

At the trial, the plaintiffs introduced the following evidence:

1. Marriage contract between Joseph Verdon and Victoire Richelet, dated May 9, 1772.

2. Articles of separation between Verdon and wife, dated March 7, 1785, by which she became sole owner of all the property then owned by them, excepting a few small articles reserved to the husband.

3. The will of Victoire Richelet Verdon, dated September 29, 1796. Auguste Chouteau is appointed executor, with power to sell all the property of the testatrix, real and personal, and divide the proceeds among her children, after paying debts. No specific mention is made of the property in dispute.

4. Inventory of Madame Verdon's estate, dated October 24, 1796, made under the directions of Zenon Trudeau, lieutenant governor. One of the pieces of property inventoried is described as follows: “Half an arpent of land behind the fort, being contiguous to the land of Auguste Chouteau and Marly, valued ten dollars.”

5. An account of the auction sale of Madame Verdon's estate, signed by the lieutenant governor, by Auguste Chouteau, and by two witnesses. The last entry in this account relates to the transfer of one-half by forty arpents to the executor and is set out in the opinion of the court.

6. Auguste Chouteau's settlement of Madame Verdon's estate, in which he describes himself as guardian of her children, dated July 20, 1799.

7. List of documents filed by Auguste Chouteau with the recorder of land titles, in support of his claim to the Mill tract, consisting of the following: 1. A concession to Laclede, dated August 11, 1766, for eight by eighty arpents, extending from the land of Dion to the Little river. 2. A deed from Laclede to Chouteau, dated July 4, 1779, for water mill, &c. 3. A deed from Louis Vachard and wife to Chouteau, dated October 19, 1784, for two by forty arpents, bounded on one side by land of Beaugenon, and on the other side by that of Louis Ride. 4. A deed from Ride to Chouteau, dated November 16, 1784, for one arpent of land, described as bounded on one side by land of the purchaser, and on the other by the water mill of the purchaser. 5. Purchase at public sale on the 19th of April, 1792, by Auguste Chouteau, of 1 12 by 40 arpents, belonging to the estate of Jacques Noise, (or L'Abbe,) bounded by the lands of Gabriel Cerre, Auguste Chouteau and Madame Verdon. 6. Authorization from the lieutenant governor to Chouteau, executor of Madame Verdon, to take possession of 12 by 40 arpents belonging to the estate. 7. Concession, dated January 24, 1790, by Stephen Mirt, governor general of Upper Louisiana, to Auguste Chouteau, of two small tracts adjoining the Laclede grant, one containing two by ten arpents, and the other 4 by 13 12 arpents. 8. Mackay's survey, dated March 29, 1803, of 1390 arpents of land for Chouteau.

8. Proceedings before the board of commissioners upon Chouteau's claim to three tracts, containing respectively 8 by 80 arpents more or less, 2 by 10 arpents, and 4 by 13 12 arpents. On the 24th January, 1809, the board ordered the tract of 8 by 80 arpents to be surveyed conformably to the concession to Laclede Leguest, dated August 11, 1766. On the 7th of June, 1810, the survey having been executed and returned by Bent, deputy surveyor, the board granted the land to Chouteau according to the survey. Bent's survey calls for Dion on the north.

9. Plat and description of Brown's survey of one by forty arpents, confirmed to Laroche's representatives, by the second section of the act of congress of April 29, 1816. This survey is numbered 1464, calls for Dion on the north, and is wholly within the survey of the Chouteau Mill tract.

10. Duralde's survey, dated May 23, 1772, of one by forty arpents, conceded to Laroche, adjoining Conde on one side and Dion on the other.

11. Duralde's survey of Conde's concession of 2 by 40 arpents, adjoining Laclede on one side and Laroche on the other; also his survey of Dion's concession of one by forty arpents, bounded on one side by Laroche and on the other by Deschamps.

12. Deed from Conde to L. Vachard, dated July 4, 1776, for three by forty arpents, described as bounded on one side by the land of Larosa and on the other by the fence of the commons.

13. Deed from Louis Vachard to Auguste Chouteau, dated October 19, 1784, for two by forty arpents, bounded on one side by land of Nicholas Beaugenon and on the other by land of Louis Ride.

14. Deed from N. Bucho or Vucho to Victoire Verdon, dated November 20, 1788, conveying half an arpent in front by forty arpents in depth, bounded on one side by land of L'Abbe.

15. Deed from the heirs of Amable Guion (Dion,) dated January 14, 1809, to L. Ride, confirming a sale made “about twenty-five years before,” in consideration of a cow and a calf, of one by forty arpents, contiguous to Deschamps and Beaugenon.

16. An official sale of Ride's estate, made May 25, 1788, at which there was struck off to L'Abbe one arpent of land, bounded on one side by the land of Mr. Cerre and on the other by the land of Beaugenon.

17. Judicial sale of L'Abbe's estate, April 29th, 1792. Auguste Chouteau becomes the purchaser of one and a half arpents in front by forty in depth, described as bounded by the lands of Cerre, Chouteau and Verdon.

18. Marriage contract between Joseph Charleville and Victoire Verdon, dated July 15, 1797, by which a community was created between the parties as to all property, real and personal, then owned or thereafter to be acquired.

19. Deed from Victoire Charleville to her children, dated May 15, 1851.

20. Oral testimony, in substance as follows: Madame Verdon died in 1796, leaving six children, viz: Joseph, Louison and Godfrey, Harriet, Pelagie and Victoire, the plaintiff. Joseph died in 1805, Louison in 1810 or 1811, and Godfrey shortly after Joseph, all unmarried. Harriet married Bourgillon, who died before the change of government. Afterwards, about 1825 or '27 she married Clermont. She died without issue before the commencement of this suit. Pelagie married a Spanish officer and went to Havanna. The proof leaves it in doubt whether she is living or dead. Victoire married Joseph Charleville, who died in 1842 or 1843. At the close of the plaintiff's evidence, the court declared that they were not entitled to the relief they sought, and they appealed to this court.

J. Delafield, for appellant.

I. By the principles common both to the American and Spanish law, the purchase of the estate in controversy by Chouteau, acting in the fiduciary capacities of executor and guardian, was void and passed no title, (2 Sug. on Vend. [Lond. ed.] 109; 1 Ball & B. 96; 2 ib. 116; 8 Wheat. 421; 6 ib. 481; 10 Pet. 269-81; 1 Mason, 341; 1 Story's Eq. §§ 312, 317, 318; 12 Pet. 412.) The civil law establishes the same rule. “ Tutor rem pupilli emere non protest; idemque porrigendum est ad similia, Id est, ad curatores, procuratores, et qui negotia aliena gerunt.” (Pothier on Pos'n No. 64, 66; Dig. lib. 18, tit. 1, l. 34; Inst. lib. 1, tit. 21, 23.) The only exception to this rule was in favor of a guardian, who may palam et bona fide purchase the ward's property at public auction. (Code, lib. 4. tit. 38, l. 5.) This exception is not recognized by the Spanish law in America. (Michoud v. Girod, 4 How. 559.) The rule was never...