City of St. Louis v. Toney

• Citation: 21 Mo. 243
• Parties: THE CITY OF ST. LOUIS, Appellant, v. TONEY, Respondent.
• Decision Date: 31 March 1855
• Court: United States State Supreme Court of Missouri

21 Mo. 243

THE CITY OF ST. LOUIS, Appellant,

v.TONEY, Respondent.

Supreme Court of Missouri.

March Term, 1855.

1. A confirmation by the act of June 13, 1812, was absolute, depending only on the fact of inhabitation, cultivation or possession prior to December 20, 1803, and was not forfeited by the failure of the claimant to prove up his claim under the act of May 26, 1824.

2. An official survey of a claim confirmed by the act of July 4, 1836, may be used as evidence of the locality and extent of the same claim confirmed by the act of June 13, 1812.

3. A confirmation of a lot by the act of June 13, 1812, enured to the benefit of the last claimant, where there had been several successive transfers, whether before or after the change of government.

4. A confirmation by the act of 1812 is not limited in extent to the spot actually inhabited, cultivated or possessed prior to December 20, 1803, but was for the lot claimed.

5. It seems that the affidavits before the board of commissioners, and recorder of land titles, although not evidence of the fact of inhabitation, cultivation or possession prior to December 20, 1803, might be competent evidence for some purposes. At all events, a case will not be reversed, because, after they were read in evidence without objection, they were not, at the close of the case, withdrawn from the jury by instruction.

6. As to what is an “out-lot” within the meaning of the act of 1812.

Error to St. Louis Circuit Court.

This was an action in the nature of ejectment for about forty-nine acres of land claimed by the plaintiff as a part of the St. Louis common, confirmed by the act of congress of June 13, 1812, and within Brown's official survey of said common. The defendant claimed title under a confirmation by the act of June 13, 1812, by virtue of the inhabitation, cultivation and possession prior to December 20, 1803, of Joseph Motard and those claiming under him, and also under a confirmation by the act of July 4, 1836.

At the trial, the plaintiff exhibited the following evidence of title:

1. Acts of congress of June 13, 1812, May 26, 1824, and January 27, 1831.

2. Proceedings before the old board of commissioners, and before the recorder of land titles under the act of May 26, 1824, upon the claim of the inhabitants of St. Louis to common.

3. United States survey No. 3125 of the St. Louis common.

4. Confirmation certificate No. 72, issued by the recorder of land titles, and dated May 7, 1851.

5. Act of the legislature of the territory of Louisiana, approved June 18, 1808, authorizing the St. Louis Court of Common Pleas to incorporate the town.

6. Record of the incorporation of the town of St. Louis by the St. Louis Court of Common Pleas.

7. Acts of the legislature of the territory of Louisiana, approved January 15, 1813, and January 21, 1815.

8. Acts of the general assembly of Missouri, approved December 19, 1822, January 15, 1831, February 26, 1835, March 18, 1835, January 18, 1837, February 8, 1839, February 15, 1841, and February 8, 1843.

9. It was admitted that the land in dispute was within survey 3125, and that the defendant was in possession at the commencement of this suit.

The defendant then offered the following evidence:

1. A deed from Joseph Motard to Patrick Lee, dated November 7, 1800, conveying, among other property, “upwards of seven arpens of land in front by upwards of forty in depth, situate in the prairie called Cul de Sac, against the river of the mill of Don Auguste Chouteau.” The granting words of the deed are, “sold, ceded, transferred and abandoned.” It was executed before Don Carlos Dehault Delassus, lieutenant governor of Upper Louisiana.

2. A deed from Patrick Lee to Calvin Adams, dated August 22, 1803, conveying the same property by the same granting words, and executed in the same manner, as the deed last referred to.

3. Petition from Calvin Adams to Delassus, dated January 20, 1804, praying for an order of survey of the land purchased of Lee, with an order signed by Delassus endorsed upon it. Also a plat and survey by James Mackay, dated November 16, 1805, “of 1340 arpens of land, French measure, situated on Mill creek, at a place called Motard's plantation, and surveyed at the request of Calvin Adams as his claim to a settlement right by virtue of the act of Congress of March 2, 1805, as also by virtue of a purchase from said Motard for a part of said claim or tract.” This survey was recorded by Antoine Soulard, signing himself “Surveyor General Ty. Louisiana,” on the 16th of January, 1806.

An objection to the admission of these documents in evidence, on the ground that they were dated after the change of government, was overruled, and an exception taken.

4. Proceedings before the old board of commissioners upon the claim of Calvin Adams, as assignee of Patrick Lee, to 1340 arpens of land. The claim was rejected. Also, proceedings before the board of commissioners under the act of July 9, 1832, and the supplementary act of March 2, 1833, which resulted in the confirmation to Joseph Motard, or his legal representatives, of 280 arpens of land, by the act of July 4, 1836. These proceedings contained the affidavits of witnesses examined before the commissioners to the fact of cultivation and possession by Motard prior to the change of government, and that the land so cultivated was outside of the fence of the St. Louis common, as it then ran, and were read in evidence without objection at the time.

5. United States survey No. 3182 of the 280 arpens confirmed to Motard or his representatives by the act of July 4, 1836.

This survey was objected to by the plaintiff, on the ground that, being a survey of a confirmation by the act of 1836, it was incompetent evidence against the plaintiff's title.

6. A deed from Calvin Adams to David Musick, dated January 22, 1808, for 1340 arpens, described as claimed by Adams, in part, as a settlement right, and in part by purchase from Patrick Lee. The defendant showed a derivative title under David Musick.

7. Oral evidence that prior to December, 1803, Joseph Motard, who himself resided in the village of St. Louis, had servants upon and cultivated a part of the tract of 7 by 40 arpens, which includes the land in dispute, and that it was afterwards cultivated by Calvin Adams and those claiming under him, from 1807 down to the commencement of this suit; and also evidence tending to show that said tract was a part of the Cul de Sac common fields, and was outside of the old inclosure of the St. Louis common.

The plaintiff, in rebuttal, gave evidence tending to show that said tract of 7 by 40 arpens was not a part of the Cul de Sac common fields, and that a part of it was inside of the old inclosure of the St. Louis common.

The following instructions asked by the defendant were given, to which the plaintiff excepted:

1. If the jury find from the evidence that the tract of 7 by 40 arpens surveyed to Motard is located adjoining or near the former town of St. Louis, or the common fields in, adjoining or belonging to the same, and that the same, or some part thereof, was, prior to 20th day of December, 1803, inhabited, cultivated or possessed by the said Joseph Motard, and those claiming under him, and that the defendant is in possession of a part of said tract or lot of 7 by 40 arpens, deriving title from said Joseph Motard, and that Joseph Motard, prior to the time last mentioned, had his residence in the said town of St. Louis, and by himself, his servants or agents, occupied, possessed and cultivated the said tract, or some portion thereof, as a farm or lot in the vicinity of said town, then the jury are instructed that the lot of 7 by 40 arpens is an out-lot, within the true intent and meaning of the act of the 13th of June, 1812, and the defendant is, upon that state of facts, entitled to a verdict.

2. A common field lot, within the meaning of the act of (as described by our Supreme Court) June 13th, 1812, is a lot in the neighborhood of one of the villages or towns enumerated in said act, used by an inhabitant of said town or village for purposes of cultivation. Said common field lots being in the form of parallelograms, and usually forty arpens in depth and one or more arpens in width, lying adjacent to each other in the same general range of lots. It is not essential, to constitute a common field lot, that there should have been any written grant or official survey thereof.

3. If, therefore, the jury find from the evidence, that Joseph Motard, prior to the 20th of December, 1803, was an inhabitant of the town of St. Louis, and before that day inhabited, cultivated and possessed an out-lot or common field lot, claiming the same as owner, and that said Motard or any person or persons who had acquired his right, title and claim to said lot, continued to claim said lot down to the 13th of June, 1812, and that the land in dispute is included within the boundaries of said lot, the plaintiff is not entitled to recover in this case.

The following instructions asked by the plaintiff were refused:

1. The act of 1824 required all private claimants of town or village lots, out-lots or common field lots, under the act of 13th June, 1812, to appear before the recorder of land titles within eighteen months of the 26th May, 1824, and prove the facts of inhabitation, cultivation and possession, and the extent and boundaries of their claims. Those who did not comply with this provision are barred of all benefit of the act of 13th June, 1812.

2. The act of May 26, 1824, required all private claimants of town or village lots, out-lots, or common field lots, under the act of the 13th of June, 1812, on the ground of cultivation, inhabitation or possession, prior to the 20th December, 1803, to proceed within eighteen months after the 26th May, 1824, to designate their said lots, by proving before the recorder of land titles the fact of inhabitation, cultivation or possession, and the boundaries and extent of their claims. Those who did not...