Clamorgan v. Baden & St. Louis Ry. Co.

• Decision Date: 31 October 1880
• Citation: 72 Mo. 139
• Parties: CLAMORGAN, Appellant, v. THE BADEN & ST. LOUIS RAILWAY COMPANY.
• Court: Missouri Supreme Court

72 Mo. 139

CLAMORGAN, Appellant,

v.THE BADEN & ST. LOUIS RAILWAY COMPANY.

Supreme Court of Missouri.

October Term, 1880.

Appeal from St. Louis Court of Appeals.

AFFIRMED

E. P. Johnson and G. W. Hall for appellant.

J. M. & C. H. Krum for respondent.

NAPTON, J.

This is an action of ejectment for a small lot of ground on the Bellefontaine road lying within United States survey 728. The case depends upon the construction of two documents, the one purporting to be a cession or relinquishment of all title in the claim of Jacques Clamorgan on the Gingras by Pierre Chouteau and wife, acknowledged and recorded November 8th, 1810, and the other a deed dated June 26th, 1810, whereby Clamorgan conveyed to Chouteau 400 arpens in superficies in the same tract above referred to, bounding it on the south by Joseph Hebert, on the north by himself, fronting on the east sixteen arpens running north and south, and on the west twenty-four arpens running north and south, “by a quantity of twenty arpens in depth from east to west, that is to say, from the river Gingras to the hills.” In 1793 Clamorgan obtained a concession of 800 arpens of land at the Ruisseau A'Bechame, which empties into the Gingras, describing it as twenty arpens by forty, lying between the river Gingras and the hills. Governor Trudeau had before him a plat of the land furnished by the petitioner, and ordered a survey, which, however, was not made by the surveyor, Mackay, until 1806, two years after the change of government. In 1807 the United States Board of Commissioners confirmed this claim of Clamorgan to 800 arpens of land, “situate as aforesaid, provided so much may be found vacant there; and ordered the same to be surveyed, so as to include his improvements, and so as not to interfere with the surveys of Helen St. Cyr and children, Antoine, Vincent and Bouis, or Jacinto St. Cyr and Narcisse St. Cyr.” The survey of Mackay showed that the claim of Clamorgan encroached on the northwest into the St. Cyr confirmation 290 arpens, and on the southwest did not extend to the St. Cyr claims, so that there was a piece of ground on the southwest, by stopping at the end of twenty arpens from the southeast corner, which was apparently vacant. The United States survey made in 1817, by Rector, (numbered 728,) and that of Cozens made by order of the court in the trial of this case, fixed the southwest corner of the Clamorgan tract at a point in the hills on the line of the St. Cyr claim five arpens further west than the Mackay survey, or twenty-five arpens from the southeast corner, instead of twenty. The survey of the land granted by Clamorgan to Chouteau in 1810, followed this Rector survey, and if it was a correct exposition of the deed, the plaintiffs obviously had no claim, as it embraced the entire south end of the Clamorgan confirmation. The correctness of this survey is the main question in the case.

1. DEED: description by reference to another deed.

It is true that if we regard the deed from Chouteau to Clamorgan of November 8th, 1810, as too indefinite to convey any specific tract of land, this question is unimportant. This deed, in the original, reads thus:

Nous soussignes pour valeur recue, cédons, quittons, vendons et transportons à M. Jacques Clamorgan, sans aucune garantie ni recours quelconques, le morceau de terre mentionné et décrit en la vente des autres parts (A) avec tous les droits, titres, actions et prétentions que nous y avons. Signé et scehé ces présentes en la ville et District de St. Louis, ce Six Novembre mil-huit cent dix. Ladite terre énregistree livre B, page 353 et suivante (sur lequel morceau de terre le S. Clamorgan nous a vendu une partie).

PIERRE CHOUTEAU,

[SEAL.]

SAUCIER CHOUTEAU.

[SEAL.]^[FNa1]

The sheriff's deed to Chouteau, dated July 10th, 1809, conveyed to Chouteau “all the right, title, interest and property which said Jacques Clamorgan had or possessed in and to a certain tract or parcel of land, lying or being on the river Gingras in the same district and bounded by lands of Joseph Hebert, Hyacinthe St. Cyr and Vincent.”

The intent of the...