Clamorgan v. Greene

• Decision Date: 31 March 1862
• Citation: 32 Mo. 285
• Parties: HENRY CLAMORGAN et al., Defendants in Error, v. ISAAC T. GREENE, Plaintiff in Error.
• Court: Missouri Supreme Court

32 Mo. 285

HENRY CLAMORGAN et al., Defendants in Error,

v.ISAAC T. GREENE, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1862.

Error to St. Louis Circuit Court.

The facts are sufficiently stated in the opinion of the court.

The paper in the handwriting of Mr. Dayton, referred to, was an unsigned deed between the parties, similar to the instrument sued upon, which recited that the plaintiffs were interested in the claim with the heirs of their deceased brother, Louis Clamorgan. It was shown that defendant took this paper to his attorney for the purpose of having an instrument drawn to suit himself, which was the one sued upon.

Defendants offered evidence to show that Jacques Clamorgan had, in his life-time, sold the claim of Loisel, which evidence the court excluded.

W. T. Wood, for plaintiff in error.

I. The court wrongly excluded evidence offered by the defendant. The defendant was not estopped from showing that Jacques Clamorgan, in his life-time, had parted with his title, and that the plaintiffs were not the legal representatives of Regis Loisel. (1 Smith's L. C. 81; 1 Plowd. 134, n.)

II. The claim has not been prosecuted to a successful issue; the land has not been obtained. And the question, who are the legal representatives of Regis Loisel, under the act of Congress, is still to be determined.

The passage of the act of Congress did not give a successful issue; the delivery of the certificate of re-location was indispensable.

III. The paper in the handwriting of Mr. Dayton, testified to by Mr. Gantt, was wrongly admitted for plaintiff.

Lackland, Cline & Jameson, for defendant in error.

I. The successful issue intended by the deed was a confirmation by act of Congress. (Act Con. 1857-8, p. 294, Ch. 81, and p. 87, Ch. 51.)

II. The defendant was estopped from denying the recitals of the deed; and, therefore, the testimony offered by defendant to show that Jacques Clamorgan had, in his life-time, parted with his interest in the Loisel claim was properly excluded. (Dickson v. Anderson, 9 Mo. 156; Jœckel v. Easton, 11 Mo. 118.)

III. The paper in Dayton's handwriting was properly admitted to bring home to the defendant knowledge of the facts he alleged to have been fraudulently concealed.

IV. The defendant took the claim at his own risk; and the plaintiffs have given no warranty, but only a release and quitclaim.

BATES, Judge, delivered the opinion of the court.

The petition in this case is as follows:

The plaintiffs state, that, on the 16th of February, 1852, an agreement in writing was entered into and duly signed and sealed by and between the plaintiffs and the defendant, which agreement is here copied, and reads as follows:

“Whereas Jacques Clamorgan, late of St. Louis, Missouri, had, in his life-time, a claim to one hundred and fifty thousand one hundred and sixty-two arpens eighty-five perches of land, which had been granted by Don Carlos Dehault Delassus to Regis Loisel, on the 25th of March, 1800, and was afterward purchased of Regis Loisel by said Jacques Clamorgan; and whereas Henry Clamorgan and Cyprian Clamorgan are the grandsons and only surviving grand children and devisees of said Jacques Clamorgan; and whereas the tract of land containing the above number of arpens was never confirmed by any of the boards of commissioners acting under authority of the laws of the United States, but the claim being presented to the board sitting in St. Louis, in the year 1834, for the adjudication of titles to land, was by the said board rejected because the same was beyond the limits of the State of Missouri--the said grant being, in truth, on an island in the Missouri river, above the north-western boundary of the State of Missouri; and whereas Isaac T. Greene is desirous of prosecuting the said claim for his own use and benefit, and at his own proper cost; therefore, in consideration of the covenant of the said Isaac T. Greene to pay to the said Henry and Cyprian Clamorgan, in case of a successful issue to his prosecution of said claim, the sum of six thousand dollars, the said Henry Clamorgan and Harriet his wife, and Cyprian Clamorgan, bargained, sold, transferred, enfeoffed, assigned, relinquished, and set over to the said Isaac T. Greene, and his heirs and assigns forever, all their right, title, claim, interest, estate and property of, in and to the aforesaid tract of land, for a more particular description of which reference is hereby made to the plat of survey made thereof by Antoine Soulard, and on file in the office of the recorder of land titles for Missouri; to have and to hold the aforesaid tract of land to him, the said Isaac T. Greene, and his heirs, forever. It is hereby witnessed that the said land, after confirmation, shall be considered as mortgaged to the said Henry and Cyprian Clamorgan to secure the payment of the said sum of six thousand dollars; and it is further witnessed that nothing therein contained is to be construed into a warranty of the title to said land, except that the said Henry and Cyprian have not sold or disposed thereof to any other purchaser.

In witness whereof the said parties have hereto set their hands and seals, the sixteenth day of February, in the year eighteen hundred and fifty-two.

HENRY CLAMORGAN, (L. S.)

HARRIET CLAMORGAN, (L. S.)

CYPRIAN CLAMORGAN, (L. S.)

ISAAC T. GREENE, (L. S.)”

And the plaintiffs allege, after said written agreement was made and executed, that defendant made endeavors to have the claim in said agreement mentioned confirmed by the Congress of the United States, and thereafter said claim was confirmed by an act of Congress entitled “An act for the relief of Regis Loisel, or his legal representatives,” approved 24th of May, 1858; and also by an act entitled “An act to provide for the location of certain confirmed private land claims in the State of Missouri, and for other purposes,” approved 2d June, 1858. Whereupon, in consequence of such successful issue of said claim, the defendant became liable to pay to the plaintiffs the sum of six thousand dollars in said agreement covenanted to be paid by the defendant to the plaintiffs. The defendant has been requested to pay...