Clamorgan v. Hornsby

• Decision Date: 01 May 1883
• Citation: 13 Mo.App. 550
• Parties: H. CLAMORGAN ET AL., Plaintiffs in Error, v. D. C. HORNSBY ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

13 Mo.App. 550

H. CLAMORGAN ET AL., Plaintiffs in Error,

v.D. C. HORNSBY ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

May 1, 1883.

ERROR to the St. Louis Circuit Court, ADAMS, J.

Affirmed.

E. P. JOHNSON, for the plaintiffs in error.

J. C. & C. H. KRUM, for the defendant in error.

LEWIS, P. J., delivered the opinion of the court.

This proceeding represents a consolidation of twenty-nine ejectment suits brought by the same plaintiffs against various defendants, to recover a part of United States Survey No. 728, situate near the northern extremity of the present city of St. Louis. The petitions in all these cases describe the land sued for as being “all of that portion of the land embraced within United States Survey numbered seven hundred and twenty-eight, * * * lying and being west of the western boundary line of the land deeded to Pierre Chouteau by Jacques Clamorgan, by deed dated June 26, 1810, and bounded south by the southern line of said survey, west by the western line of said survey, and east by the western line of said deed.” A patent for United States Survey No. 728 was issued February 12, 1874, to Jacques Clamorgan or his legal representatives. The plaintiffs claim to be the legal representatives of Clamorgan, by devise and inheritance. The court, sitting as a jury, found for the defendants.

A number of questions are here discussed by counsel on both sides; but it seems to us that the description in the petitions narrows down the whole controversy to the proper interpretation of the deed which it includes. If there is no land within the survey lying west of that conveyed in the deed from Clamorgan to Chouteau,--in other words, if the land conveyed by that deed extended to the western boundary of the survey,--there is no land in existence which the plaintiffs can recover under their petitions. When the plaintiffs closed their case in the circuit court, they had not introduced the Clamorgan deed in evidence. There was, therefore, at that point, no identification of any land upon which the court could render a judgment. It devolved upon the plaintiffs to show that there was some land, in the defendant's possession, lying between Chouteau's acquisition from Clamorgan and the western boundary of the survey. This it was impossible to do, without exhibiting the deed, so as to show what part of the survey, if a part at all, it covered. The defendants, however, supplied the omission by putting the deed in evidence, against the plaintiffs' objections, so that it is fairly before us.

The patent recites the patent certificate, No. 291, from which it appears that in pursuance of the several acts of Congress respecting claims to lands, etc., Jacques Clamorgan has been confirmed in his claim to a tract of land containing four hundred and twenty and thirty-nine one-hundreths acres. It further recites a survey regularly made and certified under the confirmation, bearing date September 4, 1822, and copies the field notes of that survey for a description of the land to be granted in the patent. From these notes it distinctly appears that the land corners at the southwest with Joseph Hebert, that its southern boundary line coincides with Joseph Hebert's northern boundary, its western boundary line with the eastern boundaries of H. St. Cyr and L. N. St. Cyr, and its northern boundary line with the southern boundary of H. St. Cyr.

The deed from Clamorgan to Chouteau, of June 26, 1810, describes the land conveyed as “a certain piece of land situated in the prairie of Malin Creek, in the district of St. Louis, which piece of land contains four hundred arpens in superficies, forming a part of a larger tract granted to me by the Spanish government, October 5, 1793, which land is bounded on the south side by the land of Joseph Hebert, on the north by me, the above said vendor, the front of which on the east is sixteen arpens running north and south, and in the rear also, in the same direction, north and south, twenty-four arpens, by a quantity of twenty arpens in depth from east to west, that is to say, from the river...