Clark v. Hammerle

• Decision Date: 31 March 1858
• Parties: CLARK, Respondent, v. HAMMERLE et al., Appellants.
• Court: Missouri Supreme Court

27 Mo. 55

CLARK, Respondent,

v.HAMMERLE et al., Appellants.

Supreme Court of Missouri.

March Term, 1858.

1. In March, 1789, one Joachim Roy made his will; it was executed in the presence of the lieutenant-governor of Upper Louisiana, and attested by him and seven other witnesses; it was deposited among the archives of the Spanish government, and a copy thereof was given out by the lieutenant-governor of said province on the 24th of July, 1801, a few months after the death of said Roy; held, that the will was a valid and operative instrument under the Spanish law without further proof.

2. Where an instruction given at the instance of a party to a suit is decisive thereof, and excludes from the consideration of the jury the questions raised by the evidence of the opposing party, it is erroneous.

3. Hunt's minutes of testimony taken under the act of Congress of May 26, 1824, are not admissible in evidence, except to prove such facts as can be proved by hearsay; where, however, one party to a suit introduces them in evidence, the opposing party may have the full benefit of them.

4. A certificate of confirmation issued in 1825 by recorder Hunt, under the act of Congress of May 26, 1824, in favor of Joachim Roy's representatives, for a lot in the Cul de Sac, described the lot confirmed as bounded north by a field lot of A. Guion, and east by Auguste Chouteau's mill tract. On the margin of the claim of A. Guion are the following words: “In Chouteau's mill tract.” Held, that this marginal entry was not admissible in evidence, as against those claiming under Roy, to show that the lot confirmed to Roy was situate within Chouteau's mill tract. The Spanish survey of “Chouteau's mill tract,” in which the land on the west of the survey is stated to be “vacante,” is admissible in evidence as bearing upon the question of the location of Roy's confirmation; the same weight should be attached to it as to reputation or hearsay in establishing ancient boundaries.

Appeal from St. Louis Land Office.

This was an action of ejectment to recover possession of a portion of a lot in the Cul de Sac common field near St. Louis. Plaintiffs claim title under the legal representatives of Joachim Roy, to whom they allege the lot was confirmed by act of Congress of June 13, 1812. The defendants, in addition to a formal denial of the facts stated in the petition, set up the statute of limitations as a bar.

In support of his title plaintiff introduced in evidence a certificate of confirmation by Theodore Hunt, under act of Congress of May 26, 1824, with Hunt's minutes of testimony. Hunt's minutes of testimony were, as certified, in substance as follows:

“Joachim Roy's legal representatives claim a lot in the Cul de Sac, near the town of St. Louis, containing one arpent and a half in front by about forty in depth; bounded north by the field lot formerly owned by Madame Lacompte, east by the claim of widow Camp's legal representatives, south by the field lot formerly owned by Tabot, and west by land unknown, near to Gratiot's.” [Here follows the testimony of Michael Marly and Joseph Roy, who testified in substance that Joachim Roy owned and cultivated the lot claimed about thirty-two years before July 8, 1825 (the day the testimony was taken), until the common field fence was taken down.]

“Francis Caillou, being duly sworn, says: He knows the lot claimed; that this deponent, forty years ago, with Joachim Roy, cultivated this field lot, and continued to cultivate the same with said Roy until the fence was taken down some twenty-five or twenty-six years ago. This deponent says, that his mother, after the death of his father, married Joachim Roy, and in that way, living with Roy, he became acquainted with this field lot. He has no interest in this claim whatever.” “Eustache Caillou, being duly sworn, says: He knows the field lot claimed, and that upwards of thirty years this lot was owned and cultivated by Joachim Roy, who cultivated the same until the fence was taken down; and this deponent further says, he has no interest whatever in this field lot, neither directly nor indirectly.”

The above is recorded on pages 49 and 50 of Hunt's Minutes, book No. 2.

“Joachim Roy's legal representatives claim a common field lot in the Cul de Sac, containing one arpent and a half in front, by about thirty in depth; bounded north by the field lot claimed by Amable Guion's legal representatives, south by Beré Tabeau's legal representatives, east by Auguste Chouteau's mill tract, and west by Charles Gratiot.” In support of this claim there is recorded the testimony of Baptiste Riviere, René Dodier and René Paul. “Baptiste Riviere, being duly sworn, says: He knows the field lot claimed, and that upwards of forty years ago this field lot was owned and cultivated by Cadet Jean Rion, who cultivated the same until he died; and after that Fife Beaugeneau cultivated the same until it became the property of Joachim Roy, who owned and cultivated the same until the common field fence was taken down.” Record of this testimony is made in book 2, page 116, of Hunt's Minutes. The testimony was taken and recorded July 30, 1825.

To the above one certificate was appended by the recorder of land titles.

The plaintiff then introduced in evidence a certified copy from Hunt's list of confirmation certificates, issued under the act of Congress of May 26, 1824, to Joachim Roy's legal representatives. From this it appears that the certificate was issued July 30, 1825. The lot is described as a common field lot, situate in the Cul de Sac, “one and one-half arpens front by about thirty deep;” “bounded north by the field lot claimed by Amable Guion's legal representatives, south by the field lot claimed by Beré Tabeau's legal representatives, east by Auguste Chouteau's mill tract, and west by Charles Gratiot.”

In the recorder's certificate appended to his transcript of the above, it is stated that “the above is the only entry in the said list of the claim of said Roy's representatives to a lot in the Cul de Sac common field of St. Louis.”

The plaintiff then offered in evidence a document purporting to be a will of Joachim Roy, devising all his estate to Veronique Guitard. The will bore date March 25, 1789 and purported to be signed by Joachim Roy, by his mark, and by seven witnesses, and by Manuel Perez, lieutenant-governor. This document was a copy certified from the “archives” by the recorder of St. Louis. In connection with this certified copy the plaintiff offered in evidence two documents, one purporting to be the original will of said Roy, of which the above is a copy, and the other purporting to be a copy thereof, certified by Charles Dehault Delassus to be “a copy in conformity to the original which is deposited in the archives of the government, given to the party on his application. Given at St. Louis, July 24th, 1801. [Signed] Delassus.”

Defendants objected to the admission of these documents, because the will was not executed in accordance with the law then in force; because it was not proved; because it had never been acted upon or set up in any manner by any person; because the devisees therein named never claimed any thing under it, nor was it ever produced before any judge or officer; because said copies were not produced from any legal custody. It was admitted that Roy died June 25, 1801, The court overruled the objections, and admitted the will and copies in evidence.

Plaintiff then introduced in evidence a will of Verronique Guitard, executed August 29, 1808, by which the lot in controversy was devised to her sons, François Caillou^d1 and Eustache Caillou. This will was proved November 22, 1836; also a deed to Wm. Carr Lane, dated August 1, 1825, from Eustache and François Caillou. Plaintiff showed title in himself under Lane to that portion of the field lot which is in controversy. This portion lies at or near the west end of the field lot. The plaintiff then gave in evidence certified copies of two surveys. The first purported to be a “plat and description of a survey of a lot, one and one-half by about thirty arpens, in the Cul de Sac fields, claimed by the legal representatives of Joachim Roy, and the boundaries and extent thereof proven before the recorder of land titles on the……day of……, 1825, under the act of Congress of the 26th of May, 1825.” This survey (No. 3307) was approved by the surveyor-general, Milburn, in 1841, with the qualification, written on the margin, that its “southern boundary must be extended eastward so as to make its whole length forty arpens, unless it comes in contact with the claim of Motard, in which event it will stop at Motard's.” The second survey (No. 3307) was made in accordance with this suggestion. It was approved March 20, 1857. The land in controversy was embraced in this survey. The plaintiff then gave in evidence a certificate of confirmation to Joachim Roy's legal representatives for the Cul de Sac lot as thus confirmed. This certificate bears date March 25, 1857.

The plaintiff here closed; whereupon the defendants asked the following instructions: “1. Upon the case made in testimony the plaintiff ought not to recover. 2. The will of Joachim Roy, as given in evidence by the plaintiff, is inoperative and void as a conveyance of the land in question to Verronique Guitard. 3. The two surveys, as given in evidence by the plaintiff, are not authorized surveys of the United States; and neither of them is authoritative as a survey.” The court refused to give these instructions.

The defendants then introduced oral testimony with the view to show that the true location of the Cul de Sac was within the Chouteau mill tract; that the Cul de Sac had been improperly located west of said mill tract. To this testimony plaintiff objected.

The defendants offered in evidence a copy of a plat of survey of the Chouteau mill tract. The ground on the west of the mill tract is laid down as ““vacante.” The “second concession” is marked as commencing at...