Cottle v. Sydnor

• Decision Date: 31 July 1847
• Parties: COTTLE v. SYDNOR.
• Court: Missouri Supreme Court

10 Mo. 763

COTTLE

v.SYDNOR.

Supreme Court of Missouri.

July Term, 1847.

ERROR TO LINCOLN CIRCUIT COURT.

PORTER & WELLS, for Plaintiff. 1. The third instruction is erroneous, because it assumes that the patent to defendant conveys a better title than the plaintiff's confirmation of older date. 2. The fourth instruction is erroneous, because it assumes that the plaintiff was only entitled to the quantity mentioned in his grant, although the confirmation was for all within his survey--a larger quantity. In support of these positions, the plaintiff relies on the decision of this court at its last term in the case of Harold and Wife v. Simonds and Bailey. The cases are precisely parallei. 3. The court also erred in instructing the jury that twenty years' possession of any part of the defendant's tract gave him a title against the plaintiff, who had lived on his tract forty years. 4. There was evidence of residence of twenty years of defendant on a part of his tract, but not the part in dispute, while all the evidence showed that plaintiff had resided on his Spanish grant for forty years. 5. The court erred on the point of estoppel.

CAMPBELL, for Defendant. 1. The plaintiff has not exhibited any sufficient title upon which he ought to recover the land in controversy, even if the defendant had nothing but a naked possession. 2. The highest and most complete evidence of title to land emanating from the United States is a patent describing the land; but when no patent has been issued, other documents may form good evidence of title. Thus, a certificate of confirmation according to survey, and a copy of survey conforming to the confirmation, may be good prima facie evidence of title; but when the copy of survey produced does not conform to the survey mentioned in the certificate of confirmation, it furnishes no evidence of title to the land thus described. 3. Where grants were made by the Spanish government for a specific quantity of land, and that quantity is confirmed by the United States, it is competent for the United States to have it surveyed, in order to distinguish the land thus confirmed from the public land; and in making such survey, if the survey made by the Spanish authorities should be found to contain a larger quantity of land than called for in the grant, it is competent for the United States to have the surplus thrown off, and the survey reduced so as to conform to the true quantity granted. 4. Even if it be conceded that a grantee may claim more land that the quantity of acres named in his confirmation, when the confirmation is made according to survey, and that the United States have no right to curtail the survey and cut off surplus, yet, in order to enable a grantee to hold more than the quantity of land mentioned in his grant, he should be able to establish his survey satisfactorily by well known boundaries, corners and land-marks, either natural or artificial, so as to show satisfactorily that the land claimed by him is the same identical land mentioned in his grant and survey. 5. The survey made by Palmer, the county surveyor, in connection with the other evidence in the cause, does not afford any satisfactory evidence that the land in controversy and now sought to be recovered by the plaintiff is included within the original Spanish survey alluded to in his confirmation. 6. The Circuit Court erred in permitting the plaintiff to introduce as evidence the plat of survey certified by the surveyor-general, because, although of the same date, it does not appear by any evidence to be the same survey mentioned in plaintiff's certificate of confirmation, which is there described to be a survey recorded in a particular book and page in the office of recorder of land titles; and the very fact of the plaintiff having failed to procure a certificate of that survey from the office of the recorder of land titles, affords prima facie evidence that, if produced, it proved to be adverse to his claim, and that it would conflict with the survey from the surveyor-general's office, which he has procured, but which is not referred to in the confirmation; and as the plaintiff has produced no other paper to prove the identity of the land claimed in the declaration with the land mentioned in his confirmation, he must entirely fail if that survey from the surveyor-general's office be either excluded or adjudged insufficient. 7. The survey of Palmer, the county surveyor, having been founded on the certificate and plat of survey from the surveyor-general's office, which is not referred to in the confirmation, does not afford any legal evidence that the land surveyed by him is the same land that was confirmed to Cottle. 8. The survey made by Palmer, and on which the plaintiff relies, does not conform to, and is not supported by, the Spanish plat and survey from the surveyor-general's office, according to which he testifies he made it, because it does not call for any corner or mark mentioned in said Spanish plat and survey by which it could be identified, and because the north and south lines of the survey called for in the original Spanish plat are only fourteen arpents long, whereas those lines are twelve poles longer in the survey made by Palmer, and are so made by said Palmer without any lawful authority or good reason for so doing. The Spanish survey, as certified from the surveyor-general's office, calls for a tract twenty-five arpents long by fourteen arpents broad, which would make exactly 350 arpents, the quantity granted to said Cottle and surveyed to him by the United States; but the survey made by Palmer is much wider, and by reason of that unlawful extension of width, is made to embrace about one hundred acres more than the true quantity. 9. If the evidence in the cause shows that the plaintiff did not make out a complete title on which he ought to recover, or if on his entire evidence there were sufficient reasons to prevent his recovery, then this cause should not be reversed, even if the court should consider some of the instructions given by the Circuit Court to be incorrect; for if the court can see from the whole record that substantial justice has been done in the matter, they will not disturb the judgment of the Circuit Court because it may have given an erroneous instruction, which should not have altered the result, even if it had been decided correctly. Where the record shows a judgment for the right party, it should stand. 10. The plaintiff, Andrew Cottle, was estopped by his deed to Simon Creech, and his deed to Thomas Sydnor, from contending that the western line of his survey is further west than the western lines of the two tracts of land thus sold, and consequently from contending that the premises now in controversy are situated within his survey. 11. The evidence in the cause proves that, twenty years before the commencement of this suit, John Waggoner, claiming under Jesse Porkins, was in actual possession of the northeast quarter of section two, in township forty-eight north, of range one west, which includes the premises in controversy; that he claimed to own the whole of that quarter section as his own; inhabited, improved and cultivated it; that he and Thomas Bowen and John Sydnor, the defendant, have ever since had peaceable adverse possession of the same, and that consequently the claim of the plaintiff is barred by the statute of Limitations, if he ever had one. 12. The original purchase of the quarter section of land above referred to was probably made by Jesse Perkins as early as the year 1818, although, owing to delays of the land office, the patent did not issue till the 23rd December, 1826. 13. The title of the defendant, by patent from the United States to Jesse Perkins, and a complete chain of title by deeds from Jesse Perkins to the defendant, constitutes a better title to the land than the plaintiff's title. 1 Mo. R. 777.

NAPTON, J.

This was an action of ejectment, instituted by Cottle in the Circuit Court of Lincoln county, to recover possession of a small tract of land alleged to be within the limits of a Spanish survey. The original concession was made by Lieutenant-Governor Delassus, on the 20th September, 1799, and was surveyed by James Mackay, on the 23rd December, 1803, and certified by him on the 20th January, 1804. The claim before the board of commissioners was for 350...