Cummings v. Powell

• Decision Date: 04 February 1889
• Citation: 10 S.W. 819,97 Mo. 524
• Parties: CUMMINGS et al. v. POWELL.
• Court: Missouri Supreme Court

10 S.W. 819

97 Mo. 524

CUMMINGS et al. v. POWELL.

Supreme Court of Missouri.

February 4, 1889.

1. PUBLIC LANDS — SCHOOL LANDS — SELECTION — RESERVATION FROM SALE.

Act Cong. June 13, 1812, § 1, confirmed, to the inhabitants of St. Louis and other towns, town lots, common fields, etc., which had been inhabited, cultivated, or possessed prior to December 20, 1803, and required a survey of the out-boundary line so as to include common-field lots, etc., as soon as might be. Section 2 reserved for the support of schools, among other lands, all common-field lots, etc., included in such survey, not rightfully claimed by individuals, provided that the quantity reserved should not exceed one-twentieth of the land in the general survey of the town. Held, that all the unclaimed common-field lots were reserved from sale during the time the portion going to the schools was not set off to them.

2. SAME — NECESSITY OF SURVEY.

Though the out-boundary survey was not made until 1840, and, as then made, excluded the unclaimed "five Grand Prairie common-field lots," an intermediate location and survey under a New Madrid certificate, under the act of February 17, 1815, authorizing the owners of lands in New Madrid county, injured by an earthquake, to locate a like quantity on any public lands the sale of which was authorized, did not become valid, no patent having been issued. The lots having been previously defined and located on the ground, and surveyors having been required to be guided by them, a survey was not necessary to make the reservation effectual.

3. SAME — VALIDITY OF LOCATION.

Such location is not made valid by act Cong. June 30, 1864, relinquishing the title of the United States to the land in such location; the act of June 15, 1864, having granted to the state, for the support of schools, all the interest of the United States to the land in the Grand Prairie common field. Such field and lots having had a prior existence, it was not necessary that the latter act should require a survey of them.

4. LIMITATION OF ACTIONS — RUNNING OF THE STATUTE.

The statute of limitations does not begin to run as to land before the title thereto emanates from the United States.

5. SAME — TITLE OF LAND IN UNITED STATES.

Where plaintiff in ejectment claimed under a New Madrid certificate, and defendant's allegation that the lands were a part of such common-field lots was not conceded, an instruction assuming that the statute began to run before the title emanated from the United States, defendant having been in possession for 40 years, requires a reversal of a judgment for defendant.

6. ESTOPPEL — IN PAIS.

A defendant in ejectment, who introduces conveyances from plaintiff's ancestor to his predecessor in title, is not thereby estopped from disputing such ancestor's title to all the lands, especially where he has been long in possession. But he cannot claim part of the lands under, and part against, the same title.

Appeal from St. Louis court of appeals.

Ejectment by Francis M. Cummings and others against Robert W. Powell. Plaintiffs appeal.

D. T. Jewett, for appellants. Martin, Laughlin & Kern, for respondent.

BLACK, J.

The plaintiffs commenced this action of ejectment on the 22d June, 1874, to recover a part of lot 38, in Peter Lindell's Second addition to St. Louis. For title they read in evidence New Madrid certificate No. 348, issued to James Conway or his legal representatives on the 20th November, 1817, for 200 arpents of land; a location of this certificate on June 6, 1818 survey No. 2,712, dated 23d June, 1819, which survey was returned to the recorder of land titles on the 4th September, 1822; a certificate for a patent, but upon which certificate no patent was ever issued; and the act of congress of June 30, 1864, (13 U. S. St. 581.) This survey No. 2,712 is called the "Conway Location," and the property in suit is within its boundaries.

The evidence shows that James Conway died about the year 1810, leaving as his heirs his father, William Conway, and three sisters, namely, Nancy, Polly, and Jane or Janet. The plaintiffs in this suit are the descendants of these three sisters, except Smith, who claims some interest through the other plaintiffs. It seems to be conceded that William Conway inherited a life-estate only from his deceased son; and as William died about the year 1840, long before the commencement of this suit, it is not essential to notice the various deeds from and under him read in evidence by the defendant.

During the trial the defendant read in evidence three deeds, one from each of the three sisters of James Conway to Joseph Harding, dated in the years 1823 and 1825, and a deed from the public schools to Peter Lindell, dated 20th August, 1845, purporting to convey much property of which the property in question is a part.

It was admitted that the defendant had all the title formerly possessed by Peter Lindell and Joseph Harding. The deed from the schools to Lindell is not relied upon as giving to Lindell a good title, and two of the deeds from the sisters of James Conway proved to be of no avail to the defendant. When Nancy executed the deed to Harding she had a husband living who did not join therein, and, while Polly and her husband both signed the deed to Harding, still it was not acknowledged, simply proved up by subscribing witnesses, and for these reasons these deeds proved to be of no avail to defendant. Indeed, the plaintiffs insist that the deed from Jane or Janet to Harding is also invalid. She married Hicks, from whom she had been divorced, and the claim is that the decree is void, and, since he did not join her in the deed, that it is of no validity.

The defendant put in much other evidence which tends strongly to show that the parcel of property now in suit lies within the Grand Prairie common field. The Bizet lot lies to the north, and the Lacroix lot to the south, and both of these common-field lots are identified by United States surveys. Between these two common-field lots there are five others, which are not identified by United States surveys, but the evidence tends to show that they were all occupied or cultivated prior to December 20, 1803. These five lots do not appear to have ever been claimed by individuals under the act of congress of June 13, 1812. The land in suit is a part of two of these five lots.

The defendant, and those from whom he claims, have been in actual possession of the land in suit for more than 40 years before the commencement of this suit.

From the foregoing statement it will be seen that the plaintiffs claim title from James Conway under the New Madrid location. The defendant sets up title under the same location, but, as some of his deeds proved to be of no avail for the purpose of making title, he takes the ground that the location was invalid, and for this reason the plaintiffs have no title, and cannot recover. The third instruction given at his request is, in substance, that if the land in suit is a part of common-field lots in the Grand Prairie common field, and these common-field lots were used by many of the inhabitants of the town of St. Louis prior to December 20, 1803, for the purpose of cultivation, then it was not subject to the location of a New Madrid certificate, and the location and survey are void; and on this state of facts the sixth instruction draws the further conclusion that, by the act of congress of June 15, 1864, the title to the common-field lots, not before disposed of by the United States by confirmation and survey or otherwise, passed to this state for school purposes. These instructions present the most important question in the case.

The act of February 17, 1815, (3 U. S. St. 211,) for the relief of inhabitants of New Madrid county who suffered from earthquake, authorized persons owning injured lands to locate a like quantity on any of the public lands the sale of which was authorized by law. It is clear that under this act the New Madrid certificate could only be located on land subject to sale. That act in this respect is not modified by the subsequent acts of April 9, 1818, or April 26, 1822. The question, then, is whether these common-field lots were reserved from sale by the act of congress of June 13, 1812, (2 U. S. St. 748.)

In the recent case of Glasgow v. Baker, 85 Mo. 559, we held that the sixth section of the act of March 6, 1820, which provides that section 16 in every township, and when such section has been sold, or otherwise disposed of, other lands equivalent thereto, shall be granted to the state for the use of schools, did not and was not intended to invade these common-field lots, because the previous act of June 13, 1812, had disposed of them. The judgment of this court in that case has since been affirmed by the supreme court of the United States.¹ The rulings in that case go far to show that these common-field lots were not open to sale, and therefore not open to the location of a New Madrid certificate, under the act of February 17, 1815.

The defendants in that case set up title under and also an outstanding title in individual confirmees under the act of 1812. But in the present case it seems that the five Grand Prairie common-field lots have never been claimed by individuals, and this gives to the question a new aspect. The first section of the act of 1812 enacts "that the rights, titles, and claims, to town or village lots, outlots, common-field lots, and commons, in, adjoining, and belonging to the several towns of, [St. Louis being named,] which lots have been inhabited, cultivated, or possessed prior to the 20th December, 1803, shall be, and the same are hereby, confirmed to the inhabitants of the respective towns or villages aforesaid, according to their several right or rights in common thereto." It is then made the duty of the deputy-surveyor, as soon as may be, to survey the out-boundary line of the village, "so as to include the out-lots, common-field lots, and...