Cummings v. Powell
| Decision Date | 04 February 1889 |
| Citation | 10 S.W. 819,97 Mo. 524 |
| Parties | Cummings et al., Appellants, v. Powell |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
Reversed and remanded.
D. T Jewett for appellants.
(1) Where both parties claim under the same person, that person's title is admitted. (2) The location of the New Madrid certificate in 1822 was lawfully made on land subject to such location, and thereby the equitable title to said land became vested in James Conway's heirs and legal representatives, and can only be defeated by the owner of an earlier and superior title under the government vested in the defendant. (3) Neither the trial court nor this court is authorized to say where the out-boundary line provided for in the first section of act of June, 1812, should or should not have been run; and there is no reservation for the schools nor ever was, outside of the said out-boundary as run by the land department of the United States, and the schools have no title anywhere, nor ever had, until a survey is made for them by the United States Land Department. Carondelet v. St Louis, 1 Black, 189; Dredge v. Forsyth, 2 Black, 569; Bryan v. Forsyth, 19 How. 338; Papin v. Ryan, 32 Mo. 21. (4) As plaintiffs claim under two acts of congress, the New Madrid act of 1815 and the act of June 30, 1864, they have a title in fee which cannot be disputed by the defendant unless he can show title from the government to the same property. Plaintiffs claim under acts of congress, stronger than patents. Whitney v. Morrow, 112 U.S. 695. (5) Defendant has not set up any title in him as coming from the government except under the same acts of congress by which plaintiffs claim, and under the same man the plaintiffs claim. He cannot claim under one title and then dispute it. Fugate v. Pierce, 49 Mo. 449; Brown v. Brown, 45 Mo. 412; Rumfelt v. O'Brien, 57 Mo. 569. (6) The statute of limitations had not run ten years after the fee was granted by the act of June 30, 1864, before referred to, before this suit was brought; and for that reason the eighth instruction should not have been given. (7) In order to locate a common-field lot by testimony in court, it must be established by evidence in court that some particular person, known and named, cultivated or occupied some particular lot, with as certain boundaries and limits, before December 20, 1803; that such person was then an inhabitant of the village of St. Louis, and that he, or some one under him, claimed the same lot in 1812. It will not do to prove that a broad expanse of ground was generally cultivated or occupied by somebody. (8) The act of June 15, 1864, is wholly worthless as a defense to this suit.
Martin, Laughlin & Kern for respondent.
(1) The land sued for was not open to location under a New Madrid certificate, such as plaintiffs claim in their behalf. Glasgow v. Baker, 85 Mo. 559. (2) The land sued for is within the out-boundaries of the Grand Prairie Common Fields of St. Louis. This fact does not disprove its connection with the Grand Prairie Fields. Glasgow v. Horitz, 1 Black, 602. (3) These commonfield lots, being necessarily reserved from sale by the Act of June 13, 1812, were exempt from location and disposition under and by virtue of the New Madrid certificate through which the plaintiffs claim. Stoddard v. Chambers, 2 How. 284; Martin v. Nebraska, 21 Wall. 660. (4) If the lands were vacant or unclaimed field lots, within the meaning of the act of 1812, legally or equitably belonging to the United States, they were effectually disposed of by the act of June 15, 1864, and therefore, nothing was left of them for the act of June 30, 1864, to take effect upon, as a new appropriation or disposition. (5) The doctrine of estoppel, as between vendor and vendee, has never been accepted, but has been repeatedly denied in this state. The relation between vendor and vendee is hostile and antagonistic. That is the primary implication of the law. If an estoppel arises, it must come from circumstances and considerations which exist outside of the relation. In ejectment, when the defendant claims title from no other source than the plaintiff, or a common grantor of both, and the two titles are identical in the plaintiff or common grantor, he may well be estopped from denying the validity of the plaintiff's title. In every other case he is at liberty to dispute the plaintiff's title, however much of it he may have bought in. Macklot v. Dubreuil, 9 Mo. 473; Lander v. Perkins, 12 Mo. 238; Blair v. Smith, 16 Mo. 273; Cutter v. Waddingham, 33 Mo. 269; Mattison v. Ausmuss, 50 Mo. 551; Wilcox v. Osborn 77 Mo. 621. (6) Instruction number eight, given for defendant, was intended to apply in the event the court should hold that the certificate, under which plaintiffs claim, was properly located on the land in suit, and need not be considered, if the court adheres to the conclusions announced in Glasgow v. Baker, supra, that the land in controversy was reserved from sale, and that the plaintiffs' location was void. (7) It was not intended by the act of 1831 to dispense with the survey and designation by the officers of the government, which was required by the act of May 26, 1824. Hammond v. Schools, 8 Mo. 65; Kissell v. Schools, 16 Mo. 553; Papin v. Ryan, 32 Mo. 21; Kissell v. Schools, 18 How. [U. S.] 19; Public Schools v. Walker, 9 Wall. 282. (8) The grant under the act of June 30, 1864, is a general relinquishment or quit-claim of the government title to all lots within the Grand Prarie Common Fields. This would be sufficient description between citizens. It is unquestionably definite enough for a grant by a government. Bank v. Bates, 17 Mo. 583; Long v. Higginbottom, 56 Mo. 245; Cornwell v. Thurston, 59 Mo. 156; San Francisco v. Irwin, 28 F. 708.
OPINION
The plaintiffs commenced this action of ejectment on the twenty-second of 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 twentieth of November, 1817, for two hundred arpents of land; a location of this certificate on June 6, 1818; survey No. 2712, dated the twenty-third of June, 1819, which survey was returned to the recorder of land titles on the fourth of 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. Stat. 581). This survey, No. 2712, 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 August 20, 1845, purporting to convey much property of which the property in question is a part. It was admitted that 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 forty 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, that these common-field lots...
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