Evans v. Greene

• Decision Date: 31 March 1855
• Citation: 21 Mo. 170
• Parties: EVANS, Respondent, v. GREENE AND OTHERS, Appellants.
• Court: Missouri Supreme Court

21 Mo. 170

EVANS, Respondent,

v.GREENE AND OTHERS, Appellants.

Supreme Court of Missouri.

March Term, 1855.

1. A deed conveyed a tract of twelve and one-sixth arpens of land, described as being in the southeast corner of a larger tract, bounded on the north by lands of E., R. and others, on the west by a street, and as being particularly laid down upon a plat on the deed. Upon the deed was a plat, showing the shape of the land sold, and the courses and lengths of its four sides. A tract of the size and shape indicated by the plat could be located in the southwest corner of the larger tract, so as to be bounded on the west by the street called for, and on the north by the land of E. R., but could not be thus located in the southeast corner. The grantee in the deed took possession, and laid out an addition in the southwest corner, and shortly afterwards re-conveyed to the grantor six lots in the addition, which were near the southwest corner. Held, the call for the southeast corner might be rejected, and the tract located by the remaining matter of description in the deed, taken in connection with the acts of the parties.

2. Upon a question of boundary, an inquiry as to the statements of a deceased surveyor, in regard to the location of a corner, if admissible at all, must be made in such a shape as to elicit from the witness whether he ever heard the surveyor say at what point he fixed the corner, and not where it had been fixed at the instance of an interested party, nor where it would be fixed according to his interpretation of a deed.

3. It is no objection to a judgment for the plaintiff in an ejectment suit, that the trial proceeded after the marriage of a female defendant without making her husband a party, he not having applied to be made a party.

Appeal from St. Louis Court of Common Pleas.

This was an action in the nature of ejectment, brought in December, 1849, by Augustus H. Evans against Isaac T. Greene, to recover a lot of ground on Main street, in the northern part of the city of St. Louis. Elizabeth Ashley, under whom the defendant was a tenant, was made a co-defendant in May, 1850. At the October term, 1853, when the cause was called for trial, the intermarriage of Elizabeth Ashley with John J. Crittenden was suggested. The trial proceeded without Crittenden being made a party, and the jury returned the following verdict: “Augustus H. Evans v. Isaac T. Greene and Elizabeth Crittenden and John J. Crittenden. We, the jury, find for the plaintiff, and that the defendants are guilty of the trespasses charged in the petition, as to a lot of ground beginning at the northwest corner of Main and Ashley streets, and running along Main street northwardly to O'Fallon street, with a depth of 115 feet on the south line on Ashley street, and 97 feet in depth on O'Fallon street, and we find the damages to be $2443, and the monthly value of the premises to be $53.12.”

Upon this verdict a judgment was entered against Isaac T. Greene and Elizabeth Crittenden for the possession, and against Greene for the damages and monthly value. The defendants filed their bill of exceptions, and appealed to this court.

Both parties claimed title under Risdon H. Price, the plaintiff under sheriff's deeds, and the defendants under two prior deeds from Price to William M. O'Hara. The question was whether the land conveyed by the deeds from Price to O'Hara was to be so located as to cover the ground in dispute. If not, it passed by the sheriff's deeds, and the title was in the plaintiff.

The lot in controversy was within a large tract conceded to Peter Chouteau on the 16th of October, 1799, by Delassus, Spanish lieutenant-governor of Upper Louisiana, described as being six arpens in depth from the river, bounded north by Labeaume's tract, south by Roy's land, east by the river, and west by the domain of his majesty. This concession was surveyed by Soulard on the 10th of March, 1803, and contained 133 arpens. The survey is shown on diagram No. 1, by the line aC--CD--De--ea.

On the 17th of February, 1809, the old board of United States commissioners confirmed to Chouteau his claim, to the extent of 93 arpens and one perch (the remainder having been abandoned by him as interfering with land previously surveyed), and ordered the same to be surveyed “so as not to interfere with the field lots of the Little Prairie adjoining the town of St. Louis.” On the 29th of May, 1811, Chouteau received from the commissioners a certificate of confirmation.

On the 2d of April, 1817, an official survey of the confirmation was executed by Joseph C. Brown, numbered 671. This survey is represented on diagram No. 1, by the lines ab--bc--cd--de--ea. There was evidence, however, from which it would seem that the west line of the Spanish survey was a little further west than the west line of Brown's survey. The eastern line of the common fields was fixed by Brown, as shown by the line AB. On the 26th of March, 1824, Chouteau received from the United States a patent for the land confirmed, in which it was described as a “tract containing 79 12/100 acres, bounded and described as follows, to-wit: Beginning at the upper corner stone of Antoine Roy's claim of eleven arpens and fifty-eight hundredths on the Mississippi river, thence with Roy's line south 74 deg. 30 min. west seventeen chains and fifty links to a stone on the north edge of a mound, thence north 15 deg. west 14 chains and 67 links to a stone in the front line of the common fields, thence with the line of said fields north 2 deg. west 29 chains and 60 links to an old stone corner, a little northwest of the large mound, thence north 74 deg. 30 min. east 14 chains and 50 links to a stone on the bank of the river, his upper corner; thence down the river south 4 deg. east 5 chains and 70 links, south 18 deg. east 14 chains and 50 links, south 13 deg. east 9 chains, south 10 deg. east 7 chains, and south 6 deg. west 8 chains to the beginning, being in township 45 north of range 7 east, and designated on the connected plat as number 671.”

On the 3d of August, 1808, before the date of the confirmation and Brown's survey, Chouteau conveyed to Meriwether Lewis a portion of his confirmation, describing it in the deed as follows: “A tract of land adjoining the town lots of the town of St. Louis, bounded as follows: Commencing at a stone in Antoine Roy's upper line; thence running south 67 deg. 30 min. west 45 perches to a stone in the line separating the town lots from the lots which have been granted for cultivation; thence north 21 deg. 30 min. west 72 perches to a stone in said line; thence northeast wardly 45 perches to a stone; and thence 65 perches to the beginning; containing 30 arpens and 93 perche (Fr. meas.) in superficie.”

On the 25th of October, 1811, the administrator of Meriwether Lewis, after a sale according to law, conveyed this tract to Risdon H. Price, describing it as “a tract of land situate adjoining the town lots of the town of St. Louis, and bounded by a tract of land purchased by said Meriwether Lewis from John Mullanphy, westerly by the forty arpen lots, northerly and easterly by lands the property of Peter Chouteau, the said tract containing 30 arpens and 93 perches, and purchased by the said Meriwether Lewis from the said Peter Chouteau and Bridget, his wife.”

The true location of this tract, conveyed by Chouteau to Lewis, and by the administrator of Lewis to Price, was a matter of dispute, and depended upon whether the starting point was taken at the distance of 45 perches from the south-west corner of Chouteau's survey, or at the same distance from the of Roy's line produced, with the eastern line of the common fields as afterwards fixed by Brown. Upon the first hypothesis, the location is shown on diagram No. 1, by the lines ai--ih--hf--fa. Upon the second hypothesis, the location is shown either by the lines mn--nr--rq--qm, or by the lines mn--no--op--pm, according as the west line of the tract is surveyed upon the course called for in the deed, without regard to the common field line, or upon the common field line, without regard to the course called for in the deed. Either location under the second hypothesis would include land outside of Chouteau's American survey.

On the 24th of December, 1810, Chouteau conveyed to William C. Carr a portion of his concession, described as follows: “Beginning at the bank of the river Mississippi at the corner of Mary Philip Leduc's tract, and running westerly six arpens in depth to a stone, thence northwardly five arpens and three-quarters of an arpen to a stone, thence easterly six arpens to the bank of the river Mississippi, and thence with the meanders of said river to the beginning, said tract containing about 34 1/2 arpens, being part of a tract of larger quantity granted to said Peter Chouteau by a concession from Charles Dehault Delassus, late lieutenant governor of late Upper Louisiana, dated October 16th, 1799,” &c. This tract was located as shown on diagram No. 1, by the lines HG, GE, EF, FH.

On the 30th of November, 1815, Chouteau conveyed to Frederick Bates a tract described as follows: “A certain tract or parcel of land containing 21 arpens, French superficial measure, be the same more or less, situate, lying and being about twelve arpens north of the aforesaid town of St. Louis, bounded as follows: Eastwardly by the river Mississippi, southwardly by a tract of one arpent, fronting on said river, belonging to said Peter Chouteau, westwardly by lands which said Peter Chouteau sold to Meriwether Lewis, and the field lots or road, if any there be, between the said field lots and the aforebargained premises, and northwardly by land which the said Peter Chouteau sold to Wm. C. Carr, it being a part of a larger quantity which was granted to said Peter Chouteau by the Spanish government, by concession, bearing date October 16th, 1799, surveyed March 10th, 1803.”

The location of this tract, (supposing its extreme western line to be in...