Fine v. St. Louis Pub. Sch.
Citation | 30 Mo. 166 |
Parties | FINE et al., Respondents, v. THE ST. LOUIS PUBLIC SCHOOLS et al., Appellants. |
Decision Date | 31 March 1860 |
Court | United States State Supreme Court of Missouri |
1. The inhabitants of the city of St. Louis are incompetent jurors in a case in which the city is interested as party; for example, in a case in which the Board of President and Directors of the St. Louis Public Schools is a party. In such case the court should disregard the special act of March 5, 1855, (Sess. Acts, 1855, p. 527,) and direct the summoning, by special venire, of a jury from that portion of the county outside of the city limits.
2. The provision of the act regulating executions (R. C. 1845, p. 481, § 28,) directing the sheriff to divide real estate levied on and sell so much thereof as will be sufficient to satisfy the execution, is directory; a violation of its injunctions will not render the sale void.
3. Recitals in a deed of conveyance are not evidence in behalf of the persons claiming under the deed.
4. By the Spanish law a person might divest himself of title to his immovable estate by abandoning it; should he depart from it with the intention that it should be no longer his, this would constitute an abandonment. The question of abandonment is one of fact, of intent, to be determined by the jury from all the circumstances of the case.
5. An instruction given to a jury is erroneous if it is calculated to mislead them by inducing them to attach undue importance to a portion of the testimony and to divert their attention from other facts entitled to consideration. Instructions should not amount to a commentary on the evidence.
6. To establish a title to land by virtue of a confirmation by the act of Congress of June 13, 1812, it is not necessary to show any documentary title, or any permission to occupy, or any other title emanating from the Spanish government; proof of inhabitation, cultivation or possession is sufficient.
7. It would be improper in an instruction to indicate to the jury that, in a case where the claim of the party was based upon possession and cultivation alone, testimony of less weight would be sufficient to make out an abandonment, than in a case where the claim was evidenced by a documentary title of some kind emanating from the Spanish government.
This is the same case which was heretofore in the supreme court. (See Fine v. St. Louis Public Schools, 23 Mo. 570.) The plaintiffs claim title to an undivided interest in the premises, a lot of one by forty arpens in the St. Louis common field, as heirs and legal representatives of Philip Fine, to whom said lot is alleged to have been confirmed by the act of Congress of June 13, 1812. Evidence was adduced by plaintiffs to show that said Fine cultivated and possessed the lot in controversy prior to December 20, 1803, and up to the time of the falling down of the fence, about six years before the change of the government. He then removed from St. Louis to the mouth of the Meramec river and continued to reside there until his death. The defendants adduced in evidence a designation and setting apart of the land in controversy for the support of schools. The remaining facts sufficiently appear in the opinion of the court.
The court gave the following instructions at the instance of the plaintiffs:
The instructions given by the court, on its own motion, are set forth below in the opinion of the court.
The court gave the following two instructions at the instance of the defendants:
The following instructions asked by the defendants were refused:
The jury found a verdict for plaintiffs.
Casselberry and E. Bates, for appellants.
I. The court erred in ordering a special venire to be summoned outside of the city of St. Louis. (Sess. Acts, 1855, p. 527.) The third instruction was erroneously refused. The deeds read in evidence by plaintiffs described the land as a tract which was owned by Philabert Gaignon, alias Laurent Larouge, under the Spanish government. Plaintiffs showed no title under Larouge. The evidence showed that Fine abandoned the land about 1794, if he ever had possession. The court should have granted a new trial. It should have instructed the jury that they ought, under the circumstances, to presume an abandonment. The court should have rejected the sheriff's deed. Plaintiffs did not show any judgment. Besides, the sheriff sold the whole forty arpens in a lot. He ought to have sold the property in parcels corresponding with the blocks and streets in the city. The recitals in the deed of Cuns to Fine were not evidence in favor of those claiming under Fine. Plaintiffs show no documentary title. A distinction should be taken between titles and claims under the act of June...
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