O'Flaherty v. Kellogg

• Decision Date: 31 March 1875
• Citation: 59 Mo. 485
• Parties: ELIZA O'FLAHERTY et al, Respondents, v. SANFORD B. KELLOGG, Appellant.
• Court: Missouri Supreme Court

59 Mo. 485

ELIZA O'FLAHERTY et al, Respondents,

v.SANFORD B. KELLOGG, Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

S. Knox, for Appellant.

Bakewell & Farish, for Respondents.

NAPTON, Judge, delivered the opinion of the court.

This was an ejectment to recover 4 1/2 feet of ground fronting on Third street, and lying south of Poplar street, and the plaintiffs under instructions from the court had a verdict and judgment.

To understand the point in controversy, it is sufficient to state that one Baccane had a Spanish grant of 120 by 150 feet, rench measure, fronting on Third street, which was confirmed by the United States, but upon a survey of this confirmation by the United States surveyor, instead of being 120 feet French, (which would be 128 4/12 English) there were only 121 3/12 feet English, bounded north by Poplar street.

In April, 1816, Belliseme (who bought of Baccane) sold to Baltut 60 French (or 64 212 feet English) from the southern line of his lot, and on 18th of June, 1816, he sold to Bouvet 60 feet French, assumed to be the northern half. But if the United States survey is to govern, it is plain he had in June, 1860, only 57 112 feet English left, having previously conveyed to Baltut 60 feet French, (or 64 212 feet English.) Bouvet conveyed to Lemont, and, therefore, Lemont's southern line was 57 112 feet English, south of Poplar street.

In 1847, Baltut's legal representative, Mrs. Boyer, conveyed to Th. J. White, under whom Kellogg claims 32 English feet on Third street, bounded north by Lemont.

After this sale to White, Baltut's legal representative, (Mrs. Boyer) in 1851, conveyed to O'Flaherty 60 feet front, French, by 160 in depth, bounded on the west by Third street, on the north by a lot claimed or owned by Simons, etc. In other words, Mrs. Boyer conveyed to O'Flaherty whatever remained of her 60 feet French, after the 32 feet English previously conveyed to White. So that the plaintiffs and defendant both claim under Mrs. Boyer, the representative of Baltut.

In 1849, two years after the conveyance to White, (under whom Kellogg derived title) Lemont took possession of his lot on the north end of the block and erected buildings on it, the south wall of which was 60 feet French or 64 212 English from Poplar street--whereas, his lot was only 57 12 English from Poplar, thus encroaching on White's lot about 7 feet. This suit was brought to recover the 4 112 feet which Kellogg had recovered in ejectment against one Chenot, and the record of the judgment in the case against Chenot was pleaded as a bar to this action; but that portion of the answer which set up this as a bar was stricken out on motion by the court.

On the trial, the court gave the following instructions at the instance of the defendant:

“If the court, sitting as a jury, believe from the evidence that Belliseme owning at the time 121 312 feet on the east side of Third street, in block 53, bounded north by Poplar street, executed and delivered to Bouvet a deed for 60 feet French measure on the east side of Third, bounded north by Poplar street, and that Lemont acquired under Bouvet; and that before said conveyance to Bouvet said Belliseme had conveyed 60 feet French, which is 64 212 English, to Baltut, being the southern portion of such 121 312 feet so owned by Belliseme of the same depth, then, for the purpose of this suit, the southern line of Lemont's lot must be fixed at such a distance from Poplar street less than 60 feet French, or 64 212 feet English, as will give to Baltut and his representatives the whole amount of 64 212 feet English on Third street, and leave to Lemont, as representative of Bouvet, a lot fronting on Third street so many feet only as may be left after deducting from the whole Third street frontage of the original lot of 121 312 38 feet English, owned by Belliseme, the 60 feet French first conveyed by him to Baltut.” This was the only instruction given.

The defendant asked the following instructions:

1. If the jury believe from the evidence that on the 6th of April, 1816, Alex. Belliseme was the owner of a piece of ground, 120 feet French measure on the east side of Third street by 150 feet French measure on the south side of Poplar street, and bounded north by Poplar street and west by Third street; that by deed of that date read in evidence, he conveyed to H. Baltut 60 feet French measure by 150 feet deep, bounded on the west by Third street and on the north by the grantor, being the south half of said larger tract; and that said Belliseme by deed...