Gamache v. Piquignot

• Citation: 17 Mo. 310
• Parties: GAMACHE et al., Plaintiffs in Error, v. PIQUIGNOT et al., Defendants in Error.
• Decision Date: 31 October 1852
• Court: Missouri Supreme Court

17 Mo. 310

GAMACHE et al., Plaintiffs in Error,

v.PIQUIGNOT et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1852.

1. It is the settled course of decision in this state, that a claimant to land under the act of congress of 1812, did not lose his land by a failure to prove up his claim before the recorder of land titles under the act of May 26, 1824, but may establish his claim in the courts of the country, by proof of cultivation and possession prior to December 20, 1803. But if the recorder who took the proof under the act of 1824, failed to issue a certificate of confirmation, or to include the claim in his list furnished to the surveyor general, neither a certificate of confirmation, nor any other document issued by his successor in office, many years aftewards, upon an inspection of the proof taken before him, is any evidence of title; certainly not, when the acts of the recorder issuing the documents are not recognized by the United States government.

2. The affidavits taken before Recorder Hunt, under the act of 1824, are not competent evidence to establish the facts therein testified to.

3. A survey is not admissible in evidence, unless it has been duly approved and recorded, in accordance with the practice in the office of the surveyor general.

4. Under the act of 1812, the cultivation of part of a tract of land, under claim of the whole, is a cultivation of the whole tract.

5. Where an instruction given, when taken by itself, is erroneous, but is properly qualified by another instruction given, the judgment will not be reversed.

Error to St. Louis Circuit Court.

N. & S. A. Holmes, for plaintiffs in error. 1. The certificate of confirmation of the recorder of land titles, dated January 22, 1839, was erroneously excluded from the jury. It was prima facie evidence of title, and ought to have prevailed, until the defendants had shown a prior or a superior title, or at least, until they had disproved the facts necessary to bring this claim within the operation of the act of June 13, 1812. Neither the certificate, nor the facts of which it is evidence, can be questioned by one in possession merely. Montgomery v. Landusky, 9 Mo. Rep. 714, 718. The certificate proves that a grant was made by the act of 1812. Janis v.Gurno, 6 Mo. Rep. 330. Hunter v. Hemphill, 6 Mo. 106. Sarpy v. Papin, 7 Mo. 503. That the certificate was not issued until January 22, 1839, is no valid objection. The powers and duties conferred by the act were conferred, not upon Theodore Hunt, but upon the recorder of land titles, a perpetual officer; and no limit was prescribed by the act, within which the right of the claimant to apply for a certificate (after proof made within the eighteen months) or the power of the recorder to issue it was to cease. In the case of Macklot v. Dubreuil, 9 Mo. Rep. 489, a certificate issued in 1842 was held a prima facie title. 2. The certified extract from the surveyor general's list was competent evidence. McGill v. Somers, 15 Mo. Rep. 80-7. 3. The certified extract from the registry of certificates in the recorder's office, was competent evidence. McGill v. Somers, 15 Mo. Rep. 80. Biehler v. Coonce, 9 Mo. 351. Roussin v. Parks, 8 Mo. 544. 4. The fact that this claim had been omitted in the first list transmitted by Recorder Hunt, and that it was not in fact reported to the surveyor general until March 12, 1839, has no legal effect upon the title, or any right of the claimant under the act of 1824, upon the validity of the above mentioned documents, nor upon their admissibility in evidence. The act of 1824 fixed no limit within which the recorder must make his decision upon the proof taken within the eighteen months prescribed, nor within which his power to issue the certificate should cease. The second clause of the third section of that act imposed upon him a mere ministerial duty, not intended to be a condition precedent to the issuing of a certificate, nor to any right of the claimant. Parties are not to be prejudiced by the delays and omissions of mere ministerial officers and government agents. Perry v. O'Hanlon, 11 Mo. 589, 595. Taylor v. Brown, 5 Cranch, 234. The certificate, containing an accurate description of the location, extent and boundaries of the lot, so that any surveyor can find them, was all the evidence of title the claimants needed, and no public survey was necessary for them. Ott v. Soulard, 9 Mo. 603-4. Menard's heirs v. Massey, 8 How. 293. Smith v. United States, 10 Peters, 338. Chouteau v. Eckhart, 2 How. 344. United States v. Lawton, 5 How. 10. The object of the act of 1824 was not to give titles to claimants, but to get information for the use of the land office; and no limit of time was fixed either by the letter or spirit of the act, beyond which the information obtained by the recorder, by proof within the eighteen months, should not be reported by him to the surveyor general. When on the 15th of October, 1827, nearly two years after the eighteen months had expired, the recorder furnished a list of claims which he then supposed to contain all, and when, at the several dates thereafter down to 1839, the omissions of the first list had been supplied, and the errors corrected by the transmission of supplementary lists or reports, the law had then only, and not before, been substantially complied with. If it were at all material whether the omission of the claim by Recorder Hunt was by accident or design, there is no evidence that he ever decided against this claim; on the contrary, the effect of the evidence is to show that it had been accidentally overlooked in transcribing the list. The omission and delay have prejudiced nobody. This lot has never been set apart for schools as a vacant lot, nor would it have been included in the survey of the commons, if the commons belonging to the village had been surveyed according to their claim and confirmation, as the law directed, nor if the surveyor, as he ought, had consulted the records of the recorder's office. 5. The certified extract from Hunt's minutes was competent evidence. This has often been decided by this court. 6. The seventh instruction asked for by plaintiffs was erroneously refused, and the second instruction asked for by defendants was erroneously given. This survey No. 120 was made by authority of the United States by a deputy surveyor, duly authorized, and a plat and description having been made out in form, and the survey having been examined and approved by the surveyor general, it was binding on the United States, until set aside by competent authority, though not yet recorded. Mc Gill v. Somers, 15 Mo. 80. Boyce v. Papin, 11 Mo. 25. Jourdan & Landry v. Barrett, 4 How. 169. Menard's heirs v. Massey, 8 How. 313. Taylor v. Brown, 5 Cranch, 234. Harris v. Monks, 2 S. & R. 560. Griffith v. Funkhouser, Pet. C. C. R. 422. The surveyor general had no other function to perform than to survey the calls and description of the claim, as reported to him by the recorder; he is not a judicial officer to decide upon the validity of one survey against another. Boyce v. Papin, 11 Mo. 25. It was proved that this survey had been correctly executed. The recording of a survey is a mere matter of regulation in the office for the convenient preservation of the survey, and not essential to its validity. This survey was good prima facie evidence of the location, extent and boundaries of the plaintiffs' claim, against any opposing title, not to be disputed at all by the defendants until they had shown some title to the same land. McGill v. Somers, 15 Mo. 87. Boyce v. Papin, 11 Mo. 25. 7. Instruction No. 5 for the defendants was erroneously given. It was contradictory to the instructions given for the plaintiffs, and was calculated to mislead the jury. 8. The title attempted to be set up by the defendants as commons was properly cut off from the consideration of the jury by the court, on a comparison of titles. 9. The third instruction for plaintiffs was properly given, the defendants having given no such evidence of adverse possession of the land in controversy for twenty years prior to the commencement of this suit, as amounted in law to a disseisin of the legal representatives of Gamache. Possession by disseisin must be an actual, continued, visible, notorious and hostile possession. Macklot v. Dubreuil, 9 Mo. 477, 490. 4 Mass. 416, 418. 4 Kent, 446 and note ( a.) 1 Mass. 483, 488. 3 Met. 129. 2 J. R. 230. 14 Pick. 224. Ang. on Lim. 410, § 11; 416, § 13, § 15, § 16, § 17, § 23, § 30, § 34.

C. C. Whittelsey, for same.

R. M. Field, for defendant in error. I. The proceedings of Recorder Conway, in 1839, were merely null, and afforded no evidence of title whatever. 1. By the provisions of the act of 26th May, 1824, the proof before the recorder must be made in eighteen months. 2. The duty of taking the proof in its nature is judicial, as this court has decided. 3. The evidence of a compliance with the act is the certificate of the recorder for the time being, and his list of claims proved, returned to the surveyor general and the commissioner. 4. The act requires no recorded or written proof before the recorder, and the circumstance that affidavits were taken by Hunt, touching the Gamache claim, is no evidence that he considered it as proved. 5. On the contrary, the circumstance that the claim was not entered on his list is decisive to show that he was not satisfied with the testimony. 6. The abuses to which the practice of Recorder Conway will lead are manifest. If Hunt's list may be altered after fourteen years have elapsed, alterations may be made at any distance of time; if future recorders may supply fancied omissions, they may strike out such claims as they may regard as erroneously entered; if they can thus deal with the list of Hunt, they can do the same with Bates' confirmations, and the numerous land titles depending on the action of the recorders of former days will be at the mercy of officers, selected, not...