Gibson v. Chouteau

• Decision Date: 31 October 1866
• Citation: 39 Mo. 536
• Court: Missouri Supreme Court
• Parties: CHARLES GIBSON, Respondent, v. CHARLES P. CHOUTEAU et als., REPRESENTATIVES OF PIERRE CHOUTEAU, JR., Appellants.^a1

39 Mo. 536

CHARLES GIBSON, Respondent,

v.CHARLES P. CHOUTEAU et als., REPRESENTATIVES OF PIERRE CHOUTEAU, JR., Appellants.^a1

Supreme Court of Missouri.

October Term, 1866.March Term, 1867.

Appeal from St. Louis Land Court.

The chain of title was as follows:

1. Confirmations to James Y. O'Carroll for 1,000 arpents, 13th March, 1806; reduced on 14th December, 1810, to 350 arpents, and extended by the Recorder of land titles to 640 acres in 1815, and finally confirmed on 29th April, 1816, to James Y. O'Carroll and his legal representatives.

2. Deed, acknowledged and recorded, from James Y. O'Carroll to George Ruddell, of 1805, for confirmation, and for all the land.

3. Geo. Ruddell to Jas. Tanner and And. P. Gillespie, March 7, 1866, for 550 arpents in Little Prairie township, New Madrid county, on the waters of the Mississippi, it being a part of the said tract of land originally claimed before the U. S. Commissioner of land claims for the Missouri Territory, by and in the name of Jas. Y. O'Carroll, as reference being had to the Recorder's office or for land claims for the Missouri Territory, &c., which has been materially injured by earthquakes, and assigns right to locate lands in lieu thereof under the New Madrid act of 1815.

4. Deed of George Ruddell and wife to And. P. Gillespie, of New Madrid, for $500 of land in Little Prairie township, described as “one tract of 200 arpents, situate on the Mississippi, or near the Mississippi, it being part of the James Y. O'Carroll's settlement right,” duly acknowledged and recorded, dated 16th May, 1818.

5. The general assignment of A. P. Gillespie to James Tanner of all his interest and title in the O'Carroll claim, and other lands, acknowledged 18th May, 1816, and duly recorded.

6. Deed of A. P. Gillespie to Jas. Tanner, 1st June, 1818, for the 200 arpents, a part of the settlement right of Jas. Y. O'Carroll, situate in the county of New Madrid and township of Little Prairie.

7. Geo. Ruddell to George Dameron, 1st November, 1815, a part of a tract of land of 200 arpents situate in the Little Prairie township, county of New Madrid, &c. This deed was held void for uncertainty in the case of Holme v. Strautman, 35 Mo. 293.

8. Deed of Rachel Dameron, William Nelson and John Dameron, heirs of George Dameron, to James Tanner, the tract of 200 arpents last above conveyed to George Dameron on the 18th October, 1816.

The foregoing was the chain of title in New Madrid county as the same appeared of record there, and the title to the Jas. Y. O'Carroll head right thereby vested in James Tanner.

Chain of title in St. Louis county:

1. Deed of James Tanner to Christian Wilt, dated 31st January, 1816, duly recorded.

2. New Madrid certificate No. 150, of November 30, 1815. The J. Y. O'Carroll land has been injured by earthquakes.

3. Location of certificate, November 8, 1816, by Christian Wilt, with description of land located.

4. Certificate of Joseph C. Brown, agent of Christian Wilt, of location on fractional sections 20 and 17, west half of fractional section 21, and north side of fractional section 28, in the same township (45 N. and range 7 E.) in which St. Louis is situated--June 16, 1818.

5. U. S. survey of O'Carroll's New Madrid location as made for Christian Wilt in April, 1818, by Jos C. Brown, Dep. U. S. Surveyor. This survey was not returned to the Recorder of land titles until 1841.

6. Deed of Hempstead, guardian of Wilt, only son and heir of Christian Wilt, deceased, to Joseph Hertzog, surviving partner of Hertzog & Wilt, dated 10th September, 1821, for the 640 acres in the New Madrid location for Christian Wilt, No. 150, &c. This deed was made pursuant to a decree of the Court of Chancery, entered at the August term thereof at St. Louis in 1821.

7. The record of said decree in chancery in Hertzog v. Wilt--Circuit Ct. of St. Louis sitting as a court of chancery. August term, 1821. By this decree Hempstead, the guardian of Geo. W. Wilt, is ordered to convey the real estate, including this New Madrid location No. 150, to Jos. Hertzog. The guardian was appointed without any service of process upon the infant.

8. Jos. Hertzog to Robert Wash, trustee for Louis Devotion, deed of trust of 26th October, 1822, of this New Madrid location No. 150 and other lots of land to secure $9,549 due Devotion by Hertzog, with power to Robert Wash to sell on ten days' public notice a part or the whole of the land.

9. Louis Devotion, by trustee R. Wash, to P. Chouteau, Jr., for $128, the 64 acres now sued for, dated November 27, 1824. In 1826 Pierre Chouteau entered under this deed, and has held ever since until his death in 1865.

10. Deed of Jos. Hertzog, by sheriff, to Henry Clay, executor of James Morrison, dated May 17, 1825; of the New Madrid certificate No. 150 and location 640 acres, and other lands sold under execution.

11. The deed in chancery, in case of Henry Clay, against Christian Wilt and Joseph Hertzog's heirs and Rob't Wash, vesting the title in the New Madrid location No. 150, 640 acres, as against the parties named, in Henry Clay, executor of William Morrison.

12. Title bond or agreement from Henry Clay to William McRee to convey him the New Madrid location No. 150, 640 acres.

13. Deed from Henry Clay to the heirs of William McRee, October 11, 1839, for $500, conveying the 640 acres of land (New Madrid location No. 150 of Jas. Y. O'Carroll) to Ann McRee, James F. McRee and Samuel McRee, heirs of Wm. McRee.

14. Deed of Ann F. McRee, James M. McRee and Mary A. McRee to Samuel McRee, of 4th July, 1836, for the sum of $1,600; grant this New Madrid location No. 150 of 640 acres to Samuel McRee and his heirs. This deed states the death of Wm. McRee before February 4, 1836; so that Hy. Clay's sale of the land in N. M. certificate 150 to Wm. McRee must have been before the 4th February, 1836.

15. Bill in chancery filed by Samuel McRee in 1845 against the heirs of Wilt and Hertzog, and Ed. Hempstead et als., to cure the defect in old bill of 1821 by Hertzog v. Hempstead, guardian of Geo. W. Wilt, heir of Christian Wilt, in which there was no service on the heir at law of Chr. Wilt, the locator of N. M. certificate 150. In this last bill the title of Chr. Wilt to N. M. certificate No. 150 under James Y. O'Carroll was asserted, and Samuel McRee was decreed to be the sole owner of the N. M. certificate No. 150 under James Y. O'Carroll.

16. Samuel McRee, claiming to be the sole owner of the 640 acres in Jas. Y. O'Carroll's N. M. certificate No. 150 in favor of Chr. Wilt, he and his wife make a deed to Pierre Chouteau, Jr., and his heirs, on the 30th August, 1838, for the 64 acres which Mr. Chouteau had acquired of Robert Wash, trustee of Louis Devotion, in 1824, all duly acknowledged and recorded at the time. These are the 64 acres in suit.

17. Samuel McRee died, and devised all his real and personal and other property to his wife; will probated in 1849.

18. Mary McRee, widow of Samuel McRee, and his sole devisee, is the party to whom the patent of 1862 is issued as the assignee of Jas. Y. O'Carroll.

19. Mary McRee to plaintiff.

B. A. Hill and Shepley, for appellants.

I. The patent and location are void, no survey being returned to the Recorder of land titles until 1841--Easton v. Salisbury, 21 How. 427; Hale v. Gaines, 22 How. 144; Wilcox v. Jackson, 13 Peters, --; Bagnell v. Broderick, 13 Peters, 447. This is a rule where a prior title exists by law, or a prior reservation exists.

II. The patent survey and location are void, because the location was not made on public lands, the sale of which was authorized by law--New Madrid act of 17th Feb. 1815, p. 255, § 1.

By the act of 13th June, 1812, “the rights, titles and claims to town or village lots, out-lots, common-field lots, and commons in, adjoining and belonging to the several towns or villages of * * * St. Louis, * * * in the Territory of Missouri, which lots have been inhabited, cultivated or possessed prior to the 20th day of December, 1803, shall and the same are confirmed to the inhabitants according to their several rights, or rights in common, thereto,” * * * And the said act of 1812 commands the U. S. Surveyor “to survey and mark the outboundary lines of the said several towns or villages, so as to include the out-lots, common-field lots, and commons thereto * * * belonging.”

The outboundary of St. Louis, the out-lots, common-field lots, and commons thereto belonging, even according to said act of 1812, must include all of the Jas. Y. O'Carroll location; and all the lots and commons being granted to the inhabitants, and all the vacant lots within said area not reserved for military purposes by the President of the United States, shall be reserved for the support of schools in the village of St. Louis, not exceeding one-twentieth part of the whole lands included in the general survey of said town or village. This outboundary is to be a general line to surround the town or village, and all the commons, and common-field lots, and all the vacant lands, and the reservation is absolute in the present tense, and takes effect eo instanti upon the vacant lands lying between the common-field lots, and in other places within the whole range of lots and commons in adjoining, and belonging to, the town or village of St. Louis.

In Glasgow v. Hortez, 1 Black, (U. S.) the reservation for the schools and military purposes is equally positive and absolute as the grant to individuals. It is a reservation in the present tense, and not any reservation to be made thereafter. It was then and there reserved for certain purposes declared, and it has remained so reserved ever since, and such land is not subject to sale.

The New Madrid locations can only take effect upon public lands the sale of which was authorized by law--Act of Feb. 17, 1815, 1 Land L. 255, § 1. Now then vacant lots in the common-fields of St. Louis, between the common-fields of the cul de sac and the common-fields of the Barriere des Noyers of St Louis, were reserved from all...