Gibson v. Chouteau
| Decision Date | 11 March 1879 |
| Citation | 7 Mo.App. 1 |
| Parties | CHARLES GIBSON, Plaintiff in Error, v. CHARLES P. CHOUTEAU ET AL., Defendants in Error. |
| Court | Missouri Court of Appeals |
1. A survey of a confirmation made by a deputy-surveyor has no official validity until approved by the surveyor-general of the proper district.
2. In a possessory action, allegations as to title are mere surplusage and do not make the question of title res adjudicata.
3. Where a judgment in ejectment was entered in the Supreme Court in favor of the plaintiff, upon condition that plaintiff enter a remittitur for certain interfering surveys specifically described, such a remittitur is not a retraxit, and is not a bar to another suit.
4. Where the Supreme Court has passed upon equities pleaded by the defendant, and found adversely to him, he is concluded by the judgment, and they cannot be sustained when again pleaded by him as a defence to an action of ejectment for the same land.
5. Inferior tribunals are bound by the conclusions of the Supreme Court, and cannot treat them as dicta, on the theory that the questions determined were not properly raised by the record, and were not necessary to the determination of the case.
ERROR to St. Louis Circuit Court.
Reversed and remanded.
CHARLES GIBSON, pro se.
THOMAS T. GANTT and GLOVER & SHEPLEY, for defendants in error.
This controversy has undergone various mutations and migrations through different forms and different forums, during the past sixteen years. In September, 1862, the plaintiff, Charles Gibson, commenced a suit in the St. Louis Land Court against the defendant Charles P. Chouteau, and others, to recover possession of a tract of sixty-four acres, which included the twenty-four acres of land sued for in the present proceeding. Gibson obtained judgment, from which Chouteau appealed to the Supreme Court. In 1866, the Supreme Court affirmed the judgment of the Land Court; but afterwards sustained the defendants' motion for a rehearing, chiefly on the defence of limitation. Upon the reargument, in 1867, the court adhered to its former views as to all the defences, but reversed the judgment by reason of the Statute of Limitations. 39 Mo. 536. The case was then taken by Gibson to the Supreme Court of the United States. That court found in the record no sufficient showing that the Missouri tribunal had determined the cause upon any question of Federal jurisprudence, and dismissed the appeal. 8 Wall. 316. Subsequently, at the October term, 1869, Gibson moved in the Supreme Court of Missouri for a correction of its records so that the grounds of its decision against him might clearly appear. The motion was sustained, and entries nunc pro tunc were made, whereby it was shown that the decision was based exclusively on the Statute of Limitations as an effectual defence, notwithstanding the fact that the United States patent under which the plaintiff claimed was issued within ten years before the commencement of the suit. 45 Mo 171. The cause was again taken to the Federal Supreme Court, where the Missouri judgment was reversed on the ground that no limitation law could operate against a title while it yet remained in the government. 13 Wall. 102. Afterwards, in the Missouri Supreme Court at the March term, 1872, Gibson moved for a final judgment in his favor. The motion was sustained, with a proviso or condition that Gibson should enter a remittitur as to certain interfering surveys which covered part of the land in dispute. 50 Mo. 85. These surveys were specifically described in the record-entry of the judgment. The remittitur was entered accordingly. The present suit is for land covered by the interfering surveys. The judgment below was for the defendants.
It does not seem to be claimed for the defendants that the plaintiff is barred in this proceeding by the record of his remittitur. Such a claim, indeed, could hardly be reconciled with the defence on which they chiefly rely. They revive the equitable defences unsuccessfully urged in the former suit, and insist that as that was only a possessory action, as well as for other reasons, there is no res adjudicata in the premises. The plaintiff, on the other hand, contends that all the equitable defences are barred by the former adjudication, while he holds that the remittitur only places him, as to the lands affected by it, where he would have been if they had never been involved in the suit. If the defendants are right, the subject-matter of the remittitur must be, no less than the other matters in dispute, open to further litigation. It may not follow, however, that the plaintiff's claim of res adjudicata as to all questions of title or ownership, if sustained, will operate a bar against any later assertion by him of title in the lands covered by the remittitur. If we treat the judgment as conclusive, there may seem to be a repugnancy in permitting the plaintiff to sue a second time for what he has surrendered as a condition of the determination in his favor. A retraxit would, of course, conclude him. In that form of entry, " the plaintiff voluntarily abandons his cause, and goes further: he admits that he has no cause of action." Pinner v. Edwards, 6 Rand. 675. But the entry in the present case makes no such admission. It amounts simply to " an agreement not to proceed farther in that suit," as to the particular cause of action. Such an entry is no bar against another suit. Minor v. Bank, 1 Pet. 74.
The recovery in the former suit was based upon a United States patent for survey No. 2498, containing six hundred and forty acres, including the sixty-four acres sued for, which was issued June 10, 1862, to Mary MacRee, " as assignee in right of James Y. O'Carroll, in virtue of deraignment of title." The patent contained a list of interfering claims, numbered from one to seven, inclusive, followed by a reservation in these words: " Hereby expressly excepting and excluding from the transfer by these presents such valid rights as may exist in virtue of the claims particularly designated under the 1st, 2d, 3d, 4th, 5th, and 6th heads in the foregoing, and further saving and excepting from the transfer by these presents of any other valid adverse claims, should such exist, to any part of the land embraced in the aforesaid survey number 2498."
The seventh in the list of interfering claims is thus described: arpens in the Cul de Sac Prairie Common Field. There is no evidence of this claim being confirmed." The patent proceeds: This language appears to have been copied from a public record, and adopted into the patent. It seems distinctly to exclude the Calvé survey from the reservation, and to incorporate it with the " residue" of survey 2498, against which " there is no valid claim." This Calvé survey is nevertheless included among the interferences covered by the plaintiff's remittitur, and embraces part of the land in controversy in the present suit.
A good deal of testimony tended to show that the Calvé survey No. 3309 was without validity for any purpose. The original concession to Joseph Calvé , dated April 30, 1768, was for two by forty arpens in Grand Prairie. The minutes of Recorder Bates, under date December 31, 1813, locate the claim in " Big Prairie Field," which was but another name for the Grand Prairie. The memorandum of confirmation by the same officer, made prior to July 1, 1814, notes the claim thus: " 80 arpens, to be surveyed, F. 153, Field of St. Louis, B. Prairie." That survey No. 3309 could not be the true survey of this confirmation was evidenced by the following facts: It located the land in the Cul de Sac Common Field, but the survey was never approved. On the contrary, as appears by a letter from the commissioner of the General Land Office, dated April 18, 1874, an application for its approval by that officer was refused. He states, from evidence furnished by official papers, that " survey No. 3309 has never been approved; but, on the contrary, it was considered to be null and void for want of confirmation." He adds, in effect, that this opinion seems to have been acquiesced in and adopted by the General Land Office in the issuing of the MacRee patent for survey No. 2498. He also refers to another survey, No. 1583, of the Calvé confirmation, which correctly located the land in the Grand Prairie Common Field, and which was regularly approved by the proper authority. A duly certified plat and description of this survey, showing that it was approved by the surveyor-general, May 15, 1845, was introduced in testimony by the plaintiff.
It thus appears that there was a strong array of testimony tending to show that the Calvé survey No. 3309 was not properly included in the plaintiff's remittitur, under either the terms of the patent or those of the opinion of the Supreme Court. We have already intimated, however, that, in our view, the plaintiff is not, by reason of the remittitur, precluded from maintaining in this proceeding his original right, if any he had, in the lands remitted. But, as to all the designated interferences, other than the Calvé survey, the patent itself is conclusively against him.
Plaintiff prayed the court, sitting as a jury, to declare the law to be that the Calvé claim was not excepted from the grant by the patent, and that if the decision of the commissioner rejecting the survey No. 3309 was genuine, the title shown by the plaintiff to the same premises was superior to any shown by the defendant thereto. Also, that the plaintiff's remittitur in the former action was no...
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