Gitt v. Eppler

• Citation: 56 Mo. 138
• Parties: WILLIAM GITT, Plaintiff in Error, v. GEORGE S. EPPLER, Defendant in Error.
• Decision Date: 31 March 1874
• Court: Missouri Supreme Court

56 Mo. 138

WILLIAM GITT, Plaintiff in Error,

v.GEORGE S. EPPLER, Defendant in Error.

Supreme Court of Missouri.

March Term, 1874.

Error to St. Louis Circuit Court.

The counsel of the parties agree upon the following statement as showing the facts of the case upon which the question of law arises.

This was an ejectment to recover part of U. S. Surv. No. 2553, of New Madrid, Loc. No. 95, in the name of Nicholas Hebert or his Legal Representative. The plaintiff's title was traversed by the answer.

At the trial the plaintiff read the patent of the U. S. to N. Hebert or his Legal Representative dated Nov. 22, 1872, for the lands embraced in Survey 2553.

Plaintiff also read the claim of said N. Hebert, filed Feb. 25, 1811, before the Board of Commissioners, for a lot in the village of New Madrid, as follows:

“Nicholas Hebert, claiming a lot in the village of New Madrid, 180 feet square, produces to the Board a concession from the Baron De Carondelet, dated 30th March, 1793, a plat of the village of New Madrid, on which claimant's lot is No. 159, situate on Dauphin and St. Lorenzo streets.”

The Board confirmed the claim, and in lieu thereof the New Madrid certificate was issued, which was the basis of the patent.

To show his derivative title, plaintiff read a deed from Nicholas Hebert to Andrew P. Gillespie, dated July 18, 1815, with the following description

“All his lot or lots in the town of New Madrid aforesaid which were at any time granted to him by the commandant, of that place, and all the land which may be obtained for the same from the United States because of the liberality of Congress, and he is hereby authorized to relinquish the same for his own use and benefit.”

Plaintiff then showed a derivative title from Gillespie to himself. The plaintiff's evidence was admitted, subject to objections to its materiality and competency.

The court declared that, upon the plaintiff's evidence, he was not entitled to recover, and plaintiff became non-suit, and his motion for new trial being overruled and the judgment affirmed at general term, he prosecutes this writ of error.

The only question in the case is, did the deed from Hebert to Gillespie convey the lot confirmed so as to pass the title to the re-located land?

C. C. Whittelsey, for Plaintiff in Error.

I. The Circuit Court erred in its ruling, that the deed of Hebert to Gillespie did not describe the lot confirmed to Hebert, for, until it was shown that N. Hebert had more than one lot in the town of New Madrid, the rule must apply: Falsa demonstratio non nocet cum de corpore constat. (1 Green. Ev., § 301 and cases cited; 2 Phil. Ev., C. & H. notes, [Ed. 1859,] p. 747, n. 1; Hardy vs. Matthew, 38 Mo., 121; King vs. Fink, 51 Mo., 209; Campbell vs. Johnson, 44 Mo., 247.)

II. We must note the history of the country and the manner of making grants, showing that the descriptive words, “ granted by the commandant,” might be applied to a lot granted by the governer general.

See report to Congress of Board of 1832 and 1833, and testimony of Delassus as to manner of making grants. See also, claims filed in said report; Richard Caulk, indorsed by commandante at St. Andre; Old Mines Claim, No. 9; Louis Lorimier, No. 22; St. Gemme Beauvais, No. 28, etc.

Sam. Reber & W. H. H. Russell, for Defendant in Error.

I. The plaintiff showed no title in himself to the land. He professed to derive title from Nicholas Hebert, who conveyed to one Gillespie (under whom plaintiff claims) “all the lot or lots in the town of New Madrid aforesaid, which were at any time granted to him by the commandant of that place, etc., whereas the deed only conveys such lot or lots as were granted to Hebert by the commandant of New Madrid, and there is no evidence of any such grant.

Hebert may have had many lots in New Madrid not granted to him by the commandant as well as lots so granted.

If the deed can be so construed as to convey land not granted to Hebert by the commandant, it must be made to appear by the evidence that he intended to convey other land, and this the plaintiff has failed to show.

We assume that the court will take judicial notice not only of the laws of upper Louisiana, but of the officers who governed it and of the powers which they respectively possessed; and therefore will take notice that the Baron De Carondelet was governor general, residing in New Orleans, with a superintending control over the officers of upper Louisiana, and that there were officers in the latter territory who had power to make grants of the public domain, of whom the commandant at New Madrid was one.

That such was the case see evidence of Lieut. Gov. DeLassus, Vol. 5, American State Papers, Public Lands, pp. 708 and 709. See also Vol. 3, American State Papers, p. 288 and following for grants by Henry Peyroux, commandant of New Madrid.

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment brought by the plaintiff for the recovery of premises described as “being part of New Madrid location No. 95, United States Survey No. 2553; bounded on the West by the survey line; East by land claimed by D. Fink and M. Hammer and South by lands claimed by D. and C. Fink, containing thirty-five acres more or less.

The defendant by his answer denies the allegations of the petition, and avers that he has been in the peaceable adverse possession of the land for more than twenty years.

A jury was waived by the parties and the case submitted to the court for trial.

The plaintiff, in order to prove title in himself to the land sued for, offered in evidence: First, a patent of the United States dated November 22, 1872, for the land embraced in New Madrid certificate No. 95, United States Survey No. 2553, which covers the premises in dispute, to Nicholas Hebert or his legal representatives.

Second, a deed from Nicholas Hebert to Andrew P. Gillespie, executed on 18th day of July 1815, which describes the land conveyed by Hebert to Gillespie, as “all his lot and lots in the town of New Madrid aforesaid, which were at any time granted to him by the commandant of that place, and all the land which may be obtained for the same from the United States because of the liberality of Congress; and he is hereby authorized to relinquish the same for his own use and benefit. This deed purported to have been acknowledged on the 28th day of May 1816, and recorded August 17th, 1872. The plaintiff proved by proper evidence that said deed was found among the files in the office of the U. S. Recorder of St. Louis Titles, and that said deed was delivered to plaintiff by Adolp. Renard, Recorder of Land Titles in the year 1847.

The plaintiff also offered in evidence other deeds conveying the title of Gillespie to him. The plaintiff then, in order to identify the land sued for as being a part of the land contemplated and conveyed to Gillespie, by Hebert, offered in evidence the following copy of certificate No. 1091, and claim therewith, to-wit: “Louisiana Commissioners certificate No. 1091, June 20th, 1811. We, the undersigned, Commissioners for ascertaining and adjusting the title and claims to land in the Territory of Louisiana, have decided that Nicholas Hebert, original claimant, is eutitled to a patent under the 4th section of an act of the Congress of the United States entitled ‘An act respecting claims to land in the Territory of Orleans and Louisiana,’ passed the third day of March one thousand eight hundred and seven, for one hundred and eighty feet square of land, situate in the district of New Madrid, village of New Madrid, and ordered that the same be surveyed conformable to the concession. By virtue of a concession or order of survey from Baron De Carondelet, governor general.” This certificate was signed by the commissioners.

The plaintiff also read in evidence a copy of the claim and entry upon which the confirmation was made, as follows:

“Monday, February 25th, 1811.

Board met: Present, John B. C. Lucas, Clement B. Penrose, Frederick Bates, Commissioners. Nicholas Hebert ...