Glasgow v. Baker

• Citation: 72 Mo. 441
• Parties: GLASGOW v. BAKER et al., Appellants.
• Decision Date: 31 October 1880
• Court: United States State Supreme Court of Missouri

72 Mo. 441

GLASGOW

v.BAKER et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from St. Louis Court of Appeals.

REVERSED.

his was an action of ejectment. Plaintiffs sued on behalf of the public schools, claiming the land in dispute as part of school section 16, township 47 north, range 7 east, of the 5th principal meridian, under the act of Congress of March 6th, 1820, admitting the State into the Union. The land was admitted to lie within the limits of said section, but defendants claimed it by virtue of a title older than that under which the claim was made for the schools, viz: as part of certain common field lots the title to which was confirmed by the act of June 13th, 1812, in parties from whom defendants derived it. It appeared in evidence that there had been two surveys of these lots made by order of the Surveyor General of the United States, one in 1855, the other in 1857. By the first of these the land in dispute was shown to be part of these lots; by the other a part of it was shown to lie outside of them. In 1867 defendants entered into a deed of partition, among themselves, of other lands adjoining the land in dispute, in which deed they recited and referred to the survey of 1857, as the true survey, and undertook to divide among themselves as part of said lots lands which were no part of said lots according to the survey of 1855, but were part of them according to that of 1857. Plaintiffs were not parties to this deed. The other facts, together with the instructions given in the case, will be found fully stated in the report of this case in volume 50 of these reports, page 60.

Britton A. Hill and R. E. Collins for appellants.

Samuel T. Glover, Alexander Hamilton, Melville L. Gray and John D. S. Dryden for respondents.

The defendants in their agreement for partition of Lindell's estate, appointed commissioners to make partition, and authorized them to have surveys and plats made, and make partition among them, and they agreed to make deeds among themselves according to the allotments made by the commissioners. The plat of Lindell's 2nd addition accompanying the report of said commissioners located the surveys of Bouis, Baccannet and Bizette according to the United States surveys of 1857, nine arpens and thirty-six French feet to the westward of the general east line of the Grand Prairie common fields, and the heirs, in accordance with said location, made deeds among themselves. Further, the patent from the United States to Hunot's legal representatives, who was Peter Lindell, was received and recorded by the representatives of Lindell, and located Bouis, Bacannet and Bizette to the westward nine arpents and thirty-six French feet, and they accepted said patent, and claimed under it and conveyed the land granted by it, reciting the survey of Bizette of 1857. All this is the highest evidence of an acceptance by defendants of said surveys, and is conclusive on them. Carondelet v. McPherson, 20 Mo. 192; Menard v. Massey, 8 How. 313. If these surveys were erroneous, defendants had the right to waive the error and did waive it.

NAPTON J.

This is the same case before this court in 1872, Glasgow v. Lindell's heirs, 50 Mo. 60. The suit was commenced in 1853, and resulted in May 1870, in a verdict and judgment for plaintiffs in the Circuit Court for 35.076 acres, but this judgment was reversed by the general term of said court, and this reversal was sustained by this court; but the case was remanded to the special term for further proceedings. The appeal now is from the result of this new trial.

The evidence for the plaintiff on the second trial was precisely the same as that on the first trial, which is stated in detail in the opinion of this court in 50 Mo. 60. The right of the commissioners to maintain the action was sustained in that case, but the instructions given, as they excluded from the jury the consideration of the question whether the lot in controversy was a common field lot, and therefore confirmed by the act of 1812, were held erroneous, and the opinion of the court was that there was sufficient evidence to authorize this question to be left to the jury. It was further determined, that the instructions of fered by the defendants in that case, the Lindell heirs, should have been given so far as they enunciated the proposition that each inhabitant of the town of St. Louis, cultivating or possessing a common field lot prior to the 20th of December, 1803, was confirmed in...