Hammond v. Coleman

• Decision Date: 03 July 1877
• Citation: 4 Mo.App. 307
• Parties: D. L. HAMMOND ET AL., Plaintiffs in Error, v. N. COLEMAN ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

4 Mo.App. 307

D. L. HAMMOND ET AL., Plaintiffs in Error,

v.N. COLEMAN ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Jul. 3, 1877.

1. Where the certificate of acknowledgment in open court of a sheriff's deed, offered in evidence, is not attested by the clerk's official seal, the deed is properly excluded.

2. A New Madrid location is not rendered void by reason of a failure to return the survey thereof to the recorder of land titles within one year after the passage of the act of Congress, approved April 26, 1822, entitled “An act to perfect certain locations and sales of public lands in Missouri.” If the location be made within one year after April 26, 1822, an appropriation may take effect upon the return of a survey, whenever made.

3. A location established by approved government surveys cannot be set aside upon testimony, from unofficial sources, tending to show that another location was the true one.

4. In an action of ejectment defendant cannot, as a defence, set up an outstanding title by virtue of inhabitation and cultivation prior to December 20, 1803, where no attempt is made to identify the parties who are supposed to have so inhabited and cultivated the land.

5. “A government grant being made to J. H., ‘or his legal representatives,’ the question as to who are such legal representatives is one of fact, to be determined under the laws of the State wherein the property lies. Where, by State regulations, adverse possession under claim of ownership operates a transfer of title, such adverse possession may be as effectual to create a legal representative as a transfer by deed or inheritance. Giving effect to such a transfer does not defeat the grant or interfere with the primary disposal of the soil, but aids the grant by ascertaining the grantee.”

6. Gibson v. Chouteau considered.

ERROR to St. Louis Circuit Court.

Affirmed.

J. L. D. MORRISON, plaintiff in error, pro se: It was necessary that the survey be returned to the recorder of land titles before April 26, 1822, to effect an appropriation of the land.-- Broderick v. Bagnell, 13 Pet. 436; Rector v. Ashley, 6 Wall. 142; Mackay v. Easton, 19 Wall. 619. The certificate of acknowledgment of a sheriff's deed must be attested by a seal.-- Allen v. King, 35 Mo. 216; Ryan v. Carr, 46 Mo. 484; Adams v. Buchanan, 49 Mo. 64; Harvey v. Ramsey, 49 Mo. 309. The deed of one having no title conveys nothing; those who come in under a void grant can acquire nothing.-- Polk's Lessee v. Wendell, 9 Cranch, 5; Sampeyrac v. The United States, 7 Pet. 241; The United States v. Aridondo, 6 Pet. 731; Stoddard v. Chambers, 2 How. 318; Maguire v. Tyler, 40 Mo. 434; Gibson v. Chouteau, 13 Wall.; McCracken v. Wright, 14 R. I. 193. No relation can be had to a void act, nor to a time anterior to the date of the first legally inceptive act, in the creation of a title, and then only in furtherance of justice, and to those only who stand in some privity with the patentee, who had the right to the land.-- Gibson v. Chouteau, 13 Wall. 101; Heath v. Ross, 12 Johns. 140; Lynch v. Bernal, 9 Wall. 325; Montgomery v. Ives, 13 Smed. & M.

D. T. JEWETT, for plaintiffs in error: Where one purchases a claim from him who files it, prior to confirmation, the confirmation enures to the purchaser.-- Landes v. Brunt, 10 How. 31; Langlois v. Crawford, 59 Mo. 468. Return of survey.-- Rector v. Ashley, 6 Wall. 142; Mackay v. Easton, 19 Wall. 619; Hot Springs Cases, 2 Otto, 707; Gibson v. Chouteau, 39 Mo. 560. Adverse possession-- Miller v. Dunn, 62 Mo. 216; McIlhinney v. Ficke, 61 Mo. 329. Title by virtue of location.-- McCamant v. Patterson, 39 Mo. 106. Acknowledgment of sheriff's deed.-- Allen v. Moss, 27 Mo. 364; Samuel v. Shelton, 48 Mo. 444; McClure v. McClerk, 53 Mo. 173. In the absence of proof, it is presumed that a deed is not delivered until it is acknowledged.-- Fontaine v. Boatmen's Savings Institution, 57 Mo. 560; Blanchard v. Tyler, 12 Mich. 342; Himry County v. Bradshaw, 20 Iowa, 362.

B. A. HILL, for defendants in error: Survey and return.-- Hale v. Gaines, 22 How. 144; Easton v. Salisbury, 21 How. 426. Confirmation.-- West v. Cochran, 17 How. 413; Standford v. Taylor, 18 How.; Maguire v. Tyler, 8 Wall. 650, and 14 Wall. Uncertainty of description in deed.-- Holme v. Strautman, 35 Mo. 293. When a legal title is completed, it relates back to the first incipient step taken to procure it.-- Alexander v. Merry, 9 Mo. 510; Page v. Hill, 11 Mo. 149; Crowley v. Wallace, 12 Mo. 145; Winston v. Affalter, 49 Mo. 263; Porter v. Martin, 50 Mo. 364; Mitchell v. Handfield, 33 Mo. 431; McCabe v. Worthington, 16 Mo. 510; Papin v. Massay, 27 Mo. 445; Carpenter v. Rannells, 45 Mo.; City of St. Louis v. Toney, 21 Mo. 243. Parol evidence is admissible to show that land described in a sheriff's deed is well known, in the community where situated, by the description given, however vague it may be; and if the land is well known by such description, the sale and deed are valid and binding.-- Bank of Missouri v. Bates, 17 Mo. 583; Webster v. Blount, 39 Mo. 500; McPike v. Allmen, 53 Mo. 551; Schewalter v. Priner, 55 Mo. 218. Presumptions as to seal of ancient deed.-- Geary v. Kansas City, 61 Mo. 378; Dale v. Wright, 57 Mo. 110; Hedden v. Overton, 4 Bibb, 406; Griffin v. Sheffield, 38 Miss. 359; Snead v. Ward, 5 Dana, 187; Smith v. Dill, 13 Cal. 510; Jones v. Martin, 16 Cal. 165. “Twenty years' adverse possession warrants a presumption that the possessor had a deed of the property, and that all acts necessary to give the deed effect were done.”--1 Mass. Dig. 549; Brattle Square Church v. Bullard, 2 Metc. 363; White v. Loring, 24 Pick. 319; Ryder v. Hathaway, 21 Pick. 298; Valentine v. Piper, 22 Pick. 85; Blair v. Marks, 27 Mo. 579. “A grant may be presumed after a lapse of many years, when possession has accompanied the claim of title.”--2 Brightly's Dig. 3218, sec. 993; Johns. Cas. 109; Schuyler v. Russell, 4 Wend. 543; Constantine v. Warford, 7 Wend.; Briggs v. Prosser, 14 Wend. 227; Cahill v. Palmer, 45 N. Y. 478; Newman v. Studley, 5 Mo. 291; McNair v. Hunt, 5 Mo. 300; Landis v. Perkins, 12 Mo. 254. Adverse possession for ten years creates in the possessor an affirmative title, under which he may maintain ejectment.-- Barry v. Otto, 56 Mo. 177; Davis v. Thompson, 56 Mo. 39. An uninterrupted notorious adverse possession of ten years, under claim of title, operates to vest in the claimant so holding possession the title of such land as effectually as though such title had been acquired by deed.-- Biddle v. Mellon, 13 Mo. 335; Blair v. Smith, 16 Mo. 273; Shaw v. Nicholay, 30 Mo. 99; Warfield v. Lindell, 38 Mo. 561; Nelson v. Brodback, 44 Mo. 596; Wall v. Shinder, 47 Mo. 282.

LEWIS, P. J., delivered the opinion of the court.

This is a suit in ejectment, commenced June 13, 1874, for recovery of survey No. 2500, under New Madrid certificate No. 161, located in township 45 of range 1 east, in St. Louis County. Defendants answered, denying generally, and alleging continuous adverse possession, under claim of title, for more than fifty years. The cause was tried before the court sitting as a jury, and judgment was rendered for the defendants.

By an act of Congress, approved June 30, 1864, “all of the right, title, and interest of the United States in and to” the land sued for was “granted, relinquished, and conveyed by the United States, in fee-simple and full property,” to “Joseph Hunot, or his legal representatives.” The act identifies the land as being within the boundaries of the location made by virtue of certificate No. 161, issued under the act of Congress, approved February 17, 1815, entitled “An act for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes.” Plaintiffs claim to be the legal representatives of Joseph Hunot, by virtue of the following facts:

In 1808 Joseph Hunot presented his claim before the board of commissioners for adjustment of land titles in the territory of Louisiana for a tract of land in New Madrid County, under a permission to settle granted him in 1802. On May 12, 1810, he conveyed his pending claim to Joseph Vandenbenden, by deed, with special warranty, stipulating that “should the claim not be held good by government, and the same or any part of the same tract should not be granted, he, the said Joseph Vandenbenden, to lose the same, and he, the said Joseph Hunot, to be in no wise responsible therefor.” The claim was rejected by the board, January 31, 1811; but on November 1, 1815, Recorder Bates included it in his list of confirmations reported to Congress for ratification under the act of March 3, 1813. On November 4, 1815, Vandenbenden conveyed to Rufus Easton, with special warranty, and an authority to use the name of the grantor, if necessary, in obtaining a certificate of new location. The act of Congress approved April 29, 1816, ratified and confirmed the action of Recorder Bates. On August 12, 1816, Recorder Bates issued New Madrid certificate for location No. 161, in favor of Joseph Hunot, or his legal representatives, for 480 acres. Upon notice and request of Rufus Easton, dated June 16, 1818, the surveyor-general caused survey No. 2500, bearing date June 23, 1819, to be made of the land in controversy. On September 29, 1823, Easton and wife conveyed to Samuel Hammond. Survey No. 2500 was not returned to the recorder of land titles until January 8, 1833. The plaintiffs are the immediate heirs (or their assignees) of Samuel Hammond, who died in 1846.

Defendants deny that the foregoing facts, if admitted, suffice to constitute plaintiffs the legal representatives of Joseph Hunot. In support of this denial a number of points were made at the trial. Upon nearly all, however, the finding of the court was in plaintiffs' favor; and no ground for reversal existing, therefore, as to these, they need be very briefly noticed.

An original sheriff's deed was introduced by defendants, bearing date ...