Heirs of Strickland v. Heirs of McCormick

• Decision Date: 31 March 1851
• Citation: 14 Mo. 166
• Parties: HEIRS OF STRICKLAND v. HEIRS OF MCCORMICK.
• Court: Missouri Supreme Court

14 Mo. 166

HEIRS OF STRICKLAND

v.HEIRS OF MCCORMICK.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO JEFFERSON CIRCUIT COURT.

This was an action of ejectment brought by the heirs of James McCormick, defendants here, against Tho. A. Strickland, who having died after suit was commenced, his heirs were brought in by scire facias. At the December term, 1848, a trial was had which resulted in a verdict for the plaintiffs, and the defendant has brought the case here, by writ of error to this court.

The evidence in the court below was as follows: The plaintiffs proved that they were the heirs of James McCormick. They then offered a transcript from the office of the recorder of land titles of the recorded papers and proceedings of the different boards in relation to the claim of Michael Regan, on the Platten creek, now in Jefferson--formerly in Ste. Genevieve county. By the transcript, it appears that Jeduthan Kendall, as assignee of Michael Regan, gave notice to the recorder of land titles for the territory of Louisiana, that he claimed as assignee 400 arpents of land situated on the south side of the Platten creek, joining a tract of Nathan Holms in the district of Ste. Genevieve, by virtue of a concession granted Michael Regan by Don Carlos Dehault Delassus, which was misplaced, agreeable to Delassus' certificate, dated June 30th, 1808, signed Jeduthan Kendall. Then follows an order upon Governor Delassus, signed by Michael Regan, requesting him to let Jeduthan Kendall have the petition that was signed by Francis Valle, for a tract of land on the Platten which he had put into his hands at New Bourbon. Then follows Delassus' certificate stating that the request or petition referred to by Michael Regan had been presented to him by Michael Regan, and attested by Francis Valle, deceased, commandant; that he was deserving; that he had promised to grant his request; that he had lost the request or petition. This certificate is dated 19th of August, 1804.

Then follows a deed from Michael Regan to Jeduthan Kendall, dated July 8th, 1803, for the tract of land above, purporting to be executed and delivered in the presence of Peter O'Neil and James Hamilton. It further appears that the board met December 6th, 1811. Their proceedings state that Jeduthan Kendall, assignee of Michael Regan, claiming 400 arpents of land situated on Platten creek, district of Ste. Genevieve, produced a certificate from Delassus, dated 9th of August, 1804, stating that he had had the petition and recommendation from the commandant at Ste. Genevieve, and had lost the same, which prevented his making a decree thereon--record of a transfer from Regan to claimant, dated 8th of July, 1803. It is their opinion that the claim ought not to be confirmed.

Then follows a notice headed “Jed. Kendall notice,” directed to Frederick Bates, recorder of land titles for the territory of Missouri, directing him to take notice that he, as legal representative and assignee of Michael Regan, claimed 800 arpents of land situate on the Platten creek in the district of Ste. Genevieve under right derived from the French and Spanish governments, and the several laws of Congress. The paper is signed by Jed. Kendall, assignee. The recorder granted 640 acres, which was confirmed April 12th, 1814. The copy of the deed in this transcript was, on motion of the defendant, excluded from the jury.

The plaintiff then produced the original deed from Regan to Kendall, the copy of which in the transcript was excluded, and produced Benjamin Johnston to prove the hand writing of Michael Regan, the grantor of Peter O'Neil, one of the subscribing witnesses; to the proof of hand-writing the defendant excepted. This original deed was indorsed--recorded in Ste. Genevieve, book D, page 227. Benj. Johnston then proved that he had gone to school to Regan, and had seen him write his name frequently, and believed the signature to the deed to be his writing. He stated that he knew O'Neil, the subscribing witness--that he lived by himself in Herculaneum, and made shoes for Maj. Kendall--was a weakly, decrepit man, about 40 or 50 years old--saw him last about forty years ago. He stated on cross-examination that he was between nine and eleven years old when he went to school to Regan--saw him write subsequently, when he was fifteen or sixteen years old--that he was administrator of Kendall, who died in 1824--that he found this deed among Kendall's papers, and other papers purporting to have been signed by Regan--had compared this signature with those on the other papers. He had also found two receipts for tuition, signed by Regan. He was asked if his knowledge of Regan's hand-writing did not arise from comparison of hands, and he said not, but from recollection of his hand-writing, and that he compared them through mere idle curiosity.

Wm. Moss was then called, who proved the signatures of Regan, O'Neil and Hamilton. He stated that when he lived at one John Sturges', Regan would frequently set copies for them to write by--that while high constable about 1800, he appointed O'Neil his deputy--that at that time O'Neil was some 50 years old when he left about 1809, and that the last he heard from him he was at the Hot Springs, in Arkansas, where he learned he died. He also stated that he had seen Hamilton, the subscribing witness, write, and that the record, as to him, was true, and the signature genuine--that he, about the year 1809, went to the Rocky Mountains, and had been made chief among some of the Indian tribes--that he had since heard he was dead. At the time he left he was about thirty-five years of age--that Regan went to Natchez in 1808 or 1809--had not seen him since. On his cross-examination, he stated that he had given the same statement at the time he gave his affidavit attached to the deed before Benj. Johnston, and concluded by saying that he was 86 years old 24th last May, at 4 o'clock in the morning.

Mr. Doolin was then examined, who stated that he had gone to school to O'Neil one quarter in 1803 or 1804, and knew his signature from having seen him write, and that the signature of O'Neil upon the deed was genuine. He stated also that he had seen Regan write, and believed that his signature to the deed was genuine, though he was not so familiar with Regan's handwriting as with O'Neil's. On his cross-examination, he stated that he had forgotten how to write, not having practiced since leaving school, and being required by the defendant's attorney to point out the signature of O'Neil he did it correctly by spelling the name as written. He stated that on his examination before Esquire Burns, he stated the same as here.

The plaintiff then proved who were the heirs of Jed. Kendall, and produced their deed to Jas. McCormick, which was read. Also the plat survey of land, which showed that the land had been surveyed in 1818, but the survey had not been approved--that the present survey was completed in 1848, and was approved. In connection with the survey the plaintiffs proved that the defendants were within the lines of the survey, at the commencement of the suit.

The defendants did not pretend to any title, but attacked the...