Hogan v. Page

• Decision Date: 31 October 1855
• Citation: 22 Mo. 55
• Parties: HOGAN, Respondent, v. PAGE, Appellant.
• Court: Missouri Supreme Court

22 Mo. 55

HOGAN, Respondent,

v.PAGE, Appellant.

Supreme Court of Missouri.

October Term, 1855.

1. A. claiming under B. presented to the old board of commissioners, May 23, 1808, for confirmation, a claim to a lot of one by forty arpens. He however produced before the board no evidence of any kind showing a derivative title from B. The board, in confirming the claim, used the following language: “The board grant to the representatives of B. the lot and order a survey,” &c. Held, that this is not a confirmation of the lot to A.; that, in order that the confirmation may enure to the benefit of A., he must show a derivative title from B.

2. A deed in which the interest conveyed is described as follows, to-wit: “All the right, title, interest and estate which we or either of us have or may have to a certain tract of land which the said Louis Lemonde, now deceased, but formerly resident, &c., acquired or claimed to have acquired of Auguste Conde, formerly of St. Louis, now deceased, and which land was supposed to have been situated in the Grand prairie, in said county and state, but for which land said parties of the first part have never seen any deed from said Auguste Conde to said Louis Lemonde;” is not void for uncertainty upon its face.

Appeal from St. Louis Court of Common Pleas.

The facts of this case are sufficiently set forth in the opinion of the court, it being entirely unnecessary to set forth the instructions given and refused by the court below.Williams and Shepley, for appellant.

1. The confirmation was not to Louis Lemonde. (6 Peters, 766; 10 Peters, 334; Strother v. Lucas, 12 Peters, 458; Stoddard v. Chambers, 2 How. 284; Bissell v. Penrose, 8 How. 316; 8 How. 335; Landes v. Brandt, 10 How. 348.) 2. A survey is an integer, and as soon as it is shown to be wrong in any respect, its integrity as a survey is gone. It can not be good for part and bad for part. It is either all good or all bad. 3. The deed from A. Reymond and others, under which plaintiff claimed and recovered, is void for uncertainty and indefiniteness of description of the thing sold. It did not purport to convey, and did not upon its face convey the land in dispute.

T. Polk, for respondent.

1. The confirmation given in evidence by the plaintiff enured to Louis Lemonde. (8 How. 337; 6 Pet. 770; 12 Pet. 458; 10 How. 348; Boone v. Moore, 14 Mo. 420.) United States survey No. 1276, was properly admitted in evidence. (R. C. 1845, 469; U. S. Statute at large, 325; 3 Story's Laws, 1600.) 2. The title under the confirmation, given in evidence by the plaintiff, is a better title than that under the New Madrid location, under Martin Coontz, given in evidence by defendant. 3. Survey No. 1276 is prima facie evidence of the true location, boundaries and extent of the land mentioned in the confirmation given in evidence by plaintiff. (McGill v. Somers, 15 Mo. 87; West v. Cochran, 17 How.) 4. The deed of A. Reymond and others to plaintiff, is not void for uncertainty. The description in the deed accurately and exactly describes the land confirmed. (4 Cruise Dig. 287; 4 Mass. 205; 10 How. 354.) 5. The court did right in instructing the jury that, in so far as Brown's old survey of the exterior boundary of the Grand prairie common field was changed by the official survey of 1838, it had no authority.

RYLAND, Judge, delivered the opinion of the court.

The following is the statement of the case agreed to by the counsel of both parties, before this court:

“This was an action of ejectment, brought in the Common Pleas Court, on the 27th July, 1852, by appellee against appellant, for a portion of a common field lot in the Grand prairie common field of St. Louis, which lot is one arpent in front by forty arpents in depth, being U. S. survey No. 1276, confirmed by the old board on the 13th November, 1811. The defendant had possession of the premises at the commencement of the suit, and the damages and monthly value, as found by the jury, were supported by the evidence in the cause.

On the trial, the plaintiff gave in evidence duly certified copy of the minutes of the confirmation by the old board. This was objected to as not being properly certified; thereupon the court excluded so much of said certificate as follows, to-wit: ‘Assignee of Auguste Condé,’ and allowed the paper to be read, except the last certificate therein. As a part of said confirmation papers, the concession of said two by forty arpents to Auguste Condé, dated 10th January, 1770, recorded in livre terrein, No. 1, p. 31, was also read in evidence.

The notice for the confirmation of the said claim by the old board, was given to the recorder of land titles, on the 23d May, 1808, by Louis Lemonde, for himself, claiming it as his own, and describing it as ‘a tract of land situate Big prairie, district of St. Louis, formerly the property of Mr. Condé, containing one arpent by forty, as appears by the concession remaining in your office, book No. 1, p. 31.'

The confirmation which was of the date of 13th November, 1811, was as follows: ‘Cert. 1276. Louis Lemonde, assignee of Auguste Condé, claiming one by forty arpents of land, situate Big prairie, district of St. Louis, produces a concession from St. Ange and Labuxiere, L. G., dated 10th January, 1770. The board grant to the representatives of Auguste Condé forty arpents of land under the provisions of the second section of the act of congress entitled ‘An act respecting claims to land, and passed 3d March, 1807,’ and order that the same be surveyed conformably to possession, (survey at expense of United States,) as ascertained by report of survey dated as above, January 10th, 1770.

Plaintiff also gave in evidence a certified copy of the said U. S. survey No. 1276, which was objected to as not being properly certified. Said certificate was as follows:

‘Office of Surveyor General for Illinois and Missouri,

St. Louis, September 3d, 1851.

I hereby certify that the foregoing plat and description of survey No. 1276, in the name of the ‘legal representatives of Auguste Condé,’ and also the statement of interferences, are correctly copied from pages 291 and 292, of book E, of records, on file in this office.

M. LEWIS CLARK, Surveyor Gen'l.'

The plaintiff then gave evidence showing that the title of Louis Lemonde had passed by descent to Angelique Reymond, wife of Abraham Reymond, Ann Fontaine and Baptiste Lemonde; that said Abraham was the husband of said Angelique, by whom he had had several children, who are still living.

Plaintiff then gave in evidence a quit claim deed from Abraham Reymond and Angelique his wife, formerly Reymond, Ann Fontaine, formerly Lemonde, and Baptiste Lemonde, to himself, dated the 2d March, 1850, having proved by said Abraham that said deed had been signed, acknowledged and delivered by himself and wife and the other grantors therein named. The said deed contained the following description of the property conveyed: All the right, title, interest and estate which we or either of us have or may have to a certain tract of land which the said Louis Lemonde, now deceased, but formerly resident of said city and county and state, acquired or claimed to have acquired of Auguste Condé, formerly of St. Louis, now deceased, and which land was supposed to have been situated in the Grand prairie, in said county and state, but for which land said parties of the first part have never seen any deed from said Auguste Condé to said Louis Lemonde.

The plaintiff having closed his case, the defendant asked the court to give the following instruction to the jury: ‘Upon the case, as made out by the plaintiff, he is not entitled to recover;’ which the court refused.

The defendant below, appellant here, then gave in evidence title papers tending to show that he was claiming said land under the New Madrid location, made upon certificate No. 145, in the name of Martin Coontz or his legal representatives, for which a patent certificate had issued, dated 17th November, 1822. Defendant then offered in evidence various documents and oral proof, tending to show that the land sued for was improperly and incorrectly located under the confirmation of 1811, by survey No. 1276. Among the documents were, 1st, field notes of Brown's survey of the outboundary of the Grand prairie fields, made in 1817; 2d, township plat.

Defendants also introduced evidence tending to show that the survey 1276, as well as those north it, up to and including that of Mainville dit Deschene, were extended too far east by nine arpents and thirty-six feet.

And having closed his case, the plaintiff introduced documentary and other proof, tending to show that the land was correctly located by survey No. 1276, and that there was no error in the extension of the survey of Mainville dit Deschene and those south of it, of nine arpents and thirty-six feet further east than those north of it; also that the said Brown's outboundary was erroneous south of survey No. 1253, of Antoine Morin, under Alexis Picart.”

Upon this statement arises the main question in the case: does the confirmation by the old board of commissioners enure to Louis Lemonde, putting in him the title to the land confirmed? If it does, then the plaintiff must recover; if it does not, then the plaintiff's claim of title is incomplete and he can not recover in this action.

Let us examine this question. This was a confirmation by the old board, dated November 13, 1811. Among the papers of the confirmation appears the concession of two by forty arpents of land to Auguste Condé, dated 10th January, 1770, recorded in livre terrein, No. 1, p. 31. The notice of the claim filed with the recorder of land titles, on the 23d of May, 1808, by Louis Lemonde, is as follows: “To Frederick Bates, Esq., recorder of land titles for the territory of Louisiana: Sir--Take notice that I claim a tract of land situate Big prairie, district of St. Louis, formerly the property of Mr. Condé, containing one arpent by forty, as appears by the concession...