Holme v. Strautman

• Decision Date: 31 October 1864
• Citation: 35 Mo. 293
• Parties: PETER H. HOLME, Plaintiff in Error, v. HENRY STRAUTMAN, Defendant in Error.
• Court: Missouri Supreme Court

35 Mo. 293

PETER H. HOLME, Plaintiff in Error,

v.HENRY STRAUTMAN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1864.

Error to St. Louis Land Court.

Ejectment brought by the plaintiff in error to recover possession of land in the vicinity of the city of St. Louis. James Y. O'Carroll, who had a wife and three children, was settled upon a portion of the domain in the district of New Madrid, prior to the 20th of December, 1803, by permission of the proper Spanish officer, inhabiting and cultivating the land. On the 29th day of November, 1805, O'Carroll, in consideration of four hundred dollars, conveyed to George Ruddell “all that tract, parcel or parcels of land situated near the Mississippi, about two miles above the village of Little Prairie, it being the settlement-right of the said O'Carroll under the second section of the law of Congress, within the District of Louisiana, and the territory of Orleans, and every part, parcel, acre, or arpent thereof, which may be confirmed to him, the said O'Carroll, by the commissioners of the United States, or by the United States in Congress assembled, are hereby bargained and sold to the said George Ruddell, and all the rights, interest, and estate of him, the said O'Carroll, is hereby bargained, sold and transferred to him, the said George Ruddell, forever.”

This deed was acknowledged on the day of its date, (November 29, 1805,) and recorded March 18, 1809. On the 14th day of February, 1806, M. Amoureux, who calls himself deputy surveyor for the district of New Madrid, issued a plat of survey, which he certifies “represents 1,000 arpens of land, situated in the district of New Madrid, surveyed by him at the request of James Y. O'Carroll, who claims the same as his settlement-right by virtue of the second section of the act of Congress, respecting such claims, passed on the second day of last March.” This survey was recorded by Antoine Soulard, Surveyor General, February 27, 1806. A claim was filed with the Recorder of land titles, in the name of James O'Carroll, for 1,000 arpens, situated in the district of New Madrid, under the second section of the act of Congress, and the plat of survey made by Amoureux is filed with the notice of claim.

This claim was first considered by the board on the 13th of March, 1806, and upon the testimony of George Ruddell proving the inhabitation and cultivation, the board decided to grant the claimant 1,000 arpens of land, provided so much be found vacant at the place.

Afterwards, on the 10th of July, 1809, the board took up the case again, and received further testimony; and on the 14th of December, 1810, the board decided to grant to O'Carroll three hundred and fifty arpens of land, and ordered that the same be surveyed as nearly in a square as may be, and so as to include his improvements. The commissioners issued their certificate, No. 1040, on the 20th of June, 1811, for the three hundred and fifty arpens, to be surveyed in the manner directed in the confirmation. The survey under this confirmation and certificate was not given in evidence.

Under the act of February 17, 1815, for the relief of the inhabitants of the county of New Madrid who suffered by earthquakes, the Recorder took evidence of the injury to the lands of O'Carroll, and in the book containing the testimony an entry appears of November 10, 1815, stating that James Y. O'Carroll claims 640 acres of land, No. 1040 of commissioners' certificates, and extended by recorder, with the evidence of a witness that this tract was materially injured by earthquakes. By extracts from certain lists remaining in the recorder's office, it appears that New Madrid certificate No. 150, in the name of James Y. O'Carroll, for 640 acres, was issued under date of November 30, 1815, and that a relinquishment of the injured land to the amount of the same number of acres was made by James Tanner, legal representative of James Y. O'Carroll, and that a patent certificate was issued on the 16th of August, 1841, upon survey No. 2498, for 640 acres, in the name of O'Carroll, which was delivered to William Milburn.

Copies of the original New Madrid certificate for 640 acres in favor of James Y. O'Carroll or his legal representatives, and of the application of Christian Wilt, as the legal representative of James Y. O'Carroll, for the location of 640 acres under said certificate, and of survey No. 2498, were given in evidence by the plaintiff.

There was also given in evidence by plaintiff, an extract from the opinion of the Recorder of land titles, showing his action upon the claim of James Y. O'Carroll, by which it appears that O'Carroll claimed 1,000 arpens, and that there was a commissioners' certificate (No. 1040) for 350 arpens; that the land was surveyed, and situated on the Mississippi, in New Madrid, and that 640 acres were granted. This extract is taken from the books kept in the recorder's office, which contain the report of claims made by him to Congress, and which claims were afterwards confirmed by Congress by the act of 29th April, 1816.

A copy of a deed from George Ruddell to George Dameron was given in evidence, dated November 1, 1815. (See opinion.) The evidence in the cause showed, that George Dameron lived upon the land which he acquired from Ruddell by the deed before stated, and which some of the witnesses say was a tract of 200 arpens, being part of the settlement right of James Y. O'Carroll. Dameron died in possession of that land in 1816. The plaintiff claims an interest in the land in St. Louis county, under the heirs of George Dameron, upon the ground of his interest in the land in New Madrid which was injured by earthquakes. The survey of the land in St. Louis, made in locating the New Madrid certificate, was made in April, 1818, upon the application of Christian Wilt, claiming to be the legal representative of O'Carroll, no person set up any title or claim to any part of it under Dameron, either by entry, suit, or by attempting to convey any interest in it, until 1849. Depositions were read to prove who were the heirs of Dameron, and sundry deeds were given in evidence conveying interests of different heirs of Dameron, in the land located in St. Louis county, and tracing the title from them to plaintiff.

Augustus H. Evans, a witness examined by plaintiff, testified that he sold the land in question to Col. William McRee; witness had bought it in 1825 or 1827. Col. McRee was in possession of part of the Jeannette tract, but witness can't say whether he was then in possession of any part of the O'Carroll location. In 1834 and '35, in one of those years, there was an enclosure of 100 acres as he supposed on this tract, and the possession has continued down to this time. In 1830, Col. William McRee had a house on the Jeannette tract. Col. Samuel McRee has since built another house which is on the O'Carroll tract. The defendant then admitted himself to be in possession of a part of the land sued for, as tenant of Mrs. Mary McRee, the part so in his possession being described particularly and admitted to contain two acres and 28-100 of an acre.

When the evidence on the part of the plaintiff was closed, the defendant by his counsel asked the court to give certain instructions to the jury, which were given. (See opinion.) On motion of the plaintiff, the court instructed the jury as follows: “The jury are instructed that if they find from the evidence in the cause, that James Y. O'Carroll made the deed read in evidence to George Ruddell, dated October 29, 1805, the effect of said deed was to vest in said Ruddell all and every part of the tract of land mentioned therein which might be confirmed to said O'Carroll under the laws of the United States.”

The plaintiff also asked the court to give the following instructions, which were refused:

2. The jury are instructed, that if they find that said George Ruddell made the deed to George Dameron read in evidence, and dated November 1, 1815, the effect thereof was to convey to said Dameron, his heirs and assigns, 200 arpens of the tract known as James Y. O'Carroll's headright, and to secure to said Dameron an interest of 200 arpens in any New Madrid certificate which might issue in lieu of said head-right on account of injuries thereto by earthquakes.

3. The jury are instructed that if the New Madrid certificate No. 150, read in evidence by plaintiff, and dated November 30, 1815, issued in lieu of the tract confirmed to James Y. O'Carroll by the confirmation put in evidence by the plaintiff, then any person owning any part of the tract so confirmed at the time of issuing the certificate No. 150 would by the law be entitled to the same interest in the said certificate and land located thereby, which such person had in the land so confirmed.

4. The jury are instructed that the deed from Ruddell to Dameron, if made as aforesaid, was operative to convey to said Dameron 200 arpens of the claim of James Y. O'Carroll as a head-right, and of any land confirmed in satisfaction of said claim, and conferred on said Dameron, his heirs and assigns, the right to re-locate 200 arpens on account of injuries by earthquakes to the land so confirmed, and gave to said Dameron and his heirs 200 arpens of any lands located by virtue of injury by earthquakes to the said land so confirmed to James Y. O'Carroll, as and for his settlement-right, provided the jury believe the terms “head-right” and “settlement-right” meant the same thing, as used in the deeds in evidence.

5. The jury are instructed, that if George Dameron owned 200 arpens of the tract of 640 acres, confirmed to O'Carroll as aforesaid, and died in 1816,-- that, by law, the heirs of said George, on his decease, inherited the same from him, and took the same interest in the New Madrid certificate, issued in lieu thereof, and in the land located thereby, and had the right to sell and convey the same to any person, and for any consideration they might see fit.

6. And the jury are...