Joyal v. Rippey

• Decision Date: 31 March 1854
• Citation: 19 Mo. 660
• Parties: JOYAL, Respondent, v. RIPPEY, Appellant.
• Court: Missouri Supreme Court

19 Mo. 660

JOYAL, Respondent,

v.RIPPEY, Appellant.

Supreme Court of Missouri.

March Term, 1854.

1. It is settled that a certificate by recorder Hunt, under the act of 1824, is prima facie evidence of a confirmation by the act of 1812, and that an official survey is prima facie evidence of the true location of the land confirmed.

2. It is no impeachment of a survey, of a confirmation by the recorder of land titles under the act of 1824, that it includes less than the quantity claimed before the recorder. So, the mere fact that there is not enough land in a block to satisfy all the claims proved before the recorder, does not show that a survey of one of the lots, including less than the quantity claimed, is erroneous, or that the surveys of the other lots including the full quantity claimed, are erroneous.

Appeal from St. Louis Court of Common Pleas.

This was an action brought by Therese Joyal in 1851, to recover ten feet of ground fronting on Third street, in block 55 of the city of St. Louis, in the possession of Matthew Rippey. The plaintiff claimed the ground by devise from her husband, Joseph Joyal, as a part of a lot of sixty feet, French measure, in front, by one hundred and fifty feet in depth, confirmed to him by the act of congress of June 13, 1812. The defendant denied that the ground in dispute was within the lot confirmed to Joyal by the act of 1812, and averred that it was included in a lot of 120 feet front by 150 feet deep, French measure, inhabited, cultivated and possessed by Nicholas Beaugenon, prior to December 20, 1803. The answer set out a chain of title from Beaugenon to the defendant, as one link of which, a deed from the widow Charleville to Pierre Chouteau was mentioned.

At the trial, the plaintiff read in evidence a certificate of confirmation from Theodore Hunt to Joseph Joyal, dated April 15, 1825, of a lot of 60 feet front on Third street, by 150 feet deep, French measure, and a United States survey thereof, which includes the land in controversy. By the survey, the lot is described as 60 feet 4 inches in front, on Third street, by 60 feet 6 1-2 inches in width, in the rear, bounded west by Third street, north by lot of Ralph Davis, south by Joseph Quenel, and east by Bouche under Quenel. Antoine Smith, a witness for the plaintiff, gave evidence tending to show that Joyal was in possession of an inclosed lot including the ground in controversy, for more than twenty years before 1840, and that about that time the defendant removed the division fence further north, so as to include the ground in dispute within his lot, and that this was done against the consent of Joyal, who shortly afterwards died. This witness also testified that Joyal bought the lot of La Riviere, who bought it of Rousseau dit La Boute, who obtained it from the widow Charleville by an exchange. The will of Joyal, devising the lot to the plaintiff, was read in evidence.

The defendant gave no evidence of the possession of Beaugenon prior to December 20, 1803. He read a deed from Beaugenon to the widow Charleville, and other deeds referred to in his answer, but the deed from widow Charleville to Chouteau does not appear in the record. He then read from the registry of Recorder Hunt a confirmation to Ralph Davis' legal representatives of a lot of 120 feet front, by 300 feet deep, French measure, described as bounded east by Second street, west by Third street, north by south D. street, and south by balance of square. No survey of this confirmation, was given in evidence. A certificate of confirmation dated January 7, 1842, from F. R. Conway to Joseph Quenel's legal representatives, of a lot included in Hunt's list, was next given in evidence. This certificate described the lot as 60 feet front on Second street, by 300 feet deep to Third street, French measure, but referred for a more particular description to an accompanying United States survey thereof, which described it as 54 feet 10 1-2 inches front on Third street, by 61 feet 2 inches on Second street, bounded north by Joyal and Bouche under Quenel, and south by Almond street. This survey did not include the ground in dispute. The confirmation to Bouche, under Quenel, if any, was not in evidence. There was evidence tending to show that there was not sufficient land in the block to satisfy the calls of all the claims before the recorder for front on Third street, by some ten or twelve feet. There was evidence tending to show that Joyal and Rippey, in 1839, agreed upon a division line, nearly, if not quite, corresponding with the present possession of the parties, and evidence to the contrary.

The court gave the following instructions:

1. If Joyal did not agree to the line claimed by the defendant as the division line, or if he did not assent to, or acquiesce therein, or if Rippey did not use, possess and occupy according to said line, without disturbance or opposition from Joyal and his legal representatives, then the plaintiff is not estopped from claiming south of said line. To make said line conclusive between the parties, Rippey must have used and occupied according to it, without disturbance or opposition from Joyal and his representatives, long enough to show that Joyal and his representatives knew where the line so agreed upon was, and that they acquiesced in it as the settled division line between them and the defendant.

2. The certificate of confirmation, offered in evidence by the plaintiff, is prima facie evidence that the land therein named was confirmed by the act of June 13, 1812, and the United States survey, No. 3213, is prima facie evidence of the true location and boundaries of the tract confirmed. If the jury believe from the evidence, that the defendant was in possession of any portion of the tract included in said survey, at the commencement of this suit, and that the plaintiff is the Aglæ Joyal mentioned in Joseph Joyal's will, they will find for the plaintiff, unless the defendant has proved to their satisfaction that the said survey did not correctly locate said tract, as cultivated, inhabited or possessed prior to December 20th, 1803, and that the true location would not include any part of the land in possession of the defendant at the commencement of this suit.

3. If the jury believe from the evidence, that Joyal and Rippey mutually agreed upon the division line between them, and that, according to said division line, the parties used and possessed and occupied their respective lots, with the assent and acquiescence of each other, or that ...