Landes v. Perkins

• Decision Date: 31 October 1848
• Citation: 12 Mo. 238
• Parties: LANDES ET AL. v. PERKINS.
• Court: Missouri Supreme Court

12 Mo. 238

LANDES ET AL.

v.PERKINS.

Supreme Court of Missouri.

October Term, 1848.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

This was an action of ejectment brought by the plaintiff in error to recover a lot in the city of St. Louis, fronting about 40 feet on Washington Avenue, between 4th and 5th streets. The plaintiff claimed under one Jacques Clamorgan, who died in St. Louis in the year 1814, and to whom there was confirmed on the 13th November, 1811, by the board of commissioners for the adjustment of land titles in this territory, under the second section of the act of 3rd March, 1807, a tract of one by forty arpents, situated in the little prairie adjoining the town of St. Louis. The minutes of the board read in evidence by the plaintiffs, recite that Jacques Clamorgan, assignee of Esther, mulattress, assignee of Joseph Brazeau, assignee of Gabriel Dodier, claiming one by forty arpents, situated in the little prairie adjoining the town of St. Louis, produced a concession from St. Ange and Piernas, Lt. Gov., dated 23rd May, 1772; a transfer from Gabriel Dodier and Joseph Brazeau to Esther, dated 4th November, 1793; and from Esther to claimant, dated 2nd September, 1794. The board grant to Jacques Clamorgan forty arpents of land under the provisions of the 2nd section of the act of Congress entitled an act respecting claims to land, passed 3rd March, 1807, and order that the same be surveyed conformably to metes and bounds contained in the report of a survey made for said Dodier, and found in Livre Terrein No. 2, folio 15, survey at the expense of United States. The survey under this confirmation was made in 1826 and is numbered 1,278, but it was admitted on the trial that this survey had been returned to the surveyor-general's office soon after it was made, and had there remained on file, but was not approved by the surveyor-general until the year 1845, shortly before a patent issued, when it was for the first time approved. The plaintiff first read in evidence a patent from the United States, issued in the year 1845, shortly before the commencement of this suit, to Jacques Clamorgan or his legal representatives, for the tract of one by forty arpents, and then proved that the patent embraced the premises described in the declaration, and that the defendant was in possession of the lot in question at the commencement of the suit, and also the monthly value thereof. The plaintiffs then read in evidence a certified copy of the will of Jacques Clamorgan, by which he devised his whole estate, after payment of several small specified legacies, to his four natural children, St. Eutrope, Apoline, Cyprian and Maximin. The whole to be divided into five equal parts, of which Maximin was to have two parts and each of the others one part. They then read in evidence a certified copy of the last will of Cyprian (who died in 1827), with the probate thereof, by which, after several specified devises, none of which embraced the premises in dispute, he devised to his sister Apoline and to her three natural children, Henry, Louis and Louisa, and to the survivors of them as tenants in common, all the interest and estate which the testator had or was entitled to in any lands in the State of Missouri. They then read in evidence a certified copy of the last will and testament of the said Apoline, with the probate thereof, by which, after some specific devises, not embracing the premises in dispute, she devised to her three children, Henry, Louis and Louisa, and to any and all other children that might thereafter be born to her, and to the survivors of them, all the interest and estate which the testatrix had or was entitled to in law or equity in any lands or lots lying and being in the State of Missouri. The plaintiffs then read in evidence a deed from the two plaintiffs, Louis and Henry Clamorgan and their wives, to their two co-plaintiffs, Landes and Sharp, for three undivided fourth-parts of all the right, title and interest of the said Henry and Louis in and to the tract of one by forty arpents, embraced in the patent. The plaintiffs then proved that Cyprian died in 1826 or 1827--that Apoline died in 1829 or 1830, leaving four children, Louis, Henry, Louisa and Cyprian. That Louisa died in 1833, aged only 6 or 8 years--that Louis, Henry and Cyprian are yet living, and the two former are plaintiffs in this suit. That the said Apoline was never married--that Maximin died about the year 1820, unmarried and without children--that St. Eutrope died many years ago--as the witness supposed some 15 or 20--leaving a wife but no children. The plaintiffs then read in evidence a transcript from the office of United States recorder of land titles, purporting to contain a complete transcript of all that appeared of record in that office, relative to the claim of Jacques Clamorgan to the tract of one by forty arpents in dispute; this transcript contained the following documents: 1st. The survey by Duralde, the then Governor, of this tract and of the adjoining tracts, made in 1772. On the margin of the survey of this tract, is a memorandum signed. Trudeau, representing Clamorgan as proprietor, and stating that it was originally conceded to Julius Roy, and afterwards reunited to the King's domain--then conceded to Gabriel Dodier, who afterwards sold it to Clamorgan. 2nd. A deed from Dodier to Esther for the tract of one by forty arpents in dispute, dated 4th November, 1793, and recorded in recorder's office 29th November, 1805. 3rd. A deed from Esther to Clamorgan for the same tract, dated 2nd September, 1794, and recorded 10th December, 1805. 4th. Clamorgan's claim before the board of commissioners for this tract, with a survey and plat of the same accompanying the claim. 5th. The minutes of the board confirming this tract to Clamorgan, 13th November, 1811.6th. Certificate of confirmation issued by the board to Clamorgan for this tract, 13th November, 1811. 7th. Patent certificate issued by recorder Conway on the above confirmation, 10th February, 1845.

The plaintiffs then read in evidence a certified copy of the survey No. 1,278, made in 1824, of the tract in question under the confirmation, and proved by the late United States recorder of land titles at St. Louis--that the record-books A, B, C, D, E and F, in said office, contain the notices and claims to land filed before the commissioners for the adjustment of land titles--that a number of the original notices filed by claimants are yet in the office, but that a large majority of them, after being filed and recorded, were withdrawn; whilst the witness held that office, he generally took receipts for them. Has never examined for the original notice of the claim to the tract in controversy. Upon this proof the plaintiffs rested their case; the defendant then introduced the following documents: 1st. The transcript of a record of a suit commenced by Sarpy, ex'r of A. Reilhe, deceased, against J. Clamorgan, in the General Court for the territory of Louisiana, in May, 1808. The transcript contained, 1st, the declaration; 2nd, the summons, which had no indorsement showing that it was ever delivered to the sheriff, or was ever executed; 3rd, the judgment which recites as follows: “and now, at this day come the parties aforesaid by their attorneys, and neither party requiring a jury, but this case with all things relating to the same being submitted to the court for that it appears to the court,” &c., proceeding to render judgment against the defendant for $2,393 80 and costs, and lastly, an execution on this judgment which was returned with only this indorsement upon it--“Received, 6th June, 1808, satisfied, Jer. Conner, sheriff.” 2nd. A deed from sheriff Conner to Alex. McNair for a tract of one by forty arpents reciting the foregoing execution, and that by virtue thereof, the said sheriff did attach all the title of said Clamorgan to a certain piece or parcel of land, being one arpent in front by the depth offorty arpents, situate in the little prairie, and adjoining the town of St. Louis, and that having advertised the same according to law, he sold the same to said McNair for $180. This deed was dated 8th July, 1808, was acknowledged by the sheriff in the Court of Common Pleas for St. Louis district, on the 9th July, 1808, but was not recorded until 13th October. 3rd. A deed from Alex. McNair to Jeremiah Conner, dated 13th day of August, 1808, for several tracts of land, and amongst others, a tract described as “One arpent by forty, late the property of one Jacques Clamorgan, purchased by said McNair at a public or sheriff's sale of the property of said Clamorgan, as by deed bearing date the 8th of July last.” This deed was recorded 21st February, 1809. 4th. A transcript of a judgment and proceedings under it in favor of Rufus Easton v. Soulard & Cabanne, Ex'rs of Jacques Clamorgan. The suit was an action of debt, commenced by Easton in the Circuit Court for St. Louis county, against the defendants as executors of Clamorgan, on the 17th November, 1819. The summons was served on the defendants, who pleaded to the action, and on the 20th April, 1820, judgment was rendered for the plaintiff for $131 debt, $28 87 damages, besides costs, and that he have his execution against all and singular, the goods and chattels, lands and tenements which were of the said Clamorgan at the time of his death in the hands of said executors, to be administered; upon this judgment an execution issued on the 10th of June, 1820, upon which the sheriff returned that he had made $169 by the sale of a tract of land of 80 arpents, which after paying all the costs and interest, left $143 02 to be credited to the debt and damages. On the 3rd April, 1826, an alias fi. fa. issued on the judgment, which directs the sheriff that of the goods and chattels, lands and tenements which were of the said Clamorgan at the time of his death, in the hands of said executors to be administered, he should cause to be made, &c.,...