Lawless v. Newman

• Decision Date: 30 June 1838
• Citation: 5 Mo. 236
• Court: Missouri Supreme Court
• Parties: LUKE E. LAWLESS v. JONAS NEWMAN.

5 Mo. 236

LUKE E. LAWLESS

v.JONAS NEWMAN.

Supreme Court of Missouri.

June Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY.

L. E. LAWLESS and H. S. GEYER, for Appellant. The appellant, in support of his general propositions as to the error of the court in refusing and giving the above instructions, will contend: 1. That the deeds to the appellee, referred to in the instructions given, are null and void: and on this point refers the court to the “act regulating conveyances,” Rev. St. Mo. p. 118; 1 Mo. R. 583; Perry v. Price, 4 Comyn's Dig. (Day's American ed.) title Fait, pp. 270, 284, 285--title Grants, p. 535; 4 Cruise's Dig. title Deeds, pp. 225, 269; 7 Petersdorff's Com. Law, title Deeds, pp. 671, 669; 7 Johns. R. 97. 2. That inasmuch as it appears from the evidence in the case that the appellant is not tenant of the premises, but that his wife, Mrs. N. Lawless, is tenant, and has the possession in her own right, the action is wrongly brought against him. See Tillinghast's Adams on Ejectment, p. 52, note 3, and to the authorities cited; also, p. 55, and authorities cited; also, p. 300, 306, note. 3. That the verdict and judgment are bad for uncertainty, and refers the court to 2 Wash. R. 276; 1 Mun. 162; 6 Mun. 25; Tillinghast's Adams on Ejectment, 295, note 5. 4. That no title to said premises, or any part thereof, has been shown in J. B. Marle and his heirs and assigns; and on this point relies on, 1. The usages and customs of France and Spain in Upper Louisiana. 2. The acts of Congress on the subject of lands in Upper Louisiana and Missouri, from 1805 to 1816, and particularly of the acts of 13th June, 1812, and the pre-emption acts of Congress referred to in the deeds of Jonas Newman, referred to in the instructions given. 3. In the case of Vasseur v. Benton, 1 Mo. R.: and the case of Salle dit Lajoye v. Primm, 3 Mo. 529. 5. The appellant will contend that on the ground of surprise, and the matters set forth in the affidavit and reasons filed new trial ought to be had in this case. See Tillinghast's Adams on Ejectment as to New Trial, 294, note 2. The court is also referred to 7 Wheeler's Abridgment of American Com. Law, p. 112, title “New Trial.” As to estoppels, whether by record or specially, the court is referred to 1 Saunders on Pleading and Evidence, and the authorities cited therein, pp. 46 to 52. As to admissions by writings not under seal, the court is referred to 1 Saund. Plead. and Ev. pp. 52 to 55.

J. SPALDING and G. A. BIRD, for Appellee. From the facts preserved upon the record, the defendant insists: 1. That the verdict of the jury was according to the law and the evidence. 2. That the court committed no error in instructing the jury or refusing to give them instructions. 3. That there is nothing contained in the affidavit of Lawless which would justify the court in granting a new trial. As to new trials, see-- 4. That the premises in dispute were confirmed by the act of Congress, of 13th June, 1812. 5. That the confirmation was to the legal representatives of Baptiste Marle, who, according to the evidence, possessed the premises in dispute as owner long prior to 20th December, 1803, and continued such possession until his death, in 1805 or 6. Vasseur v. Benton, 1 Mo. R. 296; Strother v. Lucas, Sup. Ct. U. S. 6. The defendant insists that the proceedings of the recorder on the claim filed by the widow Marle, were unauthorized by law, and, of course, void. See acts of Congress for the adjustment of land claims, 2 Story's U. S. Laws, 967-8; same, 1060-1; same, 1260, 1306: section 1 of the act of 1813. 7. The proceedings before the recorder being coram non judice, and the heirs of Marle not being party thereto, cannot be used against the defendant here. But the written notice of the widow Marle, filed before the recorder, and claiming the property in dispute as that of her husband, is an act in pais, which estops her, and all claiming under her, from saying that she was then the owner of the lot in question. See Salle v. Primm, 3 Mo. R. 529; 4 Comyn's Digest, title “““Estoppel,” pp.199 to 203. 8. The right of the heirs of Marle to the lot in question, is evidenced by the long possession of Baptiste Marle, who possessed and cultivated the same under the eyes of the Spanish commandant. 9. If it is a donation by the United States, then, as no title vested during marriage, it could not enter into community.

TOMPKINS, J.

Newman sued Lawless in ejectment, and had judgment, to reverse which this appeal is prosecuted.

To show his right of action, the plaintiff in the Circuit Court, the appellee here, gave in evidence two deeds from the several heirs of Baptiste Marle, and proved the possession of the premises sued for to have been in the ancestor prior to the 20th December, 1803.

The defendant, appellant here, gave in evidence a confirmation by the recorder of land titles of a lot of ground in the south part of the city of St. Louis, 120 by 150 feet in superfices, which is proved to be the southeast quarter of square numbered 109, to Felicite Marle, widow of Baptiste Marle, aforesaid. Several deeds were read in evidence by consent, showing conveyances of the same property, through several persons, from Felicite Marle to Thomas Biddle, his heirs, &c., to the use of Virginia Lawless, free and clear from all demands, & c., of her husband, the defendant in the Circuit Court and appellant here.

The Circuit Court, on motion of the plaintiff, instructed the jury as follows, viz: If they believed from the evidence that Baptiste Marle possessed the premises in dispute prior to the 20th December, 1803, claiming the same as his property, and continued to possess and claim the same until his death, and that the deed given in evidence was made by persons who are heirs of said Baptiste Marle, that they must find for the plaintiff.

The defendant moved the court to instruct the jury that the plaintiff has not shown such a possession of the premises in question in the defendant as will enable the plaintiff to recover in this action. This instruction the court refused to give. The material words in the first deed of Marle's heirs to the plaintiff are as follows, viz: “Whereas, we claim a piece or tract of land, as the heirs of Baptiste Marle and his wife, deceased, situate in the south part of St. Louis, by virtue of an actual settlement made on said land by our...