Macklot v. Dubreuil

• Decision Date: 31 October 1845
• Citation: 9 Mo. 477
• Parties: JOHN N. MACKLOT v. LOUIS DUBREUIL.
• Court: Missouri Supreme Court

9 Mo. 477

JOHN N. MACKLOT

v.LOUIS DUBREUIL.

Supreme Court of Missouri.

October Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

SPALDING & TIFFANY, for Appellant. 1. The certificate of the recorder of land titles, dated 18th August, 1842, was improperly admitted in evidence, 3 Story's Laws U. S. 1792, act for procuring cultivation, &c., before recorder D. C. The land in question was not a “lot in the meaning of act of 13th June, 1812, and was not therefore conirmed by that act; and the recorder had no jurisdiction of it. 2. The admission in evidence of the testimony taken before Hunt, the recorder, is objectionable for the same reasons. 3. The second instruction asked by defendant below as to the limitation of twenty years, should have been given. First. That portion of it relating to the half belonging to the heirs of Dubreuil is correct, for the land was deeded to her husband during the marriage, and by the Spanish law, the wife being the surviver owned the half: 3 Recopilacion, 425. lib. 10, title IV; Laws, 1, 2, 3, 4 and 5; 9 Mart. R. 217, old series: 3 Mart. R. 97, old series, as to presumptions. Second. The deed to the husband, Louis Dubreuil, is dated 22nd November, 1790, and the daughter was married in 1797, showing as the rest of the record also does, that they were married long before that conveyance. Third. That portion of the instruction as to the children, should have also been given. 1 Edwards' Com. 598, limitation of twenty years; Rev. Code of 1825, pp. 510, 511; Rev. Code, p. 392, and p. 396, § 11; 2 Starkie's Ev. 506-7-8. Fourth. Defendant held adversely and denied the right of the heirs of Dubreuil, so that the act would bar even if he were owner jointly with them. 1 Ld. Raymond, 310, 311, 312; 5 Burr R. 2604; 1 Cowper, 217. Long possession by one tenant in common, held proof of ouster, and a denial of title is ouster: 13 Johns. R. 406. A grantee of an undivided ninth who purchased the whole, and entered claiming the whole, holds adversely and is protected by the statute against the other tenants in common. 3 Johns. R. 116; defendant not protected because he entered under one tenant in common, and therefore possession not adverse. 5 Cowen, 530; where tenant in common enters adversely, claiming in severalty, the statute of limitations runs in his favor against his co-tenants. 4 Paige, 178, to same effect; 9 Johns. R. 102. Question of adverse possession is certainly for the jury, 9 Cowen, 530, Clopp v. Browagen; though such question sometimes involves questions of law which the court should decide, submitting the questions of fact to the jury with its instructions. 5 Peters, 402; 1 Cowen, 276, 605; 8 Wend. 440; 1 Littell, 260; 2 Peters, 212--show that possession of part claiming the whole under paper title is sufficient adverse possession of the whole, for statute of limitations to run. 4. The court erred in giving the instruction asked on behalf of the plaintiff below. First. Because the instruction is ambiguous. It asserts that if the jury believe the facts set forth in the instruction, that the defendant could not dispute the title of Louis Dubreuil. But Louis Dubreuil is the plaintiff; and if he be meant by the instruction, the instruction itself is erroneous, as it excludes from the consideration of the jury the derivative title of the plaintiff. Second. And the doctrine of the instruction is wrong: 3 Hill's R. 516. A grantee in fee may deny that the grantor had any title: 7 Wheat. R. 535 (5 Cond. R. 335): 16 Peters' R. 25, 53, 54; 2 Marshall's R. 27, 28; 4 Littell's R. 274; 2 Metcall's R. 32. These cases show that the vendee is not estopped from denying the title of his vendor, as he holds adversely to him as well as to the rest of the world.

H. R. GAMBLE, for Appellee.

1. As to the admission of the certificate of confirmation. The plaintiff is entitled to give in evidence, in the opening of his case any title document issuing from any office of the government in the forms of law, unless upon its own face, it appears to be void, as being not within the scope of the officer's powers. It is only after the defendant has shown that he claims title and is not a mere trespasser, that he can call in question the regularity of the acts of the officer who gave the document: Hunter v. Hemphill, 6 Mo. R. 106. The question then for the court is the legal effect of the document after the evidence has been given, and this is to be determined on instructions asked by the party, and is necessarily subsequent to the admission of the document in evidence. So far then as the admissibility of the certificate of confirmation is to be decided upon the facts as they were before the court, when it was offered, there can be no doubt that at the time that question was raised, the court was bound to admit the paper. If it be said as an objection to its admission, that it bears date after the suit was brought, the answer is ready and conclusive, that it is not an instrument that professes to confer title to the land, but is the evidence (provided by law) of the existence of antecedent facts upon which the title rests.

2. As to the admission of the evidence taken by the recorder of land titles, offered for the purpose of showing that that officer took proof of the possession of the property, under the act of 26th May, 1824, as the basis of the certificate of confirmation, it seems to me that there could be no reasonable objection to the evidence offered, seeing that it was merely a part of the action of the government on the claims, and was admissible on the same principles that required the admission of the certificate of confirmation. I mean of course to confine the question here, as it was confined in the court below, to the admissibility of the paper for the purpose for which it was offered.

3. The instruction asked by plaintiff's counsel and given by the court, was the law which ought to govern the case, and which cuts off all dispute in relation to the title or evidence of title under Sylvester Sarpy. A person entering into the possession of land, claiming under A, cannot dispute the title of A, in a suit brought by B, who also claims under A, nor can he set up an outstanding title in another person as a defense. 10 Johns. R. 292, Bonne v. Hinman; 7 Johns. R. 157; 1 Caine's R. 444; 6 Johns. R. 34. In this view of the law it is wholly immaterial whether the property was an “out-lot,” or a tract of land unconnected with the town, and whether the recorder had power to give a certificate of confirmation or not, and whether in fact there ever was any title in Sylvester Sarpy or not. The possession being obtained under the title of Sarpy, whatever that title may be, must be restored to those in whom that title is vested.

4. The second instruction asked by defendant, and upon the refusal of which the greatest stress is laid, was properly refused. It assumes as a fact, to be decided by the court, that the marriage between Louis Dubreuil and Susannah his wife, took place before the conveyance from Sylvester Sarpy to Dubreuil, and that consequently the property entered into the community which the law establishes when no marriage contract is made. If the conveyance were made before the marriage, the property would not enter into the community unless brought in by marriage contract, because the community established by law, in the absence of any express contract between the parties, only embraces subsequent acquisitions. Although the evidence may be strong that the marriage was anterior to the conveyance, yet the question of fact is not to be decided by the court, because the evidence is strong. Again, the instruction was correctly refused, because it referred a question of law to the jury. The court was asked to instruct the jury, “that if they believed that Daujin, and those claiming under him, had possessed the land adversely to the plaintiff, they should find,” &c. What constitutes an adverse possession, is a question of law: 5 Peters, 438. The cases are very numerous in which the courts declare what is necessary in law, to constitute an adverse possession: 1 Johns. R. 158; 16 Johns. R. 301; 3 Johns. Cases, 124; 6 Mass. R. 229; 7 Mass. R. 381. These are only a small number of the cases which might be cited, in which the courts decide as a matter of law, what was a disseizin or actual ouster, or adverse possession. Angell, in his treatise on Limitations, says: “The only rule which can be laid down is, that to constitute a disseizin or adverse holding, there must be an actual and exclusive occupation of the land, accompanied by such circumstances, and attended by such acts, as will amount to a claim to hold it against him who was seized.” Angell, 81. I am not discussing what an adverse possession is, but showing that whether certain acts amount to an adverse holding, is a question of law for the court, and is not for the jury. Accordingly the court in examining the authorities referred to by the appellant, will see that in those cases the courts decided what will constitute an adverse possession between tenants in common, and that other facts are required by law to constitute an adverse possession between such tenants than are necessary in other cases. When adverse possession is relied upon, certain facts are to be ascertained; as how the possession commenced; what was the purpose of the party taking possession; what were the relations of the parties; what was the intent and evidence of the possession. In relation to such facts the jury must decide, but the court is to tell the jury what is an available adverse possession. To illustrate this position: take the case of two tenants in common of a house and lot in town; one enters and uses the whole premises himself without saying or doing any more. This is not in itself an adverse possession; but if he actually ousts his co-tenant, and claims the whole, or does other acts equivalent to an ouster, this it is said will be the beginning of adverse possession. In both cases ...