Magwire v. Tyler

• Decision Date: 31 March 1867
• Citation: 40 Mo. 406
• Parties: JOHN MAGWIRE, Respondent, v. MARY L. TYLER et als., Appellants.
• Court: Missouri Supreme Court

40 Mo. 406

JOHN MAGWIRE, Respondent,

v.MARY L. TYLER et als., Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Court of Common Pleas.

The plaintiff filed his petition in equity against the defendants on September 18th, 1862, in the St. Louis Land Court, as junior patentee under one Brazeau, patent dated June 10, 1862, to divest the title of defendants under a senior patent to Louis Labeaume of 25th March, 1852, issued on a Spanish survey for Labeaume of 1799, and a confirmation of 22d September, 1810, upon a claim by Labeaume filed 26th February, 1806, for confirmation.

The respective titles of the parties were the same as stated in the cases of Magwire v. Tyler, 25 Mo. 433; S. C. 30 Mo. 202, an S. C., on appeal 1 Black. (U. S.) 195, and West v. Cochran, 17 How. (U. S.) 411, with this exception: that after the decision in 1 Black, 195, the plaintiff procured a U. S. survey and a patent locating the sixteen arpents (confirmed to Brazeau) within the limits of the land confirmed, surveyed for, and patented to, Labeaume.

To the present bill the defendants also pleaded the finding and judgment in the case of Magwire v. Tyler, in the St. Louis Land Court, affirmed (30 Mo. 202), as a bar, as follows:

“ June 23, 1858.

This cause came on to be heard before the court, and after hearing all the evidence of the parties, the court find from the evidence the following facts, viz:

That on the fifth day of October, in the year 1793, the Spanish Government conceded or granted to one Esther, a free mulattress, a tract or parcel of land situate on the border of the Mississippi river, and between that and the earthbarn, La Grange de Terre, as stated in the plaintiff's petition. The concession to Esther had no definitive location by the terms of the grant, but she took possession under said grant of a tract of land lying between the Big mound and the Mississippi river.

That on the twenty-fifth day of June, in the year 1794, the said Spanish Government conceded or granted to one Joseph Brazeau a tract or parcel of land of four arpents in front by twenty arpents in depth as described and bounded as stated in plaintiff's petition. That the said Brazeau took possession of said tract or parcel of land so granted by said government about the time of said concession. That afterwards, on the ninth day of May, in the year 1798, the said Joseph Brazeau, by his deed of that date, sold and conveyed the said tract or parcel of land conceded and granted to him as aforesaid to one Louis Labeaume, excepting, however, and said Brazeau in his said deed reserved to himself four arpents of said tract of land ‘to be taken at the foot of the hillock in the southern part of said land;’ that the said four arpents so reserved by said Brazeau in his said deed to said Labeaume are situate within the limits of the outboundary line of the village of St. Louis, run in conformity to the first section of the act of Congress making further provision for settling the claims to land in Missouri Territory, approved June 13, 1812.

That after said sale and conveyance to Labeaume by Brazeau, but prior to the fifteenth day of February, in the year 1799, the said Louis Labeaume petitioned said Spanish Government for a grant of three hundred and sixty arpents of land, including that which he had acquired of said Brazeau-- that is to say, twenty arpents in depth from the Mississippi river, ascending Rocky branch west quarter south, by sixteen arpents front, along the Mississippi, to be taken from the descent of the road into the creek as stated in plaintiff's petition; that said Spanish Government caused the land petitioned for as aforesaid by said Labeaume, to be surveyed by one Antonio Soulard, acting surveyor under said government at the time stated in plaintiff's petition--which said survey does not embrace any portion of the land reserved by Joseph Brazeau in said deed to Labeaume, dated the ninth day of May, 1798.

That the Board of Commissioners for the adjustment of land titles, in the Territory of Missouri, on the twenty-second day of September, in the year 1810, confirmed to said Joseph Brazeau the said four arpents.

That the said Commissioners on the fourteenth day of June, in the year 1811, issued their certificate of confirmation, No. 983, as stated in the plaintiff's petition. That the said Joseph Brazeau and his wife, on the twenty-sixth day of June, in the year 1816, by their deed of that date, conveyed all the right, title and interest in said four by four arpents of land to one Pierre Chouteau, which deed was duly recorded as stated in plaintiff's petition.

That in the month of November, in the year 1817, by authority of the United States, and under the direction of the Surveyor-General for the district of Illinois and Missouri, the said four by four arpents of land were surveyed by Joseph C. Brown, of which the following is a copy.

‘No. 982 & 983. Township No. 45 north, range No. 47 E. of 5th principal meridian. Surveyed by Louis Labeaume two tracts in one. The one confirmed in his own name for 356 arpents. The other under Joseph Brazeau for 4 arpents, together 360 arpents, equal to 306 1-4 acres, beginning at the mouth of the branch, the S. E. corner of Easton's tract; thence down the Mississippi river, bending therewith,’ &c. &c. ‘November, 1817. (Signed) Joseph C. Brown, D. S.’ "That on the first day of June, in the year 1826, Pierre Chouteau and wife, by their deed of that date, conveyed the said four by four arpents to one George F. Strother; which deed was duly recorded, as stated in the plaintiff's petition. The said George F. Strother and his wife, on the third day of September, in the year 1830, by their deed of that date, conveyed the said four by four arpents of land, with other tracts of land, to John Mullanphy and John O'Fallon, in trust for the sole use and behoof of the Marine Railway Company.

That in the month of November, in the year 1840, the said George F. Strother departed this life, and administration in due form of law was had on his estate, and in like due course of law all the right, title, interest and estate of said Strother in and to said four by four arpents of land were sold by the administratrix of said estate and conveyed to the plaintiff.

That on the second day of January, in the year 1852, John O'Fallon (the said John Mullanphy having before that departed this life), by authority and direction of said Marine Railway Company, conveyed by deed all the right, title and interest of said Marine Railway Company to the plaintiff in the land north of the ditch called Labeaume's ditch.

That the said tract of four by four arpents of land which was confirmed to said Joseph Brazeau is situate in the northern part of the present city of St. Louis, in the county of St. Louis, on the south side of the old ditch called and known as Labeaume's south ditch.

That the said Pierre Chouteau, under whom plaintiff claims title to the land in question, on the fifteenth day of October, 1799, petitioned for a tract of land between Roy and Labeaume, of the width of six arpents. That Labeaume's ditches were then made; that Chouteau in his petition called for the line of the land of Louis Labeaume for his northern boundary; that at this time Joseph Brazeau had promised to convey the four by four arpents to said Pierre Chouteau. That at the time of the survey made in 1803, the south ditch of Labeaume was recognized by all the adjoining proprietors as Labeaume's south line; and that possession was claimed and held with such recognition from the time of said survey in 1803 until about 1823. That all the defendants respectively claim title and the right to possess the part and parts which they do respectively possess and claim of said four by four arpents of land, under one Louis Labeaume or his legal representatives; and that the defendants do hold, claim and possess portions of said tract of four by four arpents in the manner and to the extent stated in the plaintiff's petition. And that the said tract of four by four arpents of land, at the time of the confirmation thereof to said Joseph Brazeau as aforesaid was not definitely located by the metes and bounds. That on the tenth day of September, 1810, Jacques Clamorgan, who claimed the Esther grant by deed from her, the 2d September, 1797, conveyed the same grant to said Pierre Chouteau.

And from the evidence aforesaid, the court further finds that said Labeaume, in February, in the year 1806, filed his claim for confirmation before the said Board of Commissioners for the adjustment of land titles for the Territory of Missouri, and said Board of Commissioners confirmed to him three hundred and fifty-six arpents, and to Joseph Brazeau four arpents, as stated in defendants' answer.

That said Labeaume made the ditches and enclosures mentioned in the defendants' answer. That under the said confirmation to said Labeaume a survey of the tract of land so confirmed was ordered by the Secretary of the department of the Interior of the United States Government; and in the year 1852 a survey thereof was made under and in pursuance of the instructions of said Secretary; and which survey was afterwards approved on the twenty sixth day of February, in the year 1852; and thereupon a patent certificate was issued by the Recorder of land titles, certifying to the effect that Louis Labeaume or his legal representatives was entitled to a patent under said confirmation and survey for 339 63-100 acres, equal to 390 30-100 arpents. That afterwards, and on the twenty-fifth day of March, in the year 1852, a patent was issued by the Government of the United States, granting said tract of land described in the last-mentioned survey to said Labeaume or his legal representatives, and to his or their heirs and assigns; saving and reserving, however, any valid adverse rights which may exist to any part thereof.

That when said last-mentioned survey was made, and also when said patent was issued, as...