Marshall v. Bompart

• Decision Date: 31 March 1853
• Citation: 18 Mo. 84
• Parties: MARSHALL, Respondent, v. BOMPART, Appellant.
• Court: Missouri Supreme Court

18 Mo. 84

MARSHALL, Respondent,

v.BOMPART, Appellant.

Supreme Court of Missouri.

March Term, 1853.

1. Where land conveyed is sufficiently described by metes and bounds, the grantee takes all within them, whether it be more or less than the quantity stated in the deed.

Appeal from St. Louis Court of Common Pleas.

B. A. Hill, for appellant.

The deed calls for no monuments, and the north and south boundaries are indefinite, leaving it doubtful whether the grantor intended to bound the land on the north and south by public, or by vacant or uninhabited land. This being the case, the quantity becomes descriptive and must govern. (2 Greenl. Ev. § 301, note and cases there cited.) The deed calls for ten arpents in front by twenty arpents in depth. Courses and distances govern, where there are no established objects to control them. (1 McLean, 518; 3 Murphy, 82; 4 J. J. Marsh. 279; 6 Wheat. 582; 8 Greenl. 61; 4 Shep. 343; 2 Flintoff on Real Property, 537, 538; 2 Greenleaf's Real Property, 338, note.) The plaintiff entered into possession of the ten by twenty arpents conveyed, in 1843, but never occupied the strip sued for. If the description is doubtful or ambiguous, the practical construction of it by the parties, by acts of occupancy or otherwise, is admissible in aid of the interpretation. (Stone v. Clark, 1 Met. 378; Waterman v. Johnson, 13 Pick. 261; Frost v. Spaulding, 19 Pick. 445; 22 Pick. 410; 4 Metcalf, 438.) The plaintiff has fixed his south boundary, and cannot be permitted to deny it now. He must commence there.

Fremon & Reber, for respondent.

All the land included within the boundaries mentioned in a deed passes by it. (4 Kent, 466; 2 Greenleaf's Cruise, note, 334, 338; 15 Mo. 80.) The call for “vacant land” on the north in Duchouquette's deed cannot be satisfied without including the land in dispute. The call is also for “vacant land” on the south, and Marshall could as well be shoved from the south as from the north. It was clearly the intention to convey ten arpents in front by a depth extending from the southern to the northern line of the Spanish grant; and because the grant, as confirmed and surveyed by the United States, overruns in quantity, the defendant wishes to appropriate the plaintiff's parts of the excess, without even a pretence of title.

SCOTT, Judge, delivered the opinion of the court.

Henry Duchouquette was possessed of a large tract of land, twenty arpents front by forty arpents in depth. On the 29th of April 1816, he conveyed to Paul Guitarre, under whom the plaintiff claims, “a tract of land of ten arpents in front by twenty in depth, or two hundred arpents in superficies, situated near the River Des Peres, in said county, (of St. Louis,) bounded on the west by the land of Joseph Charleville, north and south by vacant lands, and east by me, the above named grantor. The which tract of two hundred arpents of land is situated in the west part of a larger quantity acquired by me of Thomas Barois, etc. Duchouquette's claim was part of a larger one, which was conceded and surveyed under the Spanish government, being twenty arpents in front by eighty arpents in depth. After its confirmation, under the act of 1816, it was re-surveyed in 1817, under the authority of the laws of United States, and the tract conveyed by the boundaries above set forth, was ascertained to contain twenty acres more than was supposed at the date of the conveyance. Now, the only question is, whether, by the description set forth in the conveyance above referred to, all the lands within the boundaries passed, or whether only two hundred arpents;...