McCamant v. Patterson

• Decision Date: 31 October 1866
• Citation: 39 Mo. 100
• Parties: JAMES MCCAMANT, Appellant, v. HENRY L. PATTERSON et al., Respondents.
• Court: Missouri Supreme Court

39 Mo. 100

JAMES MCCAMANT, Appellant,

v.HENRY L. PATTERSON et al., Respondents.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Land Court.

This was a claim to land by virtue of a New Madrid certificate (No. 130) and a patent issued July 23, 1849, for the land upon which said certificate was located. The patent was to Peter Tesson or his legal representatives.

The title was traced by both parties to John Butler in 1804, and the plaintiff and appellant traced the title to him from John Butler's heirs by deeds dated November, 1851, and March, 1852, and recorded about same date; also title to himself of a considerable portion of the land from Robert McCoy's heirs and devisees from 1841 to 1850.

Defendant and appellee then read a deed from John Butler to Robert McCoy of same land in New Madrid, dated January 11, 1812, and recorded November 8, 1852; a power of attorney from one Mathias Bilsen to Charles Lucas, dated June 15, 1815, to locate said New Madrid certificate; also deed from said Bilsen to said Lucas, dated June 4, 1815, of same land; also certificate of Recorder Bates, dated November 4, 1815, authorizing the location of said certificate No. 130 in name of Peter Tesson or his legal representatives; also U. S. survey 2506 of said location, and return of Surveyor General, dated June 26, 1847.

The location was made by said Lucas in the usual form, and defendants also gave evidence deriving title from said Lucas to themselves. Also produced and offered in evidence the record of a suit in chancery, in New Madrid county, of Robert McCoy against John Butler; suit commenced October 10, 1831, which was revived against the heirs, and judgment rendered in ________, 18--. This was objected to by plaintiff's counsel as acts between other parties, and that declarations by said McCoy in his bill or petition in the case were not evidence of conveyance by him, of said land to said Bilsen. The court admitted the whole record, and plaintiff excepted.

Defendants also introduced record of case of said McCoy against said Bilsen, in same county and about same time; and plaintiff's counsel objected to it for same reasons, and objections were overruled by court. Plaintiff excepted.

The evidence of the conveyance of the land in question from McCoy to Bilsen was shown by these records and decrees, of which the plaintiff had no actual notice. The deed of Bilsen to Lucas contained a statement that the land was the same as Bilsen had purchased of McCoy.

The court refused numerous instructions asked by the plaintiff, and only gave the following for plaintiff:

1. The recitals in the deed of Bilsen to Lucas are not evidence against the plaintiff of the facts stated in such recitals.

The court then gave the following instruction for the defendant:

1. If the jury find from the evidence that in 1812 John Butler conveyed the Peter Tesson lot to Robert McCoy, and that in 1812 said Robert McCoy conveyed the same to Mathias Bilsen, and that the certificates of New Madrid location did not issue till 1815, then neither John Butler nor his heirs, nor Robert McCoy nor his heirs, could make any conveyance affecting the title to the land in controversy at any time after the issuing of said certificate, and any such deed would be simply void; and it is immaterial in law whether the purchaser under any such deed from John Butler or McCoy, or the heirs of either, had or had not notice of said conveyance, or either of them, by Butler to McCoy or McCoy to Bilsen.Hill & Jewett, for appellant.

I. The court, by admitting such records as evidence, and refusing the 10th instruction, took distinctly the ground that the statements of McCoy in said records, though unknown to the plaintiff, were competent evidence to prove that Robert McCoy conveyed the land in New Madrid to Bilsen in 1812, notwithstanding these declarations were made twenty years after McCoy alleges he had sold the land and when he was not in possession of the land; and this against the plaintiff, who, as the case stands, was a purchaser for a valuable consideration without notice, and does not claim the land solely under McCoy but also under Butler, and against the deed from Butler to McCoy, not known of or recorded till after the plaintiff had purchased the land. The decree in the case of McCoy v. Butler was of no effect, and not notice unless recorded within one year. It never was recorded. R. C. of 1835 in force at that time.

The admission of the statements of McCoy under such circumstances, to prove a conveyance from him to Bilsen in 1812, is so plainly against every rule of law applicable to the case, that no authority need be cited beyond the elementary books on hearsay testimony. This one statement of McCoy in his bill is the only evidence before the jury of any deed from McCoy to Bilsen, and of course the only evidence that defendants had any title. It is not denied but the plaintiff showed title to all the land from Butler's heirs and grantees, but also title to a great part of it from the heirs of McCoy.

II. The instruction given for the defendants was based upon the doctrine in the case of Page v. Hill, 11 Mo. 149. That case completely overturns the whole registry law of the State. The law (R. C. 1855, p. 364, § 42), as also the statutes of 1835 and 1845, say “that no such instrument (a deed of land) in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record.”

In Beattie v. Butler, 21 Mo. 313, it is decided that nothing short of actual notice will defeat a subsequent purchaser as against a prior unrecorded deed; therefore any deed from Butler to McCoy, or from McCoy to Butler, if any such ever existed, are void by statute until plaintiff is proved to have had notice. The decree in case of McCoy v. Butler was of no force as against plaintiff as the decree was not recorded; when plaintiff, therefore, bought of F. C. Butler in 1851, the record showed a good title in F. C. Butler--put into him in 1851; that is, of the New Madrid lot.

The Statutes of this State on Ejectment, p. 692, §§ 11 & 12, authorize the inquiry as to who was the owner of the New Madrid land, and declares that the one entitled to the New Madrid land shall be the owner of the land located in lieu thereof. How can it be determined who was or who is the owner of the New Madrid land unless the registry law of the State is to be the rule of inquiry?

The case of Page v. Hill, 11 Mo., relied on by defendants, and the instructions given by the Land Court in this case, have both been overturned by the case of Lessieur v. Price, 12 How. (U. S.) 59. The case of Page v. Hill and the instructions say that no conveyance of the New Madrid land after the issuing or location of the certificate can pass any title, because the New Madrid land has then vested in the United States, and the located land in the man who then had a title, though by unrecorded deeds, to the New Madrid lot. The Supreme Court of the United States says that the title does not pass out of the United States till the survey of the located land is returned to the U. States Recorder's office. Therefore in this case there was no exchange of title between the United States and the owner of the New Madrid lot till January 26, 1847. Till that time, therefore, the title to the New Madrid not would pass by deed, and would pass by the deed of those having the title, to a purchaser, without notice of unrecorded deeds or unrecorded decrees. On the 25th of January, 1847, then, any purchaser of F. C. Butler without notice of the McCoy deed or decree would have got a good title to the New Madrid lot. There is no reason, in the circumstances of the case, why the title to a New Madrid lot and the land substituted for it should not be investigated by the same rules of statutory law that any other title is. The whole force of the case of 11 Mo. is, however, destroyed by Leissieur v. Price, before cited.

No presumption of a deed is ever admitted except in favor of some one in possession of the lot to which the deed is to apply. There is no such possession in this case.

If F. C. Butler could have conveyed a good title on the 25th of January, 1847, to the New Madrid lot, what sense or reason is there in saying that he could not on the 27th of the same month, when no change had taken place in the record and nothing done to put an innocent purchaser on his guard?

Glover & Shepley, for respondents.

I. The bounty conferred by the act of Congress entitled “An act for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes,” approved February 13, 1815 (3 U. S. Stat. at large, p. 211), passed to the owner of the injured land at the date of the certificate of the new location.

II. No former owner took anything by said act; now one may be owner of land by virtue of an unrecorded deed. It is the conveyance of the land, and not the recording of the deed, that passes title. The record shows that in 1812, by chain of deeds from Tesson, the title to the village lot had passed to Mathias Bilsen, and on the 4th of June, 1815, Bilsen conveyed to Lucas, though the certificate of new location did not issue till November 24, 1815; so that the grant was to Lucas, and neither Michel, Butler, McCoy nor Bilsen ever owned any interest in the newly located land--9 Mo. 114; 10 Mo.252; 11 Mo. 149. The bill of McCoy was evidence--1 Greenl. Ev. p. 255, § 212. Lucas acted upon this admission and took possession of the property--30 Mo. 272-8. Possession and lapse of time authorized reading the bill and recitals in Bilsen's deed--27 Mo. 452.

III. Plaintiff, McCamant, insists that he is an innocent purchaser for value without notice, or claims under such a purchaser. The answer is, first, that McCamant had actual notice; second, that he only took such title as his vendors--made a chancing bargain, and took all risks. A deed...