McGill v. Somers

• Decision Date: 31 October 1851
• Court: Missouri Supreme Court
• Parties: MCGILL v. SOMERS & MCKEE.

15 Mo. 80

MCGILL

v.SOMERS & MCKEE.

Supreme Court of Missouri.

October Term, 1851.

1. EVIDENCE--CONFIRMATION.

A certificate of confirmation issued by the recorder under the act of 26th May, 1824, is only prima facie evidence of a confirmation under the act of the 13th June, 1812.

2. SAME--DESCRIPTION LIST.

The description list sent to the surveyor's office, by authority of the act, is evidence of as high a character as the certificate would be; and a properly authentic ted extract from it, is entitled to all the effect that the original certificate would have.

3. SAME--SURVEY.

A survey made under the act of 29th April, 1816, when examined and sanctioned as contemplated by law, is conclusive upon the government, and upon all persons who claim under titles subsequent to the survey; and, of course, upon mere intruders and strangers without title; and it is prima facie evidence of locality against all persons who claim under an opposing title.

4. SAME--CONFLICTING CLAIMS.

When two surveys conflict, the proper locality must be determined by the history of both claims. If it appears that the two titles, when properly located, cover the whole or part of the same land, the right must be determined as a question of law, in favor of the superior title. If the titles are of the same age and description, and there is no evidence to impeach the survey of either; the party in possession cannot be disturbed.

5. SAME.

Surveys covering the same land may be correctly made, and the fact that confirmations embrace the same land, is no impeachment of the survey.

6. CONFIRMATIONS--PRIORITIES.

A confirmation under the first section of the act of 13th June, 1812, if of a common-field lot, is superior to an opposing title, which stands alone upon a confirmation, under the act of 29th April, 1816, and if under the first act the land be granted to one, it cannot, under the last, be granted to another.

7. SAME--NEW MADRID LOCATION,

A confirmation under the act of 1816, when properly surveyed, is superior to a New Madrid ocation.

8. CONVEYANCES--BOUNDARIES.

Known and fixed boundaries and monuments, called for in a grant or deed, control the courses and distances stated in the same instrument.

ERROR TO ST LOUIS CIRCUIT COURT.

HAIGHT, for Plaintiff. 1. It seems unnecessary in submitting a brief in this case to do more than state the points decided. The decision is so grossly wrong that argument would be wasted. The court decided, in refusing the first instruction, that the confirmation to Cottard, and the survey and location under it, did not vest the title to the premises in Cottard if the survey and location were correctly made. 2. The court decided, that if a part of the land confirmed to Cottard was within the survey to Motard, or within the commons, and the land in controversy in this suit was not embraced in either survey, the defendants would be entitled to a verdict. 3. That the title of the representatives of Joachim Roy was a better title than the confirmation to Cottard. 4. That monuments and visible boundaries do not control course and distance. 5. That the commons title and the Motard confirmation would both be set up as outstanding titles, though neither included the premises in question. 6. That the claim of Adams, and the confirmation to him under Motard was an out lot. 7. If the court found the facts to be that no claim had ever been made by Adams to the land in controversy, and that he had accepted a survey and confirmation excluding it, the title of lands would be a bar to the plaintiff in this suit. Other points not less absurd were decided, but these are deemed sufficient for the present purpose.

SPALDING, for Defendants. 1. The plaintiff's first instruction was refused and the court was justified in the refusal of it, because there was evidence that Motard's land was a common-field lot, and in cultivation prior to 20th December, 1803, was proved on the trial. The concession or claim, was seven by forty arpents, and was protected by the common-field fence upon which it bounded. 2. The second instruction of plaintiff was rightly refused. First. It is calculated to mislead the jury. Second. The fact that Cottard's survey was in part embraced in the survey of commons and in that of Motard's may be a conclusive reason why the jury should find for defendants. This depends on the location of the different tracts. 3. The third instruction for plaintiff refused by the court is erroneous. First, because the certificate and evidence under which the survey was made to Joachim Roy, establishes a confirmation to him. 9 Mo. R. 347, Biehler v. Coonce. The tabular statement from the books of the recorder of land titles showing confirmation of a lot, size, &c., is evidence. This was of an entry by Hunt, the recorder, acting under the act of Congress of 26th May, 1824. 4 U. S. Stat. 65, as to the duty of the recorder of land titles in taking proof of possession, &c. 3 U. S. Stat. 325, act of 29th April, 1816, to provide for appointment of surveyor, &c. It directs him to cause all lands to be surveyed, &c., the “claims to which have been, or hereafter may be confirmed by any act of Congress which have not been already surveyed according to law.” 9 Mo. R. 477, Macklot v. Dubreuil; at page 489, the court hold that a certificate issued in August, 1842, by the recorder of land titles on the proof by Hunt, is valid, and evidence of confirmation under act of 13th June, 1812. 11 Mo. R. 16, Boyce v. Papin, at page 24, the court say that the recorder had power to confirm town lots, and his acts are evidence of confirmation as full as his certificate under act of 1824. The first instruction given for defendant involves the same question. 4. The fourth instruction asked by plaintiff, lays down certain principles, as to location of land, which if even abstractly right do not belong to the case. The question, or at least one question was whether the Cottard claim had been surveyed at the right place. This did not depend upon monuments and visible boundaries, but upon calls as to other lots and claims. 5. The plaintiff's 5th instruction was not needed in the case. No pretense was set up on behalf of the defendants, that the confirmation of the boundaries or of Motard's claim was an outstanding title to the premises in dispute, lying entirely without the limits of each of them. There was no dispute--no conflicting testimony, even as to the fact that the piece of land in dispute in this action, that is, possessed by the defendants, lay entirely outside of both of those confirmations. 6. The 6th instruction asked by plaintiff, is objectionable for taking away from the jury, the consideration of all matters of fact tending to show that there was an outstanding title to the same premises; and also tending to show that Cottard's claim was located in the wrong place. 7. The 7th of the plaintiff's instructions, suggests that if certain facts existed, then the concession of Cottard was confirmed, but does not state to whom. The testimony shows that perhaps Cottard cultivated there, and also shows that he was not cultivating in his own right, but for Motard; at least, there was evidence to that effect, what use then in stating to the jury that the act of 13th June, 1812, confirmed the lot, and stopping there, and not stating to whom? 9. The 9th of plaintiff's instructions is an argument to the jury, and that the jury did not believe it is not matter of exception in law. But if it be viewed as an instruction, that is, a proposition of law, to govern the triers of the fact in finding a verdict, it is erroneous in deciding positively, that the Motard claim was not a common-field lot. Whether it was a common-field lot depended on certain matters in pais which the jury was to find from the evidence, and which the court could not know as a matter of law. 10. The 10th of plaintiff's instructions is liable to the same objections as the foregoing one. It also assumes that the Motard claim (called the claim of Adams) excludes the land in controversy in this suit. It assumes also that Adams and those claiming under him, the representatives of Motard, never claimed the land confirmed to Cottard; whereas, if the land confirmed to Cottard is that which is within, or is embraced by his survey, given in evidence, then it is chiefly within the Motard claim; and was, and is claimed by Motard's representatives. The 2nd instruction given for defendants assumes as a legal proposition, that upon the facts given in evidence the jury were to judge whether the Cottard claim was properly located by the survey of it, within the survey of the commons, and also within the survey of the Motard claim. The jury were to determine upon all the evidence whether the survey of the Cottard claim should have been made so as to interfere with Motard. If it were to be made at another place, it would not have included the spot in dispute. The 4th instruction of defendants involves the same point. The 3rd instruction of defendants asks the court to state to the jury that the survey of the commons is prima facie correct, and is to be so presumed against this later one of Cottard. 11 Mo. R. 16, Boyce v. Papin, at pp. 24-5, the court hold the government survey prima facie evidence of location. 9 Mo. R. 69, Trotter v. Public Schools, to the same purport. 4 Howard, Les Bois v. Brannel, p. 464, that the confirmation of 1812 and the official survey, located the commons title as effectually as a patent. The United States had passed the title of the commons to the town of St. Louis, and had then surveyed and designated the limits thereof, during the time that they owned or claimed the land, covered by the Motard survey, so far as the claim was not owned by the city as commons. Cottard, claiming by subsequent location, must submit to that presumption existing against him arising from the previous acts of the government. The 5th instruction of defendant asks the court to say, that the survey of the Joachim Roy...