McNair v. Hunt

• Decision Date: 30 June 1838
• Citation: 5 Mo. 300
• Parties: MARGARET S. MCNAIR v. WILSON P. HUNT.
• Court: Missouri Supreme Court

5 Mo. 300

MARGARET S. MCNAIR

v.WILSON P. HUNT.

Supreme Court of Missouri.

June Term, 1838.

ERROR TO THE CIRCUIT COURT OF ST. LOUIS COUNTY.

G. A. BIRD, for the Plaintiff. The plaintiff relies on the following points: 1. That the court below erred in receiving in evidence two documents, one purporting to be the proceedings of the sale of the estate of Antoine Riehle, deceased, by Gregoire Sarpy; the other, what purports to be an act of adjudication of the land in dispute to Sarpy, the executor of the will of Riehle, and guardian of his minor children, for the purpose of showing title out of the plaintiff when this evidence was resisted. 2. The court erred in giving the following instruction to the jury, “that they ought to find for the defendant, unless they should be of opinion that there was fraud in the proceedings of Sarpy or those claiming under him, the record showing that there was parol and documentary evidence before the jury, but not alleging that all the evidence is set out.” In support of these positions the same reasons apply, and we shall insist that the documents objected to, ought not to have been received or the instruction given. 1. Because in a judicial sale of an estate in which minors are concerned, nothing is to be presumed, but all the solemnities required in the alienation of such estates, must appear to have been observed or no title passes, and the sale in ipso jure void. 2. Under this head we insist, if the alleged sale to Sarpy is good for anything, it can only be good for an ndivided half of the premises, which, at the time of the sale, was owned by plaintiff's grandmother, whom plaintiff represents, and to the heirs of A. Riehle, plaintiff's father. Because, under a notice to sell 1400 arpents by metes and bounds, as the property of A. Riehle, when Riehle only owned an undivided half, only his interest could pass, admitting the sale to have been in every respect regular. 3. The partition made a year after the sale to Sarpy, was void, because the heirs of Riehle were interested in the balance of the tract, and should have been made parties to the partition. The partition was made by surveyor general, who had no authority to make it, and instead of what he purchased, 700 arpents, 1,632 arpents, according to the record, were allotted to Sarpy. 4. There is no evidence on the record that plaintiff ever did, by any act, ratify the pretended sale to Sarpy, or the alleged proceedings in partition. See Chesmann's Heirs v. Sadler, 10 Martin, 726, and following. 5. The defendant says that, supposing said sale void, there might have been, and probably was, sufficient evidence, parol and documentary, without that objected to, to establish the defendant's title. We insist, if there was no other evidence than what appears on the record, then the directions of the court were clearly wrong; and if there was other, then the court took upon himself to determine the law and the fact, which is error. See 1 Mo. R. 232, 315, 422, 505, 618; 3 Mo. R. 23; 4 Mo. R. 23, 106, 256, 356. 6. The question of prescription urged here as a bar to plaintiff's action, we insist, cannot arise or be decided in this court, because it is apparent from the record that the case below was determined by the jury, under the direction of the court; that they ought to find for defendant, unless they shall be of opinion that there was fraud in the proceeding of sale by Sarpy, or those claiming under him. To determine a case here on a point not determined or made in the court below, would be to convert this appellate court into a court of original jurisdiction, and depriving the plaintiff in this of every advantage intended to be secured by a trial by jury. See Laws of Mo., Code of 1825, § 49, title Practice, pp. 634-5. 7. If the question of prescription were open here, we say that, from the facts as stated on the record, prescription could not bar the plaintiff's action. If Sarpy never was a purchaser in good faith and with just title, nothing but a prescription, founded on thirty years' possession, would avail him. The admission that Sarpy's title, such as it was, was sold to Chouteau in June, 1808, and is now vested in the defendant, there is no admission that Chouteau as defendant purchased so as to enable them to have the benefit of the ten years' prescription. If prescription continued to run from the time plaintiff arrived of age in January, 1808, until this suit was commenced, prescription would not bar the plaintiff, because neither Sarpy nor any one claiming under them, were possessors in good faith and with just title. See Porter's opinion and the case of Reeves v. Towles, 10 Louisiana R. 8. We insist that all Spanish laws, usages and customs in Missouri, were abolished by the act of January, 1816, introducing the common law of England as the rule of decision here, with some restrictions. See Geyer's Digest, title “Common Law.”

H. R. GAMBLE, J. SPALDING and H. S. GEYER, for Defendant. 1. The first point for the defendant in error is, that the plaintiff has not saved upon the record any case which shows error in the court below, or upon which this court can determine what was the real state of the facts in the court below. 1 Mo. R. 232; Hammond v. Relfe and others, 4 Mo. R. 23. 2. For aught that appears on the bills of exceptions, evidence was given which removed all objections made by Mrs. McNair's counsel. As, for instance, it may have been shown that she conveyed this land when of age, as she might do with property which was paraphernal as this was. 3 Febrero, 136, No. 40, and 158, No. 19. 3. To all the objections made by plaintiff, we reply, that a minor cannot take advantage of a defect in the sale after a ratification of the proceedings, either express or implied, 5 Febrero, 92 to 99; ibid, 99, No. 72; ibid, 101, No. 75, 76; 10 Martin's R. 735; Curia Phillippica, 139, No. 4; ibid, 153, No. 8, and 146, No. 24. Nor can the minor take advantage of the executor being the purchaser, unless claim is made in four years after coming of age. 3 Martin's R. (O. S.) 446; 2 Partidas, 1157, law 8; 1159, law 9. The knowledge of all the facts in the plaintiff, is shown by the deed executed by her to Pratte and others, calling for the division line established between Mrs. Camp and Sarpy as the owners of the larger tract. See record. We further say that, by the Spanish and common laws, all presumptions are to be made in support of judgments and of possession, of the age of those in this case; the proceedings and the possession under them being thirty years old, undisturbed and unquestioned. 4. But as a perfect answer to all the pretense of the plaintiff, we say that the claim set up is barred by prescription. 5. The bills of exceptions do not show whether there was any other testimony given in the case than that set out on the record. 4 Mo. R. 23, 438; 1 Mo. R. 232, 318; Hammond v. Relfe and others; d, 318, Bellisime v. McCoy.

The principal question, if we go into the merits, relates to the proceedings and sale of the land in question to Sarpy by order of the judge. My positions are: 1. That a minor's property, or the property of deceased person's estate. could be sold by order of a judge, and that the guardian or executor could buy at such judicial public sale. 1 Febrero, 394-5, No. 2, and 417-18, No. 50; 5 Febrero, 20, No. 301. 2. The “ordinary judge” of any district or jurisdiction, could delegate a substitute on any proper occasion, which was done in this case. Curia Phillippica, p. 9, § 6; Novisma Recopilacion, 3 vol. p. 569; Lib. 11, tit. 1, laws 2 and 3; 1 Partidas, p. 79, law 2, p. 81, law 5.3. The essentials of the Spanish law were observed; a decree was made by the judge after a hearing; the sale took place by public auction after advertisements; there were three sales on three separate days; it was publicly struck off to Sarpy on the third sale, who gave security; a formal act of sale, such as was customary here, reciting all the proceedings, were made out and signed by the judge who conducted the proceedings. If this sale was not good, there was none good in the country. 3 Mart. R. (O. S.) 116, where it was held by the court that the Spanish laws, in their strictness, were not applicable to the colonies, particularly as relates to the mode of conveying property; and 3 Recopilaction, 535-6, shows that by the law referred to in the proceedings in the sale, many forms were dispensed with. 1 Partidas, 273. The several matters that would render a judgment perfectly null, such as the judge's standing on his feet, &c., I presume would not have been considered as binding here, &c. Curia Phillippica, 139, No. 4, shows that if the proceedings on an execution are irregular, so that they would be held null, yet acquiescence cures them, and the property levied on must be sold, and ibid, p. 153, No. 8, the debtor can waive the notice of sale--146, No. 24, inverted order of proceeding does not vitiate.

The court excluded a record of a suit in chancery between Riehle's heirs and Sarpy, which was pending and was dismissed in 1816. This was about eight years after Sarpy had parted with all interest in the land, and whatever he might then have said or swore to in his answer, could be no evidence in this suit against Hunt. If fraud was what was intended to be proved, the fact must be proved by legal evidence, and not by hearsay and ex-parte assertions of any person, fourteen years after the fraud is charged to have been committed. Besides, the evidence, as offered, contained nothing pertinent. 5 Febrero, p. 92 to 102; 3 Mart. Rep. (O. S.) 446.

Hunt likewise relies on the law of prescription, which, from the decision in the case of Lindell v. McNair, will run at least till the act respecting limitation went into force, which was in 1818. This was paraphernal property, and prescription would run against her for it from the time she came of age. 4 Febrero, 491, No. 218. She came of age in January, 1808, and the laws on the subject of...