Mercier v. Letcher

• Decision Date: 31 October 1855
• Citation: 22 Mo. 66
• Parties: MERCIER et al. Respondents, v. LETCHER et al., Appellants.
• Court: Missouri Supreme Court

22 Mo. 66

MERCIER et al. Respondents,

v.LETCHER et al., Appellants.

Supreme Court of Missouri.

October Term, 1855.

1. C. M. having a Spanish concession and survey, died in 1802, leaving five children, and a widow, who afterwards married one J. M. C. J. M. C. claiming to be the representative of C. M., (whose widow, he stated in the notice of claim presented by him, he had married,) presented the claim for confirmation to the old board of commissioners; but made no proof whatever of any derivation of title from C. M. to himself. The board, October 9, 1810, confirmed the claim to C. M. Held, that this confirmation was not void, but enured to the benefit of the representatives of C. M. It did not enure to the benefit of J. M. C. (Hogan v. Page, 22 Mo. 55, affirmed.)

Appeal from St. Louis Land Court.

S. Reber, for appellants.

1. The confirmation to Charles Mercier is void, because he was dead before the claim was presented to the recorder. An entry in the name of a dead man is void. (6 Pet. 261; 3 A. K. Marsh. 1080; 4 Pet. 345.) So also a patent. (12 Pet. 297-8; 1 Mo. 540; 4 Bibb, 385; 10 How. 373.) 2. If the confirmation be held to be a confirmation to the representatives of Charles Mercier, then it is a confirmation to Jean Marie Courtois, he having claimed the land by virtue of his marriage with the widow of Mercier, and filed the claim before the recorder. 3. The partition proceedings under which the plaintiffs claim are void. (Jackson v. Brown, 3 Johns. 459.)

B. A. Hill, for respondents.RYLAND, Judge, delivered the opinion of the court.

This was an action in the nature of ejectment, to recover possession of a common field lot in the common field of St. Ferdinand. The plaintiffs claimed title under Charles Mercier, deceased, in whose name the land was (claimed to be) confirmed by the old board, and surveyed.

The deceased, Charles Mercier, died in 1802, leaving a widow, who married Jean Marie Courtois, in the same year, and five children, Charles Mercier, one of the plaintiffs, and four daughters.

Jean Marie Courtois, claiming a large tract, of which the land in controversy was part, as the representative of the deceased Mercier, whose widow (he said in his claim) he had married, gave notice of his claim to the recorder of land titles, and filed with the notice the Spanish survey of the land which had been made for Mercier. The papers were duly recorded by the recorder in the books of his office.

On the 19th of August, 1806, the board acted on the claim of “The representatives of Charles Mercier”--received proof of cultivation of the land claimed, and rejected it. The said proceedings of the board were recorded in book No. 1, p. 477. On the 9th of October, 1810, the board took up the claim again, and referring to the said book No. 1, p. 477, confirmed it to “Charles Mercier,” and on the same day the board issued a patent certificate in the name of “Charles Mercier.”

All the daughters of Mercier married between the years 1810 and 1818, and were under the disability of coverture until within less than twenty years before suit was brought.

In 1848, the said five children of Mercier instituted proceedings in the St. Louis Circuit Court, for partition of the land, and the part in controversy was sold in that proceeding and conveyed to the plaintiffs in 1850.

In 1805, Jean Marie Courtois and wife (former widow of Mercier) conveyed the land in controversy, with general warranty to Richard Sappington, and defendants have Sappington's title.

In 1824, Mercier, the plaintiff, conveyed his interest in the land to Jean Marie Courtois, and defendants have also that title. The defendants and those under whom they claim have been in continuous and adverse possession of the land since the year 1814.

The court, sitting as a jury, found the facts as above stated, and gave judgment in favor of the plaintiffs for four-fifths of the land. The defendants filed their motion for a review, which being overruled, they bring the cause to this court by appeal.

From this statement, it appears that some of the questions arising on this record are the same as those which have just been decided by this court in the case of Hogan v. Page. The original grant was to Charles Mercier. At the time of the confirmation, he had been dead for several years. Courtois, who married the widow of Charles Mercier, delivered to the recorder of land titles for the territory of Louisiana, a notice in writing as follows, to-wit: “Jean Marie Courtois, representative of Charles Mercier, whose widow he has married, claimed a tract of______arpents of land on the right or south bank of the Missouri, surveyed for said Mercier, as per the following certificate.” Courtois delivered with the notice a plat and survey of the said land, made by Antoine Soulard, for the said Mercier, on the 5th March, 1797, by authority of a letter from the lieutenant governor, Zenon Trudeau. This notice and survey was recorded by the recorder of land titles, in a book kept for that purpose. C. Mercier died 28th June, 1802, leaving a widow and five children--four daughters and a son--bearing his father's name. At first, the board rejected the claim. Subsequently, on the 9th ...