Moss v. Anderson

• Decision Date: 31 May 1842
• Citation: 7 Mo. 337
• Parties: MOSS v. ANDERSON.
• Court: Missouri Supreme Court

7 Mo. 337

MOSS

v.ANDERSON.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY.

COLE, for Appellant.

SCOTT, ZEIGLER & BRICKEY, for Appellee.

SCOTT, J.

This was an action of ejectment, brought by John Anderson against Mark Moss. Anderson derived title to the land in dispute from Roger Cagle, who claimed it by settlement and cultivation prior to the 20th December, 1803, under the acts of Congress of the 2nd March, 1805, and 13th June, 1812. Cagle's claim was confirmed to him, or his legal representatives, by the act of Congress of the 4th July, 1836. Mark Moss, the defendant below, derived title to the land in controversy, from his father, Wm. Moss, who likewise claimed by settlement and cultivation prior to the 20th December, 1803, under the acts of Congress of the 2nd of March, 1805 and 13th June, 1812. Moss' claim was recommended for confirmation, and confirmed by the act of Congress of the 29th April, 1816. Moss, it appears, never obtained a patent for the land confirmed to him, although by law a patent could issue for the same. Neither the claim of Moss nor Cagle was confirmed by metes and bounds. The description of both claims was vague; that of Cagle being for 650 arpents, lying on Sandy creek, in the county of St. Louis; that of Moss being for 640 acres, lying on Sandy creek, in the same county. It was proved that the defendant below was in possession of lands included in Cagle's confirmation. On the trial, Anderson obtained judgment, from which Moss has appealed to this court.

Anderson, to show title in himself, produced a duly certified copy of an instrument of writing, not under seal, conveying Cagle's claim to W. Johnson, an intermediate grantee between Cagle and himself. The instrument had the name of Roger Cagle subscribed to it, as the person who had executed the same, and was dated the 6th October, 1807, and acknowledged on the same day, and recorded in the recorder's office of St. Louis county, in February, 1809. Before the copy was read in evidence, Anderson, the plaintiff below, made affidavit that the original, of which the instrument produced was a copy, was not, and had never been, in his power, that he had made a diligent search for the same, in places where it would most probably be found, without avail, and that he believed it was lost or destroyed. Another witness testified that after a diligent search, he was unable to find it, and expressed his belief that it was lost or destroyed. A witness was then called, who stated that he had lived near Roger Cagle; that there was but one Roger Cagle; that to his knowledge Cagle never claimed the land in controversy after the sale to Johnson; that Cagle had lived on the said land, and afterwards went to Tennessee; that it was currently reported that Cagle had sold the land to Wm. Johnson. After this proof, the copy of the conveyance was read to the jury, under the 10th and 11th sections of the act of February, 1st, 1839, supplementary to the act concerning Evidence. To the introduction of this paper it was objected, first, that it was not a deed or conveyance within the meaning of the said act, it not being under seal. Whatever may be intended by the term conveyances, used in the statute now in force, regulating the alienation of land, that word, as employed in the act now under consideration, must be construed in the sense in which it was understood at the time of the execution of the instrument to which it relates. In 1807, the date of the instrument now in question, the legal title to but a small portion, if any, of the lands in the then territory, had passed from the government. The titles were mostly equitable. Hence, in the act concerning Conveyances, of 1804, Geyer's Digest, 127, the words, “deeds and conveyances,” were employed not to convey alone the idea of instruments passing the titles to lands, but of instruments by which they were in any way affected. It is true, the second section of the act declaring that all deeds and conveyances shall be proved by one or more subscribing witnesses to such “deed,” &c., dropping the word “conveyances,” might be thought to imply, that the instruments to be proved must be sealed: but we would not be justified in holding that the law-making power, by a bare implication, intended to introduce forms of alienation of lands before unusual, and to which the early inhabitants were utter strangers. This opinion is strengthened by a knowledge of the fact, that a scroll affixed to an instrument by way of seal, did not make it a deed, unless actually sealed, till the year 1807. Geyer's Digest, 250. It is believed, that since the introduction...