Newman v. Lawless

• Decision Date: 31 May 1840
• Citation: 6 Mo. 279
• Parties: NEWMAN v. LAWLESS.
• Court: Missouri Supreme Court

6 Mo. 279

NEWMAN

v.LAWLESS.

Supreme Court of Missouri.

May Term, 1840.

ERROR TO THE CIRCUIT COURT OF ST. CHARLES COUNTY.

BIRD, for Plaintiff in Error. 1. That according to the evidence and the law of the case as preserved on the record, the jury should have found for the plaintiff, and probably would have done so if the case had been left to them without any erroneous instruction of the court. 2. That southeast quarter of block 109 was property separated from the King's domain during the Spanish government and vested in J. B. Marle, deceased, and did not pass to United States by treaty between her and France, but remained in said Marle, secured not only by said treaty, but by the law of nations. 4 Peters, 512; 9 Peters, 734; 10 Peters, 330-335-726-732-736; 6 Peters, 712; 7 Peters, 86-87: 8 Peters, 444 465; 9 Peters. 133-734-747-748-749; 10 Peters, 305-330-721-732; 6 Peters 709-714; 8 Peters, 450; 9 Peters, 138-144-737; 10 Peters, 105-324-331-35-36-718-736; 12 Peters, from 434 to 441. 3. That by the act of 13th June, 1812, this lot was confirmed to said Marle's children by a legislative grant which vested a complete title in them, which could not be divested or in any way defeated by Recorder Bates, by any subsequent act of Congress, or by the issuing of the patent read in evidence. See 1 Mo. R. 296, Vassier v. Benton; Salle v. Primm, 3 Mo. R. 534; Newman v. Lawless, 5 Mo. R. 236; 12 Peters, 453-454-455; 5 Mo. R. 346; 9 Cranch, 87-299; 7 Wheaton, 380. 4. That the deeds read in evidence by plaintiff are good and sufficient to pass to him such title in said town lot as was vested in the grantors at the date of said deeds. 3 Cruise Digest, title Deed, sections 1, 2, 36, 37, 44, ch. 1; 3 Cruise, ch. 23, title 32, from § 1, page 415, to § 28, page 425. See also section 38. General description in deed or mortgage good to pass grantor's estate. 11 Johns. R. 365; 13 Johns. 537-551; not so in sheriff's deed. 13 Johns. R. 97, 537; 18 Johns. R. 60; 17 Johns. R. 146; 18 Johns. R. 81; 19 Johns. R. 449; 18 Johns. R. 107. 5. That said lot is a town lot or an out lot, within the meaning of the act of the 13th June, 1812, see said act. 6. That the court erred in instructing the jury. 7. That the court erred in overruling plaintiff's motion for a new trial.

B. ALLEN, for Plaintiff in Error. 1. That the whole case, considered with reference both to the evidence and the law--wherein I include the correctness of the instructions given by the court below--is now open to review; and if it shall be found that there was any error in the instructions of the court which materially affected the verdict, or that the verdict was against the weight of evidence, or the law of the case, the judgment should be reversed. Graham on New Trials, p. 261 to end of section; 2 Caine's R. 90; 10 Johns. R. 450-1. 2. That the first instruction given on behalf of defendant is erroneous, inasmuch as it excludes from the consideration of the jury all parol and documentary evidence of identification of the lot described in declaration, with the lot described in the deeds mentioned in that instruction. 3. That the second instruction given on behalf of defendant is erroneous, inasmuch as it excludes from the consideration of the jury all the evidence having for its object the location of the lot described in those deeds. 5 Wheat. R. 359. 4. That the third instruction given on behalf of defendant is erroneous, inasmuch as it contemplates that the parcel of ground occupied by Marle prior to December 20, 1803, should have been called and known as a town, or out lot, under the Spanish Government. 5. That the fifth instruction given on behalf of defendant is erroneous, inasmuch as it assumes that the possession by Marle, under whom plaintiff claims, must have been under the authority of the French or Spanish Government. 6. That the twelfth instruction given on behalf of defendant is erroneous, inasmuch as it assumes that the act of Congress can only operate in favor of Baptiste Marle, and not in favor of his representatives. 7. That the thirteenth instruction given on behalf of defendant is erroneous, inasmuch as it leaves the jury in uncertainty and ignorance of what is meant by a settlement; but if by settlement a possession prior to December 20th, 1803, is comprehended, then the instruction has withdrawn from the jury the consideration of the facts, which it was peculiarly their province to determine, and the court has adjudged the whole case law and evidence in exclusion of the jury. 2 Public Land Laws, 64-72-1014. 8. That the defendant is estopped to deny that the parcel of ground possessed by Marle prior to December 20, 1803, was a lot. Comyn's Dig. title Estoppel, 200, 3 § 20--deed from F. Marle to Riddick. 9. That the United States Government has recognized same as a lot, and no third party is at liberty to gainsay the same, or deny that it is such, for the purpose of this suit.

Passing by these points, we come to the following as most material, involving the fate of the case: 1. Was there such possession of the lot sued for, or any part thereof, on which the act of June 13, 1812, could operate, as to vest a right to same in Baptiste Marle or his legal representatives? This it is affirmed there was. See Evidence, act of 1812--Vasseur v. Benton, 1 Mo. R. 296; Lajoye v. Primm, 3 Mo. R. 534; Adm'r Janis v. Gurno, 4 Mo. R. 459, bottom of page; Act of Congress of May 26, 1824. 2. Was this right vested in the present plaintiff by the conveyance read in evidence? In support of the affirmative of this question the plaintiff in error refers to the parol evidence given, and the deeds offered and read by him in evidence, and to the act of Congress of June 13, 1812; 3 Cruise's Dig. p. 41, §§ 37-38, and p. 43, § 43; 7 Petersdorf, 453; 7 Johns. R. 222; 12 Johns. R. 365; 13 Johns. R. 537; 18 Johns. R. 59-81-107; 19 Johns. R. 448; 5 Wheat. R. 359; 4 Com. Dig. 285; 3 Starkie's Ev. 1000, 1021, and 1695. 3. Was there any outstanding title to defeat the right of the plaintiffs? The plaintiff in error affirms there was not, and relies on the following authorities: 9 Cranch, 87-292; Strother v. Lucas, 12 Peters' R. 410-453; Morton v. Blankenship, 5 Mo. R. 346; Lawless v. Newman, 5 Mo. R. 236; See act of 1816, Ambiguity what.

L. E. LAWLESS, for Defendant in Error. 1. That the deeds of conveyance offered in evidence by plaintiff are void for patent ambiguity and uncertainty on the face of them. 4 Comyn's Digest, title Fait (Day's Am. ed.) 270-284-285, and title Grant, p. 535; 4 Cruise's Digest, title Deeds, p. 225, 269, 277; 1 Mo. R. 553, Perry v. Price; 7 Johns. R. 217; 13 Johns. R. 97; Missouri “Act Regulating Conveyances,” Rev. St. p. 118; “Act to Regulate Ejectment,” Rev. St. p. 233. “Act Concerning Contracts and Promises,” Rev. St. p. 117. 2. That the plaintiff failed in establishing the title of John Baptiste Marle to any part of the land described in the declaration, and, more particularly, to the 120 by 150 feet surveyed for Felicite Marle and her legal representatives, because, 1. No lot was proved to have existed (but the contrary), on any part of the premises in the declaration mentioned prior to December 20th, 1803, or prior to the special grant by the United States of said 120 by 150 feet to Felicite Marle. See the evidence spread on the transcript: see act of Congress 13th June, 1812, and the act supplementary thereto, May 26, 1824. 2. No grant by the French or Spanish Government, or permission to occupy as owner, to J. B. Marle was shown by plaintiff; see evidence aforesaid. 3. No claim was ever made by said J. B. Marle, or his heirs, of any part of the land in the declaration mentioned of any government, French, Spanish or American. See evidence as aforesaid. 4. The grantors of plaintiff had notice of the conveyance by Felicite Marle in 1814, and of the claim on her behalf, and the grant to her by the United States, and never dissented from same or put in a claim thereto under any act of Congress. 5. The patent given in evidence by the defendant, together with the chain of title under Felicite Marle, shows a legal estate out of Jno. B. Marle, and his heirs and assigns. The court is here referred to the case of Wilcox v. Lessee of McConell, and to the case of Bagnell v. Brodwick, both decided at the last session of the Supreme Court of the United States.

TOMPKINS, J.^a1

Newman brought an action of ejectment in the Circuit Court of St. Louis county against Lawless, who being the judge of that court, the cause was transferred to the Circuit Court of St. Charles county, judgment was there given against Newman, and to reverse it, he prosecutes his writ of error in this court. The land sued for, is the spot where Lawless' house stands in the city of St. Louis, a part of block 109: and if the fractional township, whithin which this land lies, where sub-divided into sections, according to the manner in which the lands of the United States are surveyed, it would fall within the southeast quarter of section No. 23, of township No. forty-five north of Range No. seven, east of the 5th principal meridian. Newman derived his title to this land or lot from John Baptiste Marle, a part of whose legal representatives were Newman's vendors; and it lies west of Fourth street, which separates it from the lot of Louis Delille. It was proved that Marle, who died in 1806, had before the year 1800, built a barn on it and also inclosed and cultivated it. Marle retained possession till his death, residing all the time on Second street in St. Louis. Some years after his death, his widow laid in a claim for this lot, before the recorder of land titles for the Territory of Missouri. At that time, the recorder had succeeded to all the powers and duties conferred and imposed on the board of commissioners, appointed in pursuance of the act of Congress of the 2nd of March, 1805, for the purpose of ascertaining the titles of persons claiming lands in the territory, under any French or Spanish grant....