Page v. Scheibel

• Decision Date: 31 October 1847
• Citation: 11 Mo. 167
• Parties: PAGE v. SCHEIBEL.
• Court: Missouri Supreme Court

11 Mo. 167

PAGE

v.SCHEIBEL.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

GAMBLE & BATES, for Plaintiff.

1. The ninth instruction asserts that though Martin Coontz may have conveyed the land in New Madrid, in lieu of which the recorder's certificate was issued to James Tanner, and though the plaintiff derived title regularly under Tanner, yet the legal title to the land located in the name of Coontz or his legal representatives, vested in Coontz and not in Tanner, or those claiming under him; and therefore that the plaintiff was not entitled to recover. This is clearly contrary to the decisions of this court, in Kirk's Heirs v. Greene's Heirs, 10 Mo. R. 252; Mitchell and Wife v. Tuckers, 10 Mo. R. 260; Montgomery and Wife v. Landusky, 9 Mo. R. 714.

2. The second clause of the second instruction asserts that if the premises in dispute were a part of a tract of land which had been cultivated or possessed as private property prior to the 20th December, 1803, and known as a common-field lot in the Grand Prairie common fields of St. Louis, the plaintiff was not entitled to recover.

3. The third instruction asserts that if there were tracts of one or more arpents front by forty deep, possessed and cultivated as common-field lots adjoining those which were granted and used and occupied in the same manner as those which were granted, then the tracts so occupied and cultivated, were common-field lots confirmed by the act of 13th June, 1812.

4. The fifth and sixth instructions are directly opposed to each other on the case as it was made in evidence. The fifth decides that the confirmation under the act of 1816, is no bar to the plaintiff, unless the grant to Calvet in Livre Terrein No. 1, page 17, covers the land in dispute; while the sixth decides that the confirmation is for the land possessed by Calvet, without regard to the grant in Livre Terrein. The sixth instruction construes the confirmation erroneously, in declaring that the land possessed is that to which the confirmation applies. The confirmation refers to Livre Terrein for the description of the land confirmed.

5. The seventh instruction refers to the jury the question of the proper legal construction of the confirmation, whether the confirmation was of the tract which was cultivated and possessed by Calvet under the grant, without regard to the calls of the grant. Having in the sixth committed the error of declaring that the land possessed by Calvet was that which was confirmed, the further error is here committed of referring the construction of the written confirmation to the jury.

6. The eleventh instruction asserts that the plaintiff has shown no title to any lands within the Coontz survey, which was at the time of the locacation embraced in any private claim, whether such claim was surveyed or not. The twelfth instruction asserts that the plaintiff can have no title to any land that ever was a common-field lot. This is upon the assumption that it must belong either to some private person or be reserved for schools. This is altogether a mistake, as no lot in the Grand Prairie fields is included in the out boundary of the town as run under the 1st section of the act of 1812, and consequently the schools can have no claim to it.

7. The first and second instructions asked by plaintiff and refused by the court are directed to the survey of the Calvet claim, made under the confirmation by the act of 1816. The plaintiff insists, that the survey under that confirmation must be of land bounded by the Little River, as called for in the grant confirmed, and although the confirmation may be held to describe the land as in the fields of the Big Prairie, the two descriptions are consistent. The grant calls for the Little River as in the Grand Prairie; the confirmation is of the land mentioned in the grant, and also says, it is in the fields of the Big Prairie; both the grant and the confirmation assert that the Little River is in the Grand Prairie. Although the testimony in this case shows that the Little River is distant from the land in controversy, it does not appear that it is not in the Grand Prairie, nor does it appear that there are not fields on the Little River, which have been called fields in the Big Prairie.

But if the description in the grant is specific, and the confirmation is of the land granted, that description must prevail over a more general description inconsistent therewith in the confirmation. The third instruction asked by plaintiff denies, and proposed that the court should deny, that the act of 1812 confirmed the lot now claimed as Calvet's, unless it was a common-field lot; and the fourth instruction proposed to the court to say that such lots could only have a legal existence by an extension of the common fields under Spanish authority by grants or survey so as to embrace the land in dispute within the common field The sixth instruction asked by the same party, requires that there should have been some authoritative recognition of the common-field lots claimed under the act of 1812, and that mere cultivation of land contiguous to the common field would not authorize the inference that such land was a common-field lot. The fifth and seventh instructions asked for plaintiff. assert as the law, that the act of 13th June, 1812, in confirming the claims of the inhabitants of the different villages, used the term “inhabitants” as descriptive of the persons who were to take under the act, and did not design to give to any person who might have been in succession an inhabitant of each one of the villages named in the act, the lots and lands which he might have occupied while thus wandering around the circle of these different villages.”

SPALDING & TIFFANY, AND GEYER, for Defendant.

I. The first and second instructions of the plaintiff, which call upon the court to pronounce the survey of the Calvet confirmation erroneous, if the land designated as such confirmation be not bounded by “Little River,” were rightly refused by the court. 1. The concession was located there, as understood by Calvet and by the Spanish authorities, as Calvet took possession and cultivated there, two by forty arpents, and the government permitted it. See the confirmation upon a possession running back to 40 years before 1812 (about to 1770). 2. The confirmation was a grant of the claim as filed and exhibited before the recorder. The entry on his books is, “Joseph Calvet claiming 2 by 40 arpents of land, Big Prairie fields, St. Louis concession, Livre Terrein No. 1, folio 17; same witness, A. Chouteau, same as to cultivation, to wit: ‘this lot cultivated forty years ago and till fence was taken down.” This accompanies the concession of the land lying in the Big Prairie (La Grande Prairie), bounded one side by widow Mareschal, and on the other by Little River. On this the recorder confirms on possession prior to 1803. 3. No possession or cultivation was proved of Calvet in any other place in the Grand Prairie or near St. Louis at any time. 4. This concession could not be located pursuant to its calls in the Cul de Sac common fields, it was to be in the Grand Prairie, not in the Cul de Sac, or Barriere des Noyes or Little Prairie, in all of which places the villagers of St. Louis had common fields. 5. The place where, to-wit: in the Grand Prairie common fields, was a controlling call in the confirmation, and if there is a conflicting call as to one of its boundaries, the court must yield to the former. 6. The land granted by confirmation to Calvet, is the land in the Grand Prairie, possessed and cultivated by him prior to 1803; and it was confirmed to him on his possession, and because he had possessed it. The confirmation is accompanied by an order of the recorder for a survey. Of course, in making the survey of a confirmation based upon possession, a governing circumstance would be that very possession.

II. The third instruction asked by the plaintiff below, though stated to have been refused, was given, and is number five (5) of the instructions actually given by the court.

III. The fourth instruction of plaintiff is incorrect in that it assumes, that the act of Congress of 13th of June, 1812, could not confirm the land in question, unless it were a common-field lot of St. Louis. It takes from the jury the inquiry whether it was an “out lot.” That act confirmed out lots equally with common-field lots. The establishment, called town, under Spanish government, had lots, out lots, commons, &c. See the case of Strother v. Lucas, in 12 Peters.

IV. In the fifth instruction asked by the plaintiff, it illegally assumed that a “common-field lot” could not be made such by use of the cultivator, and permission and acquiescence of the Spanish government. The question here is, what were common-field lots in the true intent and meaning of the act of Congress of 13th June, 1812? The answer is, those strips of ground which together make up the tract or parallelogram used by the villagers formerly for raising their crops, &c., before they began to cultivate separate farms, whether such strips had been granted or not, or surveyed or not. It is sufficient if they were in the tract; used as common fields, and were themselves so used and claimed. Geyer's Digest, p. 452, § 2; p. 460, § 1; p. 463, § 2; p. 446, articles 20, 22.

V. The sixth and eighth instructions for plaintiff, are based on the assumption that Calvet's removal from St. Louis to Florissant, and ceasing to cultivate or make claim to any land in said common field, would prevent the operation of the act of 13th June, 1812, to confirm the land; which assumption is unsound. 1. Because this takes from the jury the right of finding whether Calvet abandoned the land; for it is admitted that under the Spanish laws, which prevailed here till after 1812, if Calvet abandoned the land he lost all right thereto, and if it were a common-field lot, it would belong to the public schools, unless some other...