Papin v. Massey

• Decision Date: 31 October 1858
• Parties: PAPIN, Defendant in Error, v. MASSEY et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

27 Mo. 445

PAPIN, Defendant in Error,

v.MASSEY et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1858.

1. The commissioners appointed by the act of Congress of July 9, 1832 (4 Statutes at Large, p. 565), were authorized to examine those unconfirmed claims only that had been previously filed in the office of the recorder of land titles; no new claims could be filed. After the passage of said act, claims undisposed of in the interval after their reservation from sale had ceased stood as they did before the passage of the act of May 26, 1824.

2. A confirmation by the act of Congress of July 4, 1836 (5 Statutes at Large, p. 126), to a person or his legal representatives, will enure, if he had assigned his interest previously to the confirmation, or was dead at that time, to his legal representatives; that is, to his heirs or to the assignee of whole or part. If only part had been assigned, the assignee and heirs would take as tenants in common.

3. A., the owner of an unconfirmed Spanish grant for 30,000 arpens, entered into a bond with B., in the penal sum of $20,000, conditioned for the conveyance by himself and the heirs of 14,000 arpens out of said grant of 30,000 arpens, provided said grant should be confirmed to the said A. or his representatives. Said grant was afterwards confirmed to said A. or his representatives. Held, that the confirmation enured to the benefit of B., as the legal representative of A., as to that portion (14-30) of the confirmed claim covered by said bond.

4. A party to a suit has no right to the reversal of a judgment therein for errors that do not in any way affect him, but other of the parties alone.

Error to Franklin Circuit Court.

On the 13th of October, 1797, James Mackay obtained from the Spanish government a grant of 30,000 arpens of land, which was located in separate tracts. The whole of said grant of 30,000 arpens was afterwards confirmed to the said Mackay, or his legal representatives, by the act of Congress of July 4, 1836, with the exceptions made by the second section of said act. Portions of said grant had been conveyed away by the United States previous to the confirmation. On the 10th of May, 1819, said Mackay executed and delivered to Charles Dehault Delassus the following instrument: “Know all men by these presents, that I, James Mackay, of the village of Carondelet, county of St. Louis, and Missouri territory, am held and firmly bound unto Charles Dehault Delassus, in the sum of twenty thousand dollars, money of the United States, to which payment well and truly to be made I bind myself, my heirs and successors, by these presents, sealed with my seal and dated this tenth day of May, year of Grace eighteen hundred and nineteen. The condition of this obligation is such, that if the above bound James Mackay, his heirs, executors or administrators, shall make, or cause to be made, unto the said Charles Dehault Delassus, his heir or assigns, a deed of quit-claim for fourteen thousand arpens of land out of a grant of thirty thousand arpens of land granted to the said James by the Spanish government on the thirteenth day of Octobcr, 1799--partly surveyed under the Spanish government and partly under the American government--recorded in the recorder's office, book B, page 36; and situated on the rivers Cuivre, Bœuf and Bourbeuse--provided the whole of said grant of thirty thousand arpens be confirmed by the government to the said James, or his representatives. But if the said government shall confirm to the said James as aforesaid only as many arpens as are contained in one league square, then, and in that case, the said James shall make the aforesaid deed of quit-claim to the said Charles for three thousand arpens of land only out of said grant, and no more, and so in proportion shall be the division of any less quantity, always excepting and reserving from such division all the pieces or parcels of land which the said James gave already to those who settled on said grant--which pieces or parcels of land do not amount to more than twelve hundred arpens--then this obligation to be null and void; otherwise to remain in full force and virtue. [Signed] James Mackay (seal). [Test:] M. P. Leduc.”

On the 14th day of October, 1836, Delassus assigned and conveyed to Mary P. Leduc the above bond or obligation, and all his interest in the tract of land mentioned therein. This assignment, though absolute on its face, was by way of security for a debt due from said Delassus to said Leduc. Mackay died about the year 1822, leaving a widow and eight children. Delassus died in May, 1842. Leduc died in 1842, devising his whole estate to Hypolite Papin. Said Papin also died in the year 1842, devising all his property equally to his children. In the year 1854, Joseph L. Papin (plaintiff in the present suit), who was administrator, with the will annexed, of Leduc, commenced a suit in the St. Charles Circuit Court against the heirs and administrator of said Charles D. Delassus, to foreclose the equity of redemption of said parties. Said Papin recovered a judgment in this suit against said administrator for $34,125, and the equity of redemption was foreclosed, and a sale of fourteen-thirtieths of said 30,000 arpens decreed. At the sale of that portion of said confirmation which is in controversy, said Joseph L. Papin became the purchaser, and received the sheriff's deed therefor.

This is a suit by said Joseph L. Papin for partition of two parcels of land situate in Franklin county, being part of said concession and confirmation of 30,000 arpens. Defendants, Blumenthal and Whitmore, assert title under the heirs of James Mackay. The court, after deducting a certain proportional interest, assigned to the plaintiff, Joseph L. Papin, fourteen-thirtieths of the residue. A sale of said tracts was decreed.

Dick and Knox & Kellogg, for plaintiffs in error.

I. The bond of Mackay was inoperative to create an equitable ownership in the land in dispute. It was optional with the obligor to perform the condition. (State v. Woodward, 8 Mo. 354; Sweringen v. Christy's Adm'rs, 14 Mo. 391.) Mackay had no title when he made this bond. He never acquired the title. Any inchoate right of his was subsequently barred. The grant to the heirs of Mackay, of July 4, 1836, gave them the unencumbered title. (See Strother v. Lucas, 6 Pet. 763; 12 Pet. 453; Le Bois v. Brammell, 4 How. 459; Landes v. Brant, 10 Mo. 370; 15 Mo. 223; 16 How. 62.) The bond recited no consideration, and none was proven. To warrant a decree for specific performance a consideration would have to be proved. (Adams' Eq. 78, 80; 4 Johns. Ch. 500; 6 id. 224; 7 Dane's Abr. 543; Mosely, 37; 17 Mo. 242.) The deed of May 23, 1838, from certain of the heirs of Mackay to Leduc operated to merge and extinguish the bond. Besides, the bond itself was not legally proven. (Geyer's Dig. 127; 8 Mo. 481; 1 Dana, 166.)

II. The court committed error in holding that the form of the deeds to Whitmore and Blumenthal was such as to take them out of the protection of the registry law. It is only in relation to the common law release, which was a secondary conveyance, that it has been held that only what the releaser has passes. (5 Mo. 387; 8 Mo. 482; 9 Mo. 729; 11 Mo. 77; 7 Conn. 250; 21 Ala. 134.) The evidence did not prove actual notice of the bond.

III. Partition does not lie where plaintiff's title is denied.

IV. The court erred in admitting the record of the suit in St. Charles county; and also in admitting evidence of the transaction in 1822 between Leduc and Delassus, and in admitting the sheriff's deed to plaintiff. There was no privity between the parties to that suit and the defendants as to the title to this land.

S. T. & A. D. Glover, for defendant in error.

I. The bond of Mackay was operative to create an equitable estate in Delassus. (2 Sto. Eq. §175; Newland on Contr. 307.) The confirmation was not to the heirs of James Mackay, but to Mackay, or his legal representatives. (Penrose v. Watts, 8 How. 338.) The bond was properly proved. (6 Binn. 49; 1 Phill. 473, 466.) The bond was supported by a sufficient consideration. The seal imported a consideration. (6 Johns. Ch. 302; 3 Des. 341; 2 How. 426; Parsons on Contr. 354; 2 Mass. 162.) It ought to prevail over a subsequent purchaser who had notice. The evidence shows actual notice to Blumenthal and Whitmore. They claim under quit-claim deeds. The deeds from the Mackay heirs were operative to convey only such interest as they had. (13 Mo. 380; 20 Mo. 81; 3 Wheat. 452.) The title in this case is denied by a part only of the defendants. The transaction between Delassus and Leduc was a mortgage. As a mortgage, it was necessary to foreclose it. The administrator of Leduc was the only proper plaintiff. The proceedings in St. Charles county were regular, and were conclusive between Leduc's and Delassus' representatives.

SCOTT, Judge, delivered the opinion of the court.

The turning point in this cause is as to the enurement of the confirmation made to James Mackay, or his legal representatives, by the act of Congress of July 4th, 1836. This confirmation embraces all the land the subject of this suit. The claim confirmed was filed before the commissioners, and was finally rejected in November, 1809. The appellant maintains that after this rejection the claim was, by the act of 26th May, 1824, barred and extinguished; that under the subsequent act of July 9th, 1842, Mackay's old claim being dead, James Mackay's heirs appeared, claiming, and produced new testimony in support of their claim; and the claim being reported for confirmation and confirmed as stated, it enured to the heirs of Mackay. The second section of the act of 1832, in directing the commissioners to proceed to an examination of the claims with or without any new application of the claimants, never intended that the commissioners should examine any others than the unconfirmed claims before that time filed in the office of the recorder. No...