Patterson v. Fagan

• Citation: 38 Mo. 70
• Parties: HENRY L. PATTERSON, Respondent, v. MARGARET FAGAN et al., Appellants.
• Decision Date: 31 March 1866
• Court: Missouri Supreme Court

38 Mo. 70

HENRY L. PATTERSON, Respondent,

v.MARGARET FAGAN et al., Appellants.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

Jewett, E. B. Ewing and G. P. Strong, for appellant.

I. The assignment and survey in question, made in 1837, were not in accordance with the then existing laws. This court has decided that a certificate of confirmation issued by Hunt's successor in 1839, could not be read in evidence to establish title in the claimant. Defendants insist, therefore, that the survey in question could not be read in evidence against defendants, claiming title by virtue of the act of Congress of 13th June, 1812. No descriptive list, as contemplated by the act of Congress of 26th May, 1824, had been shown, and nothing shown to explain the reason why the Surveyor General had not surveyed the land in question within the time required by law.

II. Plaintiff's objection to the depositions in perpetuam--to-wit, the want of notice--presents two questions, viz: Was the plaintiff, or those under whom he claims, in a condition to insist upon notice? * * * *

It was admitted that due search had been made, and no other notice could be found. Moore swears that he had seen two notices. Defendants insist that, so far as notice was concerned, this was sufficient and more than could have been required by reasonable minds. In the case of Garwood v. Dennis, 4 Binn., Pa., the Supreme Court, in deciding that recitals in ancient deeds are evidence against all persons of the existence of a former deed, of the loss of which some evidence had been given, say, that “necessity, either absolute or moral, is a sufficient ground for dispensing with the usual rules of evidence.”-- “After the lapse of thirty years from the execution of a deed, the witnesses are presumed to be dead. It is a rule adopted by common convenience, and founded upon the great difficulty of proving the due execution of a deed after an interval of many years”--9 Pet. 663; 4 Wheat. 213; 4 Cond. 426; Doe v. Deakin et al., 14 Eng. Com. Law, 369.

But was the plaintiff in a condition to insist on notice? We contend not. In the case of Braham v. Debrul, 1 Ala. 14, the Supreme Court says, that “if it appears that no injury can possibly result from the omission to give notice, the courts have as uniformly held, that it shall not exclude the deposition.”-- 1 Wright, 513; 1 Bibb, 89; Overton v. Lackey, et al., 1 Cook, 196; Bustard v. Gates & wife, 4 Dana, 429; 3 Binn. 26.

But supposing that some irregularities were apparent upon the face of these proceedings, it might be presumed, since more than twenty years had elapsed, that the necessary notices were given, and the proceedings of the court and commissioner were in due form--Barnett's Exec'r v. Tarrence, 23 Ala. 463; Grant's Adm'r v. Phillips, 23 Ala. 275; 2 La. Ann. 509, 503; 27 Mo. 579; and authorities before cited.

III. Defendants insist that the affidavit of Skinner was competent and relevant, 1st, to prove that he was agent of the parties concerned in perpetuating this evidence; 2d, that as agent he gave due notice; 3d, to prove what kind of notice was given, whether by publication or other wise; 4th, whether or not any person was known to be interested, so the court might be enabled to judge what kind of notice should be given, if any, to prove that the depositions were taken according to, and in compliance with, the statute--R. C. 1825, p. 630, § 34; 3 Marsh. 558; 5 Dana, 343; 1 S. & M. Ch. 37.

IV. Paschall's affidavit was competent and relevant to prove the fact, that the petition and notice of English were published in his paper in 1829.

Defendants insist that upon the whole case, as presented by the records of St. Louis county, in connection with Skinner's and Paschall's affidavits, and also the testimony of Moore, who has been in possession of a large and valuable portion of said common-field lot, claiming under the same title as the defendants since 1831, more than thirty years, that the testimony of Dodier and Baccane ought to have been received in evidence in this cause. Defendants, in this connection, refer to 6 Ark. 401; 3 Dane Abr. 373; 4 Maul. & Sel. 486, 497; 3 Day's Ca. 308; 10 Mod. 15; 6 Esp. 87; 6 Pet. 729; 4 Dana, 205; 3 Conn. 171; 16 Id. 588; Breese, 256; 12 Ills. 272; 2 Scam. 10; 1 Gilm. 64; Peak's Ev. 67, 68; 2 Dessaus. 456; Riley, 102; 2 Bosw. 267; 5 Ala. 202; 3 Marsh. 558; 5 Ala. 290; 7Ala. 630, 652, 927; 4 Dev. 180; 2 Yerg. 108; 4 Sandf. Ch. 633; 27 Mo., 452; 17 Eng. Com. L. 300; 15 Id. 150; 14 Id. 369; 6 Cow. 178; 4 Wend. 277; 3 J. C. 283; 1 Spear, 191.

VI. & VII. The petition of Chartrau, and concession to him by Cruzat, and Chartrau's written acknowledgment of sale of the land to Mackay, were competent evidence as title papers, they being more than thirty years old--R. C. 1855, p. 733, § 58, and authorities before cited.

VIII. The court erred in rejecting Chartrau's agreement and acknowledgment of sale to Mackay--1. Because, prior to 1816, at which time the common law was introduced by statute in this State, a verbal sale of real estate would pass title. Although it was not a deed, it was sufficient to pass all the title in Chartrau to Mackay. 2. The alleged interlining was no objection to its being read in evidence--9 Cranch, 28; 3 Cond. 244.

IX. & X. The certified copy of certain extracts from Hunt's minutes, relating to the occupation and cultivation of the land in controversy prior to December, 1803, were admissible to show the possession of the land.

T. T. Gantt, for respondent.

I. The assignment to the Schools; the deed of the corporation to Mary and Margaret Thomas; their deed to Martin Thomas and Henry L. Patterson, trustees; the death in 1848 of Martin Thomas; the possession of the premises by the defendants; the agreement as to value; and the admission that the premises were included both in the boundaries of the land assigned to the Schools, and in the boundaries of the land conveyed by the Schools to Mary and Margaret Thomas, made out a complete prima facie title.

II. The defendants did nothing to impeach this title. There is nothing whatever that can be supposed to have any such effect, except the testimony (so called) of Dodier and Baccane. This testimony purported to have been taken in 1829, upon a dedimus, issued on an application to the judge of the St. Louis Circuit Court, of Thomas English. It was in evidence that the following notice was published in the “Missouri Republican” once, and no more, on the 19th of May, 1829:

“ To all whom it may concern.--Notice is hereby given, that on the 27th and 28th days of July, and on the 28th and 29th days of August next, at the office of the clerk of the Circuit Court of the county of St. Louis, and on the 30th and 31st days of August next, at the office of the clerk of the St. Charles Circuit Court, in St. Charles, between the hours of eight o'clock in the forenoon and six in the afternoon of each of said days, I shall take the deposition of witnesses named in the annexed petition, and others, to prove and establish the facts in said petition alleged as in tended to be proved, under and by virtue of a commission issued pursu ant to an act directing the mode of perpetuating testimony in this State.--St. Louis, May 19, 1829.

THOMAS ENGLISH.”

The statute in force in Missouri in 1829, on the subject of perpetuating testimony, is found at p. 616 and following of the Acts of 1825 (R. C). On p. 617, it is declared to be “the duty of the person or persons praying for a dedimus for the purposes before mentioned, before proceeding to take the deposition or depositions, to give one month's previous notice, with a copy of the petition, to each and every person that may be known to be interested in the matter to be the subject of the deposition or depositions, or to his, her or their attorney; or, in case the person be a married woman, the notice to be served on her husband; or if a minor, to be served on his or her guardian; or if he or she have no guardian, or the guardian should be interested, then a guardian to be chosen by the court for that purpose; and the said notice shall contain information,” &c., &c. “Or, in lien of written notice, he, she or they shall cause the notice, in form as afore-mentioned, with a copy of the petition, addressed to whom it may concern, to be published once a week for one month, which shall be at least two months previous to the day of taking such depositions, in at least one of the public newspapers printed in this State.”

§ 2. * * * “And all the questions and answers shall be reduced to writing and included in such deposition. And the deposition being reduced to writing in the English language, or the language of the deponent [if he] does not understand the English language, and moreover, as near as possible in the very words of the witness, and distinctly read over to said witness, and subscribed by such witness, the said justice of the peace shall,” &c., &c., “certify the same deposition,” &c.

§ 3 declares that such depositions, “taken in manner and form, and certified as in this act before mentioned, * * * may, in case of death, * * * be used as evidence in any case to which it may relate. Provided, that nothing in this act contained shall be so construed as to prevent any and all legal exceptions being made and allowed to the reading of such deposition on any trial, at law or in equity, in which the same may be introduced as evidence.”

There are three fatal objections to the admissibility, under the statute, of these depositions. 1. No such notice as the statute requires appears to have been given. The only attempt at notice was by publication, and there was only one publication. The statute requires four, at intervals of a week. 2. The statute requires the “questions and answers to be reduced to writing, and included in such deposition.” 3. The statute requires the deposition thus carefully taken, “in the very words of the witness,” “to be distinctly read over” to him;...