Reilly v. Chouquette

• Decision Date: 31 March 1853
• Citation: 18 Mo. 220
• Parties: REILLY, Appellant, v. CHOUQUETTE, Respondent.
• Court: Missouri Supreme Court

18 Mo. 220

REILLY, Appellant,

v.CHOUQUETTE, Respondent.

Supreme Court of Missouri.

March Term, 1853.

1. The statute of limitations did not begin to run against the inhabitants of the town of Carondelet, until they were incorporated, and thus capacitated to sue; but the claim of an occupant of a lot would constitute the ground of a valid compromise between him and the inhabitants.

2. An act of the legislature authorized the board of trustees of the town of Carondelet to sell and convey property of the town, and authorized the chairman of the board to execute the deeds. Under this act, the board of trustees passed an ordinance, authorizing the chairman to convey lots of a certain size to those inhabitants of the town who had possessed and cultivated the same, upon the establishment of their claims. It was held that a deed executed by the chairman, in his own name, was to be considered as the act of an agent appointed by law to perform it, with the concurrence of the corporation, and as such passed the title of the town.

3. A deed executed by the chairman acting in good faith, clothed with the formalities of the law, is to be regarded as valid until it is shown that his act was a mere usurpation, founded on no facts warranted by law. No errors of judgment nor mistaken conclusions of law would invalidate it; nor would the fact that the lot conveyed was not the identical one claimed.

4. When a deed cannot operate but as the execution of a power, it will be presumed to be in execution of the power.

Appeal from St. Louis Court of Common Pleas.

This was an action to recover possession of the south-west fractional quarter of block 87, within Eiler's survey of the town of Carondelet. Both parties claimed title under the town.

The plaintiff offered in evidence a deed for said fractional quarter, the premises of which were as follows:

“This indenture made this 7th day of July, 1834, between Peter J. Shultz, chairman of the board of trustees within and for the town of Carondelet, in the county of St. Louis, and state of Missouri by virtue of authority conferred on me by an act of the legislature passed the thirteenth day of February, in the year 1833, authorizing the corporation of Carondelet to sell and convey certain lots of ground, of the first part, and Philip B. Reilly of the second part, witnesseth: that the said Peter J. Shultz, for and in consideration of the sum of two dollars and fifty cents unto him well and truly paid, according to the condition of ordinance No. 31, passed the second day of June, in the year of our Lord, 1834, by Philip B. Reilly, of the second part, at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, hath granted, bargained, sold and conveyed, and doth, by these presents, grant, bargain, sell and convey unto the said Philip B. Reilly, his heirs and assigns, a certain lot,” (describing it,) “it being the same piece or parcel of land first improved by Hyacinth Pigeon, previous to the year 1832.”

The warranty clause of the deed was as follows: “And the said Peter J. Shultz, chairman of the board of trustees aforesaid, by virtue of authority in him vested, according to the above recited act of the legislature, doth covenant and promise to and with the said Phillip B. Reilly, his heirs and assigns, by these presents, that he, the said Peter J. Shultz, chairman, &c., the said above described lot, &c., unto the said Philip B. Reilly, his heirs and assigns, against the claims of the inhabitants of said town of Carondelet, and against any person or persons, claiming under them, whomsoever, shall and will warrant and forever defend by these presents.”

The deed was signed “P. J. Shultz, chairman,” and countersigned by the register, and the seal of the corporation was affixed to it. To the admission of this deed in evidence, the defendant objected, but his objection was overruled.

The defendant offered in evidence an ordinance of the board of trustees of the town of Carondelet, passed June 2d, 1834, authorizing the chairman of the board to execute deeds in fee simple to those inhabitants of the town who were in possession of lots which they had cultivated prior to 1832; also a deed from the board of trustees of the town to him, dated January 29, 1850, for the whole of fractional block 87. In this deed it was recited that one Motier cultivated the lot from 1823 to 1833, when he conveyed to Louis Fasseu, who remained in possession up to August 18, 1834, when he conveyed to the defendant.

There was evidence tending to show that Motier cultivated the lot in controversy, as early as 1823, and was succeeded by Fassen, who sold to the defendant, and that Hyacinth Pigeon never cultivated any part of the present block 87, but that his cultivation was some distance south of it. It was shown that Eiler's survey had made some changes in the blocks and streets. No conveyance was shown from Motier to Fasseu, or from Fasseu to the defendant.

The court below instructed the jury to find for the defendant, as to so much of the lot as he, and those under whom he claims, had been in actual possession of for twenty years continuously prior to the commencement of this suit, claiming the same as their own. A large number of other instructions were given and refused.

There was a verdict and judgment for the defendant.

S. A. Holmes, for appellant.

I. The compromise by the inhabitants of the town under the act of February 13, 1833, and the deed to the plaintiff, are conclusive upon the inhabitants of the town and upon all persons claiming under them by title subsequent. (9 Mass. 186; ib. 193; Strother v. Lucas, 12 Peters, 410; 9 Mo. 326.)

II. The defendant's deed showed that his possession was not adverse to the inhabitants of Carondelet, but that, on the contrary, he acknowledged their title. (23 Wend. 531; Ang. on Limitations, 437, § 27; ib. 400, § 5; 11 Penn. 189; 9 Mo. 484.)

III. No privity of title being shown between Motier, Fasseu and the defendant, their several wrongful possessions could not be tacked, so as to make out the term prescribed by the statute of limitations. (6 Pick. 415; 3 Wash. C. C. R. 475; 9 Cow. 653; 1 J. R. 156; 16 J. R. 293; Ang. on Lim. 446, § 34; 5 Met. 15-32; 20 Pick. 458.)

IV. The deed to plaintiff was the deed of the inhabitants of the town of Carondelet. It purports to be executed in accordance with a special power conferred upon the chairman of the board of trustees by the act of February 13, 1833. It is signed by the chairman of the board, sealed with the corporate seal, and countersigned by the register. (Ang. & A. on Corporations, 192, § 6 et seq; 5 N. H. 510; 6 Pick. 409; 2 Hill. 489; 6 Comm. 464; 1 Greenl. 231; 22 Vt. 274, 286; 11 ib. 385; 3 J. R. 226; 6 Paige, 60; Sess. Acts 1833, p. 16.)

Gantt and Whittelsey, for respondent.

I. The deed offered in evidence by the plaintiff was the private deed of P. J. Shultz, and not the deed of the inhabitants of the town, and therefore passed no title. (Combe's case, 9 Coke, 766; Elwell v. Shaw, 16 Mass. 42; 1 Hare & Wallace's Leading Cases, 422, notes and cases there cited; Griswold v. Bigelow, 6 Conn. 258; Hatch v. Barr, 1 Hamm. [O.] 181; Townsend v. Corning, 436; Townsend v. Hubbard, 4 Hill, 351; 8 Conn. 192, 206; 1 Greenl. 339.)

II. The defendant showed a title by adverse possession of himself and those under whom he claims for more than twenty years. The acceptance of a deed did nt estop him from setting up adverse possession. (Macklot v. Dubreuil, 9 Mo. 477; 6 Met. 337; 5 ib. 173; 7 Wheat. 535; 4 Pet. 506; Watkins v. Holman, 16 ib. 25; 3 ib. 43; 6 Met. 337.)

SCOTT, Judge, delivered the opinion of the court.

In the examination of this and of the kindred case of Slevin v. Robert and wife, we have investigated and stated the general principles by which the two cases should be determined, without a review of the several instructions given and refused. In the preamble to the act of 13th of February, 1833, it is recited, that there are certain lots of ground within the limits of the town of Carondelet, in the county of St. Louis, which belong to the inhabitants of that town in common, and that it is represented that the sale of the said lots would greatly conduce to the present and future welfare of the said town. The act then proceeds to authorize the board of trustees of the town to sell and convey the vacant and unoccupied lots to which the inhabitants had a legal or equitable title, included within the surveys of said town, made by Lawrence M. Eiler, in November, 1832. The lots thus authorized to be sold were to be conveyed by the chairman of the board of trustees, and in their behalf. The deed was required to be countersigned by the recorder, and to have the corporate seal annexed thereto. The fourth section of the act authorizes the inhabitants to compromise and settle with any adverse claimant to any lot within the survey of the town, and a deed was required as in case of a sale of a lot. On the 2d of August, 1832, the town of Carondelet was incorporated by the county court of St. Louis county, by the name of the inhabitants of the town of Carondelet in pursuance to the provisions of the act for the incorporation of towns approved 26th January, 1825. In pursuance to the fourth section of the act of 13th February, 1833, the board of trustees of the town directed their chairman to convey to all persons being inhabitants thereof, who were in possession of a lot in said town, prior to the year 1832, and who had cultivated the same, by a deed in fee simple, upon the payment of five dollars. The lots thus conveyed were required to be one hundred and fifty feet front by three hundred feet deep, where the situation would admit of it, and where it would not, to conform as nearly as possible. The chairman of the board was required to execute the deed by signing the same and having it countersigned by the recorder. This ordinance was passed June 2d, 1834. The lots in controversy were within Eiler's survey of the ...