Shepley v. Cowan

• Decision Date: 31 March 1873
• Citation: 52 Mo. 559
• Parties: JOHN R. SHEPLEY, et al., Trustees under will of Wm. M. McPherson, Respondents, v. JOHN EPES COWAN, et al., Appellants.
• Court: Missouri Supreme Court

52 Mo. 559

JOHN R. SHEPLEY, et al., Trustees under will of Wm. M. McPherson, Respondents,

v.JOHN EPES COWAN, et al., Appellants.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court

Britton A. Hill, for Appellants.

I. The State location by McPherson as agent for the State is void, for the following reasons:

( a.) It is not on land subject to sale or entry. The land was not public land in 1850, but was reserved from sale, entry or location, being a part of the commons of Carondelet, a Spanish village having commons and common fields, adjoining on the south the common fields of St. Louis, another Spanish village, now the city of St. Louis.

( b.) The grant was complete for these commons to Carondelet north of the village on the 13th of June, 1812, and vested the title in Carondelet. This is admitted in the record of the case of Carondelet vs. St. Louis, a part of this record. (Carondelet vs. St. Louis, 1 Black., 179; Bird vs. Montgomery, 6 Mo., 511; Chouteau vs. Eckhart, 2 How., 421, 450; Guitard vs. Stoddard, 16 How., 494; West vs. Cochran, 17 How., 416, 417; Carondelet vs. St. Louis, 25 Mo., 448; Milburn vs. Hortez, 23 Mo., 532; Same case, 1 Black, 595.)

II. It is therefore established by authority that these commons of Carondelet were not public land--were not subject to sale, entry, location, or pre-emption prior to 1862. (Kissell vs. The Schools, 18 How., 25.)

The State location of 1850 is therefore void, a nullity ab initio.

III. The act of 3rd of March, 1853, (vol. 10, U. S. Stat., p. 244,) gave the Chartrands the right to pre-empt this fractional ection 9, if they were settlers before or after the date of that act, as soon as the Supreme Court of the United States declared the claim of Carondelet to the same land, as commons, invalid. They were settlers and cultivators both before and after the date of that act of Congress.

The Chartrand pre-emption and patent vested the title of the United States in the heirs of Thomas Chartrand on the 21st day of July, 1866, and no criticism of the validity of the pre-emption can be made by McPherson, who came in during the years 1848 or 1850, claiming adversely.

IV. The State location of McPherson in 1850 was invalid s against Chartrand's pre-emption, for the further reason that the act of Sept. 4, 1841 (5 U. S. Stat. 455), did not convey the fee to any lands whatever, but left the land system of the United States in full operation as to regulation of titles, so as to prevent conflicting entries. When the State of Missouri issued a patent to McPherson, the State had no title. (Foley et al. vs. Harrison, 15 How., 443-5, 450 (1853); Wilcox vs. Jackson, 13 Pet., 498; Bagnell vs. Broderick, 13 Pet., 436; The Pacific Railroad vs. Lindell Heirs, 39 Mo., 330; Hannibal & St. Joseph Railroad vs. Moore, 37 Mo., 338.)

V. The act of Congress passed August 3rd, 1854 does not help the plaintiff, for this land was not subject to location, entry or pre-emption in 1841, 1850, or 1854. The plaintiff, therefore, stands before the court without any title whatever from the United States or from the State of Missouri. (Foley vs. Harrison, 15 How., 443-4 to 451.)

VI. Plaintiff had no claim under the statute of limitations.

The pre-emption and patent both took effect in 1866, and from that time only can the limitations begin to run. This is the express doctrine held in the case of Gibson vs. Chouteau (13 Wallace.) Prior to the patent of 21st July, 1866, the title to this land was in the United States, and on that day, for the first time, the title vested in the heirs of Thomas Chartrand. (Lythe vs. Arkansas, 9 How., 314; Foley vs. Harrison, 15 How., 433; Barnard vs. Ashley, 18 How., 43.)

VII. The plaintiff asks the court to remove the defendants' title as a cloud upon his title. But the plaintiff has no title and never had any, and defendants' title is perfect under a possession commenced fifteen years before plaintiff's illegal State location was made. There is no equity in this bill to warrant the exercise of this jurisdiction. These two claimants are adverse, and the title of defendants is perfect, and no trust for plaintiff, or wrongful act of defendants, has been shown. No privities, confidence or relations of amity have been shown between these parties. Each claims, independently of the other, an adversary title; in such a case there is no cloud to be removed, but the question, in whatever form the action may be, is, which is the better title?

The merits of the title must be first examined. If plaintiff has no title, and defendant has it, there is no cloud to be removed, but an actual title to be examined and its effect to be determined. The universal practice has been to try the legal title at law in such cases as this. (Stoddard vs. Chambers, 2 Mo., 284; Stoddard vs. Mills, 8 How., 345; Bissell vs. Penrose, 8 How., 317; Barry vs. Gamble, 3 How., 32.)

The plaintiff having a complete defense and remedy at law, if he have any title in the suits brought by defendants in ejectment against him for this land, has no right to file a bill in equity to test the question as to who has the better legal title. See the following cases in ejectment: (Ballance vs. Forsyth, 13 How., 18; Bryan vs. Forsyth, 19 How., 434; Ballance vs. Forsyth, Id. 183 (in equity); Gregg vs. Forsyth, Ejectment; Kellogg vs. Forsyth, Id.; Dredge vs. Forsyth, Id.; Gregg vs. Tesson, 1 Black., 150; Kellogg vs. Forsyth, 2 Black., 571.)

Whittelsey, for Appellants.

I. There is no equity in complainant's bill, to entitle him to the relief he seeks.

( a) The plaintiff alleges himself to be in possession of the premises, holding under a complete legal title from the United States, to-wit: an entry and selection by the State of Missouri under the Act of Sept. 4th, 1841, properly certified by the Land Department, and a patent from the State. He holds, therefore, an apparently perfect legal title, older than defendant's patent issued in 1866.

Being in possession, he could have waited until sued in ejectment by defendants; or if defendants delayed suit, he could under the statute, have asked that defendants be required to bring suit in ejectment or show cause against it. (2 W. S., 1022, §§ 53, 54; Von Phul vs. Penn, 31 Mo., 333; Rutherford vs. Ullman, 42 Mo., 216.)

That was the only remedy to which he was entitled, upon the facts stated in his petition. Having the younger patent, the defendants could only recover against plaintiff's possession and older title, by showing an equity which antedated the plaintiff's patent. (Polk's Lessee vs. Wendall, 5 Wheat., 293; Ross vs. Borland, 1 Pet., 656; Minnesota vs. Batchelder, 1 Wall., 109.)

( b). The bill shows no equity as a bill of peace, for it does not show that the matter of title has ever been tried at law, nor that the plaintiff has been harrassed by repeated actions, nor that it will avoid multiplicity of suits. (McCamant vs. Patterson, 28 Mo., 410; Marmaduke vs. Han. & St. Jo. R. R., 39 Mo., 545; 2 Sto. Eq., §§ 587, 589.)

( c.) It cannot be maintained on the ground of removing a cloud upon plaintiff's title.

A bill to remove a cloud cannot be maintained, where the title asserted to be a cloud, is adverse of itself; but only when the plaintiff's title is affected by some wrongful act, which may from failure of evidence in the future to show its illegality, becloud it. A positive adverse title is not a cloud, unless it be affected with some trust in favor of the title asserted by complainant. A reservation in a patent of all adverse rights, does not create a trust, so as to be a cloud upon an elder legal title, although the older might be a cloud upon the young patent. (2 Sto. Eq., §§ 700-708; Ward vs. Chamberlain, 2 Black., 430; Chipman vs. Hartford, 21 Conn., 488; Lockwood vs. St. Louis, 28 Mo., 20; Drake vs. Jones, 27 Mo., 428.)

The younger patent cannot be-cloud the title under the elder patent. (Ballance vs. Forsyth, 13 How., 18; S. C., 24 How., 183; Dredge vs. Forsyth, 2 Black., 563, 570; Bryan vs. Forsyth, 19 How., 334; Gregg vs. Forsyth, 24 How., 179; Gregg vs. Tesson, 1 Black., 150; Mehan vs. Forsyth, 24 How., 178; Maguire vs. Tyler, 40 Mo., 406, 439, 440.)

II. The complainant himself has no standing in court, for he presents a title which has no validity under the acts of Congress, as the selection was not authorized by law.

This will be evident from an examination of the statutes.

The act of Sept. 4, 1841, 5 Stat., L. & B's Ed., p. 455, § 8, provides for the selections to be made in the manner the State shall direct, to be “located in parcels conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres in any one location, on any public land except such as is or may be reserved from sale by any law of the Congress, or proclamation of the President of the United States, which said locations may be made at any time after the lands of the United States shall have been surveyed according to existing laws,” &c.

This statute did not pass the fee from the United States. By statute, Aug. 3, 1854, c. 201; 10 Stat., 346, it was provided, “that the list certified by the Commissioner, should pass the fee of all the lands embraced in such lists, that are of the character contemplated by such act of Congress, and intended to be granted thereby; but where lands embraced in such lists, are not of the character embraced by such act of Congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim or interest shall be conveyed thereby.”

But this land had been originally included in the survey of the claim of Carondelet, by Rector, and the land was reserved from sale until that claim was finally decided, under the laws of the United States, by the Supreme Court, which was in January, 1862,--10 Stat., 244, ch., 143;--and until that claim was decided, the defendants had the right to complete their pre-emption, if their right...