Smith v. Madison

• Decision Date: 30 April 1878
• Parties: SMITH v. MADISON et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 694

SMITH

v.MADISON et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Jefferson Circuit Court.--HON. JOHN B. ROBINSON, Judge.

Joseph J. Williams for appellants.

John L. Thomas & Bro. for respondent.

HOUGH, J.

This was an action of ejectment brought on the 21st day of April, 1874, in the circuit court of Jefferson county, for the recovery of 282 65-100 acres of land, being a part of United States survey No. 1219. The defendants denied the plaintiffs' title, and pleaded the statute of limitations in the ordinary form as a legal bar. The cause was tried by the court without the aid of a jury, and judgment was rendered for the plaintiffs. The plaintiffs' title was as follows: A patent from the United States, dated April 13th, 1874, to Thomas F. Riddick, or his legal representatives, for the land in controversy. This patent recites that the board of commissioners appointed and acting under the act of Congress, approved March 2d, 1805, entitled “An act for ascertaining and adjusting the titles and claims to land within the territory of Orleans and the district of Louisiana,” and supplemental legislation, have confirmed to Thomas F. Riddick, claiming under John Dowling, original claimant, a tract of land containing 800 arpents, situate in the district of St. Louis, and that for said claim the said board of commissioners have issued their certificate of confirmation, numbered 1219, dated the 22d day of August, 1811, under the authority of the 6th section of the act of Congress, approved the 3d day of March, 1807, entitled “An act respecting claims to land in the territories of Orleans and Louisiana,” and also that the land was surveyed by the Surveyor-General of the United States in 1818, and that the same was confirmed as survey No. 1219.

Plaintiffs also read in evidence a copy of the claim of Thomas F. Riddick, filed with the recorder of land titles at St. Louis in 1807, accompanied by a sheriff's deed, conveying all the right of John Dowling in the premises to said Riddick, together with the proof produced by said Riddick before the board at that time. This claim and record showed that Dowling claimed 1,000 arpents on the river Plattin, in the district of St. Louis, and that said Riddick produced before said board a concession for said land to John Dowling by Don Zenon Trudeau, Lieutenant-Governor of Upper Louisiana, in 1799, and also a plat and certificate of survey of the same dated October 21st, 1799. The proof showed that Dowling settled on this land in 1799, and had cultivated and inhabitated it from 1799 to 1808; had forty acres in cultivation; had many horses and cattle, and at least ten children. Plaintiffs also read in evidence the decision of the commissioners in 1811, confirming the said land to Thomas F. Riddick, under John Dowling, and ordering the land to be surveyed at the expense of the Government.

Plaintiffs then read in evidence a certified copy of a warranty deed from Thomas F Riddick and wife to Wm. C. Carr, dated November 23d, 1808, and recorded the same day, for the undivided half of survey 1219, which copy was certified by the recorder of St. Louis county as being a true copy of a deed from the land records of the county. The defendants objected to the reading of this deed in evidence because the land being now in Jefferson county, the burden of proof was on plaintiffs to show that the land lay in St. Louis district in 1808, when it was recorded there, and until that was shown it ought not to be read. They also objected to the reading of this copy because it was acknowledged before a justice of the peace in St. Louis district, and it does not appear that the land lay in that district at that time. They also objected to its being read in evidence because a copy could not be read until proof of the execution of the original was made. Plaintiffs next read in evidence a copy of a deed from Thomas F. Riddick to George C. Sibley, for one-half of said land, dated August 31st, 1814, and appearing to have been recorded in Ste. Genevieve county, Missouri, November 14th, 1814. The recorder of Ste. Genevieve county certified the aforesaid copy of the deed in 1874. To the reading of this copy defendants objected because it had not been shown that the land lay in Ste. Genevieve county in 1814, and because it appeared to have been acknowledged before W. Christy, a judge of the St. Louis court of common pleas, and it did not appear that the land lay in the district in which he had jurisdiction. Plaintiffs then read in evidence a certified copy of a deed, dated August 10th, 1814, and recorded in Ste. Genevieve county November, 1814, conveying one-half of this land from Wm. C. Carr to George C. Sibley. This copy was made by the recorder of Ste. Genevieve county in 1874, to the reading of which in evidence defendants objected for the reasons last above mentioned. Plaintiffs then read in evidence a deed from George C. Sibley and wife to Robert Simpson, dated August 21st, 1821, and recorded in Jefferson county in 1824, conveying this land to Robert Simpson. To the reading of this deed defendants objected, 1st, because it appeared to be acknowledged before a justice of the peace of Lillard county, while the land lay in Jefferson county, and hence the deed could not be read in evidence until its due execution was proved; 2d, it not being duly acknowledged, was not entitled to be recorded, and could not be read in evidence without proof of its execution. The defendants here admitted that plaintiffs were the only heirs of Robert Simpson, who died in 1873. It was also admitted that the value of the monthly rent and profits of the premises in suit was $4.50.

Defendants then introduced the following evidence: The petition of John Dowling to Francois Valle, commandant of the post of St. Genevieve, for a concession of 1,000 arpents of land on the north side of the river Plattin, about two miles above its mouth, on which he lived and had his farm and dwelling, dated August 12, 1799; also the written submission of said petition by Valle to the Lieutenant-Governor on the 13th of August, 1799; also an order of survey for the land petitioned for by Don Zenon Trudeau, Lieutenant-Governor, indorsed thereon, which order is as follows:

“It is ordered that Antoine Soulard establish a survey upon the land which is asked, provided it is vacant land and can be so done without prejudice to any person, and interferes with no rights of others, in pursuance of the petition presented, which is asked from the Lieutenant-Governor of this province, so as to obtain the concession of title which is solicited.

(Signed,)

ZENON TRUDEAU.”

Also a survey and plat of the tract of land made by Antoine Soulard for John Dowling, by order of the Lieutenant-Governor, for 1,000 arpents, including all the present survey 1219, dated November 5th, 1799; also a copy of the certificate of the commissioners as recorded, dated August 22d, 1811, confirming a portion of said land to Riddick, under Dowling, which certificate is as follows:

“Louisiana commissioners' certificate, No. 1219, August 22d, 1811.

We, the undersigned commissioners for ascertaining and adjusting the titles and claims to lands in the territory of Louisiana, have decided that Thomas F. Riddick, claimng under John Dowling, original claimant, is entitled to a patent under the provisions of the 2d section of an act of the Congress of the United States, entitled “An act for ascertaining and adjusting the titles and claims to land within the territory of Orleans and the district of Louisiana,” passed the 2d day of March, 1805, for 800 arpents of land, situate in the district of St. Louis on river Plattin, and order that the same be surveyed as nearly in a square as may be, and so as to include his improvements. By virtue of a permission from the proper Spanish officer, and also of actual inhabitation and cultivation prior to and on the 20th day of December, 1803.

(Signed,)

CLEMENT B. PENROSE,

(Signed,)

FREDERICK BATES.”

Also the survey by the Surveyor-General of the United States for Riddick; also the sheriff's deed to Riddick made by Conner, and his notice of claim to the recorder of land titles, and the minutes of the board of September 7th, 1808, and the decision of the commissioners on August 22d, 1811, (same as offered by plaintiffs;) also a deed by the administrator of Thomas F. Riddick, by order of county court of Jefferson county, in which county Riddick died in the year 1830, purporting to convey to William S. Howe all of United States survey No. 1219, sold as the property of the estate of Riddick to pay debts of the estate, deed bearing date June 22d, 1854. This deed was objected to for various reasons, but the court allowed it to be read as a color of title in support of the plea of the statute of limitations. Plaintiffs admitted that William S. Howe took possession of survey 1219 in the year 1855, built a house and cleared a field on it in that year, and paid taxes thereon, and held it adversely till his death in 1870, when it was partitioned among his heirs; the part sued for in this action being assigned the wife of defendant, Madison, who is his daughter, who has held it adversely ever since, (defendant Sack being a tenant.)

1. PLACE OF RECORDING DEED: presumption.

The copy of the deed from Riddick to Carr was properly admitted in evidence. This deed having been recorded in St. Louis district in 1808, and no evidence of the boundaries of the districts as they existed at that time having been adduced, we must presume that the deed was properly recorded in that district. Such was the ruling of this court in Miller v. Dunn, 62 Mo. 225, with reference to a deed recorded in New Madrid district in 1808.

2. PROOF OF ANCIENT RECORDED DEEDS: statutes in force.

This deed having been recorded more than thirty years before the first day of January, 1867, under sections 35 and 36 of the statute in relation to evidence, a certified copy thereof was admissible without...