Soulard v. Allen

• Decision Date: 31 October 1853
• Citation: 18 Mo. 590
• Parties: SOULARD, et al., Appellants, v. ALLEN, Respondent.
• Court: Missouri Supreme Court

18 Mo. 590

SOULARD, et al., Appellants,

v.ALLEN, Respondent.

Supreme Court of Missouri.

October Term, 1853.

1. A certificate of confirmation issued by recorder Conway, in 1834, of a claim included in Hunt's list of confirmations under the act of 1824, is prima facie evidence of all the facts necessary to a confirmation by the act of 1812.

2. An official survey is prima facie evidence of the boundaries and location of the land confirmed.

3. Where a map, which is referred to in a deed for the boundaries and location of the land confirmed, is lost, another map, which is proved to be one of three originals, is admissible in evidence.

Appeal from St. Louis Court of Common Pleas.

E. & B. Bates, for appellants.

I. The title of the plaintiffs is perfect, as against the government, and superior to all other titles, unless the right of the city to the commons be the better title.

II. The locality of the plaintiffs' land is certain, and their actual possession of it commenced in the year 1800.

III. The actual survey in the names of Gervais and Ortiz, (by which the defendant claims,) is wrongly located, being laid down on wrong courses, and being a good way north of the proper position. The survey as made is simply arbitrary; it refers to nothing antecedent to prove its propriety; it is not pretended that it is made as it is, in order to conform to possession or improvement; and it is a direct departure from the terms of the grant, so far as courses are concerned. By the terms of the grant the lines were to run ““north and south” and “east and west.” There was no occupancy under the grant, and there is no indicium of the courses lines but the terms of the grant, and they are perfectly plain.

IV. The defendant showed no title under Gervais and Ortiz or either of them. The grants or concessions to Gervais and to Cambas and Ortiz contain the express condition to be void, if the land be not established in a year and a day. The land never was established or occupied, and the grants became void by their terms before the beginning of Soulard's title in 1798. Besides, if the grants had not become void by failure of the conditions, they were barred by negligence, in not being presented for confirmation. (Les Bois v. Bramell, 4 Howard, 258-9.) The certificate issued by recorder Conway, dated April 12, 1834, is simply void, he having no power to issue it. (Gamache v. Piquignot, 17 Mo.) If, however, he had power to certify at all, this certificate is wrong. He does not certify that the requisite facts were proved, nor that any claim was made before him or his predecessor. The certificate is double, and thus against the statute; it divides the tract of Cambas and Ortiz into two parts, and arbitrarily unites one of them with the tract of Gervais. Again, no certificate of confirmation could have been issued lawfully either by Mr. Conway or his predecessor, because the lands certified are not lots. The question what is a lot is for the court, as a matter of law. (Page v. Scheibel, 11 Mo. 167; Biehler v. Coonce, 9 Mo. 347; Macklot v. Dubreuil, 9 Mo. 489.) If these claims be lots, then Soulard's title is perfect under the act of 1812, for he had a paper title from the Spanish government, a subsisting claim on the 13th of June, 1812, and actual possession of the land by surveyed boundaries in 1800. Hunt's list was no evidence. It was made for the information of the surveyor general, and not as evidence of title for the party. The party has better evidence, viz., the certificate, and to admit the list would be violating the rule of law that the best evidence must be produced.

V. Supposing the commons title to be the best, the plaintiffs have the elder and better title under the city, for that part of the survey which lies within the common.

Geyer & Dayton, for respondent.

I. The extract from the list certified by Hunt, under the act of 1824, to the surveyor general, and the certificate of the recorder are not only competent evidence, but they establish prima facie confirmations by the act of 1812. (Janis v. Gurno, 4 Mo. 458; Gurno v. Janis, 6 Mo. 330; Macklot v. Dubreuil, 9 Mo. 477; McGill v. Somers, 15 Mo. 80.) The present recorder, though he cannot decide on the evidence, is as competent by the terms of the law and upon principle to certify the conclusions of his predecessor as to certify a confirmation by the commissioners, or a decision by them, which he is not authorized to make. There is no evidence whatever to rebut the prima facie evidence of title made by Hunt's list and the recorder's certificate.

There is no evidence, as in Gurno v. Janis, (6 Mo.) of inhabitation and cultivation by another prior to December, 20, 1803, nor that the recorder had certified a confirmation not ascertained by Hunt, but an opinion of his own on the evidence, as in Gamache v. Piquignot. (17 Mo.)

II. The confirmation of a lot by the act of 1812, though within the commons, vests the title as against the inhabitants of St. Louis. The act does not confirm as commons all land within the out-boundaries, but only such part as was common on the 20th of December, 1803. Land previously granted, or inhabited, cultivated or possessed as private property, remained such, and, if a lot, was confirmed as private property.

III. The official survey is a part of the confirmation, and determines prima facie the boundaries and location of the land possessed and cultivated. (Macklot v. Dubreuil, 9 Mo. 473; Page v. Scheibel, 11 Mo. 167; Boyce v. Papin, ib. 16; McGill v. Somers, 15 Mo. 80.) That the grant to Madame Chouteau calls for lines north and south, east and west, is no impeachment of the survey. 1. The confirmation was upon cultivation and possession, not according to the grant. 2. The survey conforms to the courses as nearly as usual or proper, where, as in this case, it was necessary to conform to other grants adjacent, which had the same calls. 3. The question, whether the survey was correct or not, was referred to a jury and they affirmed its correctness.

IV. The defendant having the legal title to the land in controversy, as against the inhabitants of St. Louis, and the confirmations to Soulard and his representatives, the titles set up by the parties, under the city, are wholly immaterial. But an examination of the respective pretensions will show that the plaintiffs did not establish any title under the city, as against the defendant.

SCOTT, Judge, delivered the opinion of the court.

This was an action of ejectment, commenced in 1848, by the plaintiffs, Soulards, against Allen, to recover possession of a tract of land in the city of St. Louis, containing fifty acres.

The plaintiffs claim as the legal representatives of their father and mother, Antoine and Julia C. Soulard. The plaintiff's claim under a concession made to their ancestor, Antoine Soulard, by Zeno Trudeau, lieutenant governor of Upper Louisiana in 1798, for 204 arpens and a fraction, which was surveyed by the then surveyor of the province in 1800. This concession, together with notice of claim, was filed 15th December, 1813, with the recorder of land titles, and 56 arpens and a fraction thereof were reported for confirmation, and were confirmed by the act of 29th April, 1816. The rest of the claim was then abandoned as interfering with the St. Louis commons; it was afterwards reported for confirmation by the last board of commissioners, and was confirmed by the act of 4th July, 1836. The entire claim was surveyed under the authority of the United States in 1818, and was again surveyed in 1838. Most of the land claimed by the parties to this suit is within the boundaries of the survey of the St. Louis commons. We will first only speak of such portion of it as is without those boundaries. The defendant claimed under a concession made by the French lieutenant governor in 1767, to Madame Chouteau, for 4 by 40 arpens; a report of the recorder of land titles in favor of confirmation, upon cultivation and possession prior to the 20th day of December, 1803, to be surveyed, which report was confirmed by act of 29th April, 1816, and the land was surveyed in April, 1818; a concession of two by forty arpens to Gervais, and a grant of the same quantity to Cambas and Ortiz, both made by the French authorities in 1767; a certificate of confirmation, issued by the recorder of land titles, under the act of 26th May, 1824, by which it is certified that, under the act of 13th June, 1812, there was confirmed to Gervais' legal representatives a tract of two by forty arpens, and...