Soulard v. Clark

• Decision Date: 31 March 1854
• Citation: 19 Mo. 570
• Parties: SOULARD, et al., Appellants, v. CLARK, Respondent.
• Court: Missouri Supreme Court

19 Mo. 570

SOULARD, et al., Appellants,

v.CLARK, Respondent.

Supreme Court of Missouri.

March Term, 1854.

1. Where a record is proper evidence of a fact, it will be admitted, and the opposite party is left to his motion, to exclude irrelevant matter in the record from the consideration of the jury.

2. In order that a claim should have been confirmed by the act of July 4, 1836, it was not necessary that the board of commissioners should in terms recommend it for confirmation. The statement of the opinion of the board that it was already confirmed by the act of 1812, is sufficient.

3. Where there was a partition of a joint confession, a confirmation by the act of 1812, would enure to the benefit of each claimant for the portion set apart to him.

4. The act of June 13, 1812, operates as a complete grant. The claimant did not forfeit his rights by a failure to prove up his claim under the act of May 26, 1824, but may establish it in the courts by oral proof of inhabitation, cultivation or possession prior to December 20, 1803.

Appeal from St. Louis Court of Common Pleas.

This was an action of ejectment, brought in 1848, to recover a parcel of land of one arpent in front on Carondelet avenue, in the southern part of the city of St. Louis, by two arpents in depth, in the possession of the defendant. The plaintiffs are the legal representatives of Antoine Soulard, and exhibited the following evidences of title:

1. A concession to Antoine Soulard, from Zenon Trudeau, dated August 7, 1798, for 14 by 15 arpents.

2. A survey made by Soulard in January, 1800, of the land conceded, the quantity embraced by which survey was 204 arpents and 48 perches.

3. A notice from Soulard to the recorder of land titles of his claim to 56 arpents and 9 perches under the concession, “abandoning the overplus.” This notice was dated December 16, 1813.

4. A report of the recorder of land titles in tabular form, of his opinion upon claims presented for confirmation. The claim of Soulard to 56 arpents and 9 perches is embraced in this report, and reported by the recorder for confirmation. The report does not show any proof of inhabitation, cultivation or possession, but the concession, survey and notice are referred to. This report was confirmed by the act of April 29, 1816.

5. A survey of the whole tract of 204 arpents and 48 perches by Joseph C. Brown, deputy surveyor, in 1818. This survey does not designate the land confirmed by the act of 1816.

6. A confirmation by the act of July 4, 1836, of the whole tract of 204 arpents and 48 perches.

7. An official survey, in 1838, numbered 3124, of the whole tract, as confirmed by the act of 1836.

The surveys of 1800, 1818 and 1838 include the land in controversy.

The defendant exhibited the following evidences of title:

1. A concession from St. Ange to Madame Chouteau, of four by forty arpents, in the Little prairie, dated August 8, 1767.

2. A confirmation to Madame Chouteau's representatives by the act of April 29, 1816, upon the report of the recorder of land titles, upon possession and cultivation prior to December 20, 1803.

3. An official survey, numbered 1827, of the confirmation to Madame Chouteau.

4. A concession from St. Ange to Gervais, dated August 8, 1767, of two by forty arpents, in the Little prairie, adjoining Madame Chouteau, on one side, and Cambas & Ortiz on the other.

5. A concession of the same date to Cambas & Ortiz of two by forty arpents, bounded south by Gervais, “on condition to establish the said land in one year and a day, and to be subject to public charges.”

6. A general notice to the recorder of land titles by the claimants of lots, including those in the Little prairie, dated November 28. 1812.

7. The deposition of Madame Ortiz, the widow of John B. Ortiz. She testified that her husband and Cambas picked wild grapes, and cut wood and wild hay on the lot conceded to them, prior to December 20, 1803; that her husband used the southern arpent, or the one adjoining Gervais and Cambas, the northern one; that they each owned an arpent in severalty and not two arpents in common; that they were partners in business, but not in the land.

8. A certificate of confirmation to Gervais & Ortiz, issued by recorder Conway, in 1834, and an official survey, numbered 2964. The claims of Gervais & Ortiz were included in one certificate and survey. They were embraced in the list of confirmations furnished by Recorder Hunt to the surveyor general.

9. Proceedings of the commissioners under the act of 1832, upon the claim of Cambas. These proceedings contain the minutes of testimony taken before Recorder Hunt, under the act of 1824. These minutes contain evidence that Cambas & Ortiz cut hay and timber on the two by forty arpents conceded to them, prior to December 20, 1803, and also evidence that they afterwards made a parol division, by which the southern arpent was set apart to Ortiz, and the northern one to Cambas; and also evidence that each possessed and used the portion of the land allotted to him prior to December 20, 1803. The decision of the board upon the claim of Cambas is in these words: “The board are unanimously of opinion, that this claim is confirmed by the first section of the act of congress of 1812.” To the admission of these proceedings in evidence, the plaintiffs excepted.

10. An official survey for Cambas, numbered 3081, made in 1836, and which includes the land in controversy.

11. The petition of the administrator of Cambas to the general court, dated October 3, 1819, praying an order for the sale of “the half and undivided moiety of a tract of land situated in the prairie, south of the Little river, near St. Louis, having two arpents in front on forty arpents in depth,” to pay debts, together with an order of sale, according to the prayer of the petition. The derivative title of the defendant, under this sale, was admitted.

The plaintiffs, in rebuttal, offered some evidence, with a view to show a title by prescription and the statute of limitations. They also proved that Cambas, some years before the change of government, went to the Indian country, on the Osage, where he remained until he died, a year or two afterwards.

The court gave the following instructions asked by the plaintiffs:

1. The confirmation given in evidence by the plaintiffs, did vest in Antoine Soulard and his legal representatives, the legal title to the land therein granted, as against the United States.

2. And as against the said Clark, the defendant, the said confirmation did vest in the said A. Soulard and his legal representatives, a legal title to said land, unless the defendant has shown in himself or some other person a better title to said land.

3. The official survey given in evidence by the plaintiffs, (No. 3,124,) is evidence of the locality and boundaries of the land granted to Soulard by the said confirmation, and is conclusive evidence thereof against the United States.

4. And as against said Clark, the defendant, the official survey (No. 3,124,) is evidence of the locality and boundaries of the land granted to A. Soulard and his legal representatives by said confirmation; and the jury will consider said survey correct, unless the defendant has shown to their satisfaction that the said survey has been incorrectly made, or that it does not correctly give the locality and boundaries of the land granted by said confirmation to A. Soulard and his legal representatives.

5. That the proceedings of the board of commissioners, organized under the act of congress of July 9, 1832, on the land claim, No. 248, of the commissioners' report, in the name of Jean Cambas, as given in evidence by the defendant, is not any evidence that the title to the land therein mentioned was confirmed or granted by the act of congress of June 13, 1812.

6. That unless Jean Cambas or some legal representative of him, had, at the time of the passage of the act of congress of June 13, 1812, a right, title or claim to the land mentioned in the proceedings of the board, given in evidence, the title to said land was not confirmed to said Cambas or to any legal representative of him, by the said act of congress of 1812.

7. That unless the said Cambas or some legal representative of him, had a right, title or claim to the land, subsisting at the time of the passage of the act of 1812, and also that the said Cambas did inhabit, cultivate or possess the said land prior to the 20th day of December, 1803, the title to said land was not confirmed to said Cambas or any legal representative of his, by the act of congress of 1812.

8. If the jury believe from the evidence that, before the passage of the act of 1812, said Cambas abandoned the right, title and claim which he had, if any, to said land, under the Spanish government, then the title to said land was not confirmed by the act of congress of June 13, 1812.

9. And if the jury believe from the evidence, that said Cambas had no family-- no wife, child, heir, nor blood relation in the country; that he left the civilized settlements and went into the Indian country before the change of government, with an intention of not returning to St. Louis, and that he died in said Indian country, without having returned to St. Louis, and that no claim was set up in his name to said land, until long after the passage of the act of June 13, 1812, these facts or any of them the jury may consider as evidence tending to show an abandonment by him of his claim.

10. If the jury believe from the evidence, that the Cambas claim is in whole or in part located incorrectly by the survey thereof, given in evidence, and that the true location thereof would not include the said land in dispute, and that said land was included in survey No. 3124, then, as to said land or part thereof, which would not be included by a true location of the Cambas claim, and which is included in survey No. 3124, the defendant and those under whom he claimed, have no title as against the plaintiffs in this action.

After a...