Swartz v. Page

• Decision Date: 31 October 1850
• Citation: 13 Mo. 603
• Parties: JACOB SWARTZ v. DANIEL D. PAGE.
• Court: Missouri Supreme Court

13 Mo. 603

JACOB SWARTZ

v.DANIEL D. PAGE.

Supreme Court of Missouri.

October Term, 1850.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS

This was an action of ejectment, brought by Page against Swartz, to recover a lot lying within the St. Louis commons, and also within the confirmation of James Mackay or his legal representatives by the act of 4th July, 1836. At the trial, the then plaintiff, gave in evidence a duly certified plat and certificate of survey made under the authority of the United States, being survey No. 3125, and which it was agreed truly represents the out boundaries of the commons confirmed to the inhabitants of the town of St. Louis by the act of Congress, 13th June, 1812, and relinquished to the said inhabitants in full, properly according to their several rights therein, to be regulated according to the laws of the State of Missouri, by an act of Congress approved 27th January, 1831. The plaintiff then offered in evidence an instrument purporting to be the deed of the mayor, aldermen and citizens of the city of St. Louis to George Morton bearing date the 10th May, 1836; executed by the mayor and register of the city of St. Louis, signing their names and causing the common seal of said city to be affixed on the 10th April, 1836; the instrument is signed

JOHN F. DARBY,

GEORGE MORTON.

[SEAL]

The seal of the corporation is affixed opposite the ______ and the words “By the Mayor” signed, J. A. Wherry, register of the city of St. Louis. This instrument commences: This deed (being a compromise sale) made this 10th day of May, in the year of our Lord, 1836, between the mayor, aldermen and citizens of the city of St. Louis of the county of St. Louis and State of Missouri, party of the first part, and George Morton of the city, county and State aforesaid, of the second part, witnesseth, that the said party of the first part in consideration of $900 in hand paid by George Morton, have bargained, sold and quit-claimed, and by these presents, do bargain, sell and quit-claim, unto said George Morton his heirs and assigns forever, all that tract of land, &c., setting out a minute description, which may be stated in general terms, to be bounded north by Chouteau's mill tract, west by the west line of lot No. 6, in the St. Louis commons as surveyed by Chas. De Ward, south by the center of Park avenue, and east by the east line of St. Louis commons, embracing lots number two, three, four, five and six, containing forty-five acres, exclusive of the avenues bounding and running through the land surveyed. This description is followed by the h bendum, and a special covenant limiting the warranty against the grantors and persons claiming under them. The deed appears to have been acknowledged before a justice of the peace of St. Louis county, by John F. Darby and George Morton, who the justice certifies “are personally known to him to be the persons whose names are subscribed to the instrument,” on the 10th of May, 1836. It was recorded the same day.

The defendant objected to reading the deed in evidence on the following grounds. First. That it did not appear that any election was held as required by law, nor was there any evidence that a majority of the owners had consented to the sale of the commons. Second. That it does not appear that George Morton, at or before the date of the deed had any claim within the commons conflicting with the claim of the city of St. Louis. Third. That there is no evidence of any settlement or compromise made by the mayor and board of aldermen of the said city. Fourth. That the deed was not made by the mayor and board of aldermen, or that the same had been authorized before or ratified after it was made, by the board of aldermen. The court overruled the objection and allowed the deed to be read to the jury, to which decision the defendant excepted. The deed was then read, and the defendant admitted that the land therein described is wholly within the survey No. 3125, and is part of the commons confirmed and relinquished to the inhabitants of St. Louis. The plaintiff then proved that all the right, title, estate and interest of George Morton in the land described, was vested in the plaintiff by a deed made by the sheriff of St. Louis county, bearing date the 15th March, 1845. That the defendant was at the commencement of this suit in possession of a small portion of the land described in the deed just mentioned, and gave evidence tending to prove damages sustained, and the monthly value of the part in possession of the defendant.

The plaintiff admitted that no part of survey No. 3125, or of the commons of St. Louis was within the limits of the city of St. Louis, as it stood incorporated at any time prior to the 31st March, 1841.

The defendant then read in evidence so much of the report of the recorder and commissioners laid before and confirmed by an act of 4th July, 1836, as relates to the claim No 54 of James Mackay, claiming 200 and more arpents, under a concession of 9th October, 1799, for two hundred and some arpents bounded on the north by land of Auguste Chouteau, south by that of Soulard east by the public road going from St. Louis to Carondelet, and west by the domain and a survey certified by Antoine Soulard, 17th December, 1802, confirmed to James Mackay, or his legal representatives according to the concession, and it was agreed that the land in controversy lies within the concession, survey and confirmation. The defendant then read in evidence: 1. A deed executed by Isabella Mackay, executrix of James Mackay, deceased (in pursuance of a power contained in the will of said Mackay), whereby she conveyed to Arund Rutgers all the estate and interest of the testator at the time of his death in and to a parcel of land containing 33 arpents French measure described by metes and bounds, “which include the land in controversy” being part of the land granted to and surveyed by James Mackay as before stated, which deed bears date the 5th May, 1825. 2. A deed of the sheriff of St. Louis county, dated the 18th of January, 1825, under and by virtue of judgments and executions against the executrix of James Mackay, deceased, conveying to Abner Blaisdell a tract of land containing “fifteen acres and nineteen hundredths of an acre,” bounded, eastwardly by lands of Arund Rutgers, north by land of Chouteau, west by lot No. 3, on a plat referred to, and south by Antoine Soulard, deceased, which land is admitted to be within the commons of St. Louis, and also within the concession and survey in favor of James Mackay, “and does not include any part of the land in controversy.” 3. A deed dated 9th May, 1828, from said Blaisdell and wife conveying to James W. White and Michael Gorman, the land described in the deed last above mentioned. 4. A deed from said White and Gorman, dated 9th November, 1830, conveying the same land to George Morton. The defendant then read to the jury a transcript of the records of the proceedings of the board of aldermen of the city of St. Louis, by which it appears that on the 2nd April, 1836, the committee on the commons made a report which was adopted. The report is set out in extenso. The clause which relates to the claimants under Mackay, is in these words: “They have also had the petition of P. M. Dillon under consideration, and would respectfully recommend to the board a compromise predicated on the following basis: First, the mayor and board of aldermen of the city of St. Louis will convey all their right and title to the land within the survey of the commons, known as the Mackay claim to the representatives of said Mackay, for and in consideration of twenty dollars per acre, the purchasers to be placed on the said grounds with regard to payments as the other purchasers of land within the commons with the additional privilege of paying the principal of said purchase whenever they may think proper to do so.” The report closes in these words: “To bring about a definite action by your honorable body on the several recommendations in the above report, the committee recommends the adoption of the following resolutions”: The first resolution relates to a conveyance of the United States, of seven acres of land for $300. The 4th and last proposes that the members of the committee shall have $5 per day, each for their services. The others being the second and third of the series, are in these words Resolved, That P. M Dillon, George Morton and Frederick Dent, being the legal representatives of “James Mackay,” shall receive deeds for the “lands claimed by them,” and which is within the survey of the commons, by their paying twenty dollars per acre therefor, and that they have the privilege of paying the principal at the time of executing the deeds, “or at any time hereafter, which may suit their con venience within ten years.” Resolved, That the deeds to be executed by virtue of the power given the board to make compromises, express that it is a compromise sale, and that persons so compromising be entitled to pay the amount agreed upon down, or avail themselves of the advantages advertised in the notice of the sale of the commons

The defendant proved by the register of the city and keeper of the records of the board of aldermen, that the transcript includes all the proceedings of the board of aldermen in relation to the claim of George Morton and other persons, claiming under James Mackay within the commons.

The defendant then offered to prove by the testimony of the members of the board of aldermen, who were members of the committee on the commons, and were produced as witnesses, that George Morton did not claim before the committee or the board, before or at the time of the passage of the resolution contained in the transcript, any part of the land in controversy; that he claimed only the parcel described in the deed from White and Gorman to him, read in evidence by the defendant; that no other claim of said Morton within the commons was known to the board of aldermen,...