Thomas v. Hesse

• Decision Date: 31 March 1863
• Citation: 34 Mo. 13
• Parties: MARGARET THOMAS, Respondent, v. FREDERICK HESSE et al., Appellants.
• Court: Missouri Supreme Court

34 Mo. 13

MARGARET THOMAS, Respondent,

v.FREDERICK HESSE et al., Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Land Court.

The plaintiff brought her petition for dower in the St. Louis Land Court, September 11, 1858. Her petition stated that she married Martin Thomas, April 15, 1820, and lived with him till he died, September 10, 1848; that during the marriage her husband was seized of the land in question. A summons issued on this petition September 13, 1858, and was served September 23, 1858.

The answer of defendants denied any right of dower in the plaintiff, and denied that Martin Thomas was, at any time during said marriage, seized of an estate of inheritance, or any estate or interest in the land in question, or any part of it;--that, on the 28th of December, 1830, Thomas and wife conveyed the premises in dispute to Scott and Rule, and said plaintiff then and there relinquished her dower. (This portion of the answer set forth the relinquishment as it appears on the deed, 18 Mo. 573.) That said Martin Thomas, at and prior to his death, and at and prior to conveyances made by him of the premises in dispute, was, and ever since has been, indebted to sundry persons, whose debts so owing by said Martin now remain unpaid; that said Martin Thomas at and prior to his death was insolvent, and his large indebtedness so remains unpaid; that fraudulently said Thomas covered up a large real and personal estate in the hands of his wife and children, which they now hold; and, should plaintiff recover dower, the property fraudulently held by her would stand in her hands to compensate defendants. If plaintiff is entitled to dower in these lots it is because she is entitled to dower in a large tract of one hundred and twenty-three arpens, of which these lots are part; but plaintiff has instituted one hundred suits instead of one. That there has been no administration on Thomas' estate; that defendants have put six thousand dollars' worth of improvements on the property.

On motion of the plaintiff, the court struck out of defendants' answer all that part relating to the debts of the deceased husband, all that part in relation to the relinquishment of plaintiff, and all that part in relation to bringing one hundred suits instead of one; and defendants excepted to the rulings of the court.

On the trial, the plaintiff showed--

1. A patent from United States, dated May 1, 1826, including the property in question to Rufus Easton. 2. An

execution reciting judgment of six thousand four hundred and forty-eight dollars and eighty cents of Wilson P. Hunt against Rufus Easton; fi. fa. dated June 9, 1820; levy on the land in patent; sale, August 9, 1820; deed August 24, 1820, conveying the land to Bernard Pratte. 3. A deed from B. Pratte and wife to Martin Thomas, dated September 4, 1829. 4. That Martin Thomas married plaintiff, and died as mentioned in the petition.

The defendants' evidence was as follows:

1. A perfect Spanish grant for the land in question to Gabriel Cerré, August 17, 1798. 2. A deed from Martin Thomas and wife to Scott and Rule of December 14, 1830. 3. A deed of Thomas and wife to Jenks, April 16, 1831. 4. Scott and Rule's deed to O'Fallon, February 26, 1831. 5. O'Fallon's deed to Z. T. Palmer, March 13, 1831. 6. Palmer and wife to J. B. Brant, April 17, 1835.7. Brant and wife to John Riggin, September 30, 1838. 8. John Riggin and wife to Philander Salisbury, January 5, 1839. 9. Salisbury and wife to J. R. Hughes, May 22, 1847. 10. John R. Hughes to defendant Hesse, March 20, 1855. The above conveyances from Martin Thomas and wife to Scott and Rule of December 14, 1830, down to the deed to Hesse, and each of them, conveyed the lot in question. 11. A deed from Pascal Cerré and others, being the children and heirs of Gabriel Cerré, deceased, to Matthew Kerr, dated September 24, 1839. This deed recites that the executors of Gabriel Cerré in July, 1805, sold the land in question to Rufus Easton, at public sale, and that the intention of the grantors is to ratify the sale, and in consideration thereof, and of one dollar, they “ratify and confirm” the land “to said Kerr and to all others holding under said Easton, all their interest in said land.” 12. A deed conveying same land from William Bergy and others, dated February 11, 1836, quit-claiming all their interest in Gabriel Cerré's estate unto Josiah McLannahan and his heirs; also, to the legal representatives of Rufus Easton, John Mullanphy and Joseph C. Brown the property purchased by them respectively at the sale of the executors of Gabriel Cerré, deceased. 13. A deed from R. L. Parret, conveying to Rufus Easton's representatives his interest, dated February 2, 1836. 14. That Rufus Easton died in 1834. This was all defendants' evidence.

Plaintiff then read in evidence archive 2270, being Gabriel Cerré's will.

The plaintiff next read letters of administration granted to Auguste Chouteau and Pascal L. Cerré, executors of Gabriel Cerré, dated May 2, 1805. Also, the report of sale by the executors of Gabriel Cerré of the land in question to Rufus Easton.

Plaintiff's instructions given:

1. The patent of the United States to Rufus Easton vested in said Easton the legal title to land in said patent described.

2. The court declares the law to be, that the effect of the deeds of Pascal L. Cerré and others, and William Bergy and others, and of R. L. Perret, is to vest in the plaintiff, under the evidence in the case, dower in the premises in said petition described.

3. Under the evidence in this case, the defendants are estopped from denying that Martin Thomas, in his lifetime, was seized of the premises in question.

Defendants' instructions refused:

1. The court decides the law to be that the record of grant, put in evidence by the defendants, from the Spanish Government to Gabriel Cerré, shows a perfect title, under said Spanish Government, in said Cerré.

2. That, if the land in controversy was granted to Gabriel Cerré, in perfect title, by the Spanish Government, and afterwards the Government of the United States patented said lands to Rufus Easton, the patent to said Easton was, and is, void.

3. That, by the will of Gabriel Cerré, put in evidence, no power was vested in his executors to sell the lands in controversy, or any part thereof.

4. That, by virtue of the deed of Cerré's heirs, put in evidence in this cause, no title to the land in controversy vested in Martin Thomas.

5. That, by the evidence in this cause, said Martin Thomas was never seized of any interest in said lands, in law or equity, nor was any person so seized to his use.

6. The court decides the law to be that the deed of Martin Thomas and Margaret his wife, who is the present plaintiff, to Scott and Rule, dated December 14, 1830, is sufficient in law to pass away and extinguish all right of dower of said plaintiff in the premises therein mentioned.

Glover, Hitchcock and Hayden, for appellants.

I. The plaintiff was not entitled to dower, because her husband was never seized of an estate of inheritance in the land in question, either in law or equity. (1 R. C. 1825, p. 332.) The land in controversy was granted to Gabriel Cerré by complete title. In Menard v. Massey, 8 How. 314, is seen the form of such a title. The present is in the name of the king, and was very properly pronounced by the board a perfect title. As the title passed by the Spanish patent to Cerré, there was, when Easton presented his claim to the board, no right remaining in the United States--nothing to relinquish by a confirmation. The board could only do what they did--that is, refuse to confirm the claim, and declare, “this title is ascertained by the board to be a Spanish grant made and completed prior to October 1, 1800.” By the terms of this grant, nothing remains to be done in regard to it. The authority of the officer, if any doubt was entertained of his power, would be presumed genuine from its exercise. (8 Pet. 452.) But see 2 White's Recop. 469-78, showing that the power to grant lands did reside in the Governor General of Louisiana, and was taken away after August, 1798.

The patent to Rufus Easton was void. (2 How. 318; 14 Mo. 585; 7 Mo. 503.) As Easton took no title by the patent, Thomas took none from him through the patent.

The question remains, did Easton take any title from the proceedings of Gabriel Cerré's executors? The sale by the executors was void for want of power to sell. The will of Cerré gave no authority to sell. 1 White's Recop. p. 128, n. 33, says: “An executor cannot sell the real property of his testator unless he be authorized by the will.” If the question shall be decided upon the common law, the result is the same. Hard pressed to make any title in Thomas, as either through Cerré's executors or through a patent from the United States, they next rely on certain deeds from Gabriel Cerré's heirs to ““Rufus Easton's representatives.” All these deeds bore date between 1835 and 1840; but long prior to these dates, to-wit, in 1830, Martin Thomas had conveyed to Scott and Rule. The deeds of Cerré's heirs to Easton's representatives enured to those who were such at their dates, that is, to Joshua B. Brant and others; Thomas, not being a representative of Easton at the date of any one of these deeds, took nothing under them.

That there can be no mistake as to this, the deeds themselves declare the grants to be to the persons then claiming under Easton. A grant to one's representatives is not a grant to him. (27 Mo. 364.) But the deeds from Cerré's heirs to Easton's representatives contain a clause ratifying the sale of the executors, and this is supposed to validate the sale from the beginning; but, if the sale was void, as I have shown it to be, it could not be ratified. A void act is incapable of confirmation. An act merely avoidable, which passes a title subject to be revoked, may be confirmed; that is, the party may relinquish all power to set it aside, then it is made firm...