Tigh v. Chouquette

• Decision Date: 31 March 1855
• Parties: TIGH, Defendant in Error, v. CHOUQUETTE, Plaintiff in Error.
• Court: Missouri Supreme Court

21 Mo. 233

TIGH, Defendant in Error,

v.CHOUQUETTE, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1855.

By act of the general assembly approved February 13, 1833, the board of trustees of the town of Carondelet was authorized to sell and convey vacant or unoccupied lots to which the inhabitants had the legal or equitable title. The chairman of the board was authorized to execute deeds for the lots thus sold. An ordinance of the town was passed to carry this act into effect. Held:

1. That the authority of the town, under this act, to convey a lot to which at the time it had the title, could not be disputed, on the ground that the lot was not vacant, by a party claiming under the town by title subsequent. The fact that there was a squatter upon the lot would not prevent it from being considered as vacant.

2. That a deed executed by the chairman, in his own name, with the concurrence of the corporation, passed the title of the town. ( Reilly v. Chouquette, 18 Mo. Rep. 220, affirmed.)

Error to St. Louis Court of Common Pleas.

This was an action in the nature of ejectment for a lot in the north-east quarter of block 87, in Eiler's survey of the town of Carondelet. Both parties claimed title under the town, the plaintiff under a deed dated September 1, 1834, and the defendant under a deed dated January 29, 1850.

By the first section of an act of the general assembly approved February 13, 1833, the board of trustees of the town of Carondelet was authorized to sell and convey all the vacant or unoccupied lots in Eiler's survey, to which the inhabitants had the legal or equitable title. By the third section of the same act, the chairman of the board of trustees, in their behalf, was authorized to execute deeds for the lots thus sold. On the 15th of July, 1833, the proper authorities of the town passed an ordinance, No. 19, to carry into effect the sections above referred to. This ordinance, however, was not in the record. Under this act and ordinance, the lot in controversy was sold to the plaintiff as a vacant lot. The deed was executed by the chairman of the board of trustees in the same form as the deed to the plaintiff in the case of Reilly v. Chouquette, 18 Mo. Rep. 221.

The defendant's title was as follows:

The 4th section of the act above referred to authorized the board of trustees, in all cases where the legal or equitable title of the inhabitants of the town was contested, to compromise with the adverse claimant, and authorized the chairman of the board to execute deeds in the manner prescribed by the third section. On the 2d of June, 1834, the board of trustees passed an ordinance, No. 31, the first section of which declared that every inhabitant of the town who had been in possession of a lot prior to 1832, and had cultivated it, should be entitled to a deed for the same. The third section authorized the chairman of the board to execute the deeds.

The defendant offered evidence to show that Antoine Motier settled on the north-west corner of block 87 as early as 1824, and built a house thereon, and made some improvements, which, on the 3d of August, 1833, he sold to Louis Fasseu. The deed to Fasseu described the lot conveyed as the north-west fractional quarter of block 87. Fasseu lived in the house until August 18, 1834, when he sold to the defendant. The deed described the lot conveyed the same as the deed from Motier. On the 29th of January, 1850, the board of trustees of the town of Carondelet executed to the defendant a deed for the whole of block 87. The deed purported to be executed pursuant to the third and fourth sections of the act of February 13, 1833, and ordinance No. 31. It recited that Motier was possessed of the lot from 1823 until 1833, when he sold to Fasseu, who was in possession of the same until 1834, when he conveyed to the defendant, who had since continued in possession. There was no dispute but that this deed was executed in proper form to pass whatever title remained in the town. The defendant offered to prove that his fence, at the date of the deed to the plaintiff, included part of the lot in controversy, and so the same was not vacant. This evidence was excluded, and an exception taken.

The defendant asked the following instructions, which were refused:

1. The jury is instructed that the instrument read in evidence by the plaintiff is not the deed of the town of Carondelet.

2. The jury is instructed that the said instrument is not sufficient in law to convey any title of the town of Carondelet to the land in controversy.

3. The jury is instructed that the town of Carondelet had no authority to sell, under the 1st section of the act of February 13, 1833, any lots which were not vacant and unoccupied, and that any sale or attempt to sell, under that act, a lot actually occupied by any person holding adversely to the town of Carondelet, was and is a nullity.

Under other instructions given, there was a verdict for the plaintiff.

T. T. Gantt, for plaintiff in error.

1. The paper read in evidence, purporting to be executed by P. J. Shultz to the plaintiff, is not valid to convey any interest of the town of Carondelet to the land in controversy. ( Reilly v. Chouquette, 18 Mo. Rep. 220, and cases there cited.) 2. The act of...