Vasquez v. Ewing

• Decision Date: 31 March 1868
• Parties: LOUIS VASQUEZ et al., Respondents, v. WILLIAM L. EWING, Appellant.
• Court: Missouri Supreme Court

42 Mo. 247

LOUIS VASQUEZ et al., Respondents,

v.WILLIAM L. EWING, Appellant.

Supreme Court of Missouri.

March Term, 1868.

Appeal from St. Louis Circuit Court.

This is an action of ejectment, brought by plaintiffs against defendant in the St. Louis Land Court, in 1857, to recover possession of a certain parcel of land in St. Louis county, fully described in the plaintiffs' petition, containing thirty-two arpents, and designated as U. S. survey 2965. On the trial, plaintiffs offered in evidence: 1. A certified copy of an extract from the list of lots furnished by Recorder Hunt to the office of the Surveyor-General of Illinois and Missouri, as those the titles to which had been proven up before him under the provisions of an act of Congress of May 26, 1824, by which extract it was shown that the land in controversy was certified as confirmed to the legal representatives of Benito Vasquez under acts of Congress of 1812 and 1824. 2. A certified copy of U. s. survey No. 2965, which was a survey for the legal representatives of Benito Vasquez of a tract of land of four by eight arpents, and embraces the land in controversy; and also a certified copy of the field notes accompanying said survey No. 2965. 3. Certificate No. 78, issued by U. S. Recorder of Land Titles for same land. 4. De Ward's map of St. Louis commons, and conflicting private claims therein, and showing the private claim of Vasquez for thirty-two arpents. 5. Testimony showing that some part of the land sued for, near Benito Springs, was cultivated and possessed, both prior and subsequent to December 20, 1803, by Benito Vasquez or his servants; that there was a house on the land, and a fence inclosing a cultivated field thereon, and that there were some fruit-trees on the tract.

Defendant's testimony showed: 1. The claim of the inhabitants of the village of St. Louis to the commons of St. Louis, in 1806, embracing the land in controversy; also, the act of Congress of June 13, 1812, confirming claims to lots, commons, etc. 2. U. S. survey No. 3125 of said commons. 3. The deed of the city of St. Louis to William Carr Lane,^a1 dated May 27, 1836, conveying in fee all the land in controversy in this suit. 4. Deed of Louis Vasquez, in 1825, conveying to Wm. Carr Lane all his interest in the land in controversy. 5. Deed of Jacques Martin and Eulalie Martin (daughter of Benito Vasquez), dated March 13, 1834, conveying to said Lane all their interest in said land. 6. Deed of other heirs of Vasquez, dated September 3, 1847, releasing to Francis A. Quinette their interest in survey 2965. 7. Deed of Francis A. Quinette and wife to Wm. L. Ewing, the defendant, dated January 10, 1850, conveying to him their interest in said land. 8. The will of Julie Papin Vasquez, widow of Benito Vasquez, dated April, 1825, making Eulalie Martin sole heir of all her immovable property. 9. A concession by Gov. Cruzat, dated January 6, 1784, of four by eight arpents, to Benito Vasquez, “at the locality called The Three Springs, on condition to improve the same in one year from the date hereof; and on the contrary, the land to revert to the royal domain; it remaining subject to the public and other charges which His Majesty may be pleased to impose thereon in future.” On the margin of the record (in Livre Terrein) of this concession is the following entry: “These four arpents remain incorporated to the royal domain, on account of Benito Vasquez having abandoned them.”

The following instruction, referred to in the opinion of the court, was given for plaintiffs:

1. The jury are instructed that if the tract of land of four by eight arpents, in dispute, was a tract or parcel of land which was actually possessed, inhabited, or cultivated by Benito Vasquez prior to the 20th December, 1803, as his individual property, and his claim thereto was not abandoned prior to 13th June, 1812, and that said Vasquez was an inhabitant of the town of St. Louis, and said parcel of land was an out-lot in or adjoining the town of St. Louis, then the title thereto was, on the 13th of June, 1812, vested in said Vasquez or his legal representatives by act of Congress of 13th June; and no survey made subsequently thereto by the United States, embracing said lands as a part of the land granted by said act of Congress as commons to the inhabitants of the town of St. Louis, can impair or interfere with the title so granted to Vasquez.

S. T. Glover, for appellant.

I. The claim to the commons of St. Louis by the inhabitants thereof goes back to 1764, at least twenty years prior to the conditional concession made by Cruzat to Benito Vasquez. In February, 1806, the metes and bounds of their claim were fixed by a survey duly returned and recorded in the office of the United States Surveyor-General, also in the recorder's office of St. Louis county. In 1784 a conditional grant was made to Vasquez at “Three Springs,” without any metes or bounds. It might have been laid down in ten thousand ways and done no violence to the terms of the concession. Such a concession, so long as the whole land round about the “Three Springs” remained vacant, would be binding on the equity of the government, and it would make no difference how the government might locate it on its own domain. But as against the definite survey of the commons in 1806, laying down the lines and fixing the corners of that tract, the concession to Vasquez was void. In the nature of things it could not be otherwise. When the terms of the grant did not define any particular lands, but referred to a general locality only, the Supreme Court of the United States held that no lands were granted. (United States v. Delespine, 15 Peters, 334; United States v. Lawson, 5 How. 289; Buyck v. United States, 15 Peters, 223; Watts v. Lindsay's Heirs, 7 Wheat. 158; Littlepage v. Fowler, 11 Wheat. 215; Menard v. Massey, 8 How. 295.)

The act of June 13, 1812, § 1, 2 U. S. Stat. 748-9, enacted that “the right, title, and claims to town or village lots, out-lots, common field lots, and commons, in, adjoining, and belonging to the several towns of * * * St. Louis, * * * in territory of Missouri, * * * which lots have been inhabited, cultivated, or possessed prior to 20th December, 1803, shall be and are hereby confirmed to the inhabitants of the respective towns or villages, according to their several right or rights in common thereto.” If the claim of Vasquez had no definite bounds, and might, at the date of this act, have been laid off in many ways--if it was too vaguely described to be located by one class of boundaries more than another, it was not confirmed; or, if confirmed, the confirmation was so vague as to be null. Such, we think, was the fact. The grant of 1784 was no more certain as to bounds than the proof of witnesses. But, in 1806, the city got her claim surveyed and filed it with the Board of Commissioners. On this claim the act of June 13, 1812, could act, and by force of the certainty of this claim the act did vest a present title, in 1812, to the specific land in the survey of the commons, in the inhabitants of the village. (Page v. Schiebel, 11 Mo. 167.) The act of 1812 conferred title proprio vigore on those who had lots with definite metes and bounds. The claimant must bring himself within the act. (Gurno v. Jones, 6 Mo. 336.) Now, we contend that all the time from 1784 to 1852, when survey 2965 made of the claim of Vasquez was approved, no title to the land in that survey had attached. Where the claim has no certain limits, and the judgment of the confirmation carries with it the condition that it shall be surveyed, the title attaches to no land. (Stanford v. Taylor, 18 How. 412.) Where there are no metes and bounds, and no order to survey, and no proofs of metes and bounds orally under act of 1812, the confirmation cannot attach to the land till surveyed; when it does so attach, the conclusion is inevitable that the title is junior to an older survey, and, if in the meantime the land has been surveyed for another, the latter has the best title.

It is said Vasquez's survey is prima facie evidence of the correctness of his location. But the survey of the commons is also prima facie evidence that the village title covers the land. And the survey of the commons is prior in time, and therefore superior; and the defendant's title, resting on a prima facie location as good at least as that of Vasquez, was superior-- potior conditio defendentis. This is supposing that the claim of Vasquez to this land was confirmed in 1812. But unless the metes and bounds existed then, it was not confirmed to any particular land. (Magill v. Somers, 15 Mo. 87; Aubuchon v. Ames, 27 Mo. 94.) It is conceded that the title of Vasquez, once made certain by being fixed on some specific land, would, as between the United States and Vasquez, relate back to 1812, but not to overreach the city title which had taken effect prior to the approval of Vasquez's survey. (Alexander et al. v. Merry, 9 Mo. 529.)

II. In the first instruction given for the plaintiff, the court misconceived the statute of June 13, 1812, in what was said to the jury about the operation of said act in respect to an out-lot. The court predicated the confirmation on possession, inhabitation, or cultivation of said parcel of land, if the same was “an out-lot in or adjoining the town of St. Louis.” With such an instruction, any lot of ground whatever, inside the town or adjoining it, might be confirmed by the act of 1812. But the words of the act are these, “in, adjoining, and belonging to, the several towns or villages.” (2 U. S. Stat. 749.) The lot may be in or adjoining the village, but unless it belongs to the village it is not confirmed. (Page v. Schiebel, 11 Mo. 182; Harrison v. Page, 16 Mo. 205; City v. Toney, 21 Mo. 251.) Up to this last case, whether a parcel of ground was an out-lot, in the meaning of the act of 1812, was deemed a question of law. The case was modified in the case of The City v. Toney, and the court...