Vasquez v. Richardson

• Decision Date: 31 October 1853
• Citation: 19 Mo. 96
• Parties: VASQUEZ et al., Plaintiffs in Error, v. RICHARDSON, Defendant in Error.
• Court: Missouri Supreme Court

19 Mo. 96

VASQUEZ et al., Plaintiffs in Error,

v.RICHARDSON, Defendant in Error.

Supreme Court of Missouri.

October Term, 1853.

1. A deed conveying “a tract of land eight arpents in front upon the depth of forty,” with no proof of its locality, was held not sufficient to pass the specific land claimed by the plaintiff.

2. An administration sale, under the act of July 4, 1807, will not be held void for the non-production of the advertisement required by law, nor for the want of the administrator's affidavit that he did not become the purchaser. Under that act, it was not necessary that there should be a confirmation of the sale or a deed.

3. Fraud in the sale will not be presumed from the mere fact that the purchaser at the sale afterwards conveyed the property to the administrator.

Error to St. Louis Court of Common Pleas.

This was an action of ejectment, commenced in 1847, to recover the northern portion of a tract of sixteen by forty arpents of land, confirmed to Benito Vasquez. The plaintiffs claimed under a deed from Benito Vasquez and wife to their children, dated July 4, 1807, in which the land conveyed was described as “a tract of land eight arpents in front upon the depth of forty, and as the same exists according to the lines of the figurative plan.” The plaintiffs offered in evidence the concession and confirmation to Benito Vasquez, accompanying which was a plat, which they claimed to be the figurative plan referred to in the description in the deed. They then offered in evidence a deed, dated February 17, 1804. from Mrs. Julia Vasquez, wife of Benito, to Wm. Hebert Lecompte, conveying three by forty arpents in the White Ox prairie, bounded north and south by lands of Benito Vasquez; a deed from Benito Vasquez and wife to Francis Valois, dated February 18, 1804, for two arpents by forty, bounded north by lands of William Hebert Lecompte, and south by lands of Vasquez; and a deed from Vasquez and wife to Andrew Landreville, dated February 21, 1804, conveying two by forty arpents, bounded north by Valois, and south by Antoine Roy. The plaintiffs asked the court to instruct the jury that the deed under which they claimed passed the land in controversy, if the three deeds to Lecompte, Valois and Landreville were duly executed and conveyed the southern seven arpents of the tract conceded and confirmed to Benito Vasquez; which instruction the court refused to give.

The defendant claimed under two sales made by Joseph Phillipson, as administrator of Benito Vasquez, under the law of July 4, 1870. The proceedings in relation to these sales and the objections to them are stated in the opinion of the court.

J. E. Munford, for plaintiffs in error.

1. The deed from Benito Vasquez and wife to their children is not void for uncertainty of description. The survey of the tract confirmed to Vasquez, as shown by the figurative plan, was for fifteen by forty arpents in the White Ox prairie, bounded south by Roy. The deeds to Lecompte, Valois and Landreville conveyed seven by forty arpents, bounded south by Roy, leaving the northern eight by forty arpents still remaining, at the date of the deed under which the plaintiffs claim. In addition to this, the deed is dated at White Ox prairie. Hart v. Rector, 7 Mo.; Landes v. Perkins, 12 Mo.; Ashley v. Green, 8 Mo.

2. There was evidence tending to show fraud in the administration sale, which should have gone to the jury.

3. The deed from Phillipson, as administrator, to Mrs. Vasquez, is void for uncertainty of description. The language of the deed is, “A certain piece of land, situate in the White Ox prairie, containing 7 1-2 arpents in front, by 40 in depth, adjudged to the widow Vasquez.” Greater certainty of description is necessary in deeds executed by officers of the law than in voluntary deeds.

4. The deeds from the administrator to Mrs. Vasquez are void, because there is no copy of the advertisement of the sale, nor was there any confirmation of the sale. 8 Met., 363; 20 Wend. 241; 15 Pick. 423; 13 Wend. 464.

E. & B. Bates, for defendant in error.

SCOTT, Judge, delivered the opinion of the court.

1. The description of the premises in controversy, supposed to be conveyed to the plaintiffs, is in these words: “A tract of land eight arpents front upon the depth of forty, and as the same exists according to the line of the figurative plan.” Upon this alone, without any extrinsic proof of its locality, the instruction called upon the court to declare the law to be, that the instrument was operative to convey to the plaintiffs the land claimed by them in their declaration, if the jury should find the deeds given in evidence, to Lecompte, Valois and Landreville, were duly executed, and conveyed seven arpents of the southern part of the land conceded to said Benito Vasquez, and subsequently confirmed. These deeds conveyed seven arpents of land, by forty, adjoining each other, bounded on the south by Antoine Roy, and north by the land of Benito Vasquez, in White Ox prairie, running in depth from the hills or bluffs to the Mississippi. There is no evidence of the locality of Antoine Roy.

It is evident that this case is wholly unlike those in which it has been held that parol evidence was admissible to show that the description of land in a deed was understood, and that it was known by the terms by which it was described. Now, without proof, it was impossible to ascertain what land passed by the deed. Such evidence, if it existed, might have been produced, but the instruction requires the court, as a matter of law upon...