Vasseur v. Benton

• Decision Date: 31 May 1823
• Citation: 1 Mo. 296
• Parties: VASSEUR v. BENTON.
• Court: Missouri Supreme Court

1 Mo. 296

VASSEUR

v.BENTON.

Supreme Court of Missouri.

May Term, 1823.

JONES, J.

This was an action of ejectment, brought by the defendant in error, in the Circuit Court of St. Louis, against the plaintiff, to recover possession of a lot of ground in the town of St. Louis, of 150 feet in length, by 120 in depth, on which the defendant, Vasseur, resided. On the trial of this cause, a bill of exceptions was filed by the therein defendant, to the opinion and instructions of the court to the jury, who accordingly found a verdict for the plaintiff; to reverse which judgment this writ of error was brought. The bill of exceptions states, proof by the plaintiff of the following title, to wit: an abstract from the book of the recorder of land titles, as to claims entered under the act of 13th June, 1812, and pven before first of January, 1814, as provided by the act of 3d March, 1813, comprchending, also, the claims in the late district of _______, which by the act of 2d August, 1813, were permitted to be entered until 1st January, 1814, together with the extension of quantity, provided by the 4th section of the act of 3d March, 1813, and confirmations under the act of 12th April, 1814. From this abstract it appears that a claim was entcred with the recorder, by the representatives of Antoine Rivierre, for 300 by 300 feet, in the town of St. Louis, by an improvement and possession for twenty-six years, and that that quantity was confirmed by the recorder, and was ordered to be surveyed according to possession. That the plaintiff then proved that Antoine Rivierre formerly lived in St. Louis, somewhere on Second or Main street, and that, for about twenty-six years next preceding the date of the confirmation, he had and used a barn built on the S. W. quarter of the above mentioned square, being the quarter of the square or lot lying south and adjoining the one now sued for. The plaintiff then read in evidence a deed from Rivierre to Rufus Eaton, dated July, 1815, by which deed Rivierre confessed and declares that he had verbally sold to Mrs. Charles Gratiot a lot of 300 feet square, more or less, whereon there was a barn (situate in the rear of a lot of one Jeffrey, and in rear of third street, and northwest by the lot lately occupied by one Coons), which lot and barn he had occupied twenty-six years past, and which lot was sold by public sale to Pierre Chouteau, who sold to Charles Gratiot, who sold to Gregoire Sarpy, who conveyed it by a special deed to Rufus Easton, and he, Rivierre, then conveys his right and interest in said lot to Easton. To the reading of which deed in evidence, the defendant excepted on the grounds that the recitals therein shewed a title out of Rivierre; and the court overruled the objection, and the defendant excepted to the opinion of the court.

The plaintiff thereupon deduced a title in himself, by several mesne conveyances to the lot in dispute, and then gave in evidence a plot of survey made by the county Surveyor, under the order of the court, of the 300 feet above confirmed, including the S. W. quarter of the square of which Rivierre's barn was, and also the lot or quarter of the square sued for. It was also proved, that this survey corresponded to a survey of the same ground, made by the same Surveyor, under the authority of the United States.

On the part of the defendant it was proved, that Rivierre never had possession of any part of the lot or quarter of the square in controversy, and that he was never known to claim this lot. It was also proved, that as early as the year 1780, the defendant Vassenr, resided on the lot or quarter of the square lying east of the lot sued for, and that he had a barn and small inclosures on the lot or quarter of the square sued for, and claimed the two lots. That the defendant had constantly, since that time, had such barn and small inclosures on this lot; and that, at the time of commencing the suit, the defendant had the whole, excepting five or six feet across the western end, actually inclosed; but it did not appear at what time the fence was extended so far to the west, though it was proved, that a part of the lot was actually inclosed, before and at the time of making each of the said deeds, read in evidence by the plaintiff. It was also proved by the Surveyor, that when he made the surveys, the defendant was not present, and that no evidence was furnished him of Rivierre's possession of any part of the land included in the surveys, but that he made the same entirely according to the directions of Mr. Easton, without inquiry or regard to the possession of Rivierre; and that Vasseur was, at the time, in the actual possession of the lot sued for; and thereupon, the defendant prayed the Court to instruct the jury,

First. That under the above confirmation, no land or ground could be surveyed, or was confirmed to Rivierre, which he had not actually possessed and improved, prior to 20th Dec., 1803.

Second. That the said confirmation did not confirm to Rivierre, and that under it, no land could be surveyed for him, which, for 20 years prior to, and on the said 20th Dec., 1803, was in the adverse possession of Regis Vasseur.

Third. That the survey above mentioned, being made according to the directions of Easton, was no evidence that the land included therein, was the land confirmed to Rivierre.

Fourth. That if the defendant had had an adverse possession of the lot in question,...