Waddingham v. Gamble

• Decision Date: 31 October 1836
• Citation: 4 Mo. 465
• Parties: WADDINGHAM AND OTHERS v. GAMBLE.
• Court: Missouri Supreme Court

4 Mo. 465

WADDINGHAM AND OTHERS

v.GAMBLE.

Supreme Court of Missouri.

October Term, 1836.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

SPALDING, for Appellants. The plaintiffs in error contend: 1st. That the deeds of the commissioners passed no title to said Gamble, because the property sold was not properly advertised--because the first deed was not a good one, and having made one and acknowledged it, the commissioners were functi officio, because there was no proof that the sale was made according to law, or on the day for which it was set. 2. The deposition of P. Chouteau was improperly received (Old Rev. Code, 324, §. 2.) 3rd. As to the instructions.--1st. The first ought to have been given, for if that land was confirmed by the board of commissioners, then the act of 1812, did not operate on it (see Geyer's Digest, p. 467). There was evidence that the land worked upon and occupied by Provenchere as far back as sixty years, including the land sued for by Gamble, was the same land confirmed to Mullanphy, assignee of Provenchere. But this instruction assumes that there was no evidence on the subject--nothing which the jury were authorized to consider going to show that it was the same land. 2nd and 3rd. The second and third instructions relate to the same subject. The plaintiff, Gamble, produces a survey as his title paper, and as a part of it, the memorandum of the granting authority that the land had been abandoned, and had become a part of the King's property again. It was all given in evidence without objection on his part. The several other instructions are referred to the court and not abandoned: but for the want of time are not commented on in this brief, except the two last numbered above, the 8th and 9th.

Eighth instruction. This instruction puts it to the court to say that the evidence to prove certain persons heirs of Tayon, was not sufficient for that purpose; in other words, that there was no legal evidence of that fact. All the testimony was that of Leduc, who said that Chauvin told him they were heirs; Chauvin was not produced, nor was he in any way accounted for. 3 Starkie's Ev. 1100; that pedigree may be proved by traditionary declarations and general reputation. Ibid. 1101 and 1102. To warrant admission of such declarations, the party making them must be proved to be dead at the time of the trial, or it is not the best evidence. Ninth. This instruction is, that if Tayon abandoned the land, the plaintiff was not entitled to recover. By the Spanish law, if a man abandoned his land, he lost his right to it. 1 Partidas, 365. Provenchere having afterwards possessed it and cultivated it, it became his under the act of 1812.

GEYER, for Appellee. The appellee, in support of the judgment of the Circuit Court, contends that the deeds of commissioners, and the depositions of Chouteau and Paul were properly received in evidence; and that the instructions prayed for were rightly refused. 1. The depositions were taken within the hours mentioned in the notice; and the appellee was not required by law to detain the witnesses before the officer until the last moment mentioned in the notice. 2. The proceedings in partition were in all respects regular, and the deeds executed by the commissioners according to law: the ground of objection to them was not disclosed at the trial, and cannot now be anticipated. 3. The first instruction was properly refused, because there was no evidence to justify it. The land claimed by Mullanphy, is the land conveyed to him by the deed of Provenchere, in April, 1805, and the commissioners confirm that claim. The deed was not evidence, nor is there any other evidence that the land conveyed and confirmed to Mullanphy, is that claimed by the plaintiff. Besides, both parties claimed under confirmations, and the title of plaintiff is the elder. 4. The entry on the margin of the survey is not proved to have been made by competent authority, nor is it, according to the laws then in force, sufficient to defeat a title afterwards recognized by the Government. 5. The bare possession of Provenchere, as stated in the fourth instruction, would not operate a confirmation of the land to Provenchere under the act of 1812, nor give title against a grant and confirmation to another. 6. All the parties to the proceeding in partition, are sufficiently proved to be the descendants of Joseph Tayon. Nor was it necessary for the plaintiff to prove any of them to be his heirs--that fact is prima facie established by the proceedings. If there were too many parties, that cannot defeat the right of plaintiff under those who were rightfully parties. if there were any entitled who did not join, the burthen of the proof rested on the defendants. 7. Whether there was a reunion to the domain, or on abandonment under the Spanish Government, or not, will not avail the defendants--they not having shown any grant or recognition of their claim by that Government, and the land has been confirmed to plaintiff under the American Government.

TOMPKINS, J.

Gamble brought his action of ejectment in the Circuit Court of St. Louis county, against Waddingham, and the other defendants were on application admitted as co-defendants. Judgment being given against them in that court, they appeal to this. The defendant in error, on the trial of the cause in the Circuit Court, gave in evidence an extract from the books of the recorder of land titles for the territory of Missouri: by which it appears that an out-lot of the town of St. Louis, of forty arpents, was confirmed to Joseph Tayon, in the year 1815. He also gave in evidence the following extract from Livre Terrein, No. 2 (a provincial land book, under the Government of Spain). “I, the undersigned, Martin Duralde, in virtue of the power with which Don Pedro Piernas, Captain of Infantry, and Lieutenant-Governor of the Establishments and other dependent posts of the Spanish Government of Illinois, has invested me, at the request of the inhabitants of this post of St. Louis, desiring that the dimensions, courses and boundaries of the lands which they possess in its vicinity, may be determined by a person competent and authorized for that purpose, declare to all those whom it concerns, that on the requisition of each one of said inhabitants, during the autumn of the year 1770, and of the spring of the years 1771 and 1772 (the days and months whereof I do not mention, the operations having been made by turns, and not consecutively, as to those who have possessions distinct from each other, and situate in different places), and particularly on the request of Mr. Joseph Tayon, I went from my dwelling, situate in the said post of St. Louis, to a tract of land of one arpent wide, by forty long, belonging to him; partly cultivated, and partly fallow, situate in the prairie that touches this village, and immediately on one side, upon the domains of the King, of one arpent in width, and grazing by its extremity the foot of the mound, and bounded on the other side by Paul Kiercereau, and on the two others by the domain of the King, to survey it.” It further appears from the extract, that Duralde finished the survey, giving the courses of the lines, and setting stones in the ground at each corner. In the margin of the book in which M. Duralde made this entry, and opposite to that entry, was the following memorandum in French, viz: “Reunited to the Royal domain from their having been abandoned for a long time, St. Louis, 4th June, 1793, Trudeau.” It appeared in evidence that this memorandum was in the hand-writing of Jaques Clamorgan, and that the signature was that of Zenon Trudeau, then Lieutenant-Governor of the province; but that Clamorgan held no office and it did not appear that Tayon had any notice of the said entry. The plaintiff then gave evidence of a sale of said land among the heirs of Tayon, made by order of the Circuit Court of St. Louis county, on a petition for a partition of said land, and a deed made to him as purchaser at such sale, was given in evidence.

The plaintiff offered in evidence the testimony of several witnesses taken in depositions, which was objected to,...