Waller v. Von Phul

• Decision Date: 31 March 1851
• Citation: 14 Mo. 84
• Parties: WALLER & SMITH v. HENRY VON PHUL
• Court: Missouri Supreme Court

14 Mo. 84

WALLER & SMITH

v.HENRY VON PHUL

Supreme Court of Missouri.

March Term, 1851.

ERROR TO RALLS CIRCUIT COURT.

CARTY WELLS, for Plaintiffs. 1st. The entry of Matson is a better title than the confirmation of Saugrain, because said entry is protected by the second section of the act of the 4th of July, 1836, and consequently the court ought to have given the second instruction prayed for by the defendants below. 2nd. Because there was no evidence in the cause to show that the land in dispute was within Saugrain's grant of confirmation. 3rd. There was no evidence that Saugrain's claim was ever located or surveyed under the Spanish government, or the government of the United States, prior to Matson's entry, and if not located or surveyed, it could not be reserved from sale. 4th. It appears from the minutes of the board of commissioners to which the claim of Saugrain was presented in 1806, that surveys were presented to that board; one for 4,006 arpents on the Missouri, and one for 300 arpents on the Mississippi. The tabular statement shows that surveys had been made--one for 7,000 arpents, and two for 3,000 each; this would make only 13,000. The plat of survey offered in evidence does not correspond either in quantity or location with any of the above surveys. The grant gives the land as prayed for, and the petition prays for 20,000 arpents--4,000 to be taken four miles south west of the river Mississippi, 57 miles from St. Louis--10,000 to be taken in a vacant place at the petitioner's choice, and the remainder in two tracts of 3,000 each. These have no correspondence with the surveys mentioned in the minutes of the board, nor do either of them correspond with the plat offered in evidence. The land in controversy is more than 100 miles from St. Louis. The plat given in evidence does not purport to be a copy of a Spanish survey. There is no proof in the record that any part of Saugrain's grant was ever located in Ralls county, or in fact, that it was ever located until after Matson's entry. As to the plaintiff's claim to recover, on the ground that defendants were their tenants, the defendants say: 1st. The letters from Matson to VonPhul show that there was an agreement of some sort between them, in relation to land of VonPhul's, but not of Saugrain's. There is no evidence that the land mentioned in the letters was land claimed by Saugrain. There is no evidence that the land mentioned in the letters was the land now in controversy, or that Richard Matson was ever in possession of it, or of any land after 1825. There is no evidence that the administrators of Matson derived their possession from Matson, or that they had any authority to lease the land.

GLOVER, CAMPBELL & ANDERSON, for Defendant. 1st. The confirmation to Saugrain by act of July 4th, 1836, was the better title, as has been repeatedly decided by the Supreme Court of the United States. The whole of the surveys are set down in the tabular statement and must have been before the board of commissioners, though the statement in the minutes is not so full as the tabular statement. 2nd. The plaintiffs showed the only legal title before the court which ever emanated from the United States. The confirmation, if not as meritorious in equity as the entry was still a legal title, and rightly prevailed over the entry, no matter when it was surveyed. 3rd. The defendant, Matson, and all persons claiming under him, being in by a lease from the plaintiffs, was estopped to deny them title. 4th. The entry of defendant was fraud of the plaintiffs' rights. That fraud clothed him and his assignees with a trust for the plaintiffs, and he and they were barred against sitting any adverse rights against the plaintiffs.

NAPTON, J.

This is an action of ejectment to recover a tract of land in Ralls county. The plaintiffs, VonPhul and others, heirs of A. Saugrain, relied upon a confirmation by the act of Congress of July 4, 1836, of a claim by their ansestor in 1797, to 20,000 arpents of land.

In 1806 their claim was presented to the old board of commissioners, accompanied with two surveys, one of 4,006 arpents, certified in 1804; and the other of 3,000 arpents, dated January 7, and certified February 15, 1804. In 1810 the claim was rejected. In 1833, the new board took up this claim, and three plats of survey were. produced, one for 7,000 arpents and the two others for 3,000 arpents each. These surveys, as the minutes state, were proved to have been made in 1806 by Fremon Delauriere, the deputy surveyor. They were recommended for confirmation.

The plaintiff then produced a series of letters containing a correspondence between Richard Matson, under whom the defendants held, and H. VonPhul, one of the heirs of Saugrain and the authorized agent of the others, extending through a series of years from 1820 to 1824 or 5. The object of this testimony was to show that Matson got possession of the land as the tenant of VonPhul, and during this tenancy entered the land at the land-office. The testimony of some witnesses was also given on this point, and a caveat entered at the general land-office by VonPhul against the issuance of a patent, was also read.

The plaintiffs produced a survey dated January 17, 1839. The defendant introduced Mr. Carson, who had been register of the land-office in 1827, and he testified that in that...