Widow & Heirs of James Mackay v. Dillon

• Decision Date: 31 May 1841
• Citation: 7 Mo. 7
• Parties: WIDOW AND HEIRS OF JAMES MACKAY v. P M. DILLON.
• Court: Missouri Supreme Court

7 Mo. 7

WIDOW AND HEIRS OF JAMES MACKAY

v.P M. DILLON.

Supreme Court of Missouri.

May Term, 1841.

ERROR TO THE CIRCUIT COURT OF ST. CHARLES COUNTY.

LAWLESS, for Plaintiffs. It will be contended on behalf of plaintiffs, that the court erred in instructing the jury that the claim of the inhabitants of the town of St. Louis was confirmed to the exclusion and extinction of the title of James Mackay. It will be contended that the court did not err in excluding the sheriff's deed to Frederick Dent. It will also be contended that the Circuit Court did err in admitting the proceedings before the commissioners on the claim of commons, to be read in evidence against the plaintiffs. As to the error of the court below in its instruction with reference to the city title, the plaintiffs will rely on the treaty of cession--the law of nations-- the divers acts of Congress from 1815, to 4th July, 1836, to show the validity and inviolability of the title of plaintiffs under James Mackay, their ancestor. The plaintiffs will rely on the act of 13th June, 1812, § 1, and on the nature of the claim and title to commons here set up, to show that that act did not, in terms or in spirit, confirm the claim of 14,000 acres, made by certain inhabitants, and at their request surveyed by Mackay in 1806. See Lawless v. Newman, 6 Mo. R. 279. As to the sheriff's deed to Frederick Dent, the plaintiffs will contend that it conveyed no land whatever to Dent; that it was totally void, because, among other reasons: 1st. Of the uncertainty of description. See 8 Johns. R. 520; 13 Johns. R. 537; ibid. 340; ibid. 37, 577. 2nd. Because the executors of Mackay had no estate or interest in the land in question in their hands to be administered. 3rd. That their testator, James Mackay, had no estate or interest in the land that could be conveyed by him, either as a legal estate or a trust estate, or right in equity to land, or which could be the subject matter of the lien of a judgment against either him or his executors, at the date of the judgment rendered in favor of J. & B. Pratte, which could be levied on or sold under execution.

GAMBLE, for Defendant in Error. 1. That there was here a claim to commons, as originating under the Spanish government, presented before the proper tribunals of the American government for adjudication, and upon which the government of the United States itself passed, by the act of 13th June, 1812. 2 Story's Laws U. S. 1259. 2. That the claim to commons did not require that there should by any grant of commons in the sense in which the word grant is understood, when applied to the claim of an individual; but any dedication to public use, any user of the property as commons, any recognition of the existence of such right of common by the competent authority of the country, or acknowledgment of the existence of such commons, or reservation, for such use, is a good basis of such claim, under either common or Spanish law. 10 Peters, United States v. The City of New Orleans; 12 Peters, Strother v. Lucas, in the notice to the opinion of the court. 3. That the claim for commons as made, was upon a recognition of the existence of commons under the Spanish government, by the Lieutenant-Governor, who signed and approved the regulations adopted in relation to the commons, by the Syndics of St. Louis; and whether the claim calls the act of the Lieutenant-Governor a decree, or uses any other name, it is equally available. 4. That the right of common was under the Spanish government at least as meritorious as the claim of the land by an individual; and if it has been confirmed by the government of United States its merit has been abundantly recognized 5. That the claim to common as filed before the board, with the survey made by Mackay, was a claim to all the land within the exterior boundary of that survey, notwithstanding the pretensions of Mackay and others were laid down. The correctness of this position is shown by examining the claim for a specific quantity of land, and the survey whose exterior boundary embraces that quantity. 6. That the confirmation by the act of 13th June, 1812, was a confirmation of the claim as exhibited before the board. 7. That such confirmation was equivalent to, and was a grant. Strother v. Lucas, above. 8. That such confirmation, made by act of Congress, being a valid title to support and defend actions of ejectment, is a better legal title than any younger confirmation, whether by act of Congress or otherwise. See statute upon Action of Ejectment. 9. That if there had been any pretension to the land remaining in Mackay, after act of 13th June, 1812, that pretension was utterly extinguished by force of the act of 26th May, 1824. 3 Story, 1959, §§ 5, 7; and the title of commons had no shadow upon it. 10. That the fact of confirmation under act of 4th July, 1836, gives no authority to courts or individuals, to draw in question the correctness of the action of the sovereignty in confirming by act of 13th June, 1812.

NAPTON, J.

This was an action of ejectment brought by the plaintiffs to recover a tract of land lying south of the city of St. Louis. The plaintiff claimed title under a concession to him of about two hundred arpents, by metes and bounds, made by Charles Dehault Delassus, in 1799; a survey made by Soulard of 288 arpents, in 1802; reported for confirmation by the last board of commissioners, and confirmed by the act of July 4th, 1836. The first board of commissioners expressed an unfavorable opinion of this claim, intimating that it was ante dated. In 1813, the recorder confirmed thirty arpents of the claim being all not included within the limits, or supposed limits of the commons; that being abandoned by Mackay's agent. In 1833, the last board of commissioners, after an examination of the claim and testimony relating thereto, pronounce it a good one, and recommend it for confirmation, which was accordingly effected by the act July 4th, 1836. Two separate and distinct titles were relied on in defense. The defendant first claimed under a judgment and execution against the executor and executrix of James Mackay, and a sheriff's sale and deed.

Secondly, defendant claimed under the confirmation of the commons of the town of St. Louis, by act of 13th June, 1812, and conveyance from the city authorities of St. Louis. The title to the commons was as follows:--A claim for 4293 arpents, situate adoining the town of St. Louis, known by the name of the St. Louis commons, and said to have been granted by a decree of the Lieut.-Governor Cruzat, in 1782, was filed in the office of the recorder. At the same time was filed a document containing the proceedings of certain inhabitants of St. Louis, for the appointment of Syndics, who had authority to regulate the police of the village and the inclosure of its commons. These Syndics, on the 22nd September, 1782, with the approbation of the Lieut.-Governor, proceeded to establish certain regulations concerning the inclosure of the commons, and these regulations were signed by the said Syndics, and the Lieutenant-Governor himself. A survey of the common was made by James Mackay, in 1806, at the request of the principal inhabitants; in the notes of which survey, Mackay states it to contain 4293 arpents; and that, by the request of the inhabitants, he had marked down the pretensions of six individuals to lands within the commons, including his own. In 1806, the claim was submitted to the board, and they reported it to be equitable under the Spanish usages. In 1812, a majority of the commissioners rejected the claim. On the 13th June, 1812, the act of Congress was passed, by which the claim of St. Louis, and several other villages to commons, was supposed to be confirmed.

Evidence was taken before the...