Wood v. Nortman

• Decision Date: 31 October 1884
• Citation: 85 Mo. 298
• Parties: WOOD v. NORTMAN, Plaintiff in Error.
• Court: Missouri Supreme Court

85 Mo. 298

WOOD

v.NORTMAN, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1884.

Error to Jefferson Circuit Court.--HON. L. F. DINNING, Judge.

AFFIRMED.

T. C. Fletcher and D. T. Jewett for plaintiff in error.

(1) The evidence offered by plaintiff was insufficient to make out a confirmation under the act of congress of July 4, 1836, because the act itself was not put in evidence, and the act is the confirmation, and is the only evidence of title from the United States. (2) Even if the act had been offered in evidence, there was not made a case such as would give it operation to confirm the land in controversy. Ashley v. Cramer, 7 Mo. 98; Landis v. Perkins, 12 Mo. 255. (3) It was error to admit in evidence the proceedings in the partition suit among the Douchouquette heirs. There was no final judgment of partition, or approval, of the sale by the sheriff of tracts numbers 103 and 104. No authority was shown to make a deed. Maeklat v. Debruil, 9 Mo. 491. (4) The evidence showing, as set up in the answer, that the land in controversy was in possession of Augustine adverse to Wood, since 1864, or 1865, and of the defendant's tenant, one Newman, and that the defendant had never been in actual possession, and Newman, not being a party to the suit, it was error to give judgment against defendant for possession. (5) It was error to admit the transcript of the record of the case tried in St. Louis on October 1, 1877, because it was not a suit between the same parties as in this cause, nor for the same cause of action. The suit tried in St. Louis was for the possession of eighty-seven acres, being the whole of lots or tracts numbers 103 and 104, and the petition in the suit at bar describes the whole of both of said tracts without alleging any number of acres, but a judgment is given for only thirty-seven and a half acres. A non-suit could not be taken after the cause was submitted to the court sitting as a jury. Benoist v. Murrin, 48 Mo. 48; 1 R. S. Mo., sec. 3556; certainly not after judgment; Templeton v. Wolf, 19 Mo. 101; Hess v. State Mut.Ins. Co., 21 Mo. 98. (6) The defence of the statute of limitations was well taken. Angell on Limitations (6 Ed.) sec. 328; Harris v. Dennis, 1 S. & R. 236.

Crews & Booth for defendant in error.

(1) The evidence of the confirmation was complete. The act of congress of July 4, 1836, was a public act. Bryan v. Ware, 4 Mo. 106; Ott v. Sanders, 9 Mo. 581; Biehler v. Coonce, 9 Mo. 347; Boyce v. Papin, 11 Mo. 16; Page v. Scherbel, 11 Mo. 167; McGill v. Somers, 15 Mo. 80; Gamache v. Pignignot, 17 Mo. 310; Papin v. Ryan, 32 Mo. 21. Our courts take judicial notice of acts of congress. State v. Moseley, 38 Mo. 380; Wilhelmi v. Wade, 65 Mo. 39. (2) The certified copy of survey number 3030, from the office of the register of lands of Missouri, was competent evidence. R. S., sec. 2280. (3) The objection that the defendant was not in possession of the premises sued for, is not well taken. (4) The bringing of the original action, the taking of the non-suit therein, and the commencement and prosecution of this suit, under the statute of Missouri, made the present suit in effect a continuation of the first, and prevents the running of the statute of limitations. Lottman v. Barnett, 62 Mo. 159.

NORTON, J.

This suit by ejectment was instituted in the circuit court of Jefferson county to recover possession of part of lots 103 and 104, particularly described in the petition. The answer, besides being a general as well as a specific denial of the averments of the petition, also set up the statute of limitations as a bar to plaintiff's right of action. Plaintiff recovered judgment, and defendant brings the same before us on writ of error.

Plaintiff, on the trial, undertook to derive title through one Baptiste Douchouquette, to whom Charles Dehoult Delassus, lieutenant-governor of the Spanish province of Upper Louisiana, had, on the thirtieth day of December, 1800, granted lands, including that in controversy, which grant it was claimed had been transferred to said Douchouquette and his heirs by act of congress, approved July 4, 1836, entitled “An act confirming claims to land in the state of Missouri, and for other purposes.” The bill of exception states that plaintiff, to sustain the issues on his part, offered to read from volume seven, American State Papers, on pages 906 and 907, to the claim of Douchouquette as follows, and it is there stated that this volume was borrowed and carried back by plaintiff. The evidence was objected to on the ground that it was incompetent to show a grant or confirmation, or for any purpose of the suit; the objection was overruled, and this action of the court is assigned for error. The evidence is not preserved in the bill of exceptions, and in the absence of it we must indulge the presumption that the ruling of the trial court was correct. The object of introducing this evidence was to show that it embraced the report of the board of commissioners authorized by the act of congress of July 9, 1832, and March 2, 1833, recommending the confirmation of the grant or concession to Douchouquette, or his legal representatives, and that when this was shown, the title of the United States, by virtue of the act of congress of July 4, 1836, passed to Douchouquette, or his legal representatives.

The contention made, that it was necessary to put in evidence the said act of 1836, is answered by the case of Papin v. Ryan and Walker, 32 Mo. 21, where it was held that said act was a public act, and that the courts would take judicial notice of it as such.

The plaintiff next put in evidence a copy of survey 3030; certified to by J. E. McHenry, register of lands for this state, as being on file in his office. This was objected to on the ground that it was inadmissible until the confirmation was shown. The objection was overruled, and we think properly, as by section 2280, Revised Statutes, it is provided that such copies shall be receivable in evidence, and because, as before stated, we have a right to presume that the court admitted the evidence read from the seventh volume, American State Papers (which is not preserved in the bill of exceptions), because it showed that the board of commissioners had recommended to congress the confirmation of the grant on concession to Douchouquette, and his legal representatives. What is here said applies to other objections made to other certified copies of letters on file in the register's office, also offered in evidence, and we deem it unnecessary to notice them more specifically.

Plaintiff then offered the proceedings in a partition suit instituted by the heirs and representatives of Douchouquette for the partition of a large quantity of land, showing the judgment of partition, the appointment of commissioners to make it, their report, in which they make partition in kind of a large portion of it, and report certain other portions not being susceptible of division, the tract in question being included, which report was received and approved, and an order made directing the sale of that portion not susceptible of division for partition, and an order showing approval of sales made. Objection was made to this evidence on the ground that the record did not show that the report of the commissioners was confirmed, nor did it show a report of sales made by the sheriff. The record shows that the report of the commissioners was approved and confirmed, and also an order of sale. While no report of sale was offered in evidence, the record shows that the sheriff was ordered to sell at the April term, 1857. And it further shows that at the term, on the twentieth day of April, 1857, an order was made to the effect that the court approved the sales made by the sheriff of Franklin county, for partition upon the petition of partition filed by Honore Picotte and wife et al., filed April 20, 1857, numbered one, two, three, four, five and six. This, we think, was sufficient to justify the court in overruling the objections and receiving the evidence. See Jones v. Manly, 58 Mo. 559.

The plaintiff next put in evidence a deed of the sheriff, reciting partition proceeding, order of sale, and all other recitals necessary to its validity,...