author: Scott, Judge,

text:
    City of Carondelet, Respondent, v. Desnoyer’s Administrator, Appellant.
    1. Where a judgment is rendered against a person in his lifetime it need not bo allowed as a demand against his estate; a transcript of the judgment may bo filed in the probate court and the court should determine its class.
    2. A covenant not to sue one of several persons jointly liable will not discharge the others.

      Appeal from St. Louis Circuit Court.

    The city of Carondelet recovered two judgments in the St. Louis circuit court — one for $366.66 against John F. Barada as principal, and Alexander Desnoyer and Etienne Hebert as sureties, on an official bond executed by them — the other judgment being for $1263.64, against said Barada as principal, and Alexander Desnoyer and Antoine Chouquette as securities, on another official bond. On the 30th of January, 1856, the council of the city of Carondelet passed an ordinance authorizing the mayor of the city “ to accept from Antoine Chouquette, one of the sureties of John E. Barada, one-half of the amount of the judgment recovered against Barada and his sureties; and on payment of said sum the mayor shall make and deliver to Chouquette a proper deed of assurance, agreeing on the part of the city not to institute or prosecute any further suit or proceeding against Chouquette on his bond of suretisliip for said Barada, or the judgment already recovered ; the said agreement to be without prejudice of the right of the city to prosecute and collect of said Barada and his other surety the remainder of what may be due on said bond and judgment.”
    Chouquette paid one-half of the judgment in question, and the mayor of the city of Carohdelet executed in his favor a deed c>f covenant, under the seal of the corporation, substantially following the language'of the above ordinance. At the December term, of the St. Louis probate court the city of Carondelet presented a demand against the estate of Alexander Desnoyer, based upon the two judgments above mentioned, claiming the whole of the first judgment and one-half of the second judgment. The probate court allowed plaintiff’s demand on the first judgment, and refused to allow the same upon the second judgment. Plaintiff appealed to the circuit court. Before the hearing of the cause the defendant moved the court to dismiss the cause on the ground of a misjoin-der of two distinct causes 'of action. The motion was overruled.
    Defendant asked the courtto declare the law to be, that by operation of said ordinance and deed of covenant the said Alex. Desnoyer and his estate were released from all liabilities on account of the judgment and bond in said ordinance and deed of covenant mentioned. The court refused so to declare the law, but, on motion of plaintiff, declared the law to be, that said ordinance and deed of covenant 'did not operate as a release of Alexander Desnoyer; whereupon the court found for the plaintiff in the sum of $1084.49.
    Taussig, for appellant.
    I. The plaintiff improperly joined two different and distinct causes of action in one suit.
    II. A covenant never to sue operates as a release of the covenantee. (2 Pars, on Contr. 219; Reed v. Shaw, 1 Blackf. 245 ; Cuyler v. Cuyler, 2 Johns. 186; 2 Vm. Saund. 47, notes.) The ordinance and deed of covenant are stronger than a mere covenant not to sue. The city had already obtained judgment. (See 1 Pars, on Contr. 28 ; 2 Poll. Abr. 412, G-.; 2 Salk. 574; Millikan v. Brown, 1 Rawle, 391.) The release of Chouquette operated as a release of Desnoyer.

      Casselberry, for respondent,
    cited 7 Johns. 207 ; 4 Greenl. 421; 2 Dana, 107 ; 19 Wend. 129 ; 2 Johns. 448 ; 6 Taunt. 289 ; 1 Marsh. 603.
   Scott, Judge,

delivered the opinion of the court.

The proceeding in this case is irregular. The city of Carondelet recovered two judgments against Alexander Des-noyer as security for John F. Barada on two of his official bonds. The securities in one bond were Alexander Desnoyer and Etienne Hebert, and in the other Alexander Desnoyer and Antoine Chouquette. The city blended these two judgments in one and presented them as a claim against the estate of Desnoyer as an original demand which had never been allowed, and a judgment was given against it for the demand in its new shape.

These being judgments rendered against Desnoyer in his lifetime, there was no necessity for having them allowed again. All that was required on the part of the city was to file in the probate court transcripts of the judgments obtained in the circuit court in order to have them classed and paid as other demands allowed against the estate. (R. C. 1855, secs. 26 and 27, p. 156.) By treating these judgments as the foundation of an original claim, they lose their class, for, being made the foundation of a new judgment, they could no longer be regarded as judgments rendered against the deceased in his lifetime, but must be looked upon as any other claim that has not been allowed, and a new judgment is entered upon it which will be placed in a lower class than that occupied by judgments rendered against the deceased in his lifetime. By jumbling separate judgments in this way the interests of separate sets of securities are confounded, and it will become a matter of difficulty to settle and adjust their rights.

The agreement between the city and Chouquette did not affect Desnoyer. It will be time for him to complain when Carondelet does any thing affecting his rights injuriously as a surety. The agreement with Chouquette did not release or discharge the judgment. So far as Desnoyer was concerned it only operated as the endorsement of satisfaction to the amount paid by Chouquette. (Bryan v. Mundy’s Adm’r, 14 Mo. 462.)

The other judges concurring, the judgment will be reversed.


source: Caselaw Access Project

author: Richardson, Judge,

license: Public Domain

text:
    Blakey, Respondent, v. Blakey, Appellant.
    1. Where a builder contracts to build a house, he can hare no lien for services rendered in superintending his own workmen.

      Appeal from St. Louis Land Court.

      Bay, for appellant.

      A. W. Lewis, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

This suit was brought to enforce a mechanic’s lien for work done and materials furnished in building a house for the defendant. The plaintiff in his petition asks judgment for a balance alleged to be due to him, but he does not say whether the house was built under , a special contract, or whether he sought to recover on a quantum meruit. The account annexed to the petition contains various items for materials aiid for work done by different carpenters for a certain number of days, at two dollars and a half per day for each hand, and also this item: “ To 114 days’ services of self, in working and superintending building from May 1st up to 23d December, 1856, at $3 per day — $342.”

The evidence is very indefinite and unsatisfactory not only as to the value of the work and materials, but also as to the nature of the plaintiff’s undertaking. It appears, however, that the workmen were employed by the plaintiff as his hands, and that, instead of charging a given sum for the work, he charged the defendant two dollars and fifty cents for every day each workman was engaged,, though he did not pay any of them that much. If the plaintiff contracted to build the house for a certain price, or for whatever the job might be' worth, it is difficult to understand on what principle he could charge the defendant for superintending his own hands; and if he undertook to employ workmen for the defendant and to superintend them, he ought not to be paid for services as superintendent and to speculate at the same time on the wages of the workmen. The law gives the mechanic, builder, artisan, workman, laborer, or other person, who may do or perform any work upon or furnish materials for any building, a lien on the same to secure the payment of the work done or materials furnished; but it has no such elastic power as is claimed for it in this case, and it can not be stretched to cover, besides the value of the work done and materials furnished, a claim for services performed by the builder for himself in superintending his own workmen.

The defendant asked the court to instruct “that the plaintiff is not entitled to recover in this action for superintending the work in the building but the instruction was refused, and for that reason the judgment will be reversed and the cause remanded.

The other judges concur.


text:
    McAllister, Defendant in Error, v. Dennin et al., Plaintiffs in Error.
    1. A release of one of several joint obligors discharges all; to have this effect, however, it must bo a technical release under seal.

      Error to St. Louis Comb of Common Pleas.

    Roger C. McAllister and Thomas O’Elaherty, partners, obtained a judgment against John Lowrie, Patrick Dennin, and David E. Rees, for the sum of $2100.94. On the 23d of December, 1856, McAllister, acting for himself and as the administrator of his deceased partner O’Flaherty, executed in favor-of John Lowrie the following instrument: “Received, St. Louis, December 23, 1856, from John Lowrie, five hundred dollars, which is in full of all demands now existing against him and in our favor, and especially in full satisfaction of, and we do hereby fully and absolutely release said John Lowrie from, all liability whatsoever, either as debt, damages or costs, by virtue of a certain judgment rendered by the St. Louis court of common pleas in a certain cause wherein we, the undersigned, Roger 0. McAllister and Thomas O’Flaherty are plaintiffs, and Patrick Dennin, David E. Rees and said John Lowrie are defendants, on the 21st day of March, A. D. 1850, for $2100.94, the said cause being numbered 41 to the September term, 1849, “ Returnsand it is especially understood and agreed upon that this receipt and release is not to work a release of any of the other defendants in said cause, but only the said John Lowrie. The writer would merely state that McAllister and O’Flaherty obtained a judgment several years since, in the St. Louis court of common pleas, against John Lowrie, David E. Rees and Patrick Dennin for balance due by steamer Belmont and owners. .We have no other judgment against John Lowrie; and for the sum of five hundred dollars we hereby release the said John Lowrie from all claim, liability or demand for the said judgment (but not any of the others) and in full of all and every claim and demand up to the present date against the said John Lowrie. [Signed] Roger C. McAllister, and R. C. McAllister, administrator of the estate of Thomas O’Fla-herty, deceased.”
    Dennin and Rees moved the court to enter satisfaction of the judgment above mentionéd. This was made upon the above instrument. The court overruled the motion.

      H. N. Hart, for plaintiffs in error.

      Hudson & Thomas, for defendant in error.
    I. A release without consideration and not under seal is void. (Seymour v. Minturn, 17 Johns. 169 ; Jackson v. Stackhouse, 1 Cow. 122.) The debtor only paid a part of a judgment, the whole of which he was liable for. A release not under seal of one of several covenants will not discharge the co-covenanters. (9 Wend. 336 ; Seely v. Spencer, 3 Verm. 334; Rowley v. Stoddard, 7 Johns. 207 ; Shotwell v. Miller, Coxe, 81; Andrews v. Andrews, 1 Root, 72.) Even a technical release will be construed according to the intention of the parties, and will not operate as a release unless that intention appears from the face of the instrument.. (7 Com. Dig. 222, tit. Release; 6 Bac. Abr. 635.)
   Richardson, Judge,

delivered the opinion of the court.

The receipt on which the motion was grounded shows that only five hundred dollars, less than one-third of the amount of the judgment, has been paid, and that the defendants did not intend to release the residue of the judgment. The question then is, whether this instrument of writing without a seal operates as an extinguishment of the whole judgment, against the manifest intention of the parties to it and in the face of the fact that only a portion of the debt has been paid, and that too by neither of the plaintiffs.

It is an undoubted rule of law that a release to one of several obligors discharges the others; but an instrument of writing that has this effect, and that can be taken advantage of by the others as a discharge, must be a technical release under seal. (Rowley v. Stoddard, 7 John. 267; Seymour v. Minturn, 17 Johns. 170; Jackson v. Stackhouse, 1 Cow. 122; Dozing v. Bailey, 9 Wend. 336; Seely et al. v. Spencer, 3 Verm. 334; Baily v. Day, 26 Maine, 88; Shaw v. Pratt, 22 Pick. 305; Gibson v. Weier, 1 J. J. Marsh. 446.) The principle is too well established to be debatable, and it is unnecessary to discuss the reason on which it is founded or to review the authorities that support it.

The judgment is affirmed ;

the other judges concurring.


text:
    In the Matter of Milton Duty’s Estate.
    1. Although an appeal "will lie from an order of a probate court revoking letters of administration, yet, -where the revocation is made for the reason that a will had been found and admitted to probate, the circuit court can not on such appeal inquire into the sufficiency of the proof upon -which the probate court acted in granting probate of the will.
    2. The validity of a will duly proven can be contested only in a proceeding instituted for that purpose under section 30 of the act concerning wills (R. C. 1845, p. 1083; R. C. 1855, p. 1571, sec. 30); an appeal will not lie from an order of a probate court granting probate of a will.

      Appeal from Si. Louis Circuit Court.

    On the 22d day of June, A. D. 1850, letters of administration were granted to Thomas Harney upon the estate of Milton Duty. On the 5th of March, 1856, the probate court revoked the letters for the reason that a will was produced and admitted to probate. Harney appealed from the judgment of the court revoking hi&letters. The circuit court, on appeal, rendered its judgment revoking said letters, and from that judgment Harney has appealed to this court. The will provided for the manumission of certain slaves, who, by their counsel, appeared and contended for the revocation of said letters and the establishment of the will.. At the trial below, there was offered in evidence, in their behalf, a transcript of the will and of the judgment, of the probate court admitting the same to probate. Said transcript also contained the evidence upon which the will was admitted to probate, and the said Harney, by his counsel, objected to the admission of the said transcript of said will and judgment, unless the evidence aforesaid were offered in connexion therewith; but the court overruled said objection and the appellant excepted to said ruling. The appellant then offered his letters of administration in evidence. This was all the testimony.
    The court was asked to declare the law to be, that upon the evidence the court should find for the appellant; which declaration the court refused to make. The court rendered its judgment revoking said letters as aforesaid.

      Krum & Harding, for appellant.
    I. An appeal for an order revoking letters of administration is expressly granted by statute. (N. C. 1845, p. 106, § 3.) It was the duty of the circuit court to bear and determine the cause anew. (Id. p. 107.) This was not done; on the contrary, the circuit court refused to try the cause anew. The production of a will was not sufficient to authorize a revocation of letters of administration. (Id. 67.) Not only must there be a will but probate thereof must be granted before an order can be made to revoke letters of administration previously granted. Whether the will in this case was duly admitted to probate,'that is, duly proved by competent testimony, was the very question that was involved in the decision or order of the probate court that was appealed from. The circuit court assumed that there was a will, and that its production, whether proved or not, was sufficient to justify a revocation of the appellant’s letters. This in effect is making the mere fiat of the probate court in revoking letters cohclusive. The circuit court, on being possessed of the cause, should have heard the proofs, that is, the testimony which the law requires to establish a will, and then decided whether this was Milton Duty’s will or not; for upon that decision depended the question whether Harney’s letters were lawfully revoked.

      Hart and Biddlecome, for Jordan and others.
    I. It was not competent for the circuit court, on the appeal, to inquire into the sufficiency or competency of the evidence upon which the probate was granted.
   Richardson, Judge,

delivered the opinion of the court.

The administration act of 1845 provides that if, after letters of administration are granted, a will of the deceased be found and probate thereof granted, the letters shall be revoked and letters testamentary, &c., shall be granted; and though the same statute gives the right of appeal from the county to tlie circuit court on orders revoking letters testamentary or of administration, the jurisdiction which the circuit court acquires on the appeal does not draw to itself the right to inquire into the character or sufficiency of the proof on which the county court acted in granting probate of the will.

An appeal will not lie from the judgment of the county court admitting a will to probate, and the 31st section of the act concerning wills prescribes the only mode by which the judgment of the county court- in rejecting or admitting a will to probate can be inquired into. The appellant could have opposed and contested, in the probate court, the validity of the will, or the sufficiency of the proof on which it was proposed to admit it to probate ; but, after it was established, the probate thereof was conclusive in a collateral proceeding, and, the will having been found and probated, the revocation of the letters of administration, which had been previously granted, followed by operation of law. The circuit court, on the appeal from the order revoking the appellant’s letters of administration, could not go behind the judgment of the probate court granting probate of the will; and the only questions which the appeal carried up were, not whether the proof was sufficient to authorize the probate of the will, but whether a will of the deceased had been found and probate thereof granted.

The other judges concurring, the judgment will be affirmed.


author: Richardson, Judge

text:
    Dannefelser, Appellant, v. Weigel, Respondent.
    1. Whore a party to a suit, through no negligence on his part, but through reliance upon the promises of a notary before •whom a deposition is being taken, and of the opposing counsel, is prevented from cross-examining the witness, the deposition should be suppressed.
    2. Where the delivery of a chattel is conditional, the property will not vest until the condition is performed, or the performance thereof is waived.

      Appeal from Si. Louis Court of Common Pleas.

      Spies & Burt, for appellant.
    Kribben, for respondent.
   Richardson, Judge

delivered the opinion of the court.

In our opinion, the court ought to have sustained the plaintiffs motion to suppress the deposition of Louisa Bollet.

The inattention and negligence of attorneys ought not to be encouraged or countenanced; but in this case Mr. Spies was not guilty of either, but acted under an emergency and on assurances that would have lulled the most prudent man into security. It appears from his affidavit that he attended for his client on the day and hour and at the place appointed by the defendant in his notice for taking depositions ; that he found there the notary, the witness, the defendant and Mr. Kribben his attorney, and that as his wife, who was an invalid and was about to leave the city for her health, required his attention for a little while, he requested the notary and Mr. Kribben not to delay taking the deposition, but to detain the witness for an hour that he might cross-examine her on his return. They promised to do as he had requested, and on the faith of their promise he went away, but returned within an hour, and, as he believes, in about’ half an hour, when he found that the witness had given her deposition and left. The sudden leaving of the witness was explained by the statement that she was in a hurry ; but the notary and the plaintiff’s attorney promised that she should be at the office again that day at five o’clock, at which time he attended, but she was not there, and the promise was renewed that she should be there the next day at the same hour. ILe again attended the next day at the appointed time, but the witness was still absent; when another appointment was made, with the like result, at which time he was informed that they could not procure her attendance for the reason that she had left the city the day before to reside in Illinois.

No blame is attached to Mr. Kribben in this transaction, for his promise was no doubt made in good faith and dictated by a proper professional courtesy, and he manifested every disposition to redeem it. But his client was present and heard the request and promise ; the witness was at that time in his employment and an inmate of his family, and as she did not leave the city until several days after her deposition was taken, it is hardly probable that ho could not have secured her presence again before the notary in order to be cross-examined by the plaintiff.

The evidence of G-amnitz, a workman in the employ of plaintiff, if it does not show that he had no authority to deliver the buggy, clearly shows that it was a conditional delivery ; and in that case the title did not vest in the defendant until he had performed the condition, unless the plaintiff subsequently waived it. If property is sold without credit on the condition that it shall be paid for, though it is delivered, the sale is conditional, and the title will not pass as between the original parties. (2 Kent, 496 ; Story on Sales, § 313.) The first instruction asked by the plaintiff and refused ought to have been given with the qualification unless the jury should find that the plaintiff waived the condition.” If the defendant obtained possession of the buggy on consideration and on the promise that he would pay for it, and there was no agreement for credit, the plaintiff’s right to retake it did not depend on the motives of the defendant at the time of the delivery, if the conditions were not afterwards complied with. For the purchaser, to whom property is delivered coxx-pled xvitli the condition that he will pay for it, will bo guilty of a fraxid if he afterwards attempts to keep it witlioxxt paying, although he intended to pay at the time he got it. The instructions therefore are erroneous which imply that it was necessary to show that the defendant obtained possession of the buggy with the intention never to pay for it, or that he procured the delivery thereof by a trick or contrivance.

The judgment will be reversed and the caxxse remanded ;

the other judges concurring.


author: Napton, Judge,

text:
    Dessaunier et al., Appellants, v. Murphy, Respondent.
    1. The doctrine of presuming conveyances rests mainly upon long and uninterrupted possession in the owners of the title in favor of which the presumption is indulged; if this possession he had, not under the title in favor of which such a presumption is invoked, but under another title not shown to be owned by the person so invoking it, a conveyance will not be presumed to supply the defect.

      Appeal from St. Louis Land Court.

    This case has heretofore been before the supreme court. For the report of the decision of -the supreme court see Des-saunier v. Murphy, 22 Mo. 95. In addition to the facts in evidence on the former trial, Henry W. Williams was examined as a witness in behalf of defendant. He testified that since 1846, his business had been that of an investigator of titles to real estate in St. Louis; that during that time he had taken abstracts of all the archives and a large portion of the deeds in the office of the recorder; that he had met with references to judicial sales of which he could find no evidence except recitals in deeds. The plaintiff also introduced in evidence various deeds showing that A. L. Langham had acquired a portion of the Bizette title previous to 1818; also other evidence tending to show that Langham claimed title through Bizette.
    The plaintiff requested the court to instruct the jury as follows: “ The land in dispute was confirmed by act of Congress of the 29th of April, 1816, to be surveyed to the legal representatives of William Bizette; and if the jury find from the evidence that said land was purchased by Charles Bizette on the 18th of February, 1775, and that Charles Bizette died leaving three children his heirs, and that Louis Boissy married one of the daughters of said Charles Bizette, and that Boissy died leaving only five children his heirs; and that Emily Dessaunier and Louise Dcroin, two of the plaintiffs, were children of said Boissy, and that Paschall Mallett, Louis Mallett, Francis Mallett, Charles Mallett, and Mallia Mallett, and Maria L'onise Deroin, tlie other plaintiffs, are the children of Margaret Boissy, the daughter of said Louise Boissy and Paschall Mallett .her husband, and that said Margaret and her husband are dead, then the jury will find in favor of the plaintiff for three-thirtieths or one-tenth part of the land sued for.” This instruction the court gave, having added to it the following clause : “ Unless the jury find for the defendant under the instruction given for defendant.”
    The court, at the instance of the defendant, gave the following instruction: “ If the jury believe from the evidence that after the death of Charles Bizette and before October 12, 1782, the land in controversy in this suit was sold to Joseph Brazeau as a part of the estate of said Bizette, under the authority of the government then in power in the county of St. Louis, they should find for the defendant. Such an authorized sale may be-shown by circumstantial and indirect, evidence as well,as by direct evidence.”
    The jury found for defendant.

      N. D. & G. P. Strong, and Morehead, for appellants.
    I. The copy of the receipt should have been excluded. It does not purport to be an original but a copy. It does not describe any particular piece of land. There were three pieces of land mentioned as belonging to the estate of Charles Bizette. It does not purport to have been given to Joseph Brazeau. It does not purport that the money was paid at all. It simply discharges Brazeau. It does not purport to be for land of Charles Bizette. It is signed simply “ mark of ¡xj Provenchere,” without designating John B. Proven-chere, and without the attestation of a witness or acknowledgment. Having this want of authenticity, being signed by an illiterate man, if signed at all, it speaks of dollars, a currency then utterly unknown in Missouri. It was irrelevant; it proves nothing. It derives no assistance from the face of the deed. The deed does not state when the money was paid. The deed is professedly founded on the receipt. Thirty years had elapsed since the assumed date of the transaction. Tho licirs of Charles Bizette were more than thirty years of age. The deed does not purport to have been made by the authority of any court or government. In 1811 Provonchero was a mere stranger to the title.
    II. Supposing the deed and receipt properly admitted in evidence, they furnish no evidence of any authorized sale of the land in dispute upon which the court was justified in submitting the fact to the jury.
    III. The instruction given was erroneous.

      Todd, for respondent.
    I. There was evidence from which the jury might lawfully infer tho existence of an authorized sale of the land in controversy to Joseph Brazeau after the death of Charles Bizette and prior to October, 1782. Perfect direct proof of the sale did not, it is true, exist. There was long continued, adverse, actual and highly public possession in constant view of most of the parties interested against the claim; this possession was for thirty-five years before the commencement of this suit, and in favor of this possession time had been running under tho statute of limitations, against these plaintiffs and those under whom they claim, for nearly twenty years next before tho commencement of this suit. This evidence is relied on only as corroborative of the other evidences in the case of an actual and lawful sale. 1st. The petition of widow Bizette for an inventory and sale of the property of the estate of Charles Bizette, deceased, her husband, for tho purpose of paying debts and maintaining the children. 2d. The grant of the prayer, as shown by the proceedings of Gov. Cruzat. The inventory included this land. 3d. The appointment of Provonchero as curator of the infant children of Charles Bizette. 4th. Tho receipt of Provencliere to Brazo of October, 1782, with the deed of himself and wife, dated May, 1811. This deed shows that the land in controversy was sold to Brazeau at public sale at tho church. The debts of C. Bizette required a sale of the property of his estate. Such a sale was legally authorized and begun as early as September, 1781. Pro vendiere, as curator of tlie children, was entrusted with all tlie property not sold on tlie day of sale. He was authorized as curator to sell. (See White Recop. 16.). If he sold this land to Brazeau and Bra-zeau paid for it, said receipt, if genuine, would be a usual and proper evidence of the sale and voucher of payment, and its date would be a consistent fact; and if it was his duty to report the sale and to make a record of it, its non-production should not affect Brazeau’s right as evidenced by the receipt, because Provenchere may have omitted to report. Proven-chere may have reported and tlie record may now be lost, as Williams’ evidence shows may have been the fact. If the receipt was genuine and made at the date of it, it should satisfy every mind that such a sale was made. The receipt was genuine. Its genuineness was a question for the jury. Mrs. Provenchere joined in the deed. If there had been a sale to Brazeau, she must have known it. If there was no such sale, Provenchere and his wife conspired to cheat their children. Brazeau conveyed to his nephews, in 1811, stating his title to bo derived from said sale. The deed of the Bra-zeaus to Langham of the adjoining tract shows that they had already conveyed the Bizette tract to him. Since that time Langham and those claiming under him have been in possession of the land.
   delivered the opinion of the court.

As we understand the facts of this case, it is not one in which a court could presume a conveyance or direct a jury to presume one. It does not fall within any class of cases in which such presumptions have been indulged. The presumption is invoked here not to sustain an ancient possession held . under the title sought to be aided by the presumption, but to make out an outstanding title, adverse to that under which the defendants hold and under which the plaintiffs claim.

Langham took possession in 1818 under deeds from the heirs of Bizette. The Brazeau title derived through Proven-chere, after being traced to the two nephews of Brazeau in 1811, disappears and no traces of it áre seen afterwards. No possession had ever been held under it, beyond all doubt, up to this time, although nearly thirty years had elapsed. The first possession of the land since the death of Charles Bizette is found in Langham in 1818, under the Bizette title, and that possession has continued to the present day. The nephews of Brazeau, who held what is here termed the Bra-zeau title originally derived from Provenchere and conveyed to them by their uncle in 1811, conveyed to Langham an adjoining tract in 1818, and in referring to the tract now in controversy spoke of it as belonging to Langham. No allusion is made to their title to this tract in the deed. It would bo a violent presumption to infer from this that they had previously made a conveyance to Langham, as it is perfectly easy to account for such language without making such an inference. Langham was in possession of the land by deeds under the Bizette title. The Brazeaus may have considered their title worthless. The recital that the adjoining' tract belonged to Langham is just as true if Langham’s title was derived from Bizette, as it would be if it had been derived from them. Besides, the recital, whatever it may imply, can not bind the present plaintiffs, who claim under the Bizette ’ title, and are no way concerned in or affected by the deed from the Brazeaus for an adjoining tract of land. At all events no deed from the Brazeaus to Langham appears in this case, and neither the court nor jury were asked to presume one. "We may assume, then, that no such deed existed, and consequently Langham derived no title to the premises in controversy from the Brazeaus.

The jury then in this case were permitted to infer from circumstances a valid sale of this land to Brazeau in 1782, not to protect a possession acquired under such sale, but to defend a possession acquired under the heirs of Bizette against a claim of one of the heirs.

The doctrine of presuming conveyances mainly rests upon long and uninterrupted possession in the owners of the title in favor of which, the presumption is indulged. Where a defendant in ejectment takes shelter under an outstanding title, as he may do, he must take it as he finds it, and it will be treated by the court as it would be if its owners were asserting it as plaintiffs. Could the Brazeaus or their representatives claim the assistance of presumption in a suit against the present defendants ? If they could not, then the defendants, resorting to it for protection, can not strengthen it or cure its defects .by connecting with it their possession under another and adverse title.

So far as mere presumptions of fact are concerned, they would seem to be rather against the validity of the title of Brazeau, if we consider the acts of those who hold this title as entitled to much weight in determining its value. No possession was ever taken under it by any one. The Pro-vencheres — both father and son — -and Langham and the Bra-zeaus did not appear to regard the title as valuable from 1811 up to 1818. Langham was busy in buying up branches of the Bizette title, and did not think it worth while to buy the Brazeau title to this tract, although he must have been aware of it by his purchase of an adjoining tract, the title of which had the same origin and the same owners. It would seem that John L. Provenchere had no confidence in the Brazeau title, since it was through him that Langham derived a portion of the Bizette title. Provenchere could hardly be ignorant of the existence and character of the Brazeau title, as it originated in a supposed sale made by his father. If indeed we could presume that Langham, in 1818, when he went into possession of this land, had previously acquired a conveyance from the two Brazeaus, the case would present entirely another aspect. But the case was not tried upon any such hypothesis. The jury did not pass upon any such fact. We must suppose that no such deed existed, as no such deed was shown, and no reference to any such deed is to be found in any of the conveyances made of this land or their recitals. The deed of 1811, from Provenchere to Bra-zeau, is certainly evidence to show that at that date Brazeau considered his purchase available, yet he immediately transferred the title to his nephews and they never took possession. Nothing further is ever heard of it in all the subsequent acquisitions of title by Langham to this and adjoining tracts of land, in all of which the Provencheres and Brazeaus were concerned. This title is now resuscitated, after a lapse of nearly forty years, to protect the interest of those who hold under the Bizetto title, but who it seems did not acquire the whole title.

We do not wish to be understood as asserting that an owner or claimant of land prejudices his title by buying up outstanding claims. Such purchases are common and altogether commendable, and ought not to create any prejudice against the title which proves to be available. If Langham had been the owner of the Brazeau title, his subsequent purchase from the heirs of Bizetto ought not to have any* influence in impairing the value of his original title. But we have seen that Langham and his assignees do not occupy this position.

We concede the force of the reasoning by which the counsel for the defendant has maintained the genuineness of the receipt of 1782. The argument was certainly ingenious, perhaps conclusive. We think the paper was a genuine one and that the jury were well warranted in coming to this conclusion; but it is not pretended that this paper alone makes out a valid sale in 1782 to Joseph Brazeau. If a possession had been taken under this receipt or the deed following it, then a court or jury might well be permitted to presume that every thing necessary under the law to be done towards passing the title to Brazeau had been done. Every legal presumption will be made to sustain long and ancient possession, but the possession must go along with the title whose deficiencies are sought to be covered up. As neither the defendants nor those from whom they derived title and possession ever hold under the title they now seek to set up, they have no other protection against the claim asserted in this case except such as their possession under the statute of limitations gives them.

As the case was not tried upon this defence of limitation, we have not looked into the facts with any view to see what result would be produced by the statute of limitations. "We shall therefore reverse the judgment and remand the cause ;

the other judges concur.


text:
    Clark, Respondent, v. Hammerle et al., Appellants.
    1. Ia March, 1789, one Joachim Boy made his will; it was executed in the presence of the lieutenant governor of Upper Louisiana, and attested by him and seven other witnesses; it was deposited among the archives -of the Spanish government and a copy thereof was given out by the lieutenant governor of said province on the 24lh of July, 1801, a few months after the death of said Boy ; held, that the will was a valid and operative instrument under the Spanish law without further proof.
    2. Where an instruction given at the instance of a parly to a suit is decisive thereof and excludes from the consideration of the jury the questions raised by the evidence of the opposing party, it is erroneous.
    3. Hunt's minutes of testimony taken under the act of congress of May 26, 1824, are not admissible in evidence except to prove such facts as can be proved by hearsay ; where, however, one party to a suit introduces them in evidence, the opposing party may have the full benefit of them.
    4. A certificate of confirmation issued in 1826 by Becorder Hunt, under the act of congress of May 26, 1824, in favor of Joachim Boy's representatives, for a lot in the Cul de Sac, described the lot confirmed as bounded north by a field lot of A. Guión, and east by .Auguste Chouteau’s mill tract. On the margin of the claim of A. Guión are the following words: “ In Chou-teau’s mill tract.” Held, that this marginal entry was not admissible in evidence, as against those claiming under Boy, to show that the lot confirmed to Boy was situate within - Chouteau’s mill tract. The Spanish survey of “ Chouteau’s mill tract,” in which the land on the west of the survey is stated to be “ vacante,” is admissible in evidence as bearing upon the question of the location of Boy’s confirmation; the same weight should be attached to it as to reputation or hearsay in establishing ancient boundaries.

      Appeal from.,Si. Louis Land Cowrt.

    This was an action of ejectment to recover possession of a portion of a lot in the Cul cle Sac common field near St. Louis. Plaintiffs claim title under the legal representatives of Joachim Roy, to whom they allege the lot was confirmed by act of Congress of June IB, 1812. The defendants, in addition to a formal denial of the facts stated in the petition, set up the statute of limitations as a bar.
    In support of his title plaintiff introduced in evidence a certificate of confirmation by Theodore Hunt, under act of Congress of May 26, 1824, with Hunt’s minutes of testimony. Hunt’s minutes of testimony were, as certified, in substance as follows:
    “ Joachim Roy’s legal representatives claim a lot in the Cul de Sac, near the town of St. Louis, containing one arpent and a half in front by about forty in depth; bounded north by the field lot formerly owned by Madame Lacompte, east by the claim of widow Camp’s legal representatives, south by the field lot formerly owned by Tabot, and west by land unknown, near to Gratiot’s.” [Here follows the testimony of Michael Marly and Joseph Roy, who testified in substance that Joachim Roy owned and cultivated the lot claimed about thirty-two years before July 8, 1825, (the day the testimony was taken) until the common field fence was taken down.]
    “ Francis Caillou, being duly sworn, says: He knows the lot claimed ; that this deponent, forty years ago, with Joachim Roy, cultivated this field lot, and continued to cultivate the same with said Roy until the fence was taken down some twenty-five or >twenty-six years ago. This deponent says, that his mother after the death of his father married Joachim Roy, and in that way, living with Roy, he becarpe.acquainted with this field lot. He has no interest in this claim whatever.” “ Eustache Caillou, being duly sworn says: He knows the field lot claimed, and that upwards of thirty years this lot was owned and cultivated by Joachim Roy, who cultivated the same until the fence was taken down ; and this deponent further says, he has no interest whatever in this field lot, neither directly nor indirectly.”

    The above is recorded on pages 49 and 50 of Hunt’s Minutes, book No. 2.

      “ Joachim Roy’s legal representatives claim a common field lot in the Cnl de Sac, containing one arpent and a half in front by about thirty in depth; bounded north by the field lot claimed by Amable Guyon’s legal representatives, south by Beré Tabeau’s legal representatives, east by Auguste Chouteau’s mill tract, and west by Charles Gratiot.” In support of this claim there is' recorded the testimony of Baptiste Riviere, René Dodier, and René Paul. “ Baptiste Riviere, being duly sworn, says: He knows the field lot claimed, and that upwards of forty years ago this field lot was owned and cultivated by Cadet Jean Rion, who cultivated the same until he died ; and after that Fife Beaugeneau cultivated the same until it became the property of Joachim Roy, who owned and cultivated the same until the common field fence was taken down.” Record of this testimony is made in book 2, page 116, of Hunt’s Minutes. The testimony was taken and recorded July 30,1825.
    To the above one certificate was appended by the recorder of land titles.
    The plaintiff then introduced in evidence a certified copy from Hunt’s list of confirmation certificates issued under the act of Congress of May 26, 1824, to Joachim Roy’s legal representatives. From this it appears that the certificate was issued July 30,1825. .The lot is described as a common field lot situate in the Cul de Sac, “ one and one-half arpens front by about thirty deep;” “bounded north by the field lot claimed by Amable Guion’s legal representatives, south by the field lot claimed by Beré Tabeau’s legal representatives, east by Auguste Chouteau’s mill tract, and west by Charles Gratiot.”
    In the recorder’s certificate appended to his transcript of the above it is stated that “ the above is the only entry in the said list of the claim of said Roy’s representatives to a lot in the Cul de Sac common field of St. Louis.”
    The plaintiff then offered in evidence a document purporting to be a will of Joacliim Roy, devising all his estate to Verronique Guitard. The will bore date March 25, 1789, and purported to be signed by Joachim Roy, by his mark, and by seven witnesses, and by Manuel Perez, lieutenant governor. This document was a copy certified from the “ archives” by the recorder of St. Louis. In connection with this certified copy the plaintiff offered in evidence two documents, one purporting to be the original will of said Roy, of which the above is a copy, and the other purporting to be a copy thereof certified by Charles Dehault Delassus to be “ a copy in conformity to the original which is deposited in the archives of the government, given to the party on his application. Given at St. Louis, July 24th, 1801. [Signed] Delassus.”
    Defendants objected to the admission of these documents because the will was not executed in accordance with the law then in force; because it was not proved; because it had never been acted upon or set up in any manner by any person ; because the devisees therein named never claimed any thing under it, nor was it ever produced before any judge or officer; because said copies were not produced from any legal custody. It was admitted that Roy died June 25,1801. The court overruled the objections and admitted the will and copies in evidence.
    Plaintiff then introduced in evidence a will of Yerronique G-uitard executed August 29, 1808, by which the lot in controversy was devised to her sons, Frangois Caillou and Eus-tache Caillou. This will was proved November 22, 1836 ; also a deed to Wm. Carr Lane, dated August 1, 1825, from Eustache and Frangois Caillou. Plaintiff showed title in himself under Lane to that portion of the field lot which is in controversy. This portion lies at or near the west end of the field lot. The plaintiff then gave in evidence certified copies of two surveys. The first purported to be a “ plat and description of a survpy of a lot, one and one-half by about thirty arpens, in the Cul de Sac fields, claimed by the legal representatives of Joachim Roy, and the boundaries and extent thereof proven before the recorder of land titles on the -day of-, 1825, under the act of Congress of the 26tli of May, 1825.” This survey (No. 8807) was approved by the surveyor general, Milburn, in 1841, with the qualification, written on the margin, that its “ southern boundary must be extended eastward so as to make its whole length forty arpens, unless it comes in contact with the claim of Motard, in which event it will stop at Motard’s.” The second survey (No. 3307) was made in accordance with this suggestion. It was approved March 20, 1857. The land in controversy was embraced in this survey. The plaintiff then gave in evidence a certificate of confirmation to Joachim Roy’s legal representatives for the Cul de Sac lot as thus confirmed. This certificate bears date March 25, 1857.
    The plaintiff here closed; whereupon the defendants asked the following instructions : “ 1. Upon the case made in testimony the plaintiff ought not to recover. 2. The will of Joachim Roy, as given in evidence by the plaintiff, is inoperative and void as a conveyance of the land in question to Verronique Guitard. 3. The two surveys, as given in evidence by the plaintiff, are not authorized surveys of the United States ; and neither of them is authoritative as a survey.” The court refused to give these instructions.
    The defendants then introduced oral testimony with tlie view to show that the true location'of the Cul de Sac was within the Chouteau mill tract; that the Cul de Sac had been improperly located west of said mill tract. To this testimony plaintiff objected.
    The defendants offered in evidence a copy of a plat of survey of the Chouteau mill tract. The ground on the west of the mill tract is laid down as “ vacante.” The “ second con-cesssion” is marked as commencing at the end of the common field lots of the old town. To this plat there is the following annotation: “ Mesurée par le Lnt. Arpenteur, Don Santiago McKay, en date du 29 May, 1803, en vertu de la requite de l’interessé en date du 17 Eevrier de la méme année du de-cret de Mons. lo Lnt. Gen. Don Charles Dehault Delassus, du 18 du méme mois, m6me anule, á laquolle est jointe ; le plan figuratif de la dito terre et toute les pieces citóos dans la díte requite numerotée lesquelles j’ai remisés & l’interessé avec le cortificat d’arpentage que j’ai expedié le 23 d’Aout, 1803.” The court admitted said survey against the objection of plaintiff.
    Tlio defendants then offered in evidence, among other documents, the following: 1. Claim and certificate of confirmation by Hunt, dated 30th July, 1825, to A. Guión, for lot in Cul de Sac, of two by thirty arpens; bounded north by Verdón, south by ‘ Cadet Jean Rion,’ east by the Mill tract of Auguste Chouteau, and west by the claim of Charles Gra-tiot. On the margin of this claim are the following words : 4 In Chouteau’s mill tract.’ 2. Survey No. 2973, in favor of A. Guión or his legal representatives. 3. Claim by Berry Tabeau’s legal representatives for one by forty arpens; bounded north by field lot claimed by Jean Rion’s legal representatives. The court, on the -motion of plaintiff, excluded the same. •»
    The defendants then introduced in evidence a certified copy of the claim, &c., of J. Roy, “ with the erasures.” From this it appeared that the claim, as set out on page 116 of “ Hunt’s minutes” (see ante, p. 57) was erased and interlined as follows : The words “ Cadet Jean Rion’s” as claimant were erased, and “ Joachim Roy’s” legal representatives were inserted. The word “ forty” was erased and the words “ about thirty” were interlined. In what is called Hunt’s list of certificates of confirmation, the words -£ Cadet Jean Rion” as confirmee were erased, and that of “ Joachim Roy” was interlined.
    Defendants claimed title under a New Madrid certificate located June 16, 1818. Other facts were adduced in evidence. It is deemed unnecessary to set them forth. The court gave the following instructions at the instance of the plaintiff: “ 1. The survey made by the government of the United States of the tract of land confirmed to Joachim Roy or his legal representatives is prima facie evidence of its true location; and if the jury find from the evidence that the premises sued for in this case are within the survey No. 3307, read in evidence ; that the defendant Hammerle was in possession thereof at the time this suit was instituted; if the wills of Joachim Boy and Verronique Guitard and the deeds read in evidence by the plaintiff are'genuine ; if the persons named in the depositions of Bobert Willis and Sarah Bram-mell are the heirs of Samuel Brammell, deceased, — then the plaintiff is entitled to recover and the jury should find accordingly. 2. The burthen of proving that the location of the Joachim Boy tract by the United States survey No. 3307 is erroneous rests on the defendants, and, unless they have shown in evidence to the satisfaction of the jury that said location is improperly or erroneously made, the jury should stand by the location made by said survey. 3. Under the act of Congress approved on the 17th day of February, 1815, a Now Madrid certificate could only be located on lands belonging to the United States, the sale of which was authorized by law; and if the land sued for in this action was a part of the tract or parcel of land that was cultivated, claimed or possessed by Joachim Boy prior to the 20th day of December, 1803, then the New Madrid location under certificate No. 150, read in evidence, was not authorized by law and has no effect. 4. If the jury find for the plaintiff, they should assess his damages at the yearly value of the rents and profits of the premises in question, from the 16th day of September, 1856, to date, and should also fix the monthly value of such rents and profits at this time.”
    The court gave the following at the instance of defendants .- “ 5. The documents given in evidence by the plaintiff are presumptive evidence only in law, that the land in dispute was inhabited, cultivated and possessed by Joachim Boy prior to 20th December, 1803 ; and therefore if the jury find from the other evidence in the cause that the lot claimed by Joacliim Boy in the Cul de Sac common field was at another and different place, and did not embrace any portion of the land in dispute, and that said Boy did not inhabit, possess or cultivate any portion of said premises in dispute- prior to 20th December, 1803, they will find for the defendants.”

      The following instructions asked by the defendants were refused: “ As to the will of Joachim Roy, as given in evidence by the plaintiff, the court instructs the jury as follows :
    “ 1. If the said Joachim Roy died before transfer of Louisiana to the United States, the law required that the will, in order to be valid as a conveyance of title, should be produced before a public tribunal or officer, and proved or otherwise recognized as the will of the deceased; that the heirs or others claiming under the will should make their election whether they would or would not take under the will; and if they elected to take under the will, they should make before the tribunal or officer an inventory of the estate. 2. If said Roy died after the transfer of the country to the United States, the law required that the will should be probated by the public authority before it could be operative as a will conveying property. 3. There is no evidence before the jury tending to prove that said will, after the death of said Roy, and before the change of government, was ever produced before any tribunal or officer and proved or otherwise recognized as the will of said Roy ; that the constituted heir ever set up or recognized the will by accepting or rejecting its provisions ; or that any inventory was ever made of the estate. Therefore, under the Spanish law of the province, the will is inoperative and void as a conveyance of the land in question.”
    “ As to the confirmation and survey : 1. The confirmation to the representatives of Joachim Roy, given in evidence by the plaintiff, is by the act of Congress of 1812, and the supplemental act of 1824, and as no such survey thereof was provided for by law none was legally necessary to the support of the rights of the confirmee. 2. The two surveys thereof given in evidence by the plaintiff are at most only privia facie evidence of the true locality and not conclusive. 3. As to the last of the two surveys, if it bo for a larger quantity of land than by the evidence before the jury appears to have been confirmed, it was made without authority and ought to be rejected. 4. As to the certificate of confirmation given in evidence, dated 24th March, 1857, is no evidence that the land therein mentioned had been lawfully surveyed, as is stated in said certificate. 5. Inasmuch as there is no evidence in this cause that the will of Roy, dated 28th March, 1798, was ever proved, or any official action had thereon, or that the devisee therein named ever appeared before any tribunal or officer to accept or reject the devise, that no inventory was ever made or any administration had upon his estate; and inasmuch as it does appear that the said will remained dormant in the archives for more than twenty years after the death of said Roy, and that the devisee and her representatives therein named during all that time failed to treat said will as valid, or to set up any claim under it, and acted in regard to the estate of said Roy as though he had died intestate ; and that Eustache and Francis Cayou appeared before the recorder of land titles in 1825, and expressly disclaimed under, oath having any interest directly or indirectly in said premises, the jury are instructed that the evidence is not sufficient to entitle the plaintiff to recover, provided the jury find th'at Roy died in 1801, and that the 'disclaimer of said Francis and Eustache was made prior to the execution of their deed to Lane, and while they were the representatives of any claim of Verronique Guitard to the premises in dispute under said will. 6. If the jury find from the evidence that Joachim Roy did not inhabit, cultivate or possess any portion of the premises embraced within the United States survey No. 3307, for several years prior to his death; that said Roy died in 1801; that no inventory was ever made of, nor administration ever had on his estate ; that Guitard, the universal devisee in the will of Roy, dated 28th March, 1789, survived him for several years, and that both said devisee and her representatives acted in regard to the estate of said Roy for more than twenty-four years after his death-as though he had died intestate, and during all that time neither treated said will as valid, nor set up any claim under it to any property whatever, nor ever appeared before any officer or tribunal to accept or reject the devise therein
      made; that said will was never proved, nor any official action bad thereon., and had remained dormant in the archives for more than twenty years after the death of said Roy ; and if the jury further find that Francis and Eustache Cayou, in July, 1825, prior to the execution of their deed to Lane, disclaimed under oath having any interest directly or indirectly in said premises, they will find for the defendants. 7. If the jury find from the evidence, (in the absence of proof of any grant, survey or permission to Roy or any other person to occupy the premises in dispute under the Spanish government,) that J. Roy ceased to cultivate or possess the land in question several years prior to the change of government in 1803, and also several years, prior to his death, and that neither said Roy nor his representatives inhabited, possessed or cultivated said premises for more than twenty-five years from the time said Roy so ceased to cultivate said premises, and that neither said Roy nor his representatives set up any claim to said premises until the year 1825 ; and that Francis and Eustache Cayou appeared before the recorder of land titles in 1825, and under oath disclaimed having any interest directly or indirectly in said premises, and that such dis-' claimer was prior to the execution of the deed of said Francis and Eustache to "Win. C. Lane; and if the jury further .find that the land in dispute from the, time Roy ceased to cultivate the same until the year 1825, was of little or no value, they will be well warranted in finding for the defendants on the ground that Roy and liis representatives had abandoned said premises. The jury are instructed that there is no evidence that the paper purporting to be a copy of the will of Joachim Roy ever formed a part, of the archives of the French or Spanish government, or that the same is a copy of any genuine document, and the jury ought to disregard it. 8. If the jury find from the evidence that Cadet Jean Rion or-his representatives appeared before the recorder of land titles in 1825, and claimed the same premises embraced in the United, States survey No. 3307, and that a certificate of confirmation therefor was made by said recorder to said Rion or his representatives, ancl that subsequently the name of said Rion was erased and the name of Joachim Roy inserted in both said claim and certificate, and that the plaintiff claims under Joachim Roy by virtue of the certificate as thus altered, they will find for. the defendants. 9. There is no evidence before the jury tending to prove that said will since the change of government was ever probated, or that it was ever set up and attempted to be maintained as the will of Roy before any judicial tribunal or officer. Therefore, under the American law of the territory and state, the will is inoperative and void as a conveyance of the land in question.”
    Verdict was given for plaintiff and judgment rendered accordingly.
    Bates, Gamble and Gibson, for appellants.
    I. The extract from the registry of certificates is, at best, only prima facie evidence of title. It is no evidence of any thing but what is expressed on its face. The “ registry” does not seem to be the “ list” which the act of 1824 directs the recorder to send to the surveyor. The certificate of confirmation issued March 24, 1857, ought not to have been received in evidence. The only certificate authorized by law had been issued long before. - This was a second certificate not authorized by any law. It contains matter which the recorder was not competent to certify. He had nothing to do with the sitrveys. His only lawful action necessarily precedes the survey. No survey was required by law nor needed in fact. The act of 1812 does not require the lots thereby confirmed to be surveyed ; nor does the supplementary act of 1824.
    II. The will of Joachim Roy ought to have been rejected. It is not a valid will by either Spanish or American law. (2 Partidas, p. 1018,'Law 11; p. 1014, Laws 4<fc5.) It wás not proved nor set up and used as a will in Spanish times by either of the parties in interest or by any officer of government. The heir may renounce. .(Id. Law 13, &c.) The Spanish law was not complied with. No inventory was made and no property claimed under it. It remained dormant for thirty-six years after its date, and twenty-four yeai's after the death of the testator. It was never probated. (Meegan v. Boyle, 19 How. 130.) The very beginning of our territorial legislation recognizes the preexisting state of the law oil this point. (1 Terr. Laws, p. 31-38, 131-2.) If valid as a will, still it did not convey this land. Roy died in 1801, showing no grant, permit or survey. His title, if he had any, was begun and completed in 1812, and therefore could not pass by the will.
    III. The locality of the ground as surveyed is wrong. The two surveys (with one number, 3307), if otherwise lawful, contradict and annul each other. The testimony shows plainly that the actual cultivation of Roy was at another place.
    IY. If Roy ever had any right it was abandoned. He never had a better claim than a naked possession, and that he ceased to have for many years before his death. No pretensions were set up in his name till twenty-four years after his death, and then his claim is proved up by two men who had the best means of knowing- what and where he cultivated, and they place it far from the present location. They swear that they had no interest in the land, though they sell it a few days afterwards.
    Y. The court erred in excluding the plat of Chouteau’s mill tract, and the confirmation of A. G-uyon with the recorder’s note that it was in the mill tract.
    YI. The first instruction given for plaintiff, taken alone, is plainly erroneous. It begins by declaring Roy’s survey prima facie evidence of true location, and ends by making it conclusive. It is not cured by the second instruction. The third instruction relative to the New Madrid location is erroneous and calculated to mislead. Any question of abandonment was entirely cut off, so that the jury were substantially forbidden to consider the evidence with respect to it.

      Krum & Harding, for respondent.
    I. Hunt’s minutes, the registry of confirmation and the survey approved by Milburn in 1841, established, prima facie,
      the fact that Joachim Roy inhabited, cultivated or possessed the land in question prior to December 20, 1803. (Joyal v. Rippey, 19 Mo. 660 ; Soulard v. Allen, 18 Mo. 590 ; 11 Mo. 25 ; 21 Mo. 243 ; 15 Mo. 80.) These were questions for the jury. The court will not disturb the verdict on the ground that it is against the weight of evidence. (Fine v. Public Schools, 23 Mo. 570.) The weight of evidence is on the side of the plaintiff. Roy’s lot was correctly located.
    II. The court properly admitted the will of Joachim Roy. It was an ancient document and was executed according to the requirements of the Spanish law. (White’s Recop. 104; 3 Mart. O. S. 115-6.) It was in the most natural and proper custody when produced, that of W. C. Lane, who, once owning the whole tract, had subdivided and sold it in parcels. There was evidence proving, prima facie, the possession by Roy of the land devised, and of modern user by the party who had the custody of the will at the time of trial. (1 Greenl. Ev. § 21, 141, 144, 570.) Its authenticity was further shown by the copy made and certified by Delassus. The case of Meegan v. Boyle, 19 How. 130, is not in point. There was the requisite number of witnesses ; there was no condition in Roy’s will; there is no evidence showing that Roy’s devisee renounced, but there is evidence tending to show an acceptance. It appears affirmatively that Roy had no child or children, and it does not appear that he had any heirs ; consequently, he did not disinherit any one. The rules prescribed by the law with reference to the probate, &c., of will were complied with as far as possible. It was deposited among the archives. (McNair v. Hunt, 5 Mo. 300 ; Charlotte v. Chouteau, 21 Mo. 590.) . Roy’s will did not remain “ dormantit was acted on. by his devisee in 1808 and her heirs in 1825. There was no administration on Roy’s estate. There was no necessity for Roy’s devisee or her heirs to assert rights which none disputed. The will of Roy is valid on its face. It contains every essential requirement of the law ; it was treated as valid by the devisee and never questioned by any one until the present' time. (White’s Rec. 104 ei

      seq.; see 2 How. U. S. 335 ; 19 Mo. 221; 5 Mo. 300 ; 2 La. Ann. 503; 3 La. Ann. 146.) Even if, subsequently to the death of Hoy, his devisee or executrix failed to take steps required by the Spanish law, the will was not annulled by such failure. This would only give the heir at law an opportunity to avoid the will so far as to enable him to claim his distributive or heritable share of the estate. If he acquiesced, no stranger could take advantage of the failure. (White Hecop. 116 ; Charlotte v. Chouteau, 21 Mo. 590.)
    III. The court properly excluded the survey of the Chou-teau mill tract made by Mackay in May, 1803; also the Guión and Tabeau surveys and confirmations ; also the testimony of the witness, called after plaintiff closed his rebutting testimony, to cumulate testimony upon the question of the location of MacHee’s house, after having previously examined a witness fully on that point and the rebutting testimony not touching the point. ■
    IY. The court did not err in giving or refusing instructions.
   Scott, Judge,

delivered the opinion of the court.

The most important question in this cause grows out of the will of Joachim Roy made in March, 1789. The will was executed in the presence of the lieutenant governor of the province (in default of a notary), and was attested by seven witnesses, together with the lieutenant governor. The will, it seems, was deposited among the archives of the Spanish government, and a copy of it was given out by the governor on the 24th of July, 1801, a few months after the death of the testator. Whether this - was a valid instrument without further proof under the Spanish law is the question now submitted.

By the common law a will of real estate was not proved in a probate court like a will of personalty. No probate was necessary to a will devising real estate. Indeed the probate courts in England had no authority to take the proof of such wills. A will of the realty, when offered in evidence, was proved like a deed by the subscribing witnesses thereto, and presumptions in proof of ancient wills were indulged as in case of deeds.

Under the Spanish law there were several kinds or. species of wills. (Febrero, Libro 1, tit. 8, § 2.) The will involved in this litigation was under that law denominated an open or nuncupative one. A nuncupative will might be made with or without the assistance of a notary. (Civil Code of La. art. 1571 and 1574.) Nuncupative wills received by public acts were not required to be proved. Tlieir execution might be ordered ; they were full proof of themselves, unless they were alleged to be forged. (Art. C. C. 1640.) It may be said that the civil code is composed of legislative enactments and is not evidence of what the Spanish law was, as that law may have been changed by the legislature in adopting it into the code. But the Spanish law is the substratum of the code, just as the common law is of the legislation of this state. An annotation on the 82 law', tit. 16, Partidas 3, shows that the law of the code is in conformity to the Spanish law. That annotation says that when a will is made without the authority (authorizacion) of the notary, the testament must be proved by the witnesses ; clearly intimating that, if made in Ills presence and by his authority, no such proof would be required. To the same effect is note 4, law 3, tit. 2, Parti-das 6. All the law cited from the Partidas, in relation to testaments in the case of Meegan v. Boyle, 19 How. 149, concerns mystic or sealed wills, a will of a different species from that now under consideration ; and by the Spanish law, as well as by the code of Louisiana, each species has its particular mode of authentication and proof, the law sustaining the will, though intended for one species and failing under it, provided it can be maintained as valid under any other species. It is only necessary to turn to the second volume of the translated Partidas, at the beginning of the second title, p. 975, to be satisfied that the law cited in the foregoing opinion relates to secret wills, the manner of making which may be seen by reference to pages 962 and ’3 of the same volume, and to Febrero, tit. 8, § 6. In confirmation of all this, we find that the wills made here under the Spanish government were executed with the assistance of a notary or of some one deputed by the chief officer of the province or of that officer himself, and were left among the archives of the government, just as by the Spanish law wills received by public act were left in the offices ('escribanías) of the notaries. We find no evidence that proof was ever made of such instruments, but that copies of them as public acts wore delivered to the'interested. Having intimated our opinion on this subject, if we have mistaken the Spanish law we can easily be corrected by reference to the learned in that law residing in our sister state, whose code has been used on this occasion.

In the trial of causes neither party is bound to ask instructions. If they are not asked, the giving them or not is at the discretion of the court. If instructions are asked on the whole case or of any particular matter arising out of it, which the court refuses, it is not bound afterwards to give instructions of its own as substitutes for those refused. If erroneous instructions are asked and refused, it is entirely at the option of the judge whether he will afterwards give any or not. A party therefore who asks an instruction on the whole case must not frame it so as to exclude from the consideration of the jury the points raised by the evidence of his adversary. If a suit is on a bond for the payment of money, and the defendant gives evidence tending to show that he has paid it, it would not be proper for the court, at the instance of the plaintiff, to instruct the jury that if they believed that the defendant executed the bond, they will find for the plaintiff. Such instmction would be erroneous, as it would exclude from the jury all consideration of the question of payment. It is no answer to this to say that the defendant might have asked instructions, tie was not bound to do so, and it was at the peril of the plaintiff to ask instructions disposing of the whole case which excluded from the jury the consideration of the evidence of the defendant’s tending to show that he bad no right to recover. We do not see how the depositions of the witnesses accompanying the record of the confirmation of the recorder are evidence of the facts stated in them. How they can be evidence at all except as to such matters as may be proved by hearsay it is difficult to say. This court has refused to reverse judgments in cases wherein they were read, not because they were regarded as any evidence of the facts stated in them, but because they might be admissible for some purposes, and being so it was the business of the opposite party to call upon the court to declare their effect in evidence. When reading the record as mere evidence of a confirmation, they should not be read. A record of a judgment is read in evidence ; would the depositions embodied in the bill of exceptions be read, or could they be evidence ? (Toney v. City of St. Louis, 21 Mo. 243; Soulard v. Clark, 19 Mo. 570.) If the original deposition was produced and the hand-writing of the witness proved, it would be evidence against him. But the plaintiff himself used such evidence, and it was of course open to the defendant, and they had a right to the full benefit of it. Under this view the depositions of the two Cailloux were evidence of an abandonment or of the non-existence of a claim on their part to the land in controversy. Whether the lot of which they spoke was the lot in controversy or another lot was for the jury to determine from the evidence. The defendants being so unfortunate as to have all their instructions on the subject of abandonment rejected by the court, the court was not therefore warranted in putting the case to the jury in such a way as would exclude the consideration of the effect of the evidence given by them on the subject of abandonment.

As the defendants had the benefit of the claim of J. Roy with the erasures in evidence, and as such evidence was of a tendency to throw doubt and mistrust on the claim of Roy, the claims of Guión and Tabeau, as they refer to Rion, were of some influence in strengthening the weight of the evidence of the erased entry. Certainly those papers mutually strengthen and support each other as evidence for the defendant. We are not aware of any principle which would make the writing on the margin opposite the confirmation of Guión as it stands on the record any evidence whatever, except in a criminal prosecution against him who made it. We know no law nor practice which warrants any such thing, and nothing would prove more dangerous to titles passing through that office than the giving the least sanction to such evidence.

The survey of Chouteau was evidence on the ground that, if being a call in the description of the boundaries of the lot in dispute as well as of those by which it was bounded, it was proper in locating the lot in dispute, the proper location of which was one of the matters in controversy. We do not regard the annotations on the plat of the survey in the light of the unauthorized writings on the-margin of the recorder’s confirmations or claims. This survey is an ancient document. It is found among the Spanish archives. Its authenticity is not questioned. Under such circumstances it seems that on principle it would have the weight given to reputation or hearsay in establishing ancient boundaries.

There was no error in admitting in evidence the certificate of the recorder. (Soulard v. Allen, 18 Mo. 590; McLott v. Dubriel, 9 Mo. -.) The first section of the act of 29th April, 1816, providing for an appointment of a surveyor of the public lands in Illinois and Missouri territories, made it the duty of the said surveyor to survey all lands the claims to which had been or should thereafter be confirmed which had not already been confirmed.

There was no error in refusing the instructions asked by the defendants. Almost all those instructions contained matter relative to the will which is hostile to the views of the law herein expressed, and were therefore properly overruled.

The instruction relative to the alteration of a confirmation was properly refused, because it assumed as a matter of law that the alteration would defeat the right of those claiming under Roy, when Roy had a confirmation independent of that which, was altered. The whole matter with all its circumstances was a proper one for the consideration of the jury on the trial of the issues submitted.

Wo see no ground whatever for the refusal of the court to hear the evidence offered by the defendants after the plaintiff had given evidence in rebuttal. (Rucker v. Ewing, 7 Mo. 115.) The judgment is reversed and the cause remanded.

The other judges concur.


text:
    Coons et al., Respondents, v. North, Appellant.
    1. One A. B-, being indebted to C. D. in the sum of $538.96, conveyed a certain tract of land to E. IT. in trust to secure the payment thereof. In said deed the land, situate in Sp Louis county, was described as follows : “ A tract of eighty acres of land in the northern end of survey number 369, confirmed to Samuel Smith, in township 45 north, of range 4 east, commencing, &c., [hero follows a description by metes and bounds] and being all the land now owned by said A. B. within said survey No. 369.” Default being made in the payment of the indebtedness secured, the trustee proceeded, at the request of C. D. and in accordance with the provisions of the trust deed, to advertise and sell the land. In his advertisement he described the land to be sold by copying the description in the deed of trust. On the day of sale the trustee proceeded to sell; the advertisement was first read, and the land was offered for sale as a tract containing eighty acres, more or less. Bids were asked by the acre for the whole tract. One G. H. was the highest bidder at the price of $8.50 per acre, and the tract was struck off to him at that price, and the trustee gave him a memorandum of said purchase, stating that he, G. H., had become “ the purchaser of said land at and for the price of eight dollars and fifty cents per acre, and had paid on his purchase $500.” The trustee paid over the said $500 to C. D., and it was credited upon the debt. The tract was subsequently surveyed and was found to contain only twenty-three acres. During these transactions none of the parties thereto supposed that the tract contained less than eighty acres. Held, in a suit instituted by G. H., the purchaser, against C. D. to recover back the excess of said $500 over and above the sum that twenty-three acres would have amounted to. at $8.50 per acre, 1st, that the sale by the trustee was not, properly considered, a sale by the acre, but a sale of the tract as a tract; 2d, that the purchaser, having bought the tract as containing eighty acres, could not recover of the cestui que tmst or creditor the excess sued for; 3d, that ho was entitled on the ground of mistake to have the sale set aside.

      Appeal from St. Louis Court of Common Pleas.

    This was an action by Andrew J. Coons and Isaiah C. Brown against William North, to recover money paid by mistake. The court found the facts as follows: “ George Smith, on the 14th of November,. 1851, executed the deed of trust in plaintiff’s petition described for the purpose of securing to the defendant the payment of the sum of $538.96. Default having been made in the payment of said sum when the same became due, the trustee named in said deed, William S. Brown, at the request of defendant and pursuant to the provisions of said deed, advertised the land described in said deed for sale by inserting for more than twenty days in the Missouri Republican, printed and published in St. Louis city and county, an advertisement of said sale, to be held at the north front door of the court-house, in said city, on the 16th day of May, 1853. The description of the tract in this advertisement is the same as in the deed of trust; it is as follows : “A certain tract of land situate in the county of St. Louis and state of Missouri, described as follows: being a tract of eighty acres of land in the north end of survey No. 369, confirmed to Samuel Smith, in township 45 north, of range 4 east, commencing at John W. Smith’s corner on Creve Cosur creek; thence along his line south until intersecting Samuel Smith’s line; thence west along Samuel Smith’s line to the west line of the original survey; thence north along said original line until it intersects Creve Coeur creek; thence down the creek to the place of beginning; bounded north by Creve Coextr creek, east by land of John W. Smith, south by land of Samuel Smith, and west by land of Samuel Conway, and being all the land now owned by said George Smith within said survey number 369.”] On said day and at said place, pursuant to said advertisement, said trustee proceeded to sell said land. The advertisement having been first read, it having been announced that said land contained eighty acres, more or less, bids were asked by the acre for the whole tract. Several persons present declined bidding, because it was uncertain bow many acres there were in the tract. The plaintiffs were the highest bidders at the price of $8.50 per acre. The tract is situate about twenty miles distant from St. Louis. The plaintiffs and the trustee and defendant supposed at the time that the tract contained eighty acres. Thereupon the plaintiffs paid to the said trustee the sum of $500 on said purchase, and said trustee executed and delivered to them the following memorandum of said purchase: ‘I, William S. Brown,'the trustee named in the within advertisement, do hereby certify that at the sale made on this day at the place and within the hours of day named in the annexed advertisement, Andrew J. Coons and Isaiah C. Brown became the purchasers of said land at and for the price of $8.50 per acre, and have paid on their purchase $500. [Signed] Wm. S. Brown, trustee.’ The trustee, in a few days thereafter, paid over to the defendant the said sum of $500 received from the plaintiffs. None of the parties at that time supposed that the tract contained less than eighty acres. Subsequently said tract was surveyed and found to contain only 28 15-100 acres, for which, at $8.50 per acre, the price would be $196.70. The excess paid by the plaintiffs and recovered by defendant was $803.23. This excess was paid and received under a mutual mistake as to the quantity of land included in said tract. The .defendant did not know the quantity of land contained in the tract. The sale was made of the tract at $8.50. There was no representation or statement made at the time that said tract contained eighty acres, but it was put up as a tract containing eighty acres, more or less. Before the commencement of this suit, the plaintiffs demanded of the defendant the refunding to them of said excess of $303.23, which the defendant refused. Thereupon the court declares that the plaintiffs are entitled to recover of the defendant the sum of $303.23, with interest from the commencement of this suit, making the total sum of $311.”
    A motion for a review was made and overruled..

      Bay, for appellant.
    I. The sale was of the entire tract. (Sugden, Y. & P. 884; 3 Mass. 355; 6 Scrg. & Raw. 488 ; 6 Binn, 102; 2 Johns. 37 ; 17 Mass. 207.) There was no privity of contract between North and the vendees ; North never saw the land, was not present at the sale, and made no representation with regard to it. The pretence that the money was paid to North under a mutual mistake between him and the vendees is not warranted by the evidence. The money was paid to the trustee. It does not appear that North knew the vendees or the vendees him. The vendees did not pay the money to the trustee until five days after the sale. They had ample time to ascertain the quantity of the land. It is too late to invoke the aid of a court of chancery. This is a proceeding at law and the remedy, if any, is in chancery.

      S. T. & A. D. Glover, for respondents.
    I. The land was not sold in gross but by the acre. (Ayres v. Hays, 13 Mo. 259 ; Quisnell v. Woodlief, 2 Hen. & Munf. 173s Carter v. Campbell, 1 Gil. 139; Nelson v. Carrington, 4 Munf. 333 ; Bailey v. Snyder, 13 S. & R. 160.) The presumption is that both parties to a sale'have regard to the quantity which both suppose the estate to contain. They especially adopt this rule where any other would work injustice, as where the discrepancy is very great between the estimated and actual contents of a tract. So where the contract rests in fien. (Hill v. Buckley, 17 Yes. 394 ; 6 Binn. 102.) In this case all the parties supposed that the tract contained eighty acres. (1 Sugd. Y. & P. 382, 319.) The effect of the words “ more or less” is only to cover a small difference as to quantity one way or the other. (2 Hen. & Munf. 173 ; Thomas v. Perry, 1 Peters, C. C. 58. If plaintiffs purchased by the acre they were only liable to pay for as many acres as the tract contain'ed, and the defendant had the right only to demand or receive as much as they were bound to pay. If they have paid more than they were bound to pay, the defendant has received more than be ought to keep. He ought to refund it. . The right of action in this case is on the familiar principle that money paid by mistake may be recovered back. (2 Sto. Eq. 501, § 1255 ; 2 Eonbl. Eq. book 2, ch. 1, note 6.) The trustee was the agent of the grantor and the cestui que trust. The petition states all the facts out of which the equities arise as minutely as would be required in a bill in chancery. The suit may be called an action at law for money had and received, or a proceeding-in equity.
   Napton, Judge,

delivered the opinion of the court.

We were not without doubt whether this action against the cestui que trust could be sustained, under any view of the law concerning the warranty and the mistake alledged. If this sale had been made directly by the owner who, upon receiving the purchase money, paid it over to his creditor, it is clear that the purchaser would have no action against such creditor. The money could not have been followed in his hands. There would be no privity between them, and the purchaser must look to his vendor to redress any losses he may have sustained through mistake or fraud. The same rule would apply if the sale had been by the sheriff under execution and the money paid over to the creditor. The rule of caveat emptor would apply, and if warranties or misrepresentations or innocent mistakes occurred, giving grounds for action to the injured purchaser, his redress would be limited to the person making the warranty or occasioning the mistake. The creditor, not having interfered in any way, would not be liable to refund. Here the sale was by a trustee holding the legal title to the land, through the agency of the owner, and for the benefit of the creditor and the owner. Considering him as an agent for the, creditor, who is cestui que trust in the deed, as well as of the owner and debtor, we may in this way establish a privity between the parties. Considering that such a privity exists as would allow this action in the event it could be maintained on other grounds, the question still remains whether this action for the surplus money received will lie.

We do not consider the sale made in this caso as a sale by the acre. To give such a construction to sales of this nature, whether made by sheriffs or trustees or other agents, at public auction, merely because the bids are called for and received' by the acre, would be contrary to what we apprehend is the general understanding of the country. Many of our surveys here, made by the officers of the United States government, are inaccurate, and sections of land are frequently found to overrun the quantity of 640 acres, and as frequently perhaps to fall short of this quantity. The subdivisions are, of course, equally inaccurate. Sales, especially public sales, are usually made by reference to these known surveys and subdivisions of surveys, and the purchase money is calculated by the number of aeres ; but the vendor is selling the tract, and the purchaser expects to get the tract without regard to mistakes which may have occurred in the original surveys, whether favorable to one side or the other. The conduct of the parties in this case is sufficient to show that, although the bidding was regulated by the price per acre, yet it was understood that the tract, as a tract, was sold, without reference to any deficiency or excess which an accurate survey might show. No provision was made for a resurvey, nor was any such contemplated. (Smith v. Evans, 6 Bin. 102.)

There was a mistake in this case common to all parties concerned in the sale, which certainly a court of equity would correct. The doctrine of the cases cited from the Virginia courts is reasonable in relation to the construction of the words “ more or less” in describing the number of acres in a tract of land. It is intended to cover small deficiencies, such as the well known inaccuracies of government surveys produce; but it does not and ought not to compel a purchaser to take a tract of 500 acres which he has bought and paid for as containing a thousand acres. But the equity in such cases does not arise from the fact of sale by the acre, and the consequent responsibility of the vendor to see that every acre contracted for is to be found in the survey, and his right to a price exactly proportioned to the number of acres, but it proceeds solely upon the ground of mistake and not of contract; and the question arises, how is the mistake to be corrected ? Can a court of equity allow the purchaser to retain the land, and compel the vendor selling at public auction, and by an agent not perhaps of his own choosing and certainly not controlled in any way by his directions, to refund the surplus of the purchase money ? We doubt whether this would be equity in any case. We see plainly that in many cases it would not. Here the tract was sold as a tract of eighty acres, and brought some five or six hundred dollars. It turns out to be only twenty-three acres. This fact was unknown to the cestui que trust in the deed, the defendant in this action, as well as to the trustee- and the purchaser. We may assume that it was also unknown to all the bidders present. The tract was sold at about eight dollars per acre, and this made an aggregate, estimating it at eighty acres, sufficient to pay the debt for which it was sold. Whether "the creditor would have suffered a sale at eight dollars per acre, if the quantity of acres had been known, is a matter we can not know. Whether other bidders would have let the tract go off at this price, with this knowledge, can not be known.

As the mistake was common both to purchaser and owner, we do not see any right which one has to insist on the contract being executed pro tanto. The purchaser would clearly have a right to rescind altogether; but this action is not brought upon this basis. The plaintiff proposes to retain the land at a price bid for a tract of eighty acres, when it has turned out to be less than one-third of that size. We see no equity in such a claim. To rescind the contract entirely could injure neither party, but places them both where they stood, with a discovery of the mistake. The land can be put up again, and if it is worth no more than eight dollars per acre as a tract of twenty-three acres he is not injured, and the defendant and others will have an opportunity of bidding with a knowledge of the fact now disclosed, which they did not have at the former sale, and which we would utterly deprive them of if this action in its present form be sustained.

The plaintiff may if he sees fit amend, and with this view the judgment is reversed and the cause remanded.

Judge Scott concurring; Judge Richardson not sitting.