text:
    Garnier, Plaintiff in Error, v. Barry, Defendant in Error.
    1. The proviso of the act of June 22,1821, (1 Terr. Laws, 756,) to the effect that nothing therein contained should “in anywise authorize husband and wife to convey [any] estate granted to the wife and heirs after intermarriage” does not apply to a confirmation, by the act of Congress of June 13, 1812, of a Spanish concession or claim cast upon the wife by descent previous to her marriage; nor does said proviso apply to the case of an inheritance by a wife during marriage of such a confirmation; husband and wife might, under said act of June 22, 1821, convey land thus confirmed to the wife during marriage, or thus falling to her by inheritance.
    2. The second section of the act of December 6,1821, (1 Terr. Laws, 798,) was applicable to a conveyance by husband and wife of the latter’s real estate under the act of June 22,1821; consequently, such a conveyance was not entitled to be admitted to record unless the certificate of acknowledgment contained the requisites prescribed by the said second section of the act of December 6, 1821. It was necessary that the certificate should state that the persons making the acknowledgment were personally known to the person taking the same, or were proved by two credible witnesses, whose names were mentioned therein, to be the proper persons who made and executed the deed.
    3. The fifty-eighth section of the act concerning evidence (It. C. 1856, p. 733) is not, it seems, applicable to the case of the record of a deed defectively acknowledged; a certified copy of the record of such a deed and of the time of its record, though accompanied with proof of claim and enjoyment under such deed for ten consecutive years, would not, under said section, be prima fade, evidence of its execution and genuineness.
    4. A. and B., husband and wife, on the 10th of December, 1823, executed a conveyance of land belonging to the wife. The acknowledgment was taken on the same day before a county court, which was composed of at least three judges, and certificate thereof was in the following form : “ Be it remembered, that on, &c., appeared in open court A. and B., his wife, and acknowledged the foregoing deed of conveyance from them to L. A. B. to be their voluntary act and deed for the purposes therein expressed; she, the said B., being privily and apart from her said husband examined, declared that she did freely and willingly seal and deliver the said writing and wished not to retract, and she being previously made acquainted with the contents thereof.” This acknowledgment was attested by the presiding justice under the seal of the court. Held, that this acknowledgment was sufficient to pass the title of the wife under the act of June 22, 1821; (1 Terr. Laws, p. 756;) the certificate of acknowledgment was not, however, sufficiently in conformity to the second section of the act of December 6, 1821, (id. p. 798,) to authorize its admission to record.
    5. The act of February 14, 1825, (B. C. 1825, p. 220, § 12,) regulating conveyances, required a married woman, making an acknowledgment of a deed of conveyance of her estate', to “ appear before some court of record.” In a certificate of acknowledgment taken before a judge of a probate court, and certified by him, he having no clerk, it was stated as follows : “ At a term of the probate court for, &c., before me, M. P. L., judge of said court, personally appeared M. G., wife, &e., who is personally known,” &c. Held, that the acknowledgment was good.

      Error to St. Louis Land Court.

    This is an action in the nature of an action of ejectment to recover possession of an undivided interest of a lot of ground embraced in a larger tract of one .by forty arpens situate in the St. Louis common field. Said lot was confirmed by act of Congress of June 13, 1812, to the legal representatives of Auguste Condé. The claim of Cóndé’s representatives was proven up before Recorder Hunt in 1825 under the act of 1824. It was duly surveyed by the United States in 1826. Both parties to this suit claim under Condé. Condé died in 1776, leaving two daughters his only surviving issue. In 1779 one of said -daughters intermarried with Charles San-guinette, and in 1797 the other intermarried with Patrick Lee. Charles Sanguinette died in 1818, and Mrs. Sangui-nette in 1821, leaving nine children them surviving, of whom were Mary, (the plaintiff in this action,) who was born in 1781, and married in 1812 Joseph Y. Gamier, who died in 1851; Caroline, who intermarried in 1818 with Horatio Cozens, and became discovert by his death in 1826 ; Adelle, who intermarried with John E, Tholozon in 1819, and Charles. Patrick Lee and wife both died in 1825, leaving six children: — Lydia, who intermarried in 1818 with Stephen Eector and became discovert by his death in 1826; Constance A., who intermarried with Zalmon Palmer; Emily Eousseau; Ellen Eappernich; Sophia O’Fallon, and Oscar.
    Plaintiff read in evidence a deed dated October 29, 184T, of Charles Sanguinette, Caroline Cozens, John E. Tholozon and Adelle his wife, and Lydia M. Eector, to Marie Gamier, the plaintiff, acknowledged about the same time and recorded in St. Louis county in April, 1850. Plaintiff also read in evidence a deed from Eousseau and Emily his wife to herself, dated and acknowledged December 28, 1847, and recorded” in March, 1850; also a deed from Constance A. Palmer, Sophia O’Fallon and Ellen Eappernich to herself, dated, acknowledged and recorded in March, 1850.
    The defendant offered in evidence a certified copy of the record in the recorder’s office in St. Louis county, of a deed of conveyance purporting to be executed by Patrick Lee and Constance his wife, conveying to Louis A. Benoist an undivided half of a lot of one by forty arpens granted to Auguste Condé. This deed was dated December 10,1823, and was accompanied by the following certificate of acknowledgment: “ State of Missouri, county of St. Charles, ss. County court — December term, 1823. Be it remembered, that on this 10th day of December, 1823, appeared in open court Patrick Lee and Constance Lee his wife, and acknowledged the foregoing deed of conveyance from them to L. A. Benoist to be their voluntary act and deed for the purposes therein expressed. She, the said Constance, being privily and apart from her said husband examined, declared that she did freely and willingly seal and deliver the .said writing and wished not to retract it, and she being previously made acquainted with the contents thereof. In testimony whereof, I, Eobert Spencer, presiding justice of said court, have hereunto set my hand and caused the seal of said court to be affixed. [Signed] Eobert Spencer, P. J. C. C. C. St. 0. [Seal.] In testimony whereof, I, William Christy, jr., clerk of the said court, have hereunto set my hand and affixed my private seal, there being no seal of the court yet provided. William Christy, jr.” From the accompanying certificate of the recorder of'St. Louis county, it appeared that this deed was recorded December 11, 1823. This deed was admitted in evidence against the objections of plaintiff.
    The defendant also offered in evidence a certified copy of the record of a deed purporting to have been executed by J. Y. Gamier and Marie Gamier his wife, in favor of L. A. Benoist. The deed was dated April 28, 1827, and was recorded September 15, 1830. The certificate of acknowledgment on the part of Mrs. Gamier was as follows: “ State of Missouri, county of St. Louis, ss. Be it remembered, that at a term of the probate cotirt for the county and state aforesaid, begun and held at the city of St. Louis, in said county, the 19th day of March, 1827, before me, Mary P. Leduc, judge of said court, personally appeared Marie Gamier, wife of Joseph Y. Gamier, who is personally known to me to be the person whose name is subscribed to the foregoing instrument of writing as having executed, the same. The contents of the said instrument of writing was made known and explained to her, and she, the said Marie, was examined separately from her husband whether she executed the' same voluntarily, freely and without compulsion or undue influence of her husband; and being so examined, she, the said Marie, acknowledged said instrument to be her act and deed, that she executed the same voluntarily, freely and without compulsion or undue influence, and does not wish to retract. [Seal.] In testimony whereof, 1, the said judge, have hereunto set my. hand and affixed the seal of said court this 28th day of April, 1827. M. P. Leduc, J. Prob.” This certified copy of the. record' was also admitted in evidence against the objections of plaintiff.
    The defendant also offered in evidence a deed executed by John E. Tholozon and wife to Laveille and Morton conveying the wife’s interest in the land in controversy. This deed was dated November 5, 1830, and was recorded July 25,1855. There was evidence showing that Mrs. Gamier, the plaintiff, had knowledge of this deed at the time it was executed. The deed was admitted in evidence against the objections of plaintiff.
    The court gave the following instructions at the instance of the defendant: “1. At the date of the respective deeds given in evidence of Joseph Y. Gamier and wife and John E. Tholozon and wife to Louis A. Benoist, the said Gamier and wife and the said Tholozon and wife could, by the respective deeds of said parties acknowledged in conformity with the law then in force, convey any interest in the tract in controversy in this suit which the wife of said party de--rived by descent from her mother. 2. The acknowledgment of Mary Gamier, in the form such as appears upon the paper given in evidence by defendant purporting to be a copy of the deed of Joseph Y. Gamier and wife to Louis A. Benoist, is a sufficient compliance, in point of form, with the law in force at the time said acknowledgment purports to have been taken in order to pass any estate, which she then owned, derived from her mother. 3. The jury are instructed that on the 10th day of December, 1823, Patrick Lee and his wife Constance could, by the deed of said parties, acknowledged in conformity to the law then in force, convey any title which is shown by the evidence in this cause to have been in Constance Lee at that date to the land in controversy. 4. The acknowledgment of Constance Lee, in the form such as appears upon the paper purporting to be a copy of a deed of Patrick and Constance Lee to Louis A. Benoist, given in evidence by the defendant, is a sufficient compliance in point of form with the law in force at the time such acknowledgment purports to have been taken, in order to pass any title which is shown by the evidence in this case to have been in Constance Lee at that date to the land in controversy.”
    The plaintiff asked and the court refused the following instructions: “1. If Auguste Condé died leaving only two children, who were Mrs. Lee and Mrs. Sanguinette, the confirmation aforesaid was a grant of said land to them on the 13th of Juno, 1812, equally. 2. Upon the death of Mrs. Lee or Mrs. Sanguinette, the moiety of this land to her belonging, if undisposed of by deed or will, vested in her children or their descendants equally. 3. The paper read in evidence by the defendant, purporting to be a copy of a deed from Patrick Lee and wife to L. A. Benoist of their interest in certain lands, is not operative to convey to the said Benoist any interest of Mrs. Lee in the land confirmed to the legal representatives of Condé in the year 1812. 4. The paper read in evidence, purporting to be a copy of a deed from J. Y. Gamier and wife to'L. A. Benoist of their interest in certain land, is inoperative to convey any interest of Mrs. Gar-nier in said land. 5. The deed of J. E. Tholozon and wife to Laveille and Morton is inoperative to convey to the said Laveille and Morton any interest in the said tract of land confirmed to the representatives of Condé, which belonged to Mrs. Tholozon. 6. If the jury find that the deed of John E. Tholozon and wife to Laveille and Morton, read in evidence by defendant, was not recorded till after the making and recording of the deed by Tholozon and wife to plaintiff and by her read in evidence, then the first deed will not avail to defeat the second deed to plaintiff, unless the jury further find that plaintiff had, at the time of the making of said second deed to plaintiff, actual notice of the making and existence of said first deed to Laveille and Morton, and that it had been acknowledged by Mrs. Tholozon and her acknowledgment certified in such manner as to pass the estate of a married woman during marriage. 7. If the jury find that the deed from John E. Tholozon and wife to Laveille and M.orton, read in evidence by defendant, was withheld from record for many years and for a long time after the making and recording of the deed of said Tholozon and wife to plaintiff and by her read in evidence, then such withholding from record is evidence of fraud, and plaintiff, even if aware of the existence of the said deed to Laveille and Morton at or about the time of the making thereof, had a right to presume that it had been cancelled, or the estate, which was thereby granted, had been revested in the said Tholozon and wife. 8. The paper read in evidence by defendant and purporting to be a copy of a deed from Patrick Lee and wife to L. A. Benoist does not imply that any such original deed had been acknowledged and certified so as to have authorized the recording thereof, and therefore is not evidence of the fact that there ever was any such original deed. 9. The paper read in evidence by defendant, purporting to be a copy of a deed from Joseph Y. Gamier and wife to L. A. Benoist, does not imply that any such original deed had been acknowledged and certified só as to have authorized the recording thereof, and therefore is not evidence of the fact that there ever was any such original deed.”
    The plaintiff took a nonsuit, with leave, &c.

      Gantt, for appellant.
    I. The land in controversy vested in Mrs. Lee during co-verture by virtue of the confirmation. Prior to the confirmation Condé’s representatives had no estate of which a court of justice could take cognizance. At best they had a mere claim upon the bounty of the government. The proviso of the act of June 22, 1821, is applicable. Besides, the certificate of acknowledgment is defective. (See Strother v. Lucas, 13 Pet. 453 ; Le Bois v. Brammell, 4 How.-; 1 Terr. Laws, 756, 798.) The acknowledgment of the deed under which defendant claims the interest of Mrs. Gamier is imperfect. (R. C. 1825, p. 220 ; Elliott v. Piersol, 1 Pet. C. C. 328.) The deed of Mrs. Lee was admitted to record against law, and therefore in any legal sense it was not recorded at all. It is not therefore within section fifty-eight of the act concerning evidence. (R. C. 1855, p. 773.) There is no authentic copy of the deed in evidence. The court erred in refusing the instructions asked by plaintiff, and in giving those asked by defendant.

      Shepley, for respondent.
    I. The deed of Lee and wife was sufficient to pass any title that she might have in the land. The proviso of the act of June 22,1821, does not apply to land held and acquired as Mrs. Lee held and acquired the land in controversy. The deed was good under said act. Besides, it was sufficient to convey the estate of the wife independently of said act. Her interest in the land was under the Spanish law para-phernal. (Lindell v. McNair, 4 Mo. 380; Boyle v. Meegan, 19 How. 130.) The acknowledgment was sufficient. It was competent to use a copy of the record in evidence. Besides, it was proved by Benoist that the copy offered in evidence was a copy of the deed made to him. It was also properly admitted in evidence under the fifty-eighth section of the act concerning evidence. (R. C. 1855, p. 773.) The deed of Mrs. Gamier and her husband wás competent to pass any right she had in the premises. It sufficiently appears from the acknowledgment that it was made in open court. The instruction asked by plaintiff in relation to the interest of Mrs. Tholozon was properly refused; so also the others.
   Scott, Judge,

delivered the opinion of the court.

Prior to the act of June 22,1821, (1 Terr. Laws, p. 757,) there was no statute in this state which authorized the conveyance of her real estate by a married woman. That act prescribed a mode by which the husband and wife might dispose of the wife’s land, with á proviso that it should not authorize in anywise husband and wife to convey any estate granted to the wife and heirs after intermarriage. The land in controversy was an interest in a village lot of St. Louis of one by forty arpens, the right to which was proved before the recorder of land titles in the name of the legal representatives of Auguste Condé under the act of Congress of 26th May, 1824.' Auguste Condé died in 1776 leaving two daughters, Mary and Constance. Constance intermarried with Patrick Lee on the 18th July, 1797, and they, on the 10th day of December, 1823, conveyed to L. A. Benoist one-half of the arpent of one by forty arpens described as being the north half of a tract of land granted to Auguste Condé, as appeared by livre temen No. 2, p. 27. The tract described included the lot which is the subject of this controversy. The principal question in this case is whether, under the foregoing state of facts, the deed of Patrick and Constance Lee was effectual to convey the interest of Constance Lee, the wife. It was maintained on the part of the plaintiff that Patrick and Constance Lee having been married in 1797, and the land being confirmed to the legal representatives of A. Condé, her ancestor, by the act of the 13th June, 1812, the title then passing from the United States, they could not, on the 10th of December, 1823, the date of their deed to Benoist, alien the land, as it was conveyed to the wife and her heirs during the marriage, and therefore was by force of the proviso therein contained excepted from the operation of the act of 22d June, 1821.

The proviso in the act of 1821, which imposed a partial restriction on the right of the wife to alienate her property, was not in accordance with the principles of the common law and did not receive much countenance, as we find that it was repealed by an act passed the 16th January, 1833, and has never since been restored to our code. Under such circumstances there is no reason in justice nor policy which will warrant its receiving any other construction than that which its language will fairly warrant. It is true that on a Spanish title not complete before the change of government, a party had no standing in a court of justice, except so far as it was given to him by the legislation of the general or state government; and, except he had such aid, he could maintain no action for the enforcement of this unconfirmed grant or concession in any court, state or federal; nor could he maintain any action in which the title to the land was involved, for, as in all such cases the ultimate title was in the United States, it was useless to litigate respecting it before its emanation. But, notwithstanding this, it is well known that in-. complete Spanish grants were as much regarded as property as real estate with a perfect title, in all contracts, and under the administration and execution laws, and also under the law of wills, descents and distributions. In the case of Landes v. Perkins, 12 Mo. 259, it was said that “ it is a matter of history, of which this court will take judicial notice, that at the time of the cession of Louisiana to the United States, in that portion of the territory of which this state is composed, nineteen-twentieths (there were but two or three exceptions) of the titles to land were like that involved in this case prior to its confirmation. There were very few complete grants. Most of the inhabitants were too poor to defray the expenses attending the completion of their titles, but they had faith in their government and rested as quietly under their inchoate titles as though they had been perfect. (Stoddart’s Sketches, 245.) As early as October, 1804, we find the legislature speaking of freeholders, and authorizing executions against lands and tenements. See the law establishing courts for the trial of small causes passed October, 1804. (Sec. 10.) There being so few complete titles, the legislature, in subjecting lands and tenements generally to execution, must have contemplated a seizure and sale of those incomplete titles which existed under the Spanish government. At the date of the act above referred to no titles had been confirmed by the United States. An instance is not recollected in which a question has been made as to the liability of such titles as Glamorgan’s under the Spanish government to sale under execution. It is believed that such titles have been made the subject of judicial sales without question ever since the change of government.” (Papin v. Massey, 27 Mo. 452.) Glamorgan’s title was an unconfirmed Spanish concession. The plaintiff, who would make it appear that there was no title or property in the land until the confirmation by the act of the 18th June, 1812, yet claims this very property by virtue of an inheritance which was cast in 1776. That descent made Constance Condé a legal representative within the meaning of the act of the 13th June, 1812, and had she conveyed the title that came to her by descent from her father, her alienee would have been the legal representative.

These considerations we deem sufficient to show that, although for some purposes unconfirmed grants could not be used as real estate with a legal title, yet for many practical purposes such claims were regarded as property among the people, and by the state laws and in the way of contract they had all the attributes of real estate with a perfect title. We do not therefore see any ground on which it can be maintained that the land in suit was an estate granted during the intermarriage. For all substantial purposes the estate was in the wife before the marriage. Before she became a wife she could have secured that land to her own use, or to the use of her offspring, or any other person in trust for her, in as effectual a manner as though she had been clothed with the legal title. It is similar to the case of a femme sole seized of a trust estate who had married and afterwards taken to herself a conveyance of the legal title. Such a case would not be within the proviso of the act of 1821. As the land, notwithstanding the condition of its title, was at the time of the marriage as fully within her control and disposition as though she had a perfect estate in it, there is no reason why the confirmation by the act of June 13, 1812, should be called a grant within the meaning of the proviso of the act of 1821. There is nothing in the case of Hedelston v. Field, 3 Mo. 69, which is inconsistent with the foregoing-opinion. We do not deem it necessary at this time to enter upon any discussion of the terms of the proviso of the act of 1821, with a view to ascertain what kind of an estate was intended by them.

The fourth instruction given for the defendant, although it may contain a correct principle in the abstract, yet assumes that the deed of Lee and wife was properly in evidence. Although the acknowledgment may have been sufficient to pass the estate, yet if it was not in such form as would authorize the instrument to be recorded, a copy of its record would not be evidence. In support of the view that the deed was properly read in evidence, the defendant maintains that the statute of December 6,1821, (1 Terr. Laws, p. 799,) directing the officer taking the acknowledgments of deeds to certify his knowledge of the identity of the grantors, did not require such certificate when the acknowledgment was made in court. The act of December 6,1821, directs that when justices of the peace, judges, clerks of the courts, or persons authorized so to do, shall take the acknowledgment of any deed or other instrument in writing, made and executed of and concerning any lands, tenements or hereditaments, wherein or whereby the same may be affected either in law or in equity, they shall moreover add a certificate stating that the person or persons making the acknowledgments were personally known to him, or were proved by two credible witnesses (whose names shall be mentioned in the certificate) to have been the proper persons who made and executed the deed or other instrument in writing. Taking this section in connection with the act of June 22, 1821, empowering husband and wife to convey the wife’s real estate, it will be seen by its terms it embraces acknowledgments under the act of June 22,1821. That act prescribes that the examination of the wife shall be taken before one of the judges of the court. There was the same reason for the knowledge of the identity of the grantors in the one case as in the other, and although there might be more difficulty and a greater liability to exposure in attempting to personate another in open court than before an officer in a private place, yet as the thing might be done in either place, there is no reason for so limiting the construction of the act as to make it extend only to acknowledgments taken before an officer. The act of 1825 and all the subsequent acts require the identity of the grantor to be certified as well where the acknowledgment is taken in public as before an officer.

In the second place, it was maintained that under the fifty-eighth section of the act concerning evidence, the deed of Lee and wife was admissible because it had been recorded for ten years, and there was evidence that for ten years consecutively it had been claimed and enjoyed by those claiming through or under such deed. We do not see the application of the section to which reference has been made to the present case. If the deed was not properly recorded for want of the necessary certificate of the identity of the grantors, then it was not recorded within the meaning of the section, and it is as though the deed had not been put upon the record. Besides, if it had been so that the copy was admissible, the jury should have been directed that they should be satisfied of the claim and enjoyment of the lot by those claiming through or under the deed before they could regard it as evidence. Although there may have been such evidence, that was not sufficient; for, by admitting the deed without such direction, the minds of the jurors were withdrawn from the consideration of it, and they may have thought it unnecessary to ascertain the fact of the enjoyment of the land by those claiming under the deed. (Allen v. Moss, 27 Mo. 362.) Neither was the copy transcribed from the records read to the jury as a copy of the original deed. The jury were not directed, that if they believed it to be a copy of the original, which was proved to have been mislaid or destroyed, it was evidence. The deed was suffered to be read as a properly certified copy of the record, which was erroneous. As the case stood on the instructions, the plaintiff’s eighth instruction should have been given.

We are of the opinion that the certificate of the acknowledgment of the deed by Lee and wife was sufficient to make it effectual for passing the title to the wife under the act of 22d June, 1821. That act seems to have contemplated that the court, before which the acknowledgment of the married woman would be taken, would be composed of more than one judge, and hence requires that one of them should examine the wife and afterwards that she should acknowledge the writing to be again shown to her. At the date of this acknowledgment the circuit courts were composed of but one judge. If the statute is to be literally construed, then no court in which there were not two judges at least could take an acknowledgment of a married woman conveying her land; No one will maintain that the law intended that the circuit courts should be denied the power of taking the acknowledgments of married women to deeds conveying away-their estates. The manner of making the acknowledgment prescribed by the act of June 22,1821, is not suited to a court with a single judge. Now if the statute will bear such a construction as will make good an acknowledgment before a court composed of a single judge, we see no reason why the certificate of acknowledgment endorsed on the deed of Lee and wife is not a sufficient compliance with the law. It suf-ciently appears that the wife was examined by the court, and if an examination by one judge is sufficient, we do not see on what ground an examination by three would be bad. It appeared that Mrs. Lee was examined privily and apart from her husband.

The certificate of the acknowledgment of Mrs. Gamier to her and her husband’s deed of the 29th of April, 1827, is sufficient. It is not pretended that a certificate of acknowledgment can be helped out by parol evidence, but it will be construed in reference to the laws in force which authorize it to be taken. In this certificate it is stated that “ at a term, &c., before me, M. P. Leduc, judge of said court, personally appeared Marie Gamier,” &c. This is the most usual form of making up records. If a party appears at a term before the judge of the court composed of a single judge, we can not see how it can be more forcibly expressed that he appeared in court. The act of 1825, under which the deed was acknowledged, did not require that it should be done in open court, and, if it did, we are of the opinion that it so appears from the face of the certificate. The wife was required to appear before some court of record. We can not conceive how the matter could be made to appear more plainly than it does. The certificate is given under the seal of the court and by one styling himself the judge thereof, the court having no clerk.

The objections to the admissibility of the deed of Tholo-zon and wife in evidence are not valid. The effect of the deed as evidence is another question. Our code at the date of the deed did not and at no time since has prescribed a period within which a deed must be recorded. The deed when offered had been duly recorded. The statute however made it evidence withorrt regard to its being recorded. As the certificate of acknowledgment proved the identity of the grantors, the eighteenth section of the act concerning evidence was not applicable to it. But as the deed was made and acknowledged in 1830, then, by virtue of the tenth section of the act concerning conveyances of the revised code of 1825, and the sixteenth section of the act concerning evidence of the revised code of 1855, it was clearly admissible in evidence. The deed was also admissible under the forty-fifth section of the act concerning conveyances. (R. C. 1855, p.-, § 45.) As the deed had been duly recorded with an acknowledgment containing a certificate of the identity of the grantors, a copy of it was admissible in evidence.

Adele Tholozon married in 1819. Her mother, Mrs. San-guinette, died in 1821. The land which she conveyed by deed to Lavielle and Morton in 1830 she inherited from her mother. It was no grant then to her and her heirs within the pi’oviso of the act of 22d June, 1821.

The sixth instruction asked by the plaintiff in relation to the effect of the deed of Tholozon and wife was erroneous, inasmuch as it required the court to direct the jury that the plaintiff must not only have had actual notice of the deed to Laveille and Morton, but also that it had been acknowledged by Mrs. Tholozon and her acknowledgment certified in such manner as to pass the estate of a married woman during marriage. The registry act requires no such notice. If a purchaser has actual notice of a prior unrecorded deed, he must at his peril ascertain whether it is valid; if he purchases with a knowledge of its existence, he takes upon himself the risk whether or not it is valid.

There was no error in refusing the seventh instruction asked by the plaintiff. The fact of the delay in recording the deed from Tholozon and wife was no evidence of itself of any fraud. Every day’s experience and observation satisfy us of the truth of this. Nor did the delay furnish any ground for a presumption that the deed had been cancelled, or that the estate had. been revested in Tholozon and wife. The failure to record the deed was a fact in the case, which the party might have used in an argument to the jury with the force the other circumstances gave to it. We do not maintain that the withholding a deed from record may not in some cases be evidence conducing to show a fraudulent intent, but we do say that the abstract fact of a failure to record a deed is not any evidence of fraud.

If the original deed from Lee and wife to Benoist has been lost or destroyed, a copy of it may be proved like the copy of any other lost instrument. We are not aware of any rule or principle of law which would require any greater or stricter proof of the copy of the certificate of the acknowledgment of the wife than of any material part of the deed. If the acknowledgment is endorsed on the deed and is sufficient in law, we do not see why the evidence that would satisfy the jury that the copy of the deed is a true one, would not also satisfy them that the copy of the acknowledgment on the deed is also a true one, nothing appearing which shows that it is not so.

Reversed and remanded;

the other judges concur.


source: Caselaw Access Project

author: Scott, Judge, Richardson, Judge.

license: Public Domain

text:
    Williams, Respondent, v. Carpenter, Appellant.
    1. Hunt, United States recorder of land titles, upon proof of inhabitation, cultivation and possession made before him under the act of Congress of May 26, 1824, issued a certificate of confirmation to one Louis Lacroix. Held, that the title thus evidenced would not he made to enure to one Joseph La-croix or his legal representatives by showing that it was said Joseph and not Louis that appeared before the recorder and made proof under the act of May 26, 1824, and that the certificate was issued by mistake to Louis instead of Joseph Lacroix.
    2. Hunt’s minutes of testimony taken by the act of Congress of May 26, 1824, are not admissible in evidence except to prove such facts as may be proved by hearsay. If professedly admitted to prove such facts, care should be taken that they are not used for other and illegal purposes.

      Appeal from St. Louis Land Court.

    This was an action in the nature of an action of ejectment to recover possession of a portion of a lot of one by forty arpens in the Grand Prairie common field, near St. Louis, being the lot covered by United States survey No. 1664. Both plaintiff and defendant claim title under the proof made before Recorder Hunt on the 3d of March, 1825, pursuant to the act of Congress of May 26, 1824. The plaintiff introduced in evidence, against the objection of defendant, certified copies of extracts from the registry of certificates of confirmation issued by Recorder Hunt under the act of May 26,1824. From these it appeared that on the 3d of March, 1825, said Hunt had issued a certificate of confirmation to Louis Lacroix of a lot of one by forty arpens in the Grand Prairie, bounded on the north by Pierre Barribeau, and on the south by Paul Lagrandeur (alias Guitard) ; also that on the same day he issued a certificate of confirmation to Pierre Barribeau for a lot in the same prairie, bounded south by Joseph Lacroix. The court also admitted in evidence Hunt’s minutes of testimony taken in proof of the claims of Louis Lacroix and Pierre Barribeau. Barribeau testified for Louis Lacroix. The entry of testimony in support of the claim of Pierre Barribeau is as follows: “ Pierre Barribeau claiming one and a half by forty arpens in Big Prairie, St. Louis, bounded on the north by a lot formerly belonging to Benito Yasquez, on the south by Joseph Lacroix, and on the east and west by vacant land. Louis Lacroix, being duly sworn, says he knows said lot, and that the claimant Barribeau has been in possession of the same for thirty years and cultivated the same for ten or twelve consecutive years. [Signed] Joseph X Lacroix. Test: M. P. Leduc.” As stated in the bill of exceptions, the copies of these minutes “ were admitted by the court as a part of said confirmations, but not as any evidence of the fact of possession by either of the con-firmees prior to December 20, 1803, or of any other fact therein stated except as to location and boundaries.”

      Tbe plaintiff also read in evidence, against tbe objections of defendant, tbe report of Loughborough, tbe surveyor general, to tbe commissioner of tbe general land office, upon said survey No. 1664. This report is dated January 80, 1855, and in it tbe surveyor general sets forth various reasons for believing that tbe name Louis Lacroix bad been used mistakenly for Joseph Lacroix. Testimony was adduced with a view to show that no person named Lacroix besides Joseph Lacroix resided in St. Louis prior to 1808. It appeared, however, that a person named Louis Lacroix bad lived in St. Louis.
    Tbe plaintiff claims title under Joseph Lacroix; the defendant under Louis Lacroix. Tbe court, at the instance of tbe plaintiff, instructed tbe jury as follows : “ 1. If the jury find from tbe evidence that tbe person who presented tbe claim for tbe tract of land in controversy to Theodore Hunt, recorder of land titles, on tbe 8d of March, 1825, was in fact J oseph Lacroix, and that tbe confirmation certificate was issued to Louis Lacroix upon proof of the' possession of Joseph Lacroix, and that Joseph Lacroix was the person who possessed or cultivated tbe lot in the Grand Prairie common-field adjoining P. Barribeau, as tbe same is described in tbe confircnation, then the jury will find for tbe plaintiff, if be has shown a derivative title to tbe right and’ title of Joseph Lacroix in tbe premises sued for. 2. If the jury find for the plaintiff, they will assess as damages tbe rents and profits of tbe land from tbe time of tbe commencement of this suit to this time, and also assess the value of monthly rents of tbe land.”
    Tbe defendant asked tbe court to instruct the jury as follows : “ 1. Tbe claim to tbe right of the possession of tbe premises in question set up by tbe plaintiff is.not supported by tbe proof of cultivation by Louis Lacroix, made before the recorder of land titles, and tabular lists of tbe same, which were given in evidence by plaintiff; and unless tbe jury find from the evidence that tbe plaintiff has proved .clearly and beyond a doubt that J oseph Lacroix inhabited, cultivated or possessed the premises in question prior to the 20th of December, 1803, they must find for the defendant. 2. The plaintiff has not shown by any evidence, that the title to the land in question as furnished by the proof of cultivation and possession in the name of Louis Lacroix before the United States recorder of land titles, and the certificate of confirmation issued by said recorder to Louis Lacroix, which were given in evidence, enured to the benefit of Joseph Lacroix or his legal representatives. 3. If the jury find from the evidence that the land in question is part of a commonfield lot in St. Louis Grand Prairie of one by forty arpens, and which lot was inhabited, cultivated or possessed by Louis Lacroix prior to the 20th December, 1803, then the title to the same was confirmed to Louis Lacroix by act of Congress of 13th June, 1812, which was given in evidence, and if so confirmed to Louis Lacroix then the plaintiff is not entitled to recover. 4. The confirmation certificate issued to Louis Lacroix by the United States recorder of land titles, which was given in evidence by defendant, is prima facie evidence of title in Louis Lacroix of a common field lot in the Grand Prairie of one by forty arpens, and is prima facie evidence of all the facts necessary to prove a confirmation by the act of Congress of 13th June, 1812, given in evidence by defendant ; and the United States survey No. 1664, given in evidence by defendant, is prima facie evidence of the location, extent and boundaries of the same. 5. If the jury find from the evidence that the land in question is the same tract or lot of land or a part of the same that is mentioned and embraced in the confirmation certificate issued to Louis La-croix by the United States recorder of land titles, which was given in evidence by defendant, then the plaintiff is not entitled to recover in this suit, unless they also find that the plaintiff has proved clearly and beyond doubt that it was Joseph Lacroix and not Louis Lacroix that made the application and proof of cultivation and possession of said land before the recorder of land titles, as shown by the copy of said proof given in evidence by plaintiff, and confirmation certificate given in evidence by tlie defendant. 6. The fact of Pierre Barribeau, in his description of boundaries, calling for Joseph Lacroix for his south boundary does not furnish any evidence of title in Joseph Lacroix to the lot joining said Barribeau on his south or to the land in question, nor in any way affect any title that may have existed in Louis Lacroix to the same lot at that time, or since, but is evidence only upon the question of location. 7. The several deeds which were given in evidence by plaintiff, purporting to show a conveyance of a common field lot of one by forty arpens in the Grand Prairie, from the heirs of Joseph Lacroix through the persons therein named as grantees down to plaintiff, are not to be considered by the jury as furnishing evidence of themselves of title in said Joseph Lacroix or his representatives to such common field lot, unless they also find that Joseph Lacroix was the person to whom said land was actually confirmed.” Of these instructions the court gave those numbered one and two, and refused the others.
    The jury found for the plaintiff.

      Krurn Sf Harding and McLure, for appellant.
    I. The admission of Hunt’s minutes was erroneous. It was not offered to prove the location or boundaries of the land sued for, but to prove that Joseph Lacroix was entitled to the confirmation that was made in the name of Louis La-croix. (17 Mo. 310; 21 Mo. 243 ; 27 Mo. 55.)
    II. The report of the surveyor general was not competent evidence to prove any material fact in issue in the cause. (Blumenthal v. Roll, 24 Mo. 113.)
    III. The first instruction given in evidence for the plaintiff is erroneous. There was no evidence upon which to base such an instruction. There was no evidence tending to prove that Joseph Lacroix presented the claim for the land in dispute before the recorder. The plaintiff does not seek to recover on the ground of possession and cultivation prior to December 20, 1803. There is no patent, confirmation or survey in favor of Joseph Lacroix. If plaintiff seeks the benefit of this confirmation by reason of any fraud, accident or mistake in the granting of it, he must make a proper case for such relief and ask to reform the confirmation. (Magwire y. Vice, 20 Mo. 429.) The instructions asked by the defendant should have been given.
    IV. The court erred in admitting the declarations of Joseph Lacroix.

      Hill and Whittelsey, for respondent.
    I. The court did not err in admitting the declarations of Joseph Lacroix. (1 Greenl. Ev. § 145, 131, 103, 120; 7 Monr. 234; 2 Barr, 55 ; .18 Ala. 822; 4 McCord, 262; 2 J. J. Marsh. 880 ; 11 Pick. 308, 362; 13 Wend. 536 ; 3 A. K. Marsh. 394.)
    II. Hunt’s minutes of testimony were competent evidence. Defendant’s deeds refer to .Hunt’s minutes. . (See Acts of. Congress of March 3,1805, of April 21, 106;'June 13,1812 ;¡ March 3, 1813; April 12, 1814; April 29, 1816; May26,: 1824; McGill v. Somers, 15 Mo. 80; 9 Mo. 477; 11 Mo. 16; 21 Mo. 243; 2 Ad. & El. 171, 182; 27 Mo.-; 18 Mo. 492.)
    III. Plaintiff could show what person made the proof before the recorder. The tabular list was only prima facie evidence. The court was authorized to admit evidence to show that Louis Lacroix meant Joseph Lacroix. If there be any omission in the instruction given for plaintiff, it was cured by that given for defendant.
   Scott, Judge,

delivered the opinion of the court.

As the title to all the land in the state of Missouri was originally in the Spanish or French governments or the United States, there was no error in permitting the plaintiff to read evidence showing that the title to the land in controversy had passed from the United States, as without such evidence he could have had no standing in court. ' Whether he showed that he had acquired that title was a matter to be subsequently determined, and if he did not do this, as he must have failed in his action, the introduction of the evidence would have caused no prejudice to the opposite party. Both parties claimed the title evidenced by the certificate of confirmation, and the question was as to the enurement of that title. From the instructions given for the plaintiff it appears that he based his right to a recovery upon the certificate of confirmation and the evidence explaining it. As neither party claimed behind the certificate, that may be regarded as the highest evidence of title which could emanate from the government. Had there been a patent on the certificate, that could not have varied their rights; they would have been adjusted on the same ground as on the certificate. Here then is a title that has passed from the government, and the question is, to whom does it belong ? The certificate was issued to Louis Lacroix, and Joseph Lacroix, or those claiming under him, maintain that the certificate was granted by mistake to Louis and that Joseph was the person intended. The case was tried on the theory that Louis and Joseph La-croix were different persons, and there was evidence showing that there were two such individuals in St. Louis. Now, on this state of facts, can J oseph Lacroix recover the land from Louis by showing that he was the person intended and the one to whom the certificate was granted ? If Louis Lacroix was a real person and the certificate was granted to him, though by mistake, could any title have been passed to Joseph Lacroix ? Although J oseph might have been entitled to receive the certificate, yet in fact has he obtained it ? On what principle, in this form of action, can the title be taken from him to whom it has been granted by law and transferred to another ? Where a grant, though by mistake, is made to one, another can not divest him of his title by showing that he was the person for whom the bounty was intended. If the government, on a false suggestion or by mistake, has granted a patent, it can only be avoided by scire facias or other suitable proceeding instituted directly for that purpose. It can not be done in a collateral action. The circumstances of this case do not warrant the application of the principle that by parol evidence one may show that he is the person named as a grantee or patentee. In the case of Jackson v. Lawton, 10 John. 23, it is said that if a patent issued by mistake, or upon false suggestions, it is voidable only, and unless letters patent are absolutely void on the face of them, or the issuing them was without authority, or was prohibited by statute, they can only be avoided in a regular course of pleading in which the fraud, irregularity or mistake is directly put in issue. The case of Jackson v. Hart, 12 John. 77, illustrates and sustains the foregoing views. There the patent was to George Houseman, under which the plaintiff claimed title. The defendant offered to prove that George Houseman, the patentee, never enlisted nor served in the company of the regiment to the members of which only land was by law to be patented, but that a man by the name of George Hosmer did enlist and serve in that regiment; that he was the person intended by the patent, and that by mistake it was issued to George Houseman. This evidence was rejected and there was a judgment for the plaintiff. It was observed that a latent ambiguity may be explained by parol proof in order to elucidate and explain written words of doubtful sense; as, if a grant be made to John Smith, and there be several persons of that name, parol evidence is admissible to explain which of the persons bearing the same name was intended. So parol evidence would be admissible to prove that George Houseman and George Hosmer were the same person. But certainly it is not explaining a latent ambiguity to prove that a grant to George Houseman, a real person, was intended for another person of the name of George Hosmer, and in that case it was held that a patent, not void but which had been issued by mistake or on an insufficient suggestion, can only be avoided by scire facias or other proceeding for that purpose in chancery; that it can not be impeached in a collateral action, as by showing that the patentee intended was a different person and of a different name from the one mentioned in the patent. In the case of Jackson v. Goes, 13 John. 518, where evidence was received on the part of the defendant to show that a person claiming as patentee was not the patentee intended by the grant, the testimony was that there was another of the same name with him who claimed as patentee and that lie was the person intended. This case is not [at] all inconsistent with that of Hart v. Jackson above cited. In the case of Jackson v. Stanley, 10 John. 133, where parol evidence was received to show a patent void by reason of a mistake in the name of the patentee, it was not pretended that upon the proof of such mistake, the title would enure to the person intended, as patentee, but that it would remain in the state.

From the view we take of this case as presented by the record, it would seem unnecessary to determine the other questions made in the court below, but as they may after-wards arise we will now notice them. Had the ground on which the plaintiff placed his right to recover been tenable, we know no principle which would have warranted the admission in evidence of the report of the surveyor general. This report is nothing more than an argument. The officer no doubt sincerely entertained the views he expressed, but he had no authority to make an argument for the purpose of being read in evidence. If he knew the facts stated in his argument, he might have been examined as a witness, and the counsel in the cause would have made the comments to the jury which they justified. If he knew no facts, his statements were mere hearsay, and that unsupported by an oath. If counsel thought the argument a good one, they might have adopted it as a part of their own, and then it would have been understood by the jury. When such a paper is read as evidence, in what light is it to be viewed by the jury ? Not knowing how to appreciate it, the use of it in such a way may be the means of misleading them.

There was no dispute about localities or boundaries in the cause. There was then no necessity for reading the depositions preserved in the recorder’s minutes. If this evidence lias been merely unnecessary, it would scarcely have been worth while to notice its introduction ; but as the party using the recorder’s minutes of evidence always expects to gain an undue advantage thereby, they should never be read when it is unnecessary to do so. The court must see the object of the party in using this evidence, and knowing that it is an undue one, though professedly for another purpose, care will be taken that the end in view is not attained, and the attempt to use it illegally should be made to recoil on him who makes it.

We are not aware of any principle which sanctioned the evidence of those witnesses who testified that they had heard Joseph Lacroix say that he had fixed or proved up his claim, and such like conversations.

.Reversed and remanded;

the other judges concur.

Richardson, Judge.

In my opinion, if the confirmation was to Louis Lacroix and was so intended by the recorder, Joseph Lacroix could not claim the benefit of it by showing that it ought to have been to him. But if Joseph Lacroix was the person who appeared before the recorder and made the proofs, and the recorder intended to give him the certificate of confirmation, but by a mere mistake wrote the name Louis instead of Joseph, then Joseph Lacroix or his representatives, on showing these facts, ought to be permitted to take the benefit of the certificate of confirmation. I concur however in the reversal of the judgment on account of the admission of improper evidence.


author: Richaedson, Judge,

text:
    Waugh, Appellant, v. Blumenthal, Respondent.
    1. Infants may be plaintiffs in statutory proceedings for partition.
    2. The act of February 21, 1815, [R. C. 1845, p. 764,] providing for the partition of land, &c., authorized the joinder of all the parties in interest as parties plaintiff in a statutory proceeding for partition. [Bompart v. Ro-derman, 24 Mo. 385, overruled.]

      Appeal from St. Louis Land Court.

    This was an action of ejectment for a portion of a block of ground in the city of Carondelet. The plaintiff was obliged to make title through a judgment and sale in a partition suit, commenced under the partition act of February 21,1845, in which all the parties were petitioners, and some of them were minors who appeared in the suit by guardian. At the trial the plaintiff offered in evidence the record of the partition suit and also the sheriff’s deed to himself, having previously traced the title up to the parties to the partition proceeding. The defendant objected to the record of the partition suit and the sheriff’s deed, and specified the following objections and no others : 1st, that all the parties to said partition suit were petitioners, and that therefore the same was an ex parte proceeding not authorized by law and so a nullity; 2d, that all the petitioners in said suit except one were minors under the age of twenty-one years and appeared in said suit by guardian. It was admitted that said record and deed were regular and sufficient in every particular except those above specified. The court excluded said record and deed on the ground that they were void for the reasons above stated. The plaintiff took a nonsuit, with leave, Ac.
    Bennett, Field and Primm, for appellant.
    I. The record and deed were admissible. (See Thornton Thornton, 2T Mo. 302.)

      F. A. Dick, for respondent.
   Richaedson, Judge,

delivered the opinion of the court.

This case presents only two propositions, which are, first, whether a judgment rendered in a partition proceeding is void, so that it can be collaterally assailed, on the ground that all the parties in interest united in the petition; and second, whether it is void because some of the petitioners are infants who appeared by guardians. The second proposition was discussed and expressly decided in the case of Thornton v. Thornton, 27 Mo. 302, and some of the reasons given in support of the judgment in that case intimated the opinion of the majority of the court on the first question that arises in this case.

In suits at common law there are opposing parties, usually designated by the names of plaintiff and defendant; but an action, in its general sense, is a proceeding for the purpose of having determined, by the judgment of a court, a real controversy between parties; and, on this idea, our statute regulating practice in civil cases (R. C. 1855, p. 1283) permits parties to a question in difference, which might be the subject of a suit, to agree upon a case containing the facts upon which the controversy depends, and to present a submission of the same to any court which has jurisdiction of the subject matter. The proceeding for partition of land in this state is statutory, and may be said to be in many respects sid generis; and as the practice of uniting as petitioners all the parties in interest has been indulged in for many years and in many cases affecting large estates, we think, even conceding that the practice is not strictly conformable to ancient technical rules, that it would be unsafe, as no injustice can result from it, to attempt to reform it merely to vindicate a technical rule, at the expense of sweeping away the only foundation that supports the titles to a large amount of valuable property, which has been acquired and improved and passed from hand to hand in good faith and in perfect confidence in the regularity of such proceedings. In our opinion, however, the practice is sanctioned by the statute. The first section of the partition act provides that when any lands, &c., shall be held in joint tenancy, tenancy in common or copar-cenary, it shall be lawful for any one or more of the parties interested therein to present a petition to the circuit court of the county wherein the land is situated for a division and partition of such premises according to the respective rights of the parties interested therein, and for a sale thereof if it shall appear that partition can not be made without prejudice to the owners. The second section directs that the petition shall particularly describe the premises sought to be divided or sold, and shall set forth the rights and titles of all parties interested therein, including tenants for years, for life, by the courtesy, or in dower, and of persons entitled to the.reversion, remainder or inheritance, and of every person who upon any contingency may be or become entitled to any beneficial interest in the premises; and the third section declares that every person having.any such interest as is specified in the preceding section “ may be made a party to such petition.” The language is not, that all persons interested in the premises may be made parties to the proceeding, for they must be parties to it before they can be affected by it; but that they may be parties to the petition, not as defendants but as petitioners. The act contemplates that in some instances all the parties interested would not join in the petition, and hence the fifth section provides that in such cases a copy of the petition with notice that it will be presented to the court shall be served on all parties interested, who shall not have joined in the petition. The fifth section performs no function when all the parties unite in the petition, for as it is declared in the third section that all persons interested in the premises may join in the petition, the fifth section can only apply to cases in which some of the parties interested in the land sought to be divided decline or refuse to unite in the petition.

Judge Napton concurring, the judgment will be reversed and the cause remanded.


author: Soott, Judge,

text:
    McPheeters, Plaintiff in Error, v. Merimac Bridge Company et al., Defendants in Error.
    1. Public bridges are not subjected by the St. serais mechanics’ lien act of February 14, 1857, (Sess. Acts, 1857, p. 668,) to liens for work done thereon or for materials furnished for their construction.
    2. The bridge authorized to be built by the act of February 24, 1853, incorporating the Merimae Bridge Company, (Sess. Acts, 1853, p. 195,) was a public bridge.

      Error to St. Louis Land Court.

    This was an action to enforce a mechanic’s lien against the bridge of the Merimac Bridge Company. The defendants are James P. Langford, Jas. N. Stevenson, Jacob 0. Gremm and Henry Gremm, and the Merimac Bridge Company. The plaintiff alleged in his petition that while said defendants Langford and others were contractors performing certain work for the defendant, the Merimac Bridge Company, they became and were indebted to plaintiff in the snm of $728.48, for castings and materials sold, delivered and furnished, and for work and labor done and performed, &c. The plaintiff set forth the items furnished for the construction of the bridge of the Merimac Bridge Company. It also appeared that he had complied with the requirements of the lien law. To this petition the Mei'imac Bridge Company demurred. The court sustained the demurrer.

      Drake and Wood, for plaintiff in error.
    I. The mechanics’ lien law, in express terms, confers a lien for materials furnished and used in the erection of bridges. (Sess. Acts, 1857, p. 668, § 5.) The Merimac Bridge Company is purely a private corporation. (See Sess. Acts, 1853, p. 195; Angelí & Ames on Corp. 27, 29.) The case of Dunn v. North Missouri B. ft. Co., 24 Mo. 494, is not analogous to this. The erection of this bridge was purely a private enterprise, and the fact that a county road leads to or from the bridge can make no change in its character. This bridge would be liable to execution on judgment against the corporation. (B. C. 1855, p. 377, § 8.)

      Johnson, for Merimac Bridge Company.
    I. The court did right in sustaining the demurrer. The Merimac bridge is a public bridge. It was not subject to a mechanic’s lien. (Dunn v. North Missouri B. B. Co. 24 Mo. 498.)
   Soott, Judge,

delivered the opinion of tlie court.

A public bridge is a common highway. A private bridge is similar in its nature to a private right of way and is subject to most of its incidents. (Woolrych on Ways, 195.) The character of a bridge depends more upon the use that is made of it than upon the means by which it was erected. If individuals, for the right to take toll, will make a public highway, the mode of remuneration authorized will not deprive it of the character stamped upon it by the purposes to which it'is applied. The charter granted to the Merimac Bridge Company shows that the bridge authorized to bo built was a public one, as it was intended to be connected with the highways of the county, was to be built at or near a ferry, and public roads were to be made leading from it. (Sess. Acts, 1853, p. 195.)

The right to erect a bridge and to exact toll from passengers crossing it is a franchise that can only be granted by the state. That right is personal and can not be transferred without express authority of law. In conferring the privilege, regard is had to the ability of the applicant to build and keep up the bridge, and as personal considerations may influence the grant, the franchise of common right is not transferable. There is nothing in the incorporating act which authorizes the company to transfer their bridge to any other body except the county of St. Louis, and such transfer would be inconsistent with the whole design of the law. It seems to be settled that a general assignment by a corporation of all its property and effects will not pass the franchise. The right of transfer in a corporation is confined solely to property. A corporation can not assign its powers and franchises to others to be exercised by them as trustees or otherwise. (Burrill on Assignments, 614.) It has been held that a turnpike road can not be levied upon by an execution issued upon a judgment obtained against the company. (Ammant v. The New Alexandria and Pittsburg Turnpike Eoad, 13 Serg. & Raw. 210.) The tangible property and estate of a corporation is alienable like the property of an individual, but when the interest which the proprietors of a railroad have in the soil over which it passes is merely an easement or right of passing and transporting persons and things over the land of another, it can not be sold, assigned or taken in execution. (Angell on Highways, 411.)

There is nothing in the charter which points out the manner in which the company may acquire such an interest in the land as would authorize the use of the soil for abutments. If the company has merely used the highway it has no such interest in the soil as can be transferred. It does not appear that the company has any interest in any land connected with the bridge. The lien law (Sess. Acts, 1857, p. 668) certainly contemplates that there should be an interest in the land in the person making the improvement. It is true it provides that where improvements have been on leasehold estates, and those estates expire or are forfeited before the lien is satisfied, the improvements may be removed; but it does not appear here that the company ever had any interest in the land. What foundation is there then for a mechanic’s lien ? Why go to the Land court about it ? If the plaintiff is in pursuit of the bridge structure as personal property, it is evident he was rightly put out of court. If the bridge is a public highway, it is not easy to see on what principle it can be sold and removed. The right to take the toll can not be sold, as we have seen; then a public structure, useful to the community, is to be destroyed that its ruins may go to pay the debt not of its owners but of other persons.

Because bridges which are public highways can not be subjected to the liens of mechanics, it does not follow that there may not be bridges which will be subject to them. We have seen there are such things as private bridges known to the law. This consideration is a sufficient answer to the argument founded upon the word “ bridges” seen in the fifth section of the mechanics’ lien law of St. Louis county. (Sess. Acts, 1857, p. 669.)

Judge Napton concurring, the judgment will be affirmed.


author: Richardson, Judge,

text:
    Northcraft et al., Appellants, v. Martin et al., Respondents.
    1. A petition is not demurrable because a judgment is asked not warranted by the averments; the court may grant any relief consistent with the case made and the allegations of the petition.
    2. Where in a partition suit a sale of the premises is ordered, and previous to the sale it is agreed between certain parties in interest that one of their number shall bid off the property at such sale unless it brings a certain price, and hold it for the benefit of the parties to the agreement and such others of those interested as may choose to become parties thereto, and that the others shall abstain from bidding at such sale, and he does purchase the property under such agreement; held, that he will hold it in trust for all the parties in interest.

      Appeal from ' St. Louis Land Cowrt.

    Demurrer to a petition. Plaintiffs alleged substantially that Lewis Martin died leaying plaintiffs and defendants in this suit his sole heirs ; that all of said heirs joined in a petition for partition of certain premises that had descended to them as heirs of said Martin; that a decree or order of sale was made; that a sale was made and the sheriff acting under the said order sold the premises to the defendant William C. Martin; that immediately prior to said sale by the sheriff and on the day of the sale an agreement was entered into by and between said William C. Martin and certain of the heirs of Lewis Martin, by which it was agreed that the premises hereinafter described should be bid off by the said William C. Martin, providing the same did not bring a certain price per foot for different parcels thereof, and that he should hold the said premises for the benefit of the parties to such agreement and such others of the heirs of Lewis Martin as might, upon being notified, elect to become parties to said agreement; that all the other parties to said agreement agreed to abstain from bidding at such sale; that said property was by such arrangement and agreement purchased in by said W. C. Martin at much below its actual value; that most of the same was sold in bulk although susceptible of division; that plaintiffs were notified of the said agreement under which said sale was made, and desired to become parties thereto and have the benefit thereof; that William C. Martin- refused to permit them to become parties to said agreement or to have any of the benefits thereof according to its terms, and insists that he acquired at said sale and now claims to own said property discharged of all rights in the plaintiffs or any other persons not parties to said agreement, although all the other parties to the same are willing and desirous to allow plaintiffs and all the other heirs of said Lewis Martin to become parties to said agreement and to have all the benefits which may arise therefrom; that said agreement had a tendency to deter competition at such sale and caused said property to sell at much less price than it otherwise would; that said sheriff made a report of his sale and it was confirmed and the sheriff ordered to make a deed; that said deed was made ; that afterwards said William C. Martin and wife conveyed a portion of the premises so purchased in by him to one Aloys Heislen. The plaintiffs prayed the court to set aside and annul the sale of the property by the sheriff and the deed; also the sale by Martin to Heislen, and for such other and further relief, &c.
    The court sustained a demurrer to this petition.

      Bland Sf Coleman, for appellants.
    I. The court erred in sustaining the demurrer. (25 Mo. 309; 20 Mo. 290, 296 ; 8 Mo. 448.)

      Shreve, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

It is unnecessary to decide whether the demurrer was improperly sustained for the reasons assigned by the plaintiff, because, in our opinion, for other reasons, the petition stated facts sufficient to constitute a cause of action. If William C. Martin, after making the agreement with the heirs, purchased the property at the sale in partition under the circumstances stated in the petition, he became clothed with a trust for all the parties interested in the sale, which he could not throw off without committing a fraud. The legal title to the land by the sale Tested in him, but he held it in trust for the other heirs, and the substantial rights of the parties were not changed or affected by the sale; and, if the allegations of the petition are sustained, the court by a decree should declare the trust, which may be executed by another sale. As to the lots purchased by Heislen, a resale should not be ordered if he bought in good faith or for a fair price, inasmuch as the heirs could be fully indemnified out of the purchase money.

A petition is not demurrable because it asks a judgment not warranted by the averments; nor is its true character determined by the relief it seeks, for when there is a defence the court may grant any relief consistent with the case made and embraced within the issue. (2 R. S. 1855, p. 1280, § 12 ; Ashby v. Winston, 26 Mo. 213.)

The other judges concurring, the judgment will be reversed and the cause remanded.


text:
    Cowden, Appellant, v. Cairns et al., Respondents.
    1. A defendant can not be permitted to introduce evidence to support a de-fence to the action not set up in Ms answer.
    2. Where a lease is made to five persons, and there is nothing on the face of the lease to indicate that the lease was made to them for partnership purposes, and under a judgment against one of them his interest in the lease is levied on and sold, and the purchaser institutes an action for partition of the leasehold premises; held, that, at law, the lessees held the premises as tenants in common and the purchaser at the execution sale acquired the apparent interest of the execution debtor; that the defendants could not show, by way of equitable defence to the partition suit, that the said leasehold premises were purchased and held for partnership purposes and were consequently personalty and that the execution debtor had no interest therein, unless they set up such a defence in their answer; that if such de-fence were set up, notice must be brought home to the purchaser.

      Appeal from St. Louis Land Court.

    The facts sufficiently appear in the opinion of the court.
    Bennett, for appellant.
    I. The leasehold property is to be treated as real estate. The plaintiff was entitled to .judgment against the defendants upon their answer. Nothing was said in the answer about the leasehold having been held by Fribourg and the defendants as partnership property; much less was it said that the defendants had a lien on Fribourg’s interest to pay the debts of the firm or any balance due from Fribourg to either of themselves. Defendants did not set up this de-fence in their answer. (Holmes v. McGee, 27 Mo. 597.) There was nothing on the face of the deed to show that the lessees held the premises in any other manner than as tenants in common. The plaintiff is entitled to protection as a bona fide purchaser without notice. (4 Munf. 316 ; 7 S. & R. 438; 2 Watts, 143 ; 2 Barb. Ch. 165.) Besides it is not the law that real estate bought and improved with partnership funds for partnership purposes is absolutely and for all purposes converted into personalty. So far as the legal title is concerned, partnership real estate is held by the partners as tenants in common, but the share of each partner is subject to an equitable lien for the debts of the firm and for any balance due from him to his copartners. Each partner holds the legal title to his share in trust for these purposes. It will be converted by a court of equity to the extent necessary to discharge the trusts and meet the exigencies of the partnership. In the present case the partnership had been dissolved, the debts of the firm paid, and all the equities between the partners, except in this leasehold property, fully adjusted. (Cookson v. Cookson, 8 Sim. 549 ; Bell v. Phyn-, 7 Yes. 453; 3 Bro. C. C. 199 ; Green v. Graham, 5 Ohio, 264; Carlisle v. Mulhern, 19 Mo. -; Hoxie v. Carr, 1 Sumn. 185; Goodwin v. Richardson, 11 Mass. 469 ; Blake v. Nutter, 19 Maine, T6 ; Coles v. Coles, 15 Johns. 16 ; Dyer v. Clark, 5 Mete. 580 ; Deloney v. Hutcheson, 2 Rand. 183;
      Holmes v. McGee, 27 Mo. 597; Wiles v. Maddox, 26 Mo. 77.) This is a suit for partition under the statute. If the defendants have any equities they must make them clearly appear in a mode which would entitle them to equitable relief. (See Wilbridge v. Case, 2 Ind. 36 ; Williams v. Van Tuyl, 2 Ohio, State, 336; Green v. Graham, 5 Ohio, 264; Spitts v. Wells, 18 Mo. 468; 1 Sto. Eq. § 654-8.) The mere fact that the defendants in their answer deny that plaintiff has any interest in the premises is not sufficient to defeat his suit for partition and drive him to an ejectment. (Barnard v. Pope, 14 Mass. 434; Miller v. Dennett, 6 N. H. 109; Lambert v. Blumenthal, 26 Mo. 471; 4 Greenl. Cruise, 256 ; Coxe v. Smith, 4 Johns. Ch. 271; Hosford v. Merwin, 5 Barb., S. C., 51.)
    JET. IV. Hart, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

Henry Chouteau, in October, 1853, by an indenture of lease demised to the four defendants and Eugene Fribourg, a lot of land in the city of St. Louis for the term of fifteen years from the first of January, 1851. The instrument is signed and sealed by all the parties to it, and on its face is made to the lessees in their individual names, and not as partners. By virtue of judgments recovered against Fri-bourg, all his interest in the premises was sold by the sheriff and purchased by S. A. Bennett,- who conveyed to the plaintiff. The plaintiff then filed his petition for partition, in which he claimed that he was a tenant in common with the defendants of the demised premises for the remainder of the unexpired term, and was entitled to one-fifth part thereof. There is not an affirmative allegation in the answer, and the defendants did not in their answer set up any special matter as a defence, but only denied in general terms that the plaintiff had any right or interest in the premises, or that Fribourg had any at the date of the judgment and sale under which the plaintiff claimed.

The plaintiff at the trial proved every averment in his petition and on the pleadings was entitled to judgment, for the evidence given by the defendants, by which they sought to show that the lot was leased, improved, used and held as partnership property for the manufacturing of soda, and that Fribourg in equity had no interest in it at the date of the judgment and sale, was inadmissible against the plaintiff’s objection, as no ground was laid in the answer for the introduction of such proof. (Winston v. Taylor, 28 Mo. 82.) As the lease was made to the defendants and Fribourg in their individual names, it must be regarded at law according to the legal title, and, prima facie, they held the estate conveyed by it as tenants in common. If, however, the lease was granted to the partners for partnership purposes and was treated and considered by them as a part of their partnership stock, it would be regarded for many purposes as personalty. But the doctrine that converts real estate into chattels is a creature of equity; (3 Kent, 68; Hoxie v. Carr, 1 Sum. 178 ;) and parties seeking to avail themselves of it are bound to set up the facts out of which the equity arises. (Magwire v. Vice, 20 Mo. 431.)

Although as between Fribourg and the defendants the leasehold might be considered a part of their partnership property, yet as there is nothing on the face of the lease to show that they held it in any other manner than as tenants in common, or to impress upon it any other character than such as the law imputes to it, the plaintiff will be entitled to Fribourg’s apparent interest at the time of the judgment, unless it is shown that he had notice of the defendant’s equity or circumstances from which notice might be fairly inferred. (Ford v. Herron, 4 Munf. 316 ; McDermott v. Lawrence, 7 Serg. & R. 438 ; Colly, on Part. § 135.)

Enough has been said to reverse the judgment, and it is therefore not necessary to consider whether the leasing of a small piece of land by five persons - and the erection of a manufactory upon it, or what state of facts, would be sufficient to put a purchaser on inquiry and charge him with constructive notice. The question may arise in another trial under a proper state of pleading, and it may be observed that many of the principles that belong to the whole subject will be found ably discussed by Mr. Justice Story in the case of Hoxie v. Carr, cited above.

The other judges concurring, the judgment will be reversed and the cause remanded.


author: NaptoN, Judge, RichaRdson, Judge

text:
    Neiman el al., Respondent, v. Early, Appellant.
    1. Where in an action for partition a sale is made by the sheriff nnder the order of the court, the court may, at any time during the term to which the process issued to the sheriff is returnable, set aside such sale without notice to the purchasers thereat; the court has power to control the execution of its own process, and it is not essential to the exercise of this power that the purchasers should he notified.

      Appeal from St. Louis Land Court.

    This was an action for the partition of certain lands commenced by Christopher Neiman and others, all the parties interested joining in the petition. At the October term, 1856, of the Land court, the court ordered the sale of three of the tracts of land embraced in the petition. During the same term the sheriff sold said parcels, John Early became the purchaser of one tract, and L. Babcock of another. On the 3d of December, 1856, at said October term, the sheriff made his report of sales to the court. Babcock moved the court to set aside the sale to himself on the ground of an alleged misrepresentation as to the title to said tract. Early had no notice of this motion. The court, at said October term, 1856, the parties to the suit consenting thereto, set aside the sale made by the sheriff, and orclered a resale of all the real estate embraced in the former order of sale. The sheriff made sale of said three parcels under the order of the court, and on the 7th of January, 1857, at October term of said court, filed his report of sale. On the 6th of Jan-nary, 1857, Early moved the court to order the sheriff to make him a deed for the tract purchased by him at the sale under the first order. He proved compliance on his part with the terms of sale. The court overruled this motion. Early appealed to the supreme court.

      Whittelsey, for appellant.
    I. Babcock bought at his peril. He had no reason to move to set aside his purchase. (See Owsley v. Smith, 14 Mo. 156; Evans v. Dendy, 2 Speer, 9; The Monte Allegro, 9 Wheat. 616; Puckett v. United States, 4 Am. Law Beg. 459; 2 McCord, 382; 3 Watts, 390; Schwartz v. Dryden, 25 Mo. 572.') The court had no authority to set aside the sale for the reasons presented. It is admitted that the court has jurisdiction over its own process until its final return, but that can not be allowed to affect innocent parties, who have no notice and are not in court.
    II. The appellant properly sought his remedy by motion. (Buby v. Strother, 11 Mo. 417 ; Langham v. Darby, 13 Mo. 553 ; Wooton v. Hinkle, 20 Mo. 290; Neal v. Stone, 20 Mo. 294, 349 ; Jackson v. Boberts, 7 Wend. 83 ; Nelson v. Brown, 23 Mo. 13; Schwartz v. Dryden, 25 Mo. 572.)
    P. JB. GarescM, for respondents.
    I. The appellant was too late with his motion. There was no exception taken to the action of the court in setting aside the first sale. That having been done, the order for a resale had to be made as a matter of course. The matter was wholly within the discretion of the court. The appellant was a stranger to the proceedings below, has not been injured and has no right to be here.
   NaptoN, Judge,

delivered the opinion of the court.

The only question in this case is whether the Land court had power to set aside a sale in partition, at the return term, without notice to the purchaser.

It seems that under the order of the court three several pieces of land were directed to be sold and were sold. A clay or two after the sale and during the term to which the writ was returnable, one of the purchasers of one of the tracts sold came into court and asked to have the sale set aside on account of an alleged misrepresentation as to the title. By consent of the parties interested in the partition, and without any investigation of the title so far as the record shows, the court made an order for a resale, and in the order directed all three of the tracts to be resold. No objection was made to this course at the time, and no exception was taken. Upon the second sale the tract originally purchased by or struck off to Early in the first sale brought about double the sum it did before, and the other tracts brought less, making the aggregate of sales about the same as at first.

The court had power over the execution of its process until the officer returned it, and it is not believed to be .the practice in such cases, or essential to the exercise of the power of the court that the bidders or purchasers should be notified. It is their business to make objections at the proper time and to see to the completion of their title without any formal notice. So long as the term lasts, the matter is in the power of the court to take such steps as under the circumstances may be thought just and prudent. Although we can not see any reason for setting aside the sale to Early, as there seemed to be no connection between his tract or its title and the one which was bought by the dissatisfied purchaser, yet the matter was for the Land court exclusively, and, if objected to, should have been resisted at the time and before a resale was made. "We can see that manifest injustice would be done now, if this court should permit the first sale to Early to stand and yet require the partitioners to submit to all the losses occasioned by the second sale.

Judge Scott concurring, judgment affirmed.

RichaRdson, Judge

dissenting. In my opinion, the pur-

chaser ought to have had notice of the proceeding to set aside the sale.


author: BichaRdson, Judge,

text:
    Gibson, Plaintiff in Error, v. Bogy et al., Defendants in Error.
    1. The intention of the parties to a deed, as shown by the entire deed, should govern in its construction; where certain of the words used appear repugnant to the other portions of the deed and to the general intention of the parties, they should be rejected.
    2. A call for a monument in a deed, as for a “ public road,” will be controlled by the other calls therein, if it be apparent that it was inadvertently inserted.

      Error to St. Louis Land Cou/rt.

    The facts sufficiently appear in the opinion of the court.

      E. Bates and Gibson, for plaintiff in error.
    I. The lot in question was not embraced in the deed from Gamble to Tabor and Collins. The call for the “ public road” is the governing call therein.

      Rill, Grover Sf Hill, for defendants in error.
    I. The deed to Tabor and Collins embraced the land in dispute. (See 2 Greenl. Cruise, 334-5, note; 12 Ill. 38 ; 29 Maine, 178; 17 Mass. 211; 3 Greenl. 71; 11 Ill. 97; 29 Maine, 120; 1 Ired. 283 ; 3 Pike, 18.)
   BichaRdson, Judge,

delivered the opinion of the court.

This was an action of ejectment to recover the possession of that part of the United States survey No. 1483, which is situated east of a public road now known as Broadway, in the city of St. Louis. The whole survey is a tract of one by forty arpens, confirmed to Joseph Tayon by the act of Congress of the 29th of April, 1816, and surveyed in 1826. Both of the parties claim under Archibald Gamble, who was the owner of the whole tract in 1833. The deed to the plaintiff is dated in 1856, and describes the land conveyed as being the part of survey No. 1483 which lies east of Broadway. The deed to Collins and Tabor, under which the defendant claims, is dated December 5th, 1838, recorded 13th February, 1839, and the only question in the case is whether this deed embraced the lot in dispute. It recites “ that whereas the said Gamble in the month of June, 1836, sold to the said Charles Collins a certain, tract or parcel of land containing the quantity of forty arpens, more or less, being in township forty-five north, in range seven east, lying in the common field of St. Louis, being one arpent in front by forty arpens in depth, bounded on the north by lands formerly of Paul Kiercereau, on the east by the public road, on the south hy a vacant arpent assigned to the St. Louis Public Schools, and on the west by land of owners unknown, being survey No. 1483, as appears by the records of the surveyor general’s office, and for the conveyance of which by quit-claim deed he executed his bond to said Collins.” Then follows the granting part of the deed in these words : “We, the above named parties of the first part, do hereby, for and in consideration of the sum of ten thousand dollars to us in hand paid by the said party of the second part, sell, assign and convey, and forever quit-claim, by these presents, all our right, title, claim, interest or estate in or to the above described tract of land of one arpent in front by forty arpens in depth.”

In the construction of deeds, the intention of the parties must govern as in other cases of contract. If the language is free from ambiguity, the instrument must be construed according to the plain common meaning of the words, but the construction must be on the entire deed, and not merely on any particular part of it; and it is the duty of the courts “ to endeavor to find out such a meaning in the words as will best answer the intention of the parties.” It is said that the words are not the principal things in a deed, but the intent and design of the parties; and, therefore, where there are any words in a deed that appear repugnant to the other parts of it, and to the general intention of the parties, they will be rejected.” (4 Greenl. Cruise, 307.)

Applying these rules to the construction of the deed under consideration, we think it appears that it was the intention of Mr. Gamble to convey to Collins and Tabor all his interest in the Tayon tract known as survey No. 1488. It _ is known as a part of the history of St. Louis that the common fields are in a tier of lots adjoining each other, and that they generally have a common front line. Many of them have a front of one arpent, some one and a half, others two or three or four arpens, by a depth of forty arpens; and they are called one, or one and a half, or two, three or four by forty arpent lots, as the case may be. They are also called common field lots, or arpent lots, and are often designated by the name of the confirmee, as the Tayon arpent, or the Tayon tract, or the Tayon common field; and, after they have been surveyed, they are frequently called by the number of the survey, as survey No. 1483. When speaking of these lots in reference to purchases and sales, they are seldom described by their boundaries, but are most generally identified by the name of the confirmee, as the Tayon arpent or common field lot, or by the number of the survey, though other modes of description may be employed in deeds. Parties are not liable to be mistaken as to the subject about which they contract, or as to its general locality, or whether they are treating for the fractional part or the whole of'a common field lot, though they may be deceived as to its particular boundaries; and, in construing deeds like the one in this case, the well established rule may be invoked that when the intention of the parties is not otherwise apparent, it may be ascertained by giving greater effect to those things about which men are least liable to mistake. (4 Greenl. Cruise, note, 335.)

The recital in this deed designates the land as “ being, one arpent in front by forty arpens in depthf bounded on the north by lands formerly of Paul Kiercereau, on the east by the public road, on the south by a vacant arpent assigned to the St. Louis Public Schools, and on the west by lands of owners unknown, “ being survey No. 1483, as appears by the records of the surveyor general1 s office and it is described in the granting clause as “ the above described tract of land of one arpent in front by forty arpens in depth.” The prominent idea, evidently, in the minds of the parties was a tract of one by forty arpens, being survey No. 1483 ; not a part of the survey, but the whole of the common field lot. The reference to the “ public road” was not made for the purpose of fixing the boundary of a part of the tract, but was erroneously assumed to be the eastern boundary of the whole tract; and, as the thing granted was ascertained by a full and correct description, the deed ought not to be defeated by the addition of a further and false description. (Mayo v. Blount, 1 Ired. 283.) Monuments generally prevail over the other calls in a deed, unless, taking the whole deed together, they are apparently erroneous, when they will be disregarded ; (4 Greenl. Cruise, note 338 ;) and a boundary may be rejected when it is clear that it was inadvertently inserted, and that a tract with different boundaries was intended to be' conveyed. (Thatcher v. Howland, 2 Met. 41; Bosworth v. Sturtevant, 2 Cush. 392.) The call “ of one arpent in front by forty arpens in depth” describes the whole tract, which is not said to be a part of the survey, but as “ being survey No. 1483 ;” and the reference to the survey by its number and the public office where it is recorded made the survey and the jslat thereof part of the deed as effectually as if the courses, distances and objects noted in the survey had been particularly mentioned in the deed. (Davis v. Ranisford, 17 Mass. 211.) The other judges concurring, the judgment will be affirmed.