source: Caselaw Access Project

author: Scott,• Judge,

license: Public Domain

text:
    Milburn and others, Respondents, v. Hortiz, Appellant.
    1. The confirming force of the act of Congress of June 13, 1812, extends to common field lots, out-lots, &c., as well without as within the survey of the outboundary line of the town of St. Louis, the plat of which survey is commonly known as “ Map X.”

      •Appeal from St. Louis Land Court.

    This was an action of ejectment, brought by William Mil-burn and others, as commissioners appointed by the St. Louis County Court under authority of an act of the general assembly of March 8, 1851, to recover possession of part of the 16th section in St. Louis township. On the trial below, plaintiffs adduced the following evidences of title-:
    1. Act of Congress of March, 6,1820, entitled “ An act to authorize the people of Missouri territory to form a constitution and state government,” giving to the state, on certain conditions, the 16th section of each township.
    2. An ordinance of July 19, 1820, declaring the assent of the people of the state of Missouri to the foregoing act of Congress.
    3. The act of the general assembly of Missouri of March 8, 1851, “ to authorize the sale of fractional section 16, township 45 north, range 7 east.”
    4. The order of St. Louis County Court appointing plaintiffs commissioners to take possession, &c.
    5. A certified copy of the plat of survey of township 45 north, range 7 east. It was proven that defendant was in possession of a portion of section 16.
    6. Plaintiffs offered in evidence a certified copy of the plat of survey approved 1840, purporting to be a survey of the out-boundary line of the town of St. Louis, made by authority of the act of Congress of June 13th, 1812, which plat is commonly known as “ Map X.” Defendant objected to the introduction of this plat as irrelevant and incomplete. The objection was overruled.

      Defendant, to maintain the issue on bis part, offered parol and documentary evidence to prove that the land described in the petition, and of which the defendant had possession, was part of a common field .lot, containing one arpent in front by forty in depth, in the Grand Prairie common field belonging to the town of St. Louis : that said common field lot was one of 7 d a series of lots lying adjacent to each other in the same general range in the Grand Prairie, and in the vicinity of the town or village of St. Louis ; that said lots were possessed and cultivated by the inhabitants of said town or village in a common field prior to the 20th of December, 1803 ; that said common field lot of one by forty arpens was possessed and cultivated by Francis Bequette, an inhabitant of said town, prior to said 20th of December ; that he and his representatives claimed the Said common field as owners; that said Francis Bequette died, and that defendant is in possession of the part of the said common field lot sought to be recovered in this suit under title derived from the legal representatives of said Bequette, (of whom defendant is one,) and that defendant holds possession thereof under said title. The court, on the objection of plaintiffs, excluded this evidence on the ground that said common field lot and common field were outside of the survey of the outboun-dary line of the town of St. Louis, given in evidence. Defendant admitted that said common field is outside of said out-boundary line.
    Defendant also offered to prove that said survey of the said outboundary line was incorrect in material particulars, and that the outboundary line, directed to be run by the act of Congress of June 18th, 1812, never has been surveyed or run as directed by said act. This evidence was, on the objection of plaintiffs, excluded. A verdict was rendered for plaintiffs.

      S. Reber, P. C. Morehead, C. C. McClure, for appellants,
    cited Page v. Schiebel, 11 Mo. 167 ; Page v. Harrison, 16 Mo. 182 ; Eberle v. The Schools, 11 Mo. 247 ; Trotter v. The Schools, 9 Mo. 69 ; Gurno v. Janis, 6 Mo. 330 ; Soulard y. Clark, 19 Mo. 570; City of Carondelet v. McPherson, 20 Mo. 192; Strother v. Lucas, 12 Peters, 410 ; Chouteau v. Eckhart, 2 How. 344 ; Gruitard v. Stoddard, 16 How. 494.

      R. M. Field, with whom were W. L. Williams and B. Bates,
    insisted that the outboundary line, established by the surveyor general pursuant to the first section of the act of 13th June, 1812, is conclusive upon all parties claiming a confirmation by force of that section ; and that no person, claiming title under that section alone, can be permitted to locate any of the enumerated subjects of confirmation beyond that outboundary line. In regard to confirmations of single tracts to claimants, the doctrine of the Supreme Court of the United States has settled conclusively the effect of an official survey upon the rights of a party claiming under such confirmation. In the case of Cochran v. West, (17 How. 403,) it was declared that the party confirmed must take such location as was made by the executive department having charge of the surveys ; and it was said in that case to have been always the policy of the United States to give defined limits, by survey, to all public grants of lands. This case really went no further than the previous cases of LeBois v. Bramell, (4 How. 449,) and Me-nard v. Massey, (8 How. 293.) The same doctrine has been laid down by the same court in the recent case of Kissell v. Public Schools, in which case it is declared with clearness and distinctness that the ascertainment of the true location of a vague and indefinite grant of land by act of Congress falls within the province of the executive department alone, and that the judiciary department, whether state or national, has nothing to do with the matter. The decisions of the Supreme Court of the United States, in regard to the subject under consideration, are conceived to go to this extent, that the boundaries of a tract of land, of vague or uncertain limits, granted or confirmed by the United States, are, according to long established public policy, to be surveyed so as to show the line of separation between what is granted or confirmed and what is still retained as public domain ; and that the execution of this duty is in its nature purely executive, with which the judiciary department, state or national, bas no concern whatever. The courts of.Missouri have nothing to do but to apply these plain principles ; and surely there is no doubt or difficulty in their application to the case at bar. The United States, by act of Congress of 18th June, 1812, confirmed to the inhabitants of the town of St. Louis their town lots, out-lots, common field lots and commons, according to possession, inhabitation or cultivation prior to the 20th December, 1808, and ordered the same to be surveyed by the public executive officer by one outboundary line, run in such manner as to include all the subjects of confirmation in one mass, just as they were confirmed. The Supreme Court of the United States, in Mackay v, Dillon, (4 Howard, 446,) speaking of this survey, says : “ The object of this proceeding, on the part of the government, was to sever the confirmed claims, in a mass, from the remaining lands of the United States and others outside of the boundary, and nothing more.3’ Now, it is perfectly plain that if the outboundary line, when run, did not answer the purpose just mentioned, it answered no purpose whatever, and it was labor thrown away to run it at all. Practically, the court is asked by the appellant to obliterate the outboundary line from the books of the land office. If Congress, by the act of 1812, had granted the site of the town of St. Louis to some one person, and had directed it to be surveyed by its officer, the case would then have fallen at all points within the decision of Cochran v. West. Where is the logician that can distinguish the case just assumed and the one at bar ? An indefinite number of inhabitants claim parts of one large tract of land having vague and undetermined boundaries. The government grants the whole according to the several claims, and directs at the same time that the whole shall be surveyed in one mass, so a3 to include all the parts. What kind of a survey is that which includes the whole and does not include its parts ? A case could scarcely be imagined where the necessity of a public, authoritative .survey would be more essential than in the case of these confirmations by the first section of the act of 1812. The town and all its parts are confirmed according to actual inhabitation, cultivation and possession. Nothing could be more vague and indefinite. As part of this grant, it is provided that the public officer shall survey and mark its outboundary. If the survey, when made, does not mark the limits of the grant, how are they to be ascertained ? If the surveyor general of the United States, under the authority of Congress, can not run this outboundary, who else can do it ? Ingenious counsel have argued that the object of the survey, provided by the first section of the act of 1812, was to limit the reservation for the public schools made in the second section of the act. But surely this can not be so. The second section maybe stricken out of the act, and the.end tobe answered by the survey still remains, just as it was stated by the Supreme Court in Mackay v. Dillon. The appellant says that Congress gave him a common field lot in 1812, and he thinks it hard that a surveyor should take it away by running a line in 1840. This is a common argument. The counsel made use of it in the case of Cochran v. West. They said Brazeau had á title to the sixteen arpens north of the ditch in 1811, by the judgment of the commissioners, and no surveyor could annul this title by running lines south of the ditch in 1850. The answer of the Supreme Court was that the true location of his land .jmder his grant depended on the lines to be run by the sprveybr. In the present case, it is not necessary to deny that the appellant was proprietor of a common field lot belonging to St. .Louis that was confirmed by the act of 1812. Let him look for his land within the lines established by the gov- • éfnjnent..
   Scott,• Judge,

delivered the opinion of the court.

The question presented by the record for our determination does not, in our opinion, involve the necessity of an examination of the correctness of the survey of the outboundary of St. Louis, made by the officers of the general government. We will therefore proceed at once to an examination of the point on which the cause turned below, viz., that a common field lot'of the village of St. Louis, lying beyond the outboundary above referred to, was not confirmed by the act of the 13th June, 1812.

In all the litigation which has grown out of that act — and it is believed that it has given rise to more than any law, state or federal, which has been in force here — an instance is not recollected in which it was maintained that a survey of the outboun-dary of the village of St. Louis was a muniment of the title of a private claimant to a lot confirmed by the act of 1812. In-habitation, cultivation or possession prior to the 20th of December, 1803, by an inhabitant of the village, was all that has been supposed was necessary to be proved in order to maintain or defend an ejectment for a common field lot claimed under the act of 1812. That act, in its terms, requires no such thing. The confirmation of the claims of individuals is made directly and absolutely, without any reference to an outboundary. The language of the act is, that the rights, titles and claims to town or village lots, common field lots, &c., shall be and the same are hereby confirmed to the inhabitants of the respective towns or villages. Afterwards, it is made the duty of the principal deputy surveyor to survey the outboundary lines of the several towns or villages, so as to include the out-lots, common j lots and commons thereto respectively common field lot belonging to one of the er is confirmed by the act, can the failure of thefe to include it in his survey take away the claimfl The fact that no survey of the outboundar|$ twenty- eight years after the passage of the deemed conclusive on this question. It has alwu posed that the idea of an outboundary was suggested by the reservation made by the act for the use of schools, which being limited to one-twentieth of the area within the boundary, it was necessary in order to ascertain which were the lands reserved for schools. Had there been no reservation for schools, no outboundary would have been thought of, nor would any have been required. Sueb has been tbe practical construction of tbe act of 1812, and it would now be unsafe to depart from it, as many titles may repose on the belief of its correctness. Had tbe idea possessed tbe mind of Congress that a lot must have been within an outboundary in order to have been confirmed, what would have been more natural than first to have required the survey of such a boundary, and then to have declared that all out-lots, common field lots, and commons, within the same, should be confirmed to the inhabitants of the respective villages and towns ? Instead of this, they confirm the inhabitants in their rights, and then require tbe outboundary to be surveyed, so as to include them. How unwise it would have been to have given tbe inhabitants lots, and then to have conferred on tbe principal deputy surveyor an absolute power to take them away by his survey at any time thereafter, even after the lapse of twenty-eight years. Believing that the idea of an outboun-dary had its rise in the reservation for the use of schools, there is nothing, in our opinion, which would warrant us in making it interfere with the claims of private individuals. Had a correct outboundary of the village been surveyed immediately after the passage of the act, there would have been but little hardship in holding claimants to it; but to require it now, for the first time, more than forty years after the passage of the act, as a muniment of title, might disturb many titles and produce a wide field for litigation.

In the case of Kissell v. The Public Schools, (18 Howard, 218,) the Supreme Court of the United States says : “It is proper to remark that we are here dealing with the survey marked ‘I’ (which is the survey in question) and ascertaining its effect as regards the lands granted and allotted for school purposes, and are not to be understood as having expressed any opinion on the effect of this outboundary survey on titles situated beyond it and claimed to have been confirmed by the act of 1812, or which were subject to be identified by the recorder of land titles under the act of 1824.” Adopting the opinion which is here only intimated, we, on the other hand, in giving our judgment in relation to the question involved in this controversy, do not wish to be understood as expressing any opinion in relation to the question, how far the disregard of the survey, in determining the rights of individuals under the act of 1812, will affect the public schools ? In saying that individuals are not confined within the limits of the out-boundary, we do not wish to be understood as expressing the opinion that the schools are also at liberty to depart from those limits, and claim a new survey of the outboundary.

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


author: Hyland, Judge,

text:
    Tayon and others, Respondents, v. Hardman & Page, Appellants.
    1. The confirming force of the act of Congress of June 13th, 1812, extends to common field lots, &c., as well outside of as within the survey of the outhoundary line of the town of St. Louis, the plat of which survey is commonly known as “Map X.”
    2. Where several persons unite in petition for a commission to perpetuate testimony, a verification of such petition by the affidavit of one of such petitioners is sufficient.

      Jippeal from, St. Louis Circuit Court.

      TV. L. Williams, J. R. Shepley, for appellants.

      S. Reber, for respondents.
   Hyland, Judge,

delivered the opinion of the court.

This is a suit in the nature of an action of ejectment. There was a trial by a jury and the court gave the following instructions in behalf of the plaintiff : “1. If the lot described in the plaintiffs’ petition was one of a series of lots lying adjacent to each other in the same general range in the Grand Prairie of St. Louis, and in the vicinity of the village or town of St. Louis, and said lots -were occupied and cultivated by tbe inhabitants of said village in a common field prior to the 20th December, 1803, then said lot is a common field lot within the meaning of the act of June 13th, 1812. 2. If the jury find from the evidence that Frantjois Bequette, prior to the 20th December, 1803, was an inhabitant of the town of St. Louis, and before that day possessed or cultivated a common field lot, of one arpent in front by forty in depth, in the Grand Prairie, and that he and his representatives claimed the sam ■ as owners, then the said lot was confirmed by the act of June 13th, 1812. 3. If the jury believe from the evidence that the lot sued for was a common field lot, within a common field belonging to the town of St. Louis, and cultivated by the inhabitants of said town prior to the 20th December, 1803, then the survey of the outboundary line of said town, given in evidence, does not bar or preclude the plaintiff from a recovery in this action. 4. A confirmation by the act of 13th June, 1812, gives a better title than one derived from a New Madrid location.”

The court also gave the following for the defendants : “5. If the jury find from the evidence that the land sued for was not cultivated and claimed as his own land by Franqois Be-quette prior to the 20th of December, 18 3, they will find for defendants ; and, in determining the question of cultivation and claim, the identical land cultivated and claimed must be proved by plaintiffs. 6. In determining the true location of the land sued for, the jury are not to take into consideration the surveys made and approved by the United States for c nfirmed claims, except so far as said surveys agree with the parol proof of location introduced in this cause. This case depends upon parol proof entirely; must rest upon such proof as introduced, unaided by any survey of confirmed lands, unless such survey agrees precisely with the parol proof. 7. If the jury find from the evidence that the plaintiffs claim title under Francis Be-quette, and it appears by proof that Frantjois Bequette died without having cultivated the land in dispute, they will find for tbe defendants. 8. Unless the jury can determine from the quantity of the land sued for, to which plaintiffs are entitled by inheritance and purchase, they will find for defendants. It is the duty of the plaintiff to make out the whole case by proof before the jury.”

The court refused to give the following, asked by defendants : “1. There having been no concession or grant or permission of any kind to cultivate the land in dispute produced by plaintiffs from the Spanish and French authorities, and it appearing by proof that there was no cultivation of, or claim asserted to, said land from about the year 1796 or 1797 up to the 13th June, 1812, and no claim or possession of said land by the plaintiffs, their ancestors, or any one claiming to own the same in common with them, prior to about the year 1845 or 1847, the plaintiffs are not entitled to recover in this suit. 2. The land in dispute having been proved to be outside of and beyond the outboundary made under and by virtue of the first section of the act of June, 1812, and approved 8th December, 1840, introduced in evidence by defendant, the plaintiffs, under the case as made out, are not entitled to recover. 3. If the jury believe from the evidence that the land in dispute lies beyond and outside of the outboundary survey made under and by virtue of the first section of the act of the 13th day of June, 1812, and approved on the 8th December, 1840, introduced in evidence by defendants, the plaintiffs are not entitled to recover in this action upon the proof before them.”

There was a verdict and judgment for the plaintiffs, and an appeal by defendants to this court.

On the trial, the plaintiffs offered the perpetuated testimony of Antoine Smith, which was objected to by defendants but admitted by the court. This perpetuated testimony, and the restrictions refused by the court, and given also by the court, form the only grounds relied on by the appellants for a reversal of this judgment. The plaintiffs claim under the act of June 13, 1812, a common field lot, without any documentary title or of claim outside of the outboundary survey of the town o£ St. Louis, The plaintiffs’ claim rested on the occupation, possession and cultivation of the lot prior to December 20th, 1808, by Francis Bequette, who claimed the lot as his property ; it was a lot in a common field belonging to the ancient town of St. Louis and situated in the Grand Prairie, near the town. The plaintiffs derive title from Bequette either as heirs or purchasers of heirs. The defendant, Hardman, was tenant of Page, who claimed under the New Madrid location, of Martin Coontz, No. 145, survey No. 2499. Patent certificate issued by Recorder Bates, November 17, 1822. It was admitted at the trial that Page holds all the title conferred by Coontz’s location.

There are but two questions of importance for our determination. The outboundary question is one, and the perpetuated testimony offered here gives rise to the other. I will give my views on the outboundary first. The point made by the appellant is, that the land in controversy, not being included in the survey of the outboundary of the town of St. Louis, can not now be shown to be a common field lot confirmed by the first section of the act of 18th June, 1812. The question has already been considered in the case of Hortiz v. Milburn et al., in which the opinion is filed at this term. It is in that case laid down that the survey of the outboundary line is not a muniment of title to a lot confirmed by the act, and that the first section confirms the titles to the lots inhabited, cultivated or possessed as required by the act, without waiting for the survey of an outboundary. It may now be observed, in support of this view, that the eases that have been decided in this court from the earliest day to the present time, have taken the confirmation of a lot possessed prior to 1803 to be complete by the act of 1812, without any regard to the question whether an outboundary had been run or not. In no such case does it appear ever to have occurred to the counsel or the court to inquire whether the property was included in a survey of the out-boundary of the town; nor could the fact have affected the title. The survey of the outboundary was not the survey of the lots confirmed, no was an individual, as the owner of a lot, intérested in the question where the line should run. If his lot was confirmed by the act, the confirmation was not annulled by the outboundary being so run as to exclude his lot. If the owner of a tract of land, granted as an ordinary farm in the vicinity of the town, should find his farm included in the out-boundary, when it was neither a common field lot nor an out-lot, he could not claim that his title, although not originally confirmed in June, 1812, became confirmed by the fact that it was included in the outboundary surveyed many years after-wards. The outboundary has no effect upon the question of confirmation as a question to be determined by the courts upon proof of cultivation or possession of a lot prior to December, 1803. The operation of the first section of the act is to give a present confirmation where it applies, as has been held over and over in this court; and that confirmation.is complete without the survey of the outboundary. This point must be therefore determined against the defendants.

In regard to the perpetuated testimony, the objections of defendants are not, in the opinion of this court, well taken. By the second section of the “ Act to amend an act concerning perpetuating testimony,” passed in March, 1851, the petition is not required now to be under the affidavits of all the petitioners ; the affidavit of any one or more of them is sufficient. The act of 1845 required the affidavit of the applicant, the law supposing but one person to petition in order to perpetuate testimony. But the amending act does not require the affidavit of all the petitioners — any one or more may make affidavit thereto, and that will be sufficient. The service of the notice on Mr. Page we think good. The objections, therefore, are considered without weight.

The instruction first refused on the defendants’ behalf was properly refused. No doubt but what there were at that day persons who abandoned the lands claimed by them, and originally occupied by them. Persons often moved from one part to another with the intention of a permanent change of residence, abandoning the fields cultivated heretofore and seeking new ones. Our notions of the present day differ widely from the practices and habits of the old French and Spanish people occupying the early villages and setlements of this country. Land was plenty. — population scarce, — you had but to ask for, and leave was given, to occupy, possess and cultivate. To change residence from one part to another was frequent and usual among the people engaged in trapping and hunting — ■ abandonment consists of act and intention, — leaving the old place with the intention of finding and making a new one, and without any design to return and occupy the old again. The court would no doubt have given such an instruction, if asked for, plainly indicating its views on this subject of abandonment; but the instruction refused was not of this character. The other instructions relate to the question of authority, and were, according to the views of this court on that subject, properly refused.

Upon the whole record, the judgment belO\y must be affirmed, the question of outboundary and perpetuated testimony being the only questions of any importance saved for the opinion of this court. The other judges concurring, the judgment below must be affirmed.


author: Ryxand, Judge,

text:
    Cozens et al., Respondents, v. Barrett, Appellant.
    1. It is erroneous, in a suit for work and labor done by plaintiffs as surveyors, to permit a book-keeper of plaintiffs to testify that the services sued for were charged on plaintiffs’ books to defendant.

      Appeal from St. Louis Law Commissioner’s Court.

      Jl. Buckner, for appellant.

      Hart & Jecho, for respondents.
   Ryxand, Judge,

delivered the opinion of the court.

The only question of importance in this case involves the propriety of the action of the court below in regard to certain portions of testimony offered to the jury when the case was on trial below. The plaintiffs sued the defendant for work and labor performed for him as surveyor. A witness for plaintiffs was asked the following questions : ‘1 When the men went out. (that is, the plaintiffs’ men) where did they profess to start for ? Ans. They started to defendant’s place. When they returned, did they return with any papers, notes or sketches ? Ans. They returned with sketches of surveys and field notes of defendant’s property. The plats of the survey were made from these sketches and plats by myself, as clerk for plaintiffs. Defendant was in plaintiffs’ office occasionally looking at the sketches. The number of hands that went out in the morning came back in evening, and Mr. Cozens paid for the furniture car in which the men went out and returned.” The defendant objected to the asking and the answering of these questions. His objections were overruled by the court, and the defendant excepted.

Now we see nothing objectionable in this testimony. The witness speaks of faets, and these facts may be very properly the foundation, of presumptions on which the jury might properly conclude that the work was done for defendant, and that he was instrumental in having it done, and liable for it.

The plaintiffs took the deposition of a witness, John A. Dol-man, but did not use it. The defendant read this deposition of Dolman, without any objection on the part of the plaintiffs. Dolman said : “I employed Cozens & O’Elaherty to make a survey of a piece of land belonging to the defendant, which survey was made according to my directions, and the expenses of said survey were charged to me, and in my account with Cozens & O’Elaherty I gave them credit on my books. The amount which I gave Cozens & O'Elaherty credit for is fifty-one dollars and fifty cents.” After the defendant closed his testimony, the plaintiffs recalled a witness, who testified that he was the book-keeeper of plaintiffs, as also the book-keeper of John A. Dolman (the witness for defendant) ; that the books of Dolman did not show any credit given to plaintiffs for sur? veys done on defendant’s property in his (Dolman’s) account against them; that the services sued for in this suit were charg- . ed on plaintiffs’ books to the defendant.” The defendant objected to this testimony ; it was admitted, and he excepted, and brings the case here by appeal. The testimony of Dolman, about the contents of his books, was admitted without any objection ; and, although this testimony was illegal, and, if objected to, might have been rejected, yet, having been admitted, we are not prepared to say that it was not properly met by evidence from a witness who stated that the books of Dolman did not show a credit given to plaintiffs in his account for these services. Had the witness, who was called to contradict Dol-man, gone no further in his testimony — had he stopped at this Simple contradiction, we would not have reversed the judgment below. The defendant opened the way for such testimony by his own improper evidence, and we should have left him to reap the fruits of such a step. But the witness did not stop at the contradiction of Dolman, but he also states what the books of the plaintiffs show in regard to these services. He says il that the services sued for in this suit were charged on plaintiffs’ books to the defendant.” This part of his testimony was clearly improper. The plaintiffs had no right to prove by their witness what was on their books. This testimony had a direct tendency to mislead the jury; it should have been rejected by the court. For this error the judgment below must be reversed, and the cause remanded;

the other judges concurring.


author: LEONARD, Judge.

text:
    Segond, Appellant, v. Garland, Respondent.
    1. Whitesides v. Cannon, ante, p. 457, affirmed.
    2. The St. Louis Land Court has jurisdiction of a suit to subject a wife’s separate estate to the payment of her debts.

      Appeal from Si. Louis Land Court.

      T. T. Gantt, for appellant,
    cited Bell on the Law of Property, 518, 519 ; Norton v. Tourville, 2 P. Will. 144 ; Hulme v. Tenant, 1 Bro. Ch. R. 14; 17 Johns. 581; 5 J. J. Marsh, 230 ; 3 Yesey, 193 ; 2 Atkins, 69 ; 3 Mylne & Keene, 220 ; 15 Yes. 599 ; 4 Russell, 112 ; 2 Roper on Husband and Wife, 246; Clancy on Rights, 346 ; 2 Story’s Eq. 1400 ; 10 Mo. 757 ; 18 Cond. Eng. Ch. R. 46 ; 22 Wend. 528 ; 3 Maddox, 200.

      Whittelsey and Wickham, for respondent,
    cited Sess. Acts, 1853, p. 90 ; McOune v. Hull, 20 Mo. 596 ; M. E. Church v. Jacques, 3 John. Ch. R. 77,113 ; 1 White & Tudor Lea. Cases inEq. 405; 17 Johns. R. 548, 577, 582; 2 Sand. Ch. R. 288 ; Coates v. Robinson, 1Ó Mo. 757 ; 1 Rawle, 237 ; Thomas v..Eolevell, 2 Whart. 11, 16 ; 3 Whart. 315 ; Young v. Ball, 9 Watts, 137 ; Doty v. Mickell, 9 S. & M. 435, 447 ; Montgomery v. Agricultural Bank, 10 Smed. & Mar. 565, 576 ; Morgan v. Elam, 9 Yerg. 375, 391, 398 ; Sutton v. Baldwin etal., 8 Humph. 209.
   LEONARD, Judge.

The question involved in this case we have settled at the present term in Whitesides v. Cannon and wife (ante, p. 457).

In reference to the question of jurisdiction, the remedy sought is against the wife’s real estate to subject it to the payment of the debt, and the case therefore is properly cognizable in the Land Court. The judgment is reversed,

with the concurrence of Judge Ryland,

and the cause remanded for further proceedings.


author: Ryu and, Judge,

text:
    Rogers, Appellant, v. Woody, Respondent.
    1. The Revised Code of 1835 required, in order to constitute a valid relinquishment of dower, an examination of the wife apart from her husband ; also that the certificate of such relinquishment should state the fact of such an examination.

      Appeal f rom Si. Louis Land Court.

      JR. S. Voorhis, for appellant.

      T. T. Gantt, for respondent.
   Ryu and, Judge,

delivered the opinion of the court.

This was a petition for an assignment of dower. The defendant’s answer states that the petitioner, and her husband in his lifetime, Joseph Rogers, by deed duly acknowledged and certified, sold and conveyed the land to the defendant. On the trial, the burden of proof being on the defendant, he offered the deed in evidence. The plaintiff objected to the deed on the ground that the certificate of the wife’s relinquishment of dower did not show a privy examination of the wife, and therefore was no bar to her dower. The court overruled the objection, and allowed the deed in evidence to establish, we must presume, what it was adduced to prove, and therefore the plaintiff took a non-suit. She afterwards moved to set this non-suit aside; the motion being overruled, she excepted, and brings the case here by appeal. The certificate omits the important words, “on an examination apart from her husband.”

By the act concerning conveyances, in force at the time this deed was made, (R. C. 1885, p. 122,) a married woman might relinquish her dower in any real estate of her husband by any conveyance thereof, executed by herself and her husband, and acknowledged and certified in the manner pointed out by the statute. The relinquishment must be taken before some court or officer authorized by the act to take proof or acknowledgment of instruments in writing conveying real estate or affecting the same. No such relinquishment shall be taken unless such married woman shall (among several other acts not necessary here to be enumerated) acknowledge, on an examination apart from her husband, that she executed the same,” &c. The certificate of such relinquishment shall set forth [among other things) that she was made acquainted with the contents of such conveyance, and acknowledged, on an examination apart from her husband, that she executed,” &c. By the law then in force, there must be an examination apart from her husband, and the oflicer’s certificate of acknowledgment must set forth the fact that there was such examination apart from her husband ; otherwise no such married woman is by such a deed barred of her dower. These are positive statutory regulations. This is the manner and mode pointed out by law in which married women can relinquish dower to land sold by their husbands, and unless such relinquishments be made and taken and certified substantially as required, they avail nothing. Now it can not be that the law means by an examination apart from her husband that such examination of her individually in his presence is a compliance of this requisition ; that first an acknowledgment of one, and then an examination and acknowledgment of the other, in each, other’s presence and hearing, though taken not together all at once, but each separately, is what was meant by this statute. Such has never been considered the meaning of this act by the profession in this state. When an examination apart from the husband is required, it does not mean an examination in his presence. It must be taken out of his hearing, and out of his sight. It must be taken apart from him, in a state of separation as to place.

Let us now see if this matter is material — that is, if its omission is fatal. Chancellor Kent says, the usual way of barring dower in this country by the voluntary act of the wife, is not by fine, as in England, but by her joining with her husband in a deed of conveyance of the land, containing apt words of grant or release on her part, and acknowledging the same privately, apart from her husband, in the mode prescribed by the statute laws of the several states. (4 Kent Com. 59.) In North Carolina, the second section of the act of 1751 says, that conveyances sealed by husband and wife, and by them personally acknowledged in the court of the county — the wife being privily examined before some member of the court appointed for that purpose, &c.- — shall be good and valid. When the wife could not reach the court by sickness, age, or by residence abroad, the same statute allowed a commission to two or more justices to take her acknowledgment. It is admitted in that state, that, without a private examination of a feme covert, had in one of the modes pointed out by the statute, her deed conveys no estate in the land. (See Jones v. Lewis, 8 Iredell, 73, also Burgess et al. v. Wilson, 2 Devereux, 306.) The private examination of the wife is of vital importance in the state of North Carolina. Judge Ruffin says, “ the acts of the general assembly were passed to facilitate alienations by married women, but not to encourage them, especially not to furnish temptations nor opportunities to the husband to extort from the wife a conveyance, which he might do if a public as well as a private exhibition of the instrument were not required. The presumption of the law, that the will of the wife is subdued to that of the husband, is, so far as regards the disposition of her estate at least, but too fully verified by our experience. Every ceremony, however formal, which has the least tendency to interpose the protection of the law, or the advice of an additional judicial character, ought to be adhered to substantially.” (2 Dev. 313.) In Robinson v. Burfield, (2 Murphy, 417,) Seawell, J., said: “It has been insisted that the certificate of the clerk that the deed was acknowledged in open court, and ordered to be registered,’ imports a private examination, or, if it did not, that it is to be presumed the court did its duty by examining Mrs. Robinson ; but we think differently, and on this branch of the case the court is unanimous.”

In Doe d. Raverty et ux. v. Fridge, (3 McLean C. C. R. 245,) it was held that a separate examination of a feme covert was indispensable; but the very words of the statute need not be used by the certifying officer; a substantial compliance with the requisitions of the statute is sufficient. Privy examination is necessary in Kentucky. (1 Mon. 48). To constitute a valid acknowledgment of a feme covert to a deed in Kentucky, it is indispensable that she should be privily examined, &c. (8 B. Mon. 178.) In Michigan, the examination must not only be apart from the husband, but must be private, and the courts of that state require such examination to be apart from the husband, and also apart from all others. (Sibley v. Johnson, 1 Manning, 380.) In Ohio and in Indiana the examination must be apart from the husband, but there has been much controversy whether it is necessary for the officer taking the examination to insert in his certificate all that the law requires to be done at such acknowledgment. Our statute requires the certificate to contain the facts of such acknowledgment, and the requisites of the law concerning it. (See Brown v. Farran, 3 Ohio, 152; 6 id. 142; 13 id. 118; 15 id. 423; 16 id. 599; 6 Blackford, 475.) In this case from Blackford the court declares it to be the officer’s duty, under the statute, before he takes the acknowledgment of a feme covert, to examine her apart from her husband and make known to her the contents of the deed. But “ the statute does not require (says the court, as we understand it,) the certificate to show any thing more on the subject than the declaration or acknowledgment of the wife that she had voluntarily executed the deed.” Our statute does require more ; so the presumptions made in Ohio and Indiana can not be made here, because our act requires the contents of the certificate to show what was done. In Pennsylvania, it must, appear by the certificate that the wife was examined separately and apart from her husband. “ A separate examination is essential and ought sufficiently to appear.” (Per Tilghman, C. J., Jourdan v. Jourdan, 9 S. & R. 268.) In New Jersey, a feme covert can not be divested of her title except by deed acknowledged by her in the mode pointed out in tbe statute — that is, on a private examination apart from her husband. (2 Zabriskie, 264.) In New York, the examination of the feme, covert must be apart from her husband, and the certificate must contain the facts that it was so done. (Elwood v. Klock, 13 Barb. 50.) In Illinois, the certificate of acknowledgment is an essential part of the due execution of a deed by which the real estate of a feme covert is to be transferred, and, unless it is in substantial compliance with the statute, no title passes. (5 Gilman, 113; 12 Ills. 276; 11 id. 123.)

There can remain no doubt that with us the admission to embody in the certificate the fact that the wife was examined apart from her husband, is fatal to such certificate. It must appear by the certificate, substantially, that she acknowledged the deed on an examination apart from her husband. This certificate then on this deed is fatally defective to pass the wife’s right of dower, and the court should have rejected it when offered for that purpose.

The defendant below offered the deed in evidence ; the plaintiff objected, and pointed out her objections specifically ; it was her duty to do so. The court admitted it, overruling these objections, and therefore erred. As to the proper assessment of the damages, or as to the value of the estate at the time when the deed from Joseph Rogers was made, we are warranted in supposing that the deed was not offered for that purpose; it was not objected to on any such ground, nor was it admitted on the ground that it would be competent on the assessment of damages, but because it was held by the court below sufficient to pass to the grantee the plaintiff’s right of dower.

We do not concur in giving to this deed any such effect, nor will the opinions of this court, made since the case of McDaniel v. Priest, authorize such a conclusion. The judgment must be reversed,

the other judges concurring.


author: RvlaND, Judge,

text:
    Salisbury et al., Respondents, v. The Marine Insurance Company of St. Louis, Appellant.
    1. Merchandize was insured on the steamboat Georgia from St. Louis to Council Bluffs; the Georgia, being disabled by the loss of her chimneys, became unable to prosecute her voyage without repaiis, and stopped at St. Joseph, on the Missouri river; the necessary repairs could be obtained only from St. Louis, and for this a detention of twelve days would be necessary. Held, that this was not such a breaking of the voyage as would justify the master in transhipping the property insured upon another boat; that by such transhipment the insurers became discharged.

      Appeal from St. Louis Court of Common Pleas.

      Kasson, with whom were Hudson & Thomas, for appellant,
    cited Phill. on Ins. § 1102, 979, 989 ; 2 M. & S. 247 ; 3 Sto. 351; 3 Johns. Ch. 93 ; 3 Johns. 321 ; 14 id. 138; 8 Mo. 99 ; Story on Bail. § 509 ; Millar’s Ins. 394.

      Krum & Harding, for respondents.
    I. In cases of necessity or calamity during the voyage, the master is by law created agent for the benefit of all concerned, including the underwriters on cargo, and his acts done under such circumstances, in the exercise of a sound discretion, are binding upon all the parties in interest in the voyage. (Jordan v. Warren Ins. Co. 1 Story C. 0. 342.)
    II. If by perils of the navigation the voyage be broken up, or if the necessary repairs would require an unreasonable delay, the master is not only justified in transhipping his cargo, but, if he can do so, is bound to forward it by another vessel. (2 Phill on Ins. § 1602,1624, 1632, 1635 ; Angel on Com. Carriers, § 187, 402 ; Abbott on Shipping, 366, 367, and notes ; 9 Johns. R. 17, 21; 4 J. Ch. R. 220 ; 12 J. R. 107 ; 1 Arnold on Ins. 179, 185.)
    III. In this case, therefore, the appellant is liable, unless the transhipment was unjustifiable, and not an act which a prudent man acting in good faith for the benefit of all the parties in interest could do, or unless the appellant is discharged by the operation of the clause in the policy : “ No privilege of lighting, towing or reshipping, except on good keel-boats and barges on the Ohio and Illinois rivers, and on the Mississippi above St. Louis.” And hereunder the respondents contend, 1. That the facts, as found, establish the good faith of the master. 2. They show the transhipment to have been made under circumstances which, considering the nature of the trade, viz., carrying goods destined for California by the overland route from Council Bluffs, and, considering the peculiarities of the navigation, not only justified the forwarding by the Kansas, but made it.the duty of the master, acting with prudence, to tranship his cargo. (Field v. Citizens’ Ins. Co. 11 Mo. 50, 56.) Before the Georgia could have gone to St. Louis and returned, the season for commencing the trip to California would be near its close. The same time would have elapsed before the master could have sent to St. Louis for a new chimney and have repaired so as to be able to proceed with his'voyage. In doing either, the perils of navigation of the Missouri river could not be overlooked by the master in making up his mind what he, as a prudent man, acting for the best interests of all concerned, ought to do. Another accident, serious or trivial, would or might cause such further delay as to entirely frustrate the objects which the owners of the cargo had in shipping their goods to Council Bluffs, viz., the conveyance of their property to California that season.
   RvlaND, Judge,

delivered the opinion of the court.

This was a suit upon a policy of insurance. The facts were found by the court, and judgment rendered thereon for the plaintiff. The only question here is, whether, upon the facts found, the carrier was authorized to tranship the property insured so as to subject the underwriters to a loss that subsequently occurred to the goods in the new bottom occasioned by a peril insured against. The facts found are as follows : “ On the Blst day of March, 1853, the plaintiffs were possessed of twelve wagons, and a lot of other merchandize, all valued in the policy hereinafter named at $1970 ; and the plaintiffs caused them at that date to be insured at that valuation in the open policy of John McMechan, issued by defendant; and so the defendant accepted the risk in consideration of a premium of $49 25 paid to the company therefor, John McMechan being insured thereon for the benefit of plaintiffs. The insurance was upon merchandize on the steamboat Georgia from St. Louis to Council Bluffs. And said insurance was taken by endorsement in policy book, as customary, and as above stated, and for plaintiff’s benefit. Said steamboat Georgia departed on said voyage with the merchandize aforesaid on board, and proceeded in safety to a point on the Missouri river some distance above St. Joseph, where, in endeavoring to round a point, she was caught by an eddy, which she was trying to avoid, and forced towards the river bank, where her cabin was broken, and her chimneys were caught in a tree and broken off, so that one was lost in the river, and the other hung by attachment to the boat. This chimney was saved and afterwards cut in two, and so put up to supply temporary chimneys by the hands of the boat, after her return to St. Joseph, but only serving as half chimneys. The water was rising, and she could not make steam enough to go up with her cargo. She returned to St. Joseph. This was a safe port to lie in, and there was ample room and warehouses for storage of her cargo; or the boat could have remained there in security with all her cargo unmoved in safety on board, until she could have sent an order to St. Louis for new flues and received them at St. Joseph, where she could have readily put them up and proceeded on her voyage. St. Louis was the nearest port where the necessary chimneys and repairs could have been procured. It would have taken twelve days to have made the trip to St. Louis, put on the necessary repairs, and returned to St. Joseph, or to have sent to St. Louis for chimneys and put them up. The only obstruction to her proceeding on the voyage with her cargo was her want of sufficient draft from loss of chimneys to keep up a sufficiently hot fire to make steam enough for up navigation. It also appears that some boats can sometimes construct temporary flues out of common boards and sacking for the purpose of increasing the draft, and have so sometimes proceeded up stream for hundreds of miles with cargo on board, but that the Georgia was not so constructed as to be able to do so. As it was in this case, the Georgia at Council Bluffs made a contract with the Kansas steamboat by which the Kansas paid her a large proportion of her freight to accrue, and the whole cargo, including the merchandize in question, was transhipped to the Kansas, with which the Kansas left that port and proceeded towards Council Bluffs, and on her way, about the 20th of April, 1854, was by a peril of the river sunk. Part of said merchandize insured was lost, and part, being nine wagons, saved in a damaged condition. This property saved was worth $360. The whole amount insured was $1970. The salvage was therefore 18¿ per cent, of the valuation in the policy. Applying this percentage to the actual invoice value, (which was $1910 50,) as required by the terms of the policy in case of partial loss, the actual damage to the plaintiffs was $1541 13 on July 1st, 1853. Due preliminary proof was offered, but waived by th'e company’s refusal to pay upon other facts in the case. If the company became liable to pay, that liability was mature on the 1st July, 1854. Both steamboats were seaworthy at the time of their respective shipments of said cargo. The court find also, 1. That said loss of chimneys was the only hindrance to the Georgia’s proceeding on her voyage ; and that without other repairs than above mentioned, as made by cutting one chimney into two, she returned in safety to St. Louis, her port of departure, and thence proceeded down the Mississippi without further repairs ; but that, without further repairs, she could not make sufficient steam to proceed from St. Joseph to Council Bluffs with her cargo. ,2. That all needful repairs could have been made at moderate costs in forty-eight hours at St. Louis, whereupon she could have resumed and completed her voyage to Council Bluffs ; that but one new chimney was required from St. Louis ; tbe other chimney, which had been cut in two, could have been riveted together and put up at St. Joseph, and also at St. Louis ; that the Georgia would have required but twelve days to have returned to St. Louis and repaired, and returned again to St. Joseph, and started on her voyage up with said cargo, which could in the meantime have been stored safely at St. Joseph. 8. That the Georgia could have remained safely at St. Joseph without any change of cargo; ordered and obtained, at reasonable cost, a new chimney from St. Louis ; put up both chimneys at St. Joseph, and after twelve days’ delay thence from her arrival, which would have been all the detention necessary, could have proceeded on and accomplished the voyage insured in two or three days from that time. 4. That this merchandize was intended to proceed on the route to California with its owners, the plaintiffs, in that season, which commenced (for the departure of trains from various points from Council Bluffs down below St. Joseph, so far as Weston and Independence,) from the 1st of April to the middle of May; and the Georgia left St. Joseph on her return to St. Louis on the 18th of April, 1854. The interest on damages from July 1st, 1853, to the present time, is $ 171 49.”

From these facts, the main question arises, will a detention for twelve days, on a voyage up the Missouri, from St. Louis to Council Bluffs, warrant the boat, originally undertaking to transport the goods, in transhipping them on another boat, so as to continue the policy on the goods in the new bottom? The Georgia was disabled by the loss of one chimney and by her cutting the other into two parts in order to come down to St. Joseph, from immediately prosecuting her voyage up the Missouri. She returned to St. Joseph and there had a safe port. The goods were on board uninjured ; there were good and sufficient warehouses to store away the goods, and it would have taken about twelve days for the Georgia to have come down to St. Louis, and refitted and repaired, and returned to St. Joseph ready to proceed on her voyage. Or she might have remained in the port of St. Joseph in safety, with her cargo uninjured, until sbe could have sent to St. Louis and have procured tbe necessary repairs, and have been ready for the trip again in twelve days. So the detention of twelve days is all that she had to justify her in making the transhipment.

This detention does not, in our opinion, break up this voyage, so as to make it the master’s duty to tranship, or give him the privilege to tranship. Here, by the boat’s running into an eddy, she had her chimneys carried away ; one was entirely lost overboard, the other was lodged and retained, was cut into two parts, and put up so as to enable the boat to descend the river to the port of St. Joseph; but these, thus cut and shortened, were not of sufficient length to make draft sufficient to create steam enough to propel the boat up stream. There was no place to procure a chimney nearer than St. Louis. The boat came to a safe and sufficient harbor, and could have come on down to St. Louis, and procured a new chimney, have the other again put together by rivets and hands, making a sufficiently good chimney, and have returned to St. Joseph in twelve days, or might have all necessary repairs ordered from St. Louis, and in twelve days been ready to commence again ascending the river from the port of St. Joseph. Was it the duty of the master to make this transhipment ? The goods were wagons — • property not easily deteriorated by delay in delivery. Now suppose the Gfeorgia had been run on a sand-bar in the night, with a falling river, and had been detained in making efforts to extricate herself from the bar for twelve days in vain: would this have been a sufficient cause to justify transhipment in a lighter vessel, so as to continue the policy in the goods in the new bottom? Surely not. The insurers did not estimate the rapidity with which the voyage was to be or could be made. The, safety of the goods on the voyage, long or short, was their object. We are of opinion that the facts found here by the court did not amount to a breaking up of the voyage, or to such a disaster to the boat as would justify her in sending on the goods by a new bottom ; that this transhipment was at the master’s risk, and not at the insurers; it was for his interest and not for the benefit of all. The insurers guaranty only the safe arrival of the goods. They do not guaranty the speedy arrival, nor do they incur any loss on account of the new delay in the voyage, unless the delay be produced by a peril insured against, and the cargo, in consequence of the damage occasioned by such peril, or of its perishable quality, be subject to deterioration by mere lapse of time; nor do the insurers guaranty by their general undertaking that the cargo shall arrive in time for an advantageous market; they have nothing to do with the fluctuations of the market. If the vessel be only partially injured, and might be repaired in a reasonable time and at reasonable cost, it is the duty of the master to do it, and to forward the goods in his own vessel. (Shultz et al. v. The Ohio Ins. Co., 1 B. Monroe, 336.) The detention of twelve days in this case is not an unreasonable delay. The master should have waited and made the repairs, .and then proceeded on his voyage. His transhipment in this case can not be said to be for the general interest of all parties. No doubt that a master may tranship when his vessel has been so injured that repairs would be unreasonable, or the time required to make them so long, as to ruin the goods by delay. “ By the contract, the ship owner and the master, as his agent, is bound to carry the goods to their destination in his own ship, if not prevented from doing so by some event which he has not occasioned and over which he has no control.” (Shifton v. Thornton, 9 Adol. & El. 314.) “ If, by reason of the damage done to the ship, or through want of necessary materials, she can not be repaired at all, or not without very general loss of time, the master is at liberty to procure another ship to transport the cargo to the place of destination. But if his own ship can be repaired, he is not bound to send the cargo by another, but may detain it till the repairs are made.” (Abbott on Shipping, 448-9.) The general doctrine, however, clearly is, that if, by reason of stranding or some other unexpected cause, it becomes impossible to convey the cargo safely to its destination in his own vessel, the master is to do what a prudent man would think most for the benefit of all concerned. Tranship-, ment to the place of destination, if it be practicable, is the first object, because that is the furtherance of the original object. (Angel on Carriers, § 187.) It is recognized as an undoubted doctrine of insurance law, that, if the original ship be disabled, and the master, acting with a wise discretion, as the agent of the merchant and the ship owners, forwards the cargo in another ship, such necessity and justifiable change of ship will not discharge the underwriter on the goods from liability for any loss 'which may take place on goods subsequently to such transhipment ; but, if this transhipment be without necessity, or without the underwriter’s consent, he will be discharged. If, in the course of the voyage, the ship becomes so disabled as to be incapable by any means at the master’s disposal of being repaired at all, so as to take on the cargo, the master, as agent for all concerned, may procure another ship in which to forward the cargo to its port of destination; and, in such case, the change of ship does not discharge the underwriter on goods, freight or profits, from his liability for any loss on the subjects they have insured, which may occur subsequently to such change of ship. (Arnold on Ins. 178-9.)

In the case of Field v. The Citizens’ Ins. Co., (11 Mo. 50,) the original boat was so injured that she could not pursue her voyage; she stored her cargo safely and returned to St. Louis, where she was repaired. She shipped her cargo, as she thought it her duty to do, but the master of tho original boat insured made an agreement with the insurance company that they would be bound by their policies on the cargo in the new bottom. He did not run the risk of transhipping, in the idea that the policy on his boat attached to the transhipped cargo. He therefore made an agreement with the underwriters in relation to it. It does not bear with any authority on this question.

We have carefully looked into the various decisions on this question, and become satisfied that the mere delay occasioned by waiting for the necessary repairs in this case, did not justify, and warrant the transhipment into the new bottom; and that the underwriters are discharged from any loss subsequently happening- to the cargo in the new bottom.

It was the duty of the master of the Georgia to have repaired it by taking proper steps, and the time necessary to repair is not unreasonable. He acted only for his own interest, disregarding the underwriters. Permit such an accident or such a disaster, under such circumstances, so easily repaired, and causing only a few days’ detention in a safe port, the cargo uninjured, to justify the master in breaking up his voyage and changing the boat, and thereby causing the policy to attach on the cargo in the new bottom, and the rights and safety of underwriters must gradually give way and fall, without a principle to support and protect them.

Under this view, the judgment of the eourt below must be reversed, and, with the concurrence of the other judges, it is reversed accordingly.


author: LEONARD, Judge,

text:
    Johnson, Plaintiff in Error, v. Johnson’s Administrator et al., Defendants in Error.
    1. An ante-nuptial agreement was entered into in the following form: “ Whereas a marriage is about to he contracted by and between the parties to these presents, and they are desirous to regulate the mode of enjoyment and distribution of their separate property; therefore, in consideration of the said marriage, it is agreed by and between the said parties that the separate property shall, during the joint lives of the said parties, form a fund from the income of which the said parties and their issue, if any, shall he supported and maintained; and that, for the purpose of producing such income, the said John W. Johnson shall have the management of the said separate property of the said Lucy Gooding. It is also agreed by and between the parties, that during the coverture either of said parties may, by gift, or sale, in any manner or form whatever, dispose of one-third of his or her said separate property without the other’s interposing any obstacle, and without any right in such part of the estate so disposed of remaining in the other party, so that the same shall be free and clear from any claim of such other party. It is also agreed by and between the parties aforesaid, that either of the said parties, at his or her death, may, by will, or declaration in the nature of a will, devise and bequeath to any person whatsoever, in absolute property, whatever of his or her said separate property may then remain, so that the survivor shall be entirely divested of all interest therein It is also agreed, that, on the death of either party, the survivor shall retain the full right and title in his or her separate property, and the property of the deceased party shall be distributed according to the laws then in force.” Held, that this ante-nuptial contract did not constitute a legal bar to dower within the provisions of the revised code of 1825; (see E. C. 1825, p. 334) ; neither did the naked agreement amount to an equitable jointure ; that, before the wife can be deprived of her right to dower, the agreement must be executed in her favor.

      Error to St. Louis Land Court.

    The petition of plaintiff is as follows : u The plaintiff states she was married to John W. Johnson in the year 1881, in the city of St. Louis, in the state of Missouri, and she and said Johnson lived together in said city as husband and wife until the 1st day of June, 1854, when said Johnson died without any child or other descendant in being capable of inheriting his estate. A short time before said marriage,-said Johnson presented to her articles of agreement to be signed by her and himself, and providing that, whereas a marriage was about to be contracted between them, and they were desirous to regulate the mode of enjoyment and distribution of their said property, in consideration of said marriage, it was agreed their separate property should, during their joint lives, form a fund from the income of which they and their issue, if any, should be supported and maintained. For the purpose of producing such income, said Johnson should have the management of said separate property of the plaintiff; that during the coverture either might, by gift or sale, in any manner, dispose of one-third part of his or her separate property without the other interposing any obstacle, and without any right in such part of the estate disposed of remaining in the other, so that the same should be free and clear of any claim from such other party ; that either of said parties, at his or her death, might, by will, or declaration in the nature of a will, devise or bequeath to any person, in absolute property, whatever of his or her said separate property might then remain, so that the survivor should be entirely divested of:, all interest therein ; on the death of either party, the survivor should retain the full right and title in his or her separate property, and the property of the deceased party be distributed according to the laws then in force. Said articles were signed and sealed by the plaintiff and said Johnson. Said Johnson left a will which, since his death, has been duly proved and admitted to record in the Probate Court of St. Louis county, Missouri. The said will is an ambiguous and complex document, and for that reason the same is set forth herein, the same being in the words and figures following, to-wit: [Here follows the will at large. The will was signed and published July 7,1852. After reciting the ante-nuptial agreement above set forth, dated September 26, 1881, the will proceeds as follows : “ And I, the said John W. Johnson, declare that after my marriage with my wife, the said Lucy Gooding, with her own full consent, I used and invested $3500 of her money erecting, as a residence for ourselves during our lives, and at her request, stating the house we lived in on Elm street was too lonesome, and in consequence I erected the two story brick building we now occupy on my own land, situated on the north side of Market street, in said city of St. Louis, and No. 155, and cost me $4600, as per my account book. I devise and bequeath to said wife Lucy, during her natural life, and no longer, the said building,” &c. “ I desire that my executor and executrix, hereinafter named, shall cause all my household • and kitchen furniture (with the exception of my silver plate) to be valued and divided into three equal parts, as near as may be, and one part shall be selected by my wife Lucy, to whom such part is hereby bequeathed,” &e. “ The devises and bequests hereby made to my wife Lucy are intended and declared to be in full satisfaction of all and every elaim, right of dower, or other demands which she may have to my estate, and on the express condition that it shall be received as such. The real estate herein mentioned and devised to my wife Lucy, during her natural life, I devise, after the said Lucy’s death, to my grandson, John E. Gleim,” &c. “I direct and order, within a year after the death of my said wife, my said grandson, his heirs and assigns, to pay to the heirs or legatees of the-said Luey, the sum of $>8500, money of the said Lucy, invested in erecting the said house for our residence during our lives ; but this to be paid without interest thereon ; the same to remain a charge on the said house and lot until paid, unless they can make some other satisfactory arrangements so there will be no loss in my property to the injury of my heirs.” The will contained numerous particular bequests. Then follows a codicil, which it is unnecessary to set forth.] On the 12th day of September, 1854, the persons named in the said will having refused to qualify as executors thereof, the defendant, Eaton, was duly appointed by the Probate Court of St. Louis county, administrator, with the will annexed, of the said John W. Johnson, all of which will appear by a copy of said letters of administration, with the will annexed. Since the said grant of letters, said Eaton, as such administrator, has been in possession of the said real estate devised in said will, receiving rents from the tenants thereof. The other defendants in this suit accept the provisions of the will, and claim the interests respectively devised to them by said Johnson out of his said real estate ; that there never was any issue of the said marriage of the plaintiff with the said Johnson. Said Johnson, at his death, was seized of the following real estate, by title in fee simple, which is all the real estate owned' by said Johnson in said county of St. Louis, and is the same which, with the improvements thereon, is devised by said Johnson to different persons, defendants in this suit. [Here follows a specification of particular tracts of land.] At the time of plaintiff’s marriage with said Johnson, she was entitled to re-, ceive from the estate of her former husband, the late Capt. George Gooding, of whose administrator the said Johnson was the agent, the sum of $4801 in money, which sum of money, immediately after her marriage with said Johnson, came to his hands, to be used and managed by him as required by said mar-ria'ge articles. At the time of her marriage with said Johnson, she was the owner of 250 arpens of land in St. Louis county, Missouri, which was sold by said Johnson in April, 1882, plaintiff joining him in the conveyance of the said land, but only at his urgent solicitation, and against- the dictates' of her own judgment. The proceeds of said land, being $1000, came to the hands of said Johnson immediately after sale, to be used and managed as aforesaid, which sums of money said Johnson converted to his own use. At the time of plaintiff’s marriage.with said Johnson, his property before-mentioned, in the city of St. Louis, was, for the greater part, wholly unimproved, and said Johnson employed the money received of the plaintiff, as before mentioned, to improve said property and render it valuable and productive of an income. The said Johnson did never keep or perform the said -marriage articles on his part, but violated and broke the same in every part and parcel thereof, and did conduct himself in fraud and bad faith towards her in that behalf, as follows : Said Johnson did merely use and employ the said articles of agreement for the purpose of getting into his possession the property of the plaintiff, and did afterwards refuse, fail and neglect to comply with the said articles of agreement in every thing mentioned therein for the benefit of the plaintiff; that he took and used and invested her money, sb as to improve and enhance the value of his own estate, and render it productive of income for his own benefit, aiid in his own name, which income he applied not honestly and in good faith to the maintenance of himself and plaintiff during their joint lives, but mainly to the support and maintenance of himself, Miss Mary Johnson,” and others, “ the plaintiff, in fact, receiving nothing but her clothing, which did not exceed fifty dollars per year in value, and her board and lodging, while she was laboring and toiling assiduously for said Johnson and others, whom he made members of his family. The residue of his income, derived in common from her property and his, he invested for his own benefit, and in his own name ; that, having employed the plaintiff’s means as stated, said Johnson pretended and stated in his will he had used only $3500 of her money, which was untrue ; he also pretended and stated in said will that she requested him to employ the same in erecting the house on his property on Market street, which was also untrue, and then, by the provision of said will, attempted, in violation of said marriage articles, to force her to elect to take a devise not worth $3500, not only in satisfaction thereof, but also in satisfaction of all other claims on his estate of dower or otherwise. By said marriage articles, it was the duty of said Johnson so to manage and dispose of her said property as that on his death she might presently come into possession of the same as a means of support and maintenance, whereas she says he has so employed her property as to mix it up with his own; he has denied receiving a great part of it; has diverted a large portion of the income, in which she was interested, from the purposes provided in the marriage articles, and left her, at his decease, not only without any means of living, but without any resource save to apply to the courts for her rights, where she must find witnesses to disprove his solemn denials of the truth, after the lapse of so great a time. The plaintiff is now in the sixtieth year of her age. She insists that, as said Johnson did by his said will devise to her an estate to be in full satisfaction of her dower in his estate, that he and all persons claiming under said will are estopped to deny her right to dower therein, and she prays the benefit of said estoppel. On the 8th day of December, 1854, plaintiff filed in the office of the clerk of the Probate Court of St. Louis county a declaration in writing, by which she elected to take her dower in said Johnson’s estate, under the third section of the ‘ act concerning dower, ’ approved March 24, 1854, subject to debts; which declaration was acknowledged before an officer authorized to take acknowledgments of deeds in such manner as deeds are required to be acknowledged. A copy of said declaration and acknowledgment is to be annexed hereto. On the 7th of December, 1854, plaintiff made a declaration, and duly executed and acknowledged it, as in case of deeds for land, and filed it in the office of the Court o’f Probate of St. Louis county, Missouri, whereby she did refuse to accept the provisions of said Johnson’s will made for her. A copy of said last mentioned declaration, so acknowledged and filed on the 7th day of December, 1854, is to be hereto annexed. The plaintiff insists that, inasmuch as the said Johnson did not in good faith comply with the said articles of marriage on his part, she is not bound to comply with the same, and she claims that she is released from all obligations or duty to keep or perform the said articles, and she claims to be entitled to dower in the estate of said Johnson, notwithstanding the said articles of marriage. The plaintiff says she is deforced of her dower in the real estate of the said Johnson, and she can not have her said dower without suit, whereby she has been greatly injured and damaged. She prays that her dower may be assigned her, according to law, in the real estate of her deceased husband. She prays that for her dower there may be assigned to her the one-half of all the real estate belonging to said Johnson at the time of his decease, absolutely. She prays that she may have judgment for the damages she sustained by being deprived of her dower, and which she sets down at the sum of $10,000. She prays for such other judgment as she may be entitled to.”
    A demurrer to this petition having been sustained, the cause was brought to this court by writ of error.

      Glover & Richardson, for plaintiff in error,
    cited Clancy on Rights, 219, 223, 226, 229 ; Statute 27 Hen. 8, ch. 10; Hastings v. Dickinson et al. 7 Mass. 153 ; Gibson v. Gibson et al., 10 Mass. 106; 2 Ala. 91; 8 Conn. 79; 2 Story’s Eq. 53.

      T. T. Gantt and R. M. Field and Jones & Sherman, for defendants in error.
    I. The contract was made between J. W. Johnson and Mrs. Gooding under every circumstance of fairness and equality, and there is no impeachment of it as it was originally made.
    II. The contract, in its terms, was sufficient in law to bar the plaintiff’s right of dower as to all lands whereof J. W. Johnson disposed by will. (Clancy on Eights, 220, 229; Roper on Husband and Wife, 480 ; Atherly on Marriage Settlements, 511; Andrews v. Andrews, 8 Conn. 79 ; Gelzer y. Gelzer, 1 Bailey’s Eq. 887 ; Logan v. Phillips, 18 Mo. 22.)
    III. There is no breach of the contract shown in the petition. By its terms, Mrs. Gooding was entitled to three things in respect of her separate property: 1. To have the annual income of it, under the care of J. W. Johnson, applied to their joint maintenance; 2. To have the privilege of disposing of part of it during the coverture; 8. To have the property itself at the dissolution of the marriage. The first of these she has had, as appears from her own showing. She does not deny maintenance, or aver that there was any surplus over family expenses. The second she did not seek to have during marriage, and can not of course make any complaint of obstruction in respect of it. The third she now repudiates in her eagerness now to rescind the contract, when the rescission will operate to her advantage.
    IV. In 1881, the provision which the law made for a widow was precarious indeed, for her right of dower was then defeasi-ble by a sale under execution. This consideration must be kept in view when estimating the goodness or badness of the bargain made by the parties to this marriage contract.
    V. Mrs. Johnson can uoav have the amplest remedy, or the amplest enjoyment of the provisions of the marriage contract; and during her husband’s life she was not hindered of any of her rights under that contract.
   LEONARD, Judge,

delivered the opinion of the court.

The ante-nuptial contract does not constitute a legal bar of dower within the provisions of our written law on this subject. No estate in things real or personal is thereby vested in the intended wife pursuant to the statute, so as to constitute it a legal jointure. The whole rests on agreement, giving the wife a right to demand the things stipulated for, but vesting in her no estate in them within the meaning of the lawgiver. There is no reason, however, for supposing that the statute extinguishes equitable jointures ; it was not intended, and can not be allowed to have that effect. The present agreement, therefore, assuming it to be such a one as a court of equity would specifically enforce, is for that reason an equitable jointure ; it bars the widow in equity, because such will.be the effect when it is there enforced. If, by the terms of the agreement, the things real and personal of the wife are to remain, in specie, her property beneficially, notwithstanding the coverture, such an agreement, constituting of itself a complete, perfect equitable ownership, may perhaps'be very well considered so far executed as to be at once, without any thing further, an equitable bar of dower, and to be pleaded as such. Where, however, the property consists in money, as in the present ease, to be restored by the husband in gross on the dissolution of the marriage — or in things consumable, to be restored in value and not in specie — something more than mere agreement is necessary to complete the equitable jointure. In such a case, equity will see that the wife has the effect of the agreement before it deprives her of the provision made by law for her support. The naked agreement can not be allowed to divest her in equity of her legal rights in favor of volunteers, however it might be in regard to a purchaser who had bought the land on the faith of the wife’s agreement to relinquish her dower in it.

In the present case, the plaintiff shows in her petition a legal title to dower, and then, for the purpose of procuring a decision upon what she supposes to be the defendant’s case, she states the marriage contract, accompanied with averments of its non-fulfilment on the part of the husband. Upon this the defendant demurs, and thereupon the judgment of the court is in effect that this unfulfilled agreement, under the circumstances stated in the petition, constitutes of itself, without any thing further, a bar of the wife’s dower in favor of mere volunteers.

We think otherwise, and therefore reverse the present judgment, and remand the cause. The defendant will then have an opportunity of stating his own case in his own way, accompanied with a tender of the money, to be restored to the wife according to the terms of the contract and the truth of the fact. And we refrain from expressing any further opinion as to the merits of the case until the facts shall be fully developed. The judgment is reversed, and the cause remanded.


author: Scott, Judge,

text:
    Fine and others, Respondents, v. The St. Louis Public Schools and others, Appellants.
    X. Hie entries made in Lima Terrein upon the margin of the records of Du-ralde’s Spanish surveys of common field lots, showing an abandonment of those lots and a re-uniting them to the king’s domain,” are admissible in evidence, in a suit founded on an alleged confirmation by the act of Congress of June 13, 1812, to show that under the Spanish government it was not unusual for the inhabitants to abandon their possessions.

      Appeal from St. Louis Land Court.

    This was an action commenced in the year 1854, in the nature of an action of ejectment, to recover possession of an undivided interest in a lot of one by forty arpens in the St. Louis common field. The defendants were the Board of President and Directors of the St. Louis Public Schools, the City of St. Louis, and about eighty others, who hold in severalty and not in common. The St. Louis Public Schools and several other defendants answered plaintiffs’ petition, and entered into an 'agreement with the plaintiffs by which it was stipulated, among other things, that the issue between plaintiffs and the Public Schools might be tried, and in case a verdict should be rendered in favor of plaintiffs, a general judgment should be entered against the Public Schools and all the defendants who were parties to the agreement. Plaintiffs claimed title as heirs and legal representatives of Philip Fine, to whom the lot in controversy is alleged to have been confirmed by the act of Congress of June 18, 1812 ; and it was admitted that the plaintiffs are the heirs and legal representatives of said Philip Pine to the extent of an interest of three undivided twenty-eighths of all the right, title and interest of the said Philip Pine in and to the tract of land described in plaintiffs’ petition. In proof of cultivation and possession of the lot in controversy by the said Fine prior to December 20th, 1808, plaintiff introduced the oral testimony of two witnesses, Antoine Smith and Framjois Noisé. This testimony tended to show that the said Philip Fine was in possession of and cultivated the tract of land in controversy prior to December 20th, 1803 ; that he possessed and cultivated the same up to the time of the falling down of the fence, about six years before the change of government, when he removed from St. Louis to the mouth of the Maramec river, where he continued to reside until his death. No documentary evidence of any concession or grant from the Spanish government was presented by plaintiffs. It was admitted that the premises in controversy lie within the outboundary lines of the town (now city) of St. Louis, as surveyed, marked, and established by the surveyor general of Illinois and Missouri in the year 1840, so as to include the out-lots, common field lots, and commons thereto belonging, in pursuance of the act of Congress of June 13, 1812. There was evidence bearing upon the question of location, which it is unnecessary to set forth.
    The defendants adduced in evidence surveys No. 379 and 380, by which the land in controversy was designated and set apart in the usual form for the support of schools by the surveyor general. Defendants offered to read in evidence certified copies from Livre Ter rein of surveys, made by Martin Duralde, between 1770 and 1772, by authority of the Spanish government, of all the common field lots lying north of the premises in controversy in the same common field, with the entries on the margin of the record of each survey in Livre Ter-rein in the following form in each case : “ Reuni au domaine du Roy pour les avoir abandonné dupuis longtems. St. Louis, le 4 Juin, 1793. [Signed] Z. Trudeau.” “Re-united to the domain of the king for having abandoned these arpens since a long time. St. Louis, the 4th of June, 1793. Z. Trudeau.” On the objection of plaintiffs, these copies of surveys, with the marginal entries signed by the lieutenant governor of the province, were ruled out as inadmissible. It also appeared from the testimony of Mr. Renard, the U. S. recorder of land titles, introduced by defendants, that the premises in controversy had never been surveyed by the United States until surveyed and assigned to the schools.
    The court, on its own motion, gave the following instructions : “ 1. In order to enable tbe plaintiffs to recover in this action, it must appear in evidence to the satisfaction of the jury, that Philip Fine did, prior to the 20th day of December, 1803, inhabit, cultivate and possess the land in question, and that he, or those representing his interests, continued to claim the same as a lot or out-let, or common field lot, in, adjoining, or belonging to the town of St. Louis, after the said 20th of December, 1803, and down to the passage of the act of Congress of June 13, 1812. 2. Abandonment presents a question of fact and intention. If the party have only a naked possession, and leave the possession voluntarily, this is abandonment. If he have possession coupled with a right, title or claim to the land, the mere quitting of possession is not necessarily an abandonment; therefore, if it be proven that Fine left the possession of the land when the common fence fell down, his motive and intention in leaving the possession are proper objects for the consideration of the jury. And if it appear to the jury that, after leaving-the land, he still considered it his own, and exercised acts of ownership over it, or continued to assert his right, title, or claim to it down to the 13th of June, 1812, then the act of Congress of that date confirmed the title to him, and the title so confirmed is better than the title of the school board shown in evidence.” To the giving of which the defendants excepted.
    The court gave the following instructions, on the motion of defendants : “3. Unless the jury shall be able from the evidence satisfactorily to ascertain and fix the location and boundaries of the lot of land claimed to have been cultivated and possessed by said Philip Fine, prior to the 20th day of December, 1803, and to identify said lot as being the same land now sued for in this case, they will find for the defendants. 4. If the jury find that Philip Fine abandoned the possession of the lot in question and removed from St. Louis prior to the 20th December, 1803, and that neither he nor any person under him did retake possession of said lot, or lay claim thereto up to or at the time of the passage of the act of Congress of 13th June, 1812, then neither the said Fine, nor any person representing him, acquired any right or title to the premises by force of said act of Congress ; and the jury will find for defendants.”
    The court refused the following instructions asked for by defendants: “1. If the jury believe from the evidence that prior to the 20th day of December, 1803, the said Philip Fine abandoned the possession of the lot cultivated by him, and removed from the town of St. Louis to the Maramec, permanently ceasing to be an inhabitant of said town, and that he did not again become an inhabitant of said'town prior to the time of the passage of the act of Congress of 13th June, 1812, nor retake possession of said lot, nor exercise any acts of ownership or claim over the same up to that date, they will find for the defendants. 2. The jury are instructed that the United States surveys of lots Nos. 1482 and 1483, called the Tayon lot and the Sarpy lot, are only prima facie evidence of the location and boundaries of those lots now, as between the government and the owners of those lots, and all persons claiming those lots against the present owners thereof ; but that they do not of themselves alone furnish any evidence of the location and boundaries of the lot which Philip Fine is supposed to have cultivated prior to the 20th day of December, 1803. 3. Unless the jury are fully satisfied from the evidence, that the said Philip Fine, under whom the plaintiffs claim, did, prior to the 20th day of December, 1803, inhabit or cultivate and possess the identical land in the petition mentioned and described, as an out-lot or common field lot, adjoining or belonging to the town or village of St. Louis, claiming the same for himself under the authority or by permission of the French or Spanish government, they will find for the defendants.”
    The jury found for plaintiffs. The defendants bring the case to this court by appeal.

      E. Casselberry, for appellants.
    I. The first instruction asked for by the defendants and refused by the court was improperly refused. The act of 1812 does not purport to confirm rights to any one except to the inhabitants of the “ respective towns or villages.”
    II. The court erred in refusing the second and third instructions asked for defendants.
    III. The court erred in ruling out as inadmissible the copies of Duralde’s surveys, with the marginal entries made by the lieutenant governor.
    IY. The court erred in giving instructions numbered 1 and 2. (See generally Guitard v. Stoddard, 16 How. 412 ; Coke on Littleton, 250, 252 ; Hughes v. McAllister & Co. 15 Mo. 802; Yasseur v. Benton, 1 Mo. 222, 296 ; Lajoye v. Primm, 3 Mo. 368 ; Janis v. Gurno, 4 Mo. 458 ; Gurno v. Janis, 6 6 Mo. 330 ; Beihler v. Coonce, 9 Mo. 347 ; Montgomery v. Landusky, 9 Mo. 705; Page v. Scheibel, 11 Mo. 167; Harrison v. Page, 16 Mo. 182 ; Soulard v. Allen, 18 Mo. 590 ; Soulard v. Clark, 19 Mo. 570; 11 How. 96; 12 How. 434, 222, 223 ; 13 How. 3 ; 15 How. 29 ; 4 Peters, 480 ; Clark v. Courteney, 5 Pet. 354 ; Barclay v. Howell, 6 Pet. 513 ; United States v. Arredondo, 6 Pet. 743 ; Elliott v. Pearly, 10 Pet. 442 ; Ewing v. Bernet, 11 Pet. 51 ; United States v. Mitchell, 9 Pet. 734, 760 ; New Orleans v. United States, 10 Pet. 718 ; Sigerson v. Pomeroy & Andrews, 13 Mo. 620.)

      Todd and Krum & Harding, for respondents.
    I. The copies from Livre Terrein, offered by defendants and excluded from the jury on the objection of the plaintiffs, were not competent testimony. The surveys copied from Livre Ter-rein all lie north of the premises in question, and they neither proved nor tended to prove abandonment by Philip Fine of his claim of possession of the land sued for. The survey and marginal entries from Livre Terrein only show the parties named (not Fine) had abandoned their claims and possessions ; and no inference can be drawn from them that Fine had done so, or that his land had been re-united to the king’s domain.
    II. The instructions given to the jury at the instance of the defendants and on the court’s own motion, embody the whole law arising upon the facts of the case. The case shows that there was evidence before the jury touching every proposition embraced in these instructions. The law was laid down to the jury as pointedly and strongly as the defendants had a right to ask. The questions of claim, possession, cultivation, abandonment, location and boundaries, which were the essential elements of the case, were left to the jury under proper direction of the court. (Landis v. Perkins, 12 Mo, 238 ; Salle dit Lajoye v. Primm, 3 Mo. 530 ; Page v. Scheibel, 11 Mo. 183.)
    III. The instructions asked by the defendants and refused are not law. The first instruction refused asserts the rule that the act of Congress of 13th June, 1812, does not operate to confirm any right or title to the premises in question, by reason of possession, cultivation, &c., unless the claimant up to and at the time of the passage of the act, was an inhabitant of the town of St. Louis. In other words, that, although Fine, prior to 1803, and up to the passage of the act of 1812, may have claimed cultivation and possessed the premises in question, yet, if he was not an inhabitant of St. Louis at the time of the passage of the act, his claim is not confirmed. This, surely, can not be the law. The second instruction refused is but a commentary on parts of the testimony, and should have been refused for that reason. Besides, this instruction was calculated to mislead the jury. If surveys 1482 and 1483 are prima facie evidence of the location of the land mentioned in those sur-' veys, and if the witnesses, in fixing the location and boundaries of the premises in question, refer to those surveys, then they are some evidence, and tend to show the true location of the premises sued for. To have given this instruction would have been error. The whole substance, that is law of the third instruction refused, is embraced in the instructions given by the court. There is, then, no error in the refusal of the court to give these three instructions.
   Scott, Judge,

delivered the opinion of the court.

We have no hesitation in expressing our dissatisfaction with the verdict in this case ; and, but for the rule which restrains this court from -.reversing a judgment for the refusal of the court below to grant a new trial on the ground that a verdict is against the weight of evidence, we would readily remand this cause for another trial. In speaking of the early construction the act of the 13th of June, 1812, had received, that oral evidence of inhabitation, cultivation or possession prior the 20th December, 1803, would prove a title under its provisions, this court remarked that no inconvenience can result from adhering to the received construction of the act. A claim, now for the first time presented, disconnected with any possession, and relying solely on proof of inhabitation, cultivation or possession prior to the 20th December, 1803, to defeat another title, would not receive much consideration, and might, without any apprehension of injurious consequence, be submitted to the consideration of a jury acting under the direction of the court. (Soulard v. Clark, 19 Mo. 582.) This was said in a case on which the defendant was in possession claiming under the act of 1812. It was supposed that a party then presenting his claim for the first time under the act of 1812, after so long a delay, having failed to make any proof under the act of 26th May, 1824, would stand in a very different situation from that occupied by him who was in possession, defending under the act of 1812. The court did conceive that a claimant, under such circumstances, would meet with difficulty before a court and jury, in disturbing one in possession under a valid subsequent title. On the question of abandonment, there is a great difference between tbe case of bim wbo defends bis possession under tbe act, and of him who asserts bis claim for tbe first time, after a delay of thirty or forty years, and after a town, as in this instance, has been built upon the land. We must not shut our eyes to the state of things prior to, and at tbe date of, tbe act of 1812, and that which now exists. At tbe former period, many lots were of little or no value, and tbe presumption of their having been abandoned was no more unreasonable than presuming an old bat or coat bad been thrown away. Tbe country was unsettled. Tbe number of inhabitants bore no proportion to tbe quantity of land, which might be bad at any time by asking for it. Now that these lots have attained their present enormous value, after costly improvements have been made upon them, it is an easy matter to set up tbe pretence that they never were abandoned, when, but for their enhanced value, a claim to them would not have been heard of. If a man has a thing of little or no value, which he leaves and never does any thing with for thirty or forty years, is there any hardship in presuming an abandonment of it, especially in favor of one who has paid a full consideration for it, and after it has been increased in value a thousand fold ? Jurors should not close their eyes to the circumstances by which they are surrounded. They must know that the unprecedented rise in the value of real estate here has sent speculators in all directions seeking for those who may possibly have had a claim to land in St. Louis, and their descendants ; informing them of claims of which they had never before heard ; purchasing them for little or nothing, and then suing in their names to the ruin of honest and industrious men. It is obvious from the state of things existing here, that the interests of society — and it is in harmony with the law — require that, in trying claims under the act of 1812, jurors should be liberal in indulging a presumption of abandonment against claims which have been long neglected, and whose only support is on slight oral evidence of inhabitation, cultivation or possession sixty or seventy years before they were asserted.

These observations have been induced by the facts set forth in the record, showing an attempt of the plaintiffs, with their title, to overcome that of the Schools. How the case would stand were the plaintiffs seeking to recover from one who relied solely on the title derived from their ancestor, we will not undertake to determine, as we do not know that the question is in the record ; for, from the arrangement made, it seems that the result of the suit as to the Schools is to determine the fate of the other defendants.

Other cases may present different phases. In controversies of this kind, it is obvious that each case must be determined by its own circumstances, mingled with the consideration that a mistrust of all claims that have long been dormant is inculcated by our law.

We are of the opinion that the court below erred in rejecting the extracts from the Livre Terrein. These extracts were important to show that, under the Spanish government, it was not unusual for the inhabitants to abandon their possessions. The jury which tried the cause were living under our system of laws, where such a thing as abandoning the right, title or claim to real estate is not known. Hence, in determining a question of abandonment under another government and a different state of titles, it was material for them to know that the practice of abandoning possessions was not unusual. Not that an abandonment by one is proof of an abandonment by another, but that such a thing was practiced. A jury acting under a system or law where such a thing as an abandonment is not known, in determining the question whether an abandonment took place under a former government in times long past, may take into consideration the fact that abandonments were not unusual, as furnishing some evidence as to the probability of an abandonment having taken place in a particular instance. The idea of an abandonment being foreign to the notions of our jurors, it was right not only that they should know that there was a law on the subject, but that acts of abandonment did actually take place. As the fact was an ancient one, and one that transpired under another government, the jury should have been put in the game situation, as to knowledge of surrounding circumstances, as their own experience and observation would have furnished had they been trying a fact which occurred in their own times and under their own government. ,

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.