text:
    Snead et al., Plaintiffs in Error, v. Wegman, Defendant in Error.
    1. A justice of the peace, under section 21 of the second article of the attachment act of 1845 (R. C. 1845, p. 151_), ordered the sale of a wood-boat in the custody of a constable under a -writ of attachment issued by said justice. Held, that, on a final determination of the attachment suit adversely to the plaintiff therein, the defendant -would be entitled to the entire proceeds of the sale of the boat, and might recover the same from the constable, although no order had been made by the justice with respect thereto.
    2. Any sum that might be allowed the constable, under section 45 of the second article of the attachment act of 1845, as compensation for his trouble and expense in keeping the boat, should be taxed as costs in the cause and would fall on the unsuccessful party; the constable would not have a lien on the proceeds of the sale of the boat for the necessary expenses of keep ing and selling it.
    8. Only the interest of the defendant in the attachment could be attached and sold; hence he alone could sue the constable for the proceeds of the sale of the boat.

      Error to St. Louis Law Commissioner's Court.

    Wegman, a constable of St. Louis township, in obedience to a writ of attachment issued by John Black, a justice of the peace in and for said township, seized as the property of Snead a wood-boat lying at the wharf in St. Louis. The justice afterwards, on the petition of said constable, ordered said boat to be sold as perishable property. The boat was sold under this order for $100. The costs, charges and expenses of the safe keeping and sale of the boat were $72, leaving a balance of $28 in the hands of the constable. After the sale there was a trial in the justice’s court and judgment was rendered for the plaintiff in the attachment. The defendant Snead appealed and the plaintiff was nonsuited in the law commissioner’s court. No order was ever made requiring the constable to pay over the proceeds of the sale to any one.
    This suit was brought by plaintiff Snead and another to recover the $100, the proceeds of sale. They alleged that they were joint owners of said wood-boat. The court gave judgment for plaintiffs for $28, declaring the law to be as follows: “3. In this case the defendant had a lien on the proceeds of the sale of the property in Ms hands for the necessary expenses of the safe keeping and sale of said boat.” Plaintiff sued out his writ of error.

      D. C. Woods and Buckner, for plaintiffs in error.
    I. The defendant had no lien on the proceeds as declared by the court. The officer held the proceeds just as if they were the goods themselves. The case was decided for the defendant. The plaintiff was not entitled to the goods ; why should the officer be ? The costs fell on the losing party.
    II. The defendant in his answer alleged a tender of $28, the balance of the $100. He waived the necessity of an order on him to pay over any sum in his hands. There was testimony tending to show that he had been served with an order to pay over the proceeds.

      Krum & Harding, for defendant in error.
    I. Wegman was not bound to take notice of the judgment of nonsuit on appeal to the law commissioner’s court, there being no certificate of any such judgment sent down to the justice. The officer had the right to retain the proceeds of the sale until the final determination of the cause and to then dispose of the fund according to the order of the court.
    II. The plaintiffs can not sue jointly. The money in the defendants’ hands were the proceeds of Snead’s interest in the boat and not the interest of his co-owner. If it belongs to either, it is to Snead alone.
   Richardson, Judge,

delivered the opinion of the court.

The twenty-first section of the second article of the attachment act of 1845 declares that “ when property shall be seized on attachment, which is likely to perish or depreciate in value before the probable end of the suit, or the keeping of which would be attended with much loss or expense, the justice may order the same to be sold by the constable in the same manner and on the same notice as goods are required to be sold on fieri facias, and tbe proceeds of such sale shall remain in the hands of the constable, subject to be disposed of as the property would have been subject if it had remained in specie.” It can not be doubted that if the boat had not been sold Snead would have been entitled to the possession of it after the dissolution of the attachment by the nonsuit of the plaintiff; and having prevailed in the suit, judgment for costs would have been rendered against the losing party. The forty-fifth section of the same act provides, that “ when property is seized on attachment, the justice may allow the officer having charge thereof such compensation for his trouble and expenses in keeping and maintaining the same as shall seem reasonable and justand, as the measure of compensation is not fixed by law, the officer is not permitted to determine the amount, but it must be ascertained and allowed by the justice ; and until it is so allowed he has no demand against either of the parties to the suit. When, however, his compensation for his trouble and expenses in taking care of the property is properly allowed, the allowance would be taxed as costs in the cause and would fall on the unsuccessful party. The boat having been sold, Snead had the right after the nonsuit to follow the proceeds of the sale in all respects as if the property had remained in specie ; and if he was not liable for the general costs of the suit, it is difficult to perceive on what principle he was bound to pay this demand of the constable.

The defendant tendered to the plaintiffs before the commencement of this suit a portion of the proceeds of the sale, and it can not now be said that he had no notice of the dissolution of the attachment.

The attachment was against Snead alone, and the officer could only seize and sell his interest; therefore the money in the defendant’s hands belonged to Snead, in which his co-plaintiff had no interest and was improperly joined in the action ; but the objection to the misjoinder was not raised in the court below, and if it had been taken the petition could have been amended by striking out the name of Shelton. (2 R. C. 1855, p. 1258.)

The judgment will be reversed and the cause remanded, with leave to the plaintiffs to amend the petition by striking out the name of Shelton.

The other judges concur.


source: Caselaw Access Project

author: Richardson, Judge

license: Public Domain

text:
    Pearce, Respondent, v. Roberts et al., Garnishees, Appellants.
    1. A factor may pay over to his principal the proceeds of goods consigned to him for sale, although he may know that his principal had promised to pay certain of his creditors out of such proceeds.

      Appeal from St. Louis Court of Common Pleas.

    Pearce instituted a suit by attachment against James a-„¿d Henry Burns (the latter of whom died pending the suit), *ff the firm of Burns & Bro., on two promissory notes. Eoberts- and Kerr were summoned as garnishees. They answered denying all indebtedness to Burns & Brother. On the trial of this issue the plaintiff introduced the following memorandum: “ Warsaw, Benton Co., Mo., January 24,1854. Ee-ceived of Messrs. Houseman, Lowry & Co., of St. Louis, Mo., $1,074.09 as an advance in cash on lard in barrels and kegs, hams, shoulders and sides in bulk, the product of 860 hogs, now stored in L. H. Hick’s warehouse in Warsaw — the same to be shipped to Messrs. Houseman, Lowry & Co., St. Louis, on opening of navigation, for sale on account of Messrs. Burns & Brother — and to be covered by Messrs. H., L. & Co. by fire and marine insurance, and now subject to their order, control and possession; proceeds, after the above advance and charges, to be subject to the order of Messrs. Burns & Brother. [Signed] Burns & Brother.”
    Mr. Houseman, of the firm of Houseman, Lowry & Co., left the lard, &c., mentioned in the above instrument in the charge of his agent, Blakey, who had in his possession the key of the warehouse in which said lard, hams, &c., were stored. At the time of the execution of the aboye memorandum by Burns & Brother, they expressed the desire to Houseman that he would use the proceeds of the sale of said lard, hams, &c., in payment of the debt due H., L. & Co., and out of the surplus pay off other debts owing by said Burns & Brother. They also requested that he would accept drafts drawn by them for the supposed surplus. He stated to them that they might draw, but he would not accept until a sale had been made and there was a surplus. Such drafts were presented, and acceptance was refused, but Houseman promised that he would pay them if there should be a surplus sufficient therefor. The goods were not shipped to Houseman, Lowry & Co., but were consigned to the garnishees in this case by Martin & Cook. (Martin was a brother-in-law of James and Henry Burns.) Out of the proceeds of the shipment Roberts, Kerr & Co. paid Houseman, Lowry & Co. their demand, and placed the balance to the credit of Martin & Cook. They also, previous to the service of the garnishment process in this case, sold to Martin & Cook a bill of groceries, which was charged to their account, leaving a balance in favor of Martin & Cook of $84.15.
    The court, at the instance of the plaintiff, gave the following instruction: “ 1. If the jury find that the property attached in the hands, of the garnishees was at the time of the attachment the property of Burns & Brother, and that garnishees had been notified that Houseman, Lowry & Co. and other creditors of Burns & Brother had claims against it, and that it did not belong to Martin & Cook, then the garnishees can not be permitted to apply the said property to the payment of debts contracted with them by Martin & Cook subsequent to the time of being so notified.”
    At the request of defendants the court instructed the jury as follows: “ 1. Unless the jury find that defendants were indebted to Burns & Brother at the time of the garnishment, or had property in their hands at the time belonging to Burns & Brother, then they will find for defendants. 2. If the jury believe from the evidence that defendants had no knowledge of any other claims against the property than that of Houseman, Lowry & Co. at the time of their sale of the property and their sale of the bill of goods to Martin & Cook, and that the sale of the merchandise was made with the consent of Houseman, Lowry & Co., and that they complied with their agreement with said H., L. & Co., then they will find for defendants, excepting as to the balance in defendants’ hands after being paid for goods sold by them to Martin’ & Cook.”
    The court refused the following instruction asked by defendants : “ The jury are instructed that the goods became the property of Houseman, Lowry & Co. at the time of making the paper dated January 24,1854, and the delivery by possession thereof to him; and if they find that he retained said property and that the same was sold by defendants with their consent, then they must find for defendants.”
    The jury found for the plaintiff, and found that at the date of the garnishment defendants had in their hands $534.78 belonging to Burns & Brother. The court rendered judgment in favor of plaintiff for $328, the amount recovered by plaintiff against James Burns, defendant in the attachment.

      Biddlecome, for appellants.

      Wickham & Snead, for respondent.
    I. The garnishees, having been notified that the consignment to them by Martin & Cook was fraudulent, could not after such notification defeat the claim of an attaching creditor of the rightful owner by placing the proceeds of sale to the credit of the fraudulent consignor. (Pool v. Adkinson, 3 Dana, 115 ; Story on Agency, § 360 ; 19 Pick. 230; Drake on Attachment, § 414 ; Cushing on Trustee Process, § 26-8, 35-40.) After Houseman, Lowry & Co. had received satisfaction of their advances, and had surrendered possession of the property to appellant, they had no further claim to said produce, they having refused to accept the drafts drawn upon them by Burns & Brother against the surplus proceeds of sale of the produce.
   Richardson, Judge

delivered the opinion of the court.

Though the warehouse receipt executed by Burns & Bro. to Houseman, Lowry & Co. gave to the latter the right to the possession of the property until their advances were refunded, it evidently was only intended as a security, and Burns & Bro., by paying the debt, could have extinguished the lien, or they could have transferred their equity to another person who, on succeeding to their rights, would have held the property, by paying Houseman, Lowry & Co., free from the claims of the creditors at large of Burns & Bro.

If Houseman, Lowry & Co. had received the property under a stipulation to sell it and apply the proceeds to the payment of their debt, and the residue to other named debts, a trust would have attached upon it in their hands, from which they could not have been relieved merely by obtaining satisfaction of their own debt; but the trust would have continued and have followed the property into the hands of every other person who received it with notice. But the receipt on its face conferred no rights and imposed no duties except as between the parties to it, and, from any thing that appears in the record, there was no lien or claim on the property as against Burns & Bro. in favor of any person except Houseman, Lowry & Co., and Burns & Bro. had the power of transferring it, subject only to one claim, to any bona fide creditor or purchaser; and their promise to pay other creditors the surplus created no lien upon it.

A factor must know whose property he is selling, and must respect at his peril any valid liens on it; but he has the right to pay the proceeds to the owner, or to his order, although he may know that the owner has promised them to his creditors. So, if the consignment had been received directly from Burns & Bro. the defendants would have had no reason, before they were garnished, to withhold the proceeds of the sale after paying Houseman, Lowry & Co. for the benefit of the general creditors of Burns & Bro.; and, conceding that the transfer to Martin & Cook was made with a fraudulent purpose, it was good against Burns & Bro., and was sufficient, as far as tliey were concerned, to authorize Martin <fc Cook to direct the disposition of the proceeds of the consignment.

It appears that the property came to the defendants under a consignment from Martin & Cook; that it was sold and the debt paid to Houseman, Lowry & Co., and, though Mr. Houseman says, “ I think I told them that there were some drafts to be paid,” there is not a word in the record to show that a draft had been drawn in favor of the plaintiff, or that he had a lien on the property of any kind, or that the defendants over knew he was a creditor.

An ordinary draft in favor of the plaintiff on Houseman, Lowry & Co. would not have operated as an assignment of any interest in the property; (Kimball v. Donald, 20 Mo. 577;) and notice to the defendants that the creditors of Burns & Bro. had been promised payment out of the proceeds of the sale of the property would not have prevented them from paying the proceeds to the owners, their agents or their vendees.

There is no evidence that any of the creditors of Burns & Bro., except Houseman, Lowry & Co., had claims against the property, and the instruction therefore given by the court, at the plaintiff’s request, was erroneous in assuming that there was evidence that other creditors of Burns & Brother had claims against it.”

If the property really belonged to Burns & Bro. the defendants are liable for whatever was in their hands at the time they were garnished; but they are not liable for any thing they had paid, or for the amount taken in goods by Martin & Cook, unless they were guilty of fraud, and participated with Martin & Cook and Burns & Bro. in a scheme to cheat the creditors of the latter.

The case was not put on trial on the ground of fraud, neither in the proof nor in the instructions asked or given.

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


author: Scott, Judge,

text:
    Patrick et al., Respondents, v. Abeles, Appellant.
    1. Although, in a suit instituted to enforce a mechanic’s lien, the plaintiff may fail to show the existence of a lien in his favor, he will be entitled, if the pleadings and the evidence will warrant, to a general judgment.
    2. The nature of an action is to be determined by the petition and not by the facts as they appear in evidence.

      Appeal from St. Louis Land Court.

    Plaintiffs in their petition (filed September 19, 1855) alleged an indebtedness on the part of defendant for lumber furnished to defendant for the construction of a certain building in the city of St. Louis. The plaintiff prayed judgment for the amount of the alleged indebtedness and also that execution might issue against the building, against which it was alleged plaintiffs had filed a lien demand. The suit was commenced in the circuit court. It was removed by consent of parties to the St. Louis land court. It appeared in evidence that the building in question had been constructed for defendant by one John Gr. Lare ; that the lumber had been furnished immediately to Lare. There was evidence tending to show that it was so furnished on the credit of defendant Abeles. The account accompanying the petition was made out against John G-. Lare. Plaintiffs also introduced in evidence the lien papers filed by them against the building. It did not appear that the required thirty days’ notice of the claim of lien had been given to Abeles. At the close of plaintiffs’ case, the court refused to instruct the jury that plaintiffs could not recover. At the close of the whole case the court, at the instance of the plaintiff, gave the following instruction : “ 1. If the jury believe from the evidence that the lumber sued for was furnished on the credit of Abeles and not on that of Lare, and was used in the construction of defendant’s house, the defendant is liable to pay for it.” The following instructions were given at the instance of defendant: “ 2. If the jury believe from the evi-deuce that tlie lumber and materials sued for in this suit were sold by plaintiffs to John G. Lare on his own responsibility and charged to him alone, they will find for the defendant. 3. If the jury belieVe from the evidence that the lumber, &c., sued for in this suit was purchased by John G. Lare for himself and upon his responsibility and not the defendant’s, then they will find for the defendant.”
    The jury found for plaintiff, and a general judgment was rendered in his behalf.

      Cline & Jamison, for appellant.
    I. The court erred in refusing the instruction asked by defendant at the close of plaintiffs’ case. The lien filed was against John G. Lare, the contractor. The plaintiffs were sub-contractors. They failed to give the required thirty days’ notice. There was no evidence showing a tendency to show that any such notice was given. If credit was originally given to the defendant, the lien demand should have been made out against Abeles as well as Lare. The lien read in evidence was insufficient to support the plaintiffs’ petition.
    II. If the lumber sued for was furnished and delivered upon the credit of the defendant, and the plaintiffs endeavored to recover the same from the defendant irrespective of the lien as filed, then the St. Louis land court did not have jurisdiction over the same. Consent can not give jurisdiction. (20 Mo. 350.)

      H. N. Hart, for respondents.
   Scott, Judge,

delivered the opinion of the court.

The nature of this action must be determined by the petition filed in the cause. Although the proceedings, as instituted, would, with proper evidence, have warranted a judgment for the sale of the property under the lien, yet, failing to obtain a judgment under that law, there was nothing to prevent the plaintiffs from having a general judgment if the pleadings and evidence warranted it. As the petition alleged that the defendant owed the plaintiffs for lumber furnished him for building his house, if the fact was established it would clearly authorize a general judgment. As to the evidence, the verdict of the jury shows its sufficiency.

The circumstance that the account was made out against the contractor was not a matter in bar of the action, but a matter to be weighed by the jury in determining the question of the defendant’s liability on his alleged personal undertaking. It was not conclusive evidence, as, notwithstanding such an account, the plaintiff could show that the credit was given to the defendant.

Even admitting that the court at the close of the plaintiffs’ case might have instructed the jury that they failed to make out a cause of action under the law concerning liens, yet, as the instruction was refused, and in the further progress of the cause it was ascertained that the defendant was indebted to the plaintiffs and the jury so found, and such finding meets with a support in the pleadings, on what ground in law or justice should the judgment now be reversed for refusing an instruction which, had it been given, as it afterwards turned out, would have defeated the justice of the cause ? The case on its merits was fairly put to the jury, all the instructions asked on either side having been given, and we see no reason for disturbing the judgment of the court.

As to the question of jurisdiction, although consent can not give it, yet after the cause was taken by consent of the parties to the land court, they might have left that question to be raised by some other person. But, as was said in the case of McCune v. Hall, 20 Mo. 596, this court will not put such a construction upon the act organizing the land court as will make it necessary for parties first to try their actions in order to find out what court has jurisdiction to hear and determine them. Here is a case which might have been heard in either court according to the evidence. Having been determined in one of them, there is no reason for reversing the judgment. It would be extremely inconvenient to make the jurisdiction of a cause depend upon the evidence produced at the trial. This is not such a question of jurisdiction as arises between courts of different classes or grades. The jurisdiction of one court has been distributed among several. It was impossible to draw a clear line defining the jurisdiction of each. There must be necessarily some cases in such a distribution as will mate it a matter of doubt where they are to be tried. In such we see no réason why the jurisdiction should not depend on the form of the action and not on the facts proved on the trial.

Judge Napton concurring,

the judgment is affirmed.


text:
    Hempstead, Plaintiff in Error, v. Hempstead’s Administrator et al., Defendants in Error.
    1. A judgment was*recovered against A. and B. on an official bond in which B. was principal and A. his security. B. died leaving him surviving a widow and daughter, his only heir. A. was compelled to pay a portion of the judgment. C., to whom the judgment had been assigned and who had control over it, in consideration of the compromise and dismissal of various suits instituted against him by the heir of B., covenanted by instrument under seal with the said widow and heir never to use or enforce said judgment so far as the same could be made to affect the heirs, executors, or administrators of B., or any property owned by them as such heirs, &c., except as to two specified tracts of land, with respect to which he reserved the right of using said judgment as he might see fit. He also reserved the right of using said judgment against A. and his property. Notwithstanding the execution of this instrument, C. procured the allowance by the probate court of said judgment as a claim against B.’s estate, and it was classed in the fourth class of allowed claims. A. procured the allowance in his favor of a claim against B.’s estate for the amount paid by him in part satisfaction of said judgment; this claim was assigned to the fifth class. Held, in a suit instituted by A. against B.’s administrator and C. for the purpose of having the allowance of said judgment in C.’s favor set aside and the assets in the hands of the administrator applied to the payment of A.’s claim, that the instrument executed by C. operated a release of the judgment as against B.’s estate; that (the claims of A. and C. being the only allowed claims) C. was not entitled to have said judgment allowed as a claim against B.’s estate so as to protect the assets thereof (except the excepted property) from Hie payment of the claim of A.; that said instrument operated a like release of the judgment as to A., he being only a security.

      Error to St. Louis Circuit Court.

    This was an action by Charles S. Hempstead against John D. Wilson, administrator of the estate of Thomas Hempstead, deceased, and John Biddle. The petition set forth that Thomas Hempstead was an officer of the United States government ; that plaintiff was the security upon his official bond; that on the 7th of June, 1823, judgment was rendered on said official bond against said Thomas as principal and plaintiff as security, in the district court of the United States for Missouri, for the sum of $13,497.27 ; that said Thomas Hempstead left the United States and was last heard of in Spain in the year 1827 ; that plaintiff was compelled by executions to pay money upon said judgment at various times; that the defendant Biddle obtained the control of said judgment with power to release the same ; that said Thomas left one child only, a daughter; that said daughter, being the sole heir of said Thomas, in 1845 or 184B brought suits against said defendant Biddle for the recovery of certain property in the possession of said Biddle, which she claimed as descending to her from her father, the said Thomas ; that as a part consideration for the withdrawal of said suits the said Biddle released the said judgment in favor of the United States and of which he had control so that the same should no longer be a charge upon the estate of the said Thomas ; that though said release was executed by the said Biddle and was in the hands of the agent of the said sole heir of said Thomas Hempstead, by a fraudulent contrivance between the said Biddle and the said heir the said release was not entered of record, but the judgment was fraudulently allowed to stand unsatisfied for the purpose of defrauding plaintiff and compelling him to pay the same notwithstanding it had been released ; that in the year 1848 the defendant Wilson married the said heir of said Thomas, Cornelia Y. Hempstead; that in June, 1850, letters of administration were granted by the probate court of St. Louis county upon the estate of Thomas Hempstead to said Wilson ; that in March, 1851, by the connivance of the said Wilson, tbe said judgment was revived in favor of the United States, to the use of said Biddle, the said Wilson well knowing that the same had been released ; that the judgment so revived was presented in the probate court for allowance against the estate of said Thomas; that the probate court refused to allow the same; that an appeal was taken to the circuit court; that by the fraudulent practices and the connivance of the said Wilson and Biddle a decree was obtained in the circuit court that said judgment be allowed by the probate court, though the said Biddle did not intend that any thing should be paid by the said Wilson, administrator; that on the 15th of June, 1852, said judgment, amounting to nearly $40,000, was allowed by the probate court, and placed in the fourth class of claims allowed against the said estate ; that at the March term, 1858, of said probate court, a claim was allowed in favor of plaintiff against the estate of said Thomas, amounting to $10,244.67, for moneys paid on the aforesaid judgment; that said claim was placed in the fifth class of claims; that no other claims than the aforesaid have been allowed against the said estate ; that property to a large amount belonging to the estate of said Thomas Hempstead has come into the hands of said Wilson as administrator; that under the fraudulent pretence, of paying said judgment allowed in favor of said Biddle, Wilson obtained an order of the probate court for the sale of property belonging to the estate of said Thomas; that at the December term of said court he sold property and received $7,630, as appears by his report to the court; that at the December term, 1854, he sold other property, said Biddle becoming the purchaser at a price of $3,650 ; that said Biddle and Wilson, having received notice that plaintiff intended to move the court to have the proceeds of said sale applied to his claim, fraudulently combined to suppress said sale and no report was made of it to the prohate court; that at the September term, 1855, of the probate court, the said administrator Wilson sold property amounting to $957, as appears by his report; that nothing has been paid upon said judgment in favor of said Biddle; that it was not intended by Wilson and Biddle that any thing should be paid upon it; that said sales were not made, for the purpose of-paying said judgment, or any debt of the estate of said Thomas Hemp-stead, but were made for the • purpose of defrauding plaintiff of his just claim ; that said judgment, by a fraudulent combination between Wilson and Biddle, is held as a cover for the assets of the said estate, and to prevent plaintiff from obtaining satisfaction of his just claim; that said judgment is more than sufficient to cover all the assets of the estate; that by the corrupt and fraudulent practices of the defendants plaintiff is defrauded of his just debt against said estate; that the probate court refuses to entertain jurisdiction of this cause, to set aside the allowance of said judgment and grant relief to plaintiff. “ The plaintiff therefore prays this court to take cognizance of this case, to set aside the allowance of said judgment in favor of said Biddle against the said estate, to cause the assets of said estate to be equitably applied to the payment of plaintiff’s claim, and for such 'other and further relief,” &c.
    Defendants answered separately, denying any release of the judgment mentioned in the petition, and denying the fraud alleged.
    At the trial by the court without a jury, the plaintiff offered in evidence the following instrument in writing: “ I, John Biddle, of Detroit, in the state of Michigan, hereby covenant and agree with Cornelia Hempstead, widow, and John D. Wilson and Cornelia Y. Wilson his wife — which Cornelia Y. is a child and sole heir of said Thomas Hempstead — in manner following, that is to say: Whereas I am the owner and assignee of a certain judgment rendered in the United States district court for Missouri, on the 2d day of June, in the year 182B, for the sum of $13,497.27, in favor of the United States against Thomas and Charles S. Hempstead; I have compromised a certain suit in chancery this day, wherein John D. Wilson and wife and Charles Gibson are complainants, and myself, John O’Fallon and others are defendants, and they have quit-claimed all their right in the lands in controversy in that suit, and agreed to dismiss that suit, and as part of the consideration for such quit-claim and dismissal of said suit and release of their cause of action therein is the release of the estate of said Thomas Hempstead from said judgment as hereinafter specified: Now therefore I hereby, for my heirs, representatives and assigns, agree and covenant that said judgment shall never be used or enforced in any manner against the heirs or administrator of said Thomas Hempstead, unless for the purpose of affecting the two pieces of land of forty arpens and of five arpens hereinafter mentioned, nor against any property belonging to his estate or to his heirs as derived from him at any time, except however the tract of forty arpens lying in the common field of St. Louis, being the same conveyed to Thomas and Charles S. Hempstead by Margaret Hebert dit Lecompte by deed dated the 8th day of January, 1818, recorded in book G, page 11, and except also a piece of five arpens, being on the south of said forty arpens tract, and conveyed to William C. Carr by Thomas and Charles S. Hempstead by deed dated the 26th day of August, in the year 1819, recorded in book J, page 165; against which said two pieces of land (the last of which pieces of land I am the owner of, and the eastern portion also of the former I am the owner) I reserve the right of using said judgment as I may see proper, and also of using the names of the heir and representatives of Thomas Hempstead, deceased, for the purpose of selling or otherwise affecting the same lands, but always at the proper costs of myself or my representatives. And I also have the right of using said judgment as I may see proper, and also of using the names of the heir and representatives of Thomas Hemp-stead, deceased, for the purpose of selling or otherwise affecting the same lands, but always at the proper costs of myself or representatives. And I also have the right of using said judgment against Charles S. Hempstead and his property ; but, with the exception of the whole of the said forty arpens and of the said five arpens, I am not to use or enforce said judgment so far as the same can be made to affect the heirs, executors or administrators of the said Thomas Hemp-stead, or any property owned by them or any of them as such heirs or executors or administrators. In testimony whereof I have hereto set my hand and seal this 7th day of December, 1849. [Signed] John Biddle. (Seal.)”
    The court, at the instance of defendants, excluded said instrument as incompetent. The plaintiff thereupon moved the court to permit an amendment of the petition “ so as to meet the proof contained in said paper writing.” The court refused to grant the motion; whereupon plaintiff took a nonsuit, with leave, &c.

      Munford, Jones & Sherman, for plaintiff in error.
    I. The court erred in excluding the instrument signed by John Biddle. It was a full and fair release of the judgment as to Hempstead’s estate; if not technically, then in spirit and substance. Had it been produced before the probate court, the judgment never would have been allowed. The writing showed a fraudulent combination between defendants to obtain an allowance of the judgment. If the proof contained in said writing did not technically sustain the petition, the court should have allowed plaintiff to amend.

      S. T. & A. D. Glover, for defendants in error.
    I. The instrument offered in evidence was not a release ; it was not therefore pertinent to the issue between the parties. It contemplates that the judgment shall for many purposes continue in force; this is irreconcilable with the idea of a release. (See Parker v. Holmes, 4 N. H. 97.) At most it contains an agreement between the widow and heir of Thomas Hempstead to use the judgment in a particular manner; not to extinguish the judgment, but to keep it alive and control it. The widow and heir of Thomas Hempstead only were parties to the contract. The administrator was not, and had no interest in it. A covenant not to sue one co-obligor is no release of the other. (14 Pick. 123 ; 17 Mass. 581; 9 Cow. 37; 4 Greenl. 421.) There is no equity in plaintiff’s bill. He could obtain all the relief he prays by proceeding in the probate court. To obtain the relief sought the heirs of Thomas Hempstead should be before the court. The heir of Hempstead might legally cancel said contract or waive the benefit of it, and no one could complain of it. It would be no injury to any one else. The administrator of Hempstead had no right to enforce said contract. Biddle reserved the right to enforce the judgment as against the two tracts of forty and five arpens. He therefore had a right to have it allowed by the probate court. The whole judgment might be exhausted in the sale of T. Hempstead’s right and claim to said tracts. These tracts were worth three times the amount of the judgment. The court properly refused to allow an amendment of the petition.
   Scott, Judge,

delivered the opinion of the court.

The question in this case is whether the court below properly rejected as evidence the release of John Biddle offered by the plaintiff with a view to show that the defendant Wilson, who is the administrator of Thomas Hempstead and the husband of his heir Cornelia Hempstead, had no right to keep on foot, to his prejudice, the judgment mentioned in the release.

The release of the judgment against Thomas Hempstead by Biddle was with the exception that the judgment might still be used in the event it should become necessary for the protection of two parcels of land conveyed to Biddle. These parcels were the subject of a suit between Mrs. Wilson, as the heir of Thomas Hempstead, and John Biddle. The suit was compromised by the heir conveying to Biddle the land she sought to recover from him. Among other considerations for this compromise, Biddle released the heirs, executors and administrators of Thomas Hempstead from the judgment which has^iven rise to this litigation, except so far as it might be necessary to use it for the protection of the title to the land which Biddle obtained by his compromise with the heir.

The plaintiff is a creditor of Thomas Hempstead; and Wilson and his wife (the heir of Hempstead) claim that they have a right to keep on foot the released judgment to the exclusion of other creditors until that judgment is ratified, it being a debt of a preferred class. The interest in the land that was passed- away by the compromise of Mrs. Wilson with Biddle was subject to the payment of the debts of Thomas Hempstead. His creditors, by taking the proper steps, may subject the interest owned in the land by Hemp-stead to the payment of their debts. Mrs. Wilson, as heir, held the land subject to the payment of debts. If she, as heir, aliened the land and by that act obtained a release of the estate from a judgment, why should not a creditor have the benefit of that release, he being willing to abide by the act by means of which it was obtained ? If this is not allowed, the creditors may avoid the compromise, and have the land sold which has been aliened away. Thus, by seeking to appropriate the released judgment to her use, and not to the benefit of the estate of her ancestor, she forces a violation of the compromise she has made, although she may have received other considerations for it than the release, thus placing Biddle where he was before the compromise minus the sum he may have paid for it in addition to the release. As the land which Mrs. Wilson aliened was subject to the payment of debts, and as by means of that alienation she has obtained a release of the estate of her ancestor from a judgment, there is no reason why a creditor should not have the benefit of it, as property in which he had an interest has been the means of obtaining it. Independently of the natural equity of the thing, justice to Biddle requires that such should be the construction of the contract, otherwise he is deprived of the sole advantage he sought by his compromise. We are considering this on principle. ^ie record shows that Biddle is hostile to the claim of the plaintiff; that he does not seek the benefit of the construction we have put upon the contract. But the release is before us. It speaks for itself, and neither the conduct nor declarations of Biddle can vary its interpretation to the prejudice of third persons.

It may be urged that Biddle has purchased the interest of the heir, whatever it may be, and whatever she may have received for it is no concern of the creditor, as he is still free to act as though no alienation of. the land had been made, no compromise effected; that there is no privity between the creditors and-heir, no relation of trustee and cestui que trust, which entitles the creditor to any advantage or profit the heir may make by means of the inheritance. . Take it that the intimation thrown out in relation to this case is untenable, yet the fact is the estate of Hempstead has been released from the judgment. Because the heir procured the release, she has no right to. regard it as an. assignment to herself; there is nothing in the instrument which shows that it should enure to her benefit. On the contrary, such an idea by forcing the creditors to disturb the compromise, brings about the very state of things it was designed to prevent. The paper executed by Biddle is no assignment of his judgment to Mrs. Wilson; with the exception above referred to, it is a clear release. It stipulates that he is not to use or enforce said judgment so far as the same can be made to affect the heirs, executors or administrators of said Thomas Hemp-stead, or any property owned by them or either of them as such heirs, executors or administrators. The instrument also recites that the release of the .estate of Tilomas Hemp-stead, from said judgment is part of the consideration of the compromise. It is obvious that if this paper does not operate as a release it does not operate at all, and that it can not be construed into an assignment of the judgment.

The only difficulty that suggests itself in relation to the views first expressed about the case as to the right of the creditor to adopt the act of the heir arises in the event there are more creditors than one, and they do not unite in the adoption of the compromise. In such case, a portion of them by adopting it could not affect those who are unwilling to do so. Those not agreeing to the compromise would have a right to sell the land compromised away, and by so doing would destroy the compromise and take away its benefits from those who are willing to abide by it. There is but one creditor in this case as it appears.

As to the attempt by Biddle to hold the judgment as against Charles H. Hempstead, who is a mere surety, it is futile. One joint co-obligor may be relieved from his portion of the obligation. But the release of the principal in an obligation will certainly discharge the surety; otherwise, if the surety is compelled to pay the debt, he will force the principal to reimburse him and thus the effect of the release will be destroyed.

The judgment is reversed and the cause remanded.

Judge Napton concurs. Judge Richardson not sitting, having been of counsel.


author: Richardson, Judge,

text:
    Carr et al., Respondents, v. Steamboat Michigan, Appellant.
    1. 'Where there is a privilege of resliipping reserved in a bill of lading, the carrier will be liable for any loss occurring on the boat on which the goods are reshipped, if under like circumstances he would have been liable had the loss occurred on his own boat.
    2. The reservation in a bill of lading of the “ privilege of reshipping” con. fers only the right of transferring the goods shipped to another boat or vessel for the purpose of being transported to the port of destination; it will not authorize the temporary storing of the goods on a wharf-boat at the point of reshipment; nor will the carrier, in order to escape liability for the loss of the goods while stored on a wharf-boat at Cairo with a view to reshipment to St. Louis, be permitted to show that “ the usual and customary mode of reshipping was to place the cargo on wharf-boats at Cairo, to be taken therefrom by other boats bound for St. Louis.” ‘

      Appeal from St. Louis Cowt of Common Pleas.

    The defendant’s offer to prove a custom, as appears from the bill of exceptions, was as follows: “ The defendant then offered evidence to show, that, under bills of lading similar to the one offered in evidence by the plaintiff, it was the nsnal and general custom, upon the arrival of boats at Cairo, Ill., from New Orleans, with cargoes for St. Louis, and the condition of the river was such that the boats could hot reach St. Louis, to reship the cargo on boats of lighter draft; and that the usual and customary mode of reshipping was to place the cargo on wharf-boats at Cairo, to be taken therefrom by other boats bound for St. Louis.” The court refused to receive the offered evidence.

      Hudson & Thomas, for appellant.

      Krum, & Harding, for respondents.
   Richardson, Judge,

delivered the opinion of the court.

The plaintiffs shipped at New Orleans four cases of merchandise, which the defendant contracted to transport and deliver at St. Louis, “ the dangers of the river and fire only excepted,” and in the bill of lading reserved the “ privilege of reshipping.” This action is brought for a breach of the contract in failing to deliver the goods. It appears that the boat proceeded on her voyage as far as Cairo, and not being able to proceed further immediately on account of the condition of the river, her-officers transferred her cargo to the wharf-boat at Cairo, with instructions to reship the same on smaller boats, and then returned to New Orleans. The wharf-boat sank a few hours after the Michigan left and the plaintiffs’ goods were lost. The defendant offered on the trial to prove that the wharf-boat did not sink through any fault of her officers or crew, and that it was customary for boats in that trade to deposit freight on the wharf-boat designed for reshipment on smaller vessels, but the court refused to receive the evidence.

The principle involved in this case was settled by this court in Little v. Semple, 8 Mo. 99, in which it was decided that the privilege of reshipping does not discharge the boat from any liability not excepted in the contract; and though the right is secured of transhipping on another boat, the liability continues until the goods are safely delivered at the port of destination. The privilege of reshipment, reserved in the contract is intended for the benefit of the carrier, and does not limit his liability; for if the goods' are safely delivered, he will earn his freight whether they are carried in his own or another vessel; and his obligations are commensurate to the reward he contracted to receive. (Whitesides v. Russell, 8 Watts & Serg. 44 '; Angel on Carriers, sec. 227.) If the goods are lost on the vessel on which they reshipped by a peril excepted in the bill of lading and by reason of an accident which would excuse the carrier if the loss had occurred on his own boat, he will not be responsible if he has the privilege of transhipment; but he will be liable for any loss occurring on the boat on which the goods are reshipped if under like circumstances he would be liable had the loss occurred on his own boat. If the carrier, without the privilege reserved in the bill of lading, reships on another boat, 'on which the goods are lost even by an inevitable accident, he will be liable, unless the necessity to reship results from a disaster to the vessel; and with the privilege of reshipping he has no right to remove the cargo except from one boat to the other, and then his responsibility continues the same as though it had not been removed. Without the stipulation in this bill of lading of the right to reship it would not be pretended that the Michigan was authorized to deposit her cargo on the wharf-boat, and the right secured by the stipulation was limited to the simple act of transferring from one boat to another. The evidence was properly excluded, and, with the concurrence of the other judges, the judgment will be affirmed.


author: NaptoN, Judge,

text:
    Menkens, Appellant, v. Blumenthal, Respondent.
    1. Where a plaintiff in an action of ejectment bases his right to recover upon a title acquired by an adverse possession for twenty years, it is not necessary that his possession, or that of those under whom he claims, should be connected ivith the possession of previous occupants by instruments in writing; the continuity of the possession may be shown by any testimony that is legitimate and pertinent.
    2. A division line mistakenly located and agreed upon by adjoining proprietors will not be held binding and conclusive upon them if no injustice be done by disregarding it.
    3. A deed conveyed all the interest of the grantor in his father’s estate or lands “near St. Louis held, that it might be shown that the father possessed land nearer St. Louis, and more appropriately within the description of the deed of the son, than that sought to be comprised within it.

      Appeal from St. Louis Land Court.

      This case bas heretofore been before the supreme court. (See 19 Mo. 496.) Plaintiif seeks to recover in this action a lot in the city of Carondelet, in block No. 53. The lot sought to be recovered is seventy-five feet front on Second street by one hundred and sixty feet in depth, and is a part of the south-east quarter of said block as surveyed, its northern line being the line of division between the north-east and the south-east quarters of said block. In support of his title the plaintiif introduced in evidence a confirmation certificate issued by recorder Hunt to Amable Guión or his legal representatives for lot in block 31 (now 53), 150 feet by 300, bounded north by Second street, east by Church street, south by balance of square, and west by Third street— a deed from eight heirs of A. Guión to V. Guión for the north-east and north-west quarters of block 63, as laid down on the plat of survey of the town of Carondelet — a deed from V. Guión to C. D. Drake for the same lot, with the same description — a deed from Drake to Wilson Primm for an undivided one-half of said lot — a deed from Drake to McDonald for one-half of said lot — a partition between Primm and McDonald’s heirs; in this partition the eastern half (north-east quarter of the block) of the lot was assigned to Primm — a deed from Primm to plaintiif Menkens conveying a lot 150 feet square, French measure, bounded north by E street, east by Second streeet, south by the balance of the square, and west by McDonald’s heirs — a deed from Antoine Guión (one of the eight heirs of Amable Guión) to Wilson Primm, conveying all his interest in his father’s estate and lands near' St. Louis — a deed from Joseph Guión to W. Primm for all his interest in his father, Amable Guion’s estate — a deed from Primm, dated October 21,1854, to plaintiff, conveying the lot in dispute. The plaintiff then introduced evidence with a view to show that Amable Guión had cultivated and possessed this lot prior to December 20, 1803 ; that it was in possession of said Guión and his heirs up to 1839, when it was sold to Primm and Drake; that Primm took possession of the lot and held it until he sold it to plaintiff in 1851; that plaintiff took possession in 1851. Plaintiff also introduced evidence with reference to the running of a partition line by Primm and Josette Wilson, who claimed title under the Hunot confirmation. (See below opinion of the court.)
    The defendant then showed a confirmation to Gabriel Hunot’s legal representatives of a lot in block 53,150 feet by 300 feet, bounded south by P street, and north by the balance of the square. The defendant claimed title under this confirmation. The United States survey of the confirmation to Hunot’s legal representatives embraced the lot in controversy ; it corresponded with the survey of block No. 53 by Eiler. Evidence was also adduced by defendant bearing upon the possession of the lot by Guión and his representatives; also a deed from Bartholomew Guión to Wilson Primm for a tract of land of fifty arpens situate near the water-works of the city of St. Louis.
    The defendant offered in evidence a deed from defendant Blumenthal to W. Bernard conveying the northern part of the north-east quarter of block No. 54, which lies next south of block No. 53. The court rejected said deed as incompetent.
    The following is the eighth instruction (given at the request of defendant) referred to in the opinion of the court: “ 8. To enable the plaintiff to recover on the ground of adverse possession for twenty years by himself and those through whom he claims against the defendant is possession under a confirmation from the United States under act of Congress of June 13, 1812, it is necessary to make out proof of actual possession of the premises in dispute for twenty connected years of time unbroken. If the plaintiff, in order to make up such twenty years’ unbroken time, has to connect his possession with that of another person, he can obtain the benefit of the possession of such other person only by having a written contract or conveyance of such person for the land in question; and even though the plaintiff may show such twenty years’ possession of the premises in dispute by the heirs of Amable Guión when they conveyed to Yincent Guión, yet that will not avail him without such written transfer vesting in him, or entitling him to their interest in the land so possessed by them.”
    Numerous instructions were given to the jury; it is deemed unnecessary to set them forth.
    The jury found for the defendant.
    Whittelsey, for appellant.
    I. The court erred in refusing to admit the deed from defendant to William Bernard. It tended to show that defendant recognized lines of the old possession and claim of Guión. The court also erred in admitting the deed of Bartholomew Guión to Primm. The court erred in refusing the first instruction asked by plaintiff. The land was confirmed to the legal representatives of Guión. Two of those heirs conveyed all their interest in their father’s estate to Primm. Primm had then title under them to one-fourth; that he conveyed to plaintiff.
    II. The defendant and those claiming under Josette Wilson are estopped to deny that the line surveyed and adopted by the parties was the dividing lines of the quarters of said block; the second instruction should have been given. (Joyal v. Rippey, 19 Mo. 660 ; Taylor v. Zepp, 14 Mo. 482; Blair v. Smith, 16 Mo. 273; Rockwell v. Adams, 7 Cow. 761; 7 Johns. 245; 17 Johns. 29; 12 Wend. 421.)
    III. Successive possessions under the statute of limitations, if passed by consent from one party to another, will make a continuous possession good under the statute, and the possessions need not be passed by writing to enable the possessor to avail himself of the statute. The eighth instruction is erroneous. Possessions may be tacked without deed. (13 Johns. 118; 1 Johns. Cas. 36; Cunningham v. Patton, 6 Barr, 126 ; Yalentine v. Cooley, 1 Meigs, 613; 5 Barr, 126 ; Panning v. Wilcox, 3 Day, 269 ; 7 S. & R. 173; Shannon v. Kinney, 1 A. K. Marsh. 3 ; 2 id. 620 ; Cook, 366; Napier v. Simpson, 1 Tenn. 448 ; Ludlow’s heirs v. McBride, 3 Ham. 240 ; Jackson on Real Actions, 45 ; Porter v. Perkins, 5 Mass. 236; Allen v. Rivington, 2 Saund. Ill; Crockett v. Morrison, 11 Mo. 3; Denn v. Barnard, Cowp. 597 ; Jackson v. Harder, 4 Johns. 202 ; 1 Tenn. 515.)
    IY. The ninth instruction was erroneous. The admissions of a party in possession are evidence against himself and those claiming under him. Declarations as to a dividing line, as well as the acts of the parties, are evidence. (Adams v. Rockwell, 16 Wend. 285 ; Bradstreetv. Pratt, 17 Wend. 44; Blair v. Smith, 16 Mo. 272; Taylor v. Zepp, 14 Mo. 482; 19 Mo. 660.) The first, second, fourth, sixth and tenth instructions are also erroneous. (See Janis v. Gurno, 4 Mo. 458) ; also generally 2 Bl. Comm. 297, 312 ; 4 Kent Comm. 450 ; 10 Mo. 260 ; 7 Mo. 569; 19 Mo. 132 ; 20 Mo. 81.)

      Dick, for respondent.
    I. The court committed no error in refusing instructions. The only question of law in the case arises on the eighth instruction. Yincent Guión did not convey the land in dispute. There was no evidence that he ever was on the land in dispute. A deed or writing was necessary to constitute privity of estate. The instruction was proper. (21 Mo. 836; 7 S. & R. 173.) Joseph Guión having conveyed by deed, the eighth instruction could not apply to him. As a necessary consequence the verdict found that there had not been twenty years’ possession in Amable Guión or his legal representatives.
   NaptoN, Judge,

delivered the opinion of the court.

In this case the plaintiff seeks to recover on a prior possession of twenty years against the defendant, who has an elder and perfect paper title. The decision made by this court, when the case was here before, (see 19 Mo. 496,) restricted the confirmation to Amable Guión, and the derivative title under that confirmation to the lot as embraced in the survey of Eiler; and no portion of the ground now in dispute lies within that survey of the Guión confirmation.

A possession, to be available under such circumstances, must be continuous and adverse, and so the instructions of the court upon the trial declared. The court further declared in the eighth instruction that the connexion between the possession of the plaintiff, or those under whom he claimed, and previous occupants, could only be shown by writing; and this instruction is in our opinion erroneous. The only question in cases of this nature is, whether there has been twenty years’ continuous possession, and whether that possession has been adverse to the title. Deeds or instruments of writing are frequently resorted to as the most convincing proofs of the adverse character of the possession, and to show its continuity from one occupant to another where there has been more than one person in possession. But we do not understand that this is the only testimony which can be used for this purpose. Where a possession is broken up by abandonment and there is a succession of independent occupants, no title can be made out which will bar the real owner. But whether one occupant receives his possession from a prior one, or is a mere intruder upon an abandoned lot, is a question of fact which may be determined by any testimony which is legitimate and pertinent. We know of no rule of evidence which confines the proof to deeds or written instruments.

It is claimed that a division line agreed on between Josette Wilson, at the time she was proprietor of the Hunot lot, and Primm, who was the owner of the Guión lot, was conclusive upon the defendant Blumenthal, who holds under Mrs. Wilson ; and instructions were asked by the plaintiff to this effect. These instructions, we think, were properly refused. This line was, as subsequent events have shown,.a mistake. The survey of the lots has changed this division line ; but it has given to each party a full lot. What has been lost on one side has been gained on the other; and both parties have availed themselves of the gains, though neither seems disposed to submit to the losses. The main ground upon which such practical adoptions of boundaries have been held to estop, are wanting in this case. No injustice seems to be done to either party by holding each to the correct surveyed line. The mistake was common to both, and its correction, as far as can be seen, equally advantageous to both. Besides, 'the line adopted by Primm and Mrs. Wilson was intended as the boundary between the Guión and Hunot lot as they are understood to be held under their respective confirmations. It has thrown no light upon the present controversy except so far as it may show the extent of Primm’s possession. The plaintiff’s claim is not now upon the Guión confirmation, but upon possession merely.

The deed from Bartholomew Guión to Primm was properly admitted. The plaintiff had given in evidence a deed from Antoine Guión to Primm for his interest in his father’s land “ near St. Louis.” This latter deed would not pass the land now in dispute, if it appeared that the father owned land in the vicinity of St. Louis, and the deed from Bartholomew shows that such lands were owned by Amable Guión “ near the water-works of the city of St. Louis,” which would fully answer the descriptive words of the deed from Antoine, without embracing the land now in dispute. To construe a deed for land “ near St. Louis,” as conveying a lot in the town of Carondelet, merely because the latter is distant not more than five or six miles from the former, would be a very liberal interpretation of a deed, and could only be authorized upon proof that the grantor had no land coming more nearly within the language of the deed.

The deed from Bartholomew to-Bernard was properly excluded, as it did not appear that Blumenthal had any title to the land thereby conveyed.

Upon the whole case, we think the judgment of the circuit court was right, notwithstanding the error of the eighth instruction. The last instruction, given at the plaintiff’s instance, told the jury that Primm was fully invested with the interest of Joseph Guión to the land in controversy by the deed from him which was in evidence, and consequently the plaintiff was entitled to recover under the eighth instruction to the extent of that interest, if the jury believed there had been a continuous adverse possession of twenty years. Their verdict must be understood as negativing the fact of adverse possession — the basis upon which the suit is founded. The plaintiff was not prejudiced by the eighth instruction so far as one-eighth of the land is concerned ; but the jury have found against him as to the whole. We do not perceive any benefit which the plaintiff could derive from another trial; and as we think the judgment is for the right party, although an error was committed, we shall affirm the judgment.

The other judges concur.


text:
    Primm et al., Appellants, v. Haren, Respondent.
    1. Quere, can Carondelet be shown to hare title to land as common under the statute of limitation'?
    2. The United States surrey of Carondelet common includes private claims. hence, it would be erroneous to rule that twenty years’ claim and user as common, by the inhabitants of Carondelet, of the land embraced in said survey would bar the right of a private claimant who seeks to recover possession of land embraced in said survey as confirmed to him by act of Congress of June 13, 1812.
    3. The recorder of land titles was not authorized by the act of Congress of May 26,1824, to take proof in relation to the extent and boundaries of common confirmed to a village by the act of Congress of June 13, 1812; consequently, a certificate of confirmation of common issued by him would not be evidence of title thereto.
    4. It is the province of the court to construe written instruments; where, however, they are adduced as containing evidence of tacts, the jury are authorized to draw such inferences from them as they may deem warranted.

      Appeal from St. Louis Land Gowrt.

    This was an action to recover possession of part of a tract of six by forty arpens, alleged to have been confirmed to J. B. Gamache, sr., or his legal representatives, by act of Congress of June 13,1812. The land sought to be recovered lies within the United States survey of Carondelet common. Defendant claims title under the confirmation of the common of Carondelet. The titles aro the same in general as in the case of Gamache v. Piquinot, 17 Mo. 315.
    The court, at the request of plaintiffs, gave tho following • instructions : “ 1. The jury are instructed that inhabitation, cultivation or possession of a part of a lot, claiming the whole, is in law a cultivation or possession of the whole lot claimed, within the intent and meaning of the act of Congress of 13th of June, 1812. 2. If the jury believe from the evidence that John B. Gamache, sr., was an inhabitant of the village of Carondelet prior to the 20th December, 1803 ; that he claimed, cultivated and possessed the tract of land in the petition mentioned, as an out-lot or cultivated field lot, adjoining or belonging to said village, they will find for the plaintiff for one-fourth of the portion of said tract they shall find to have been in defendant’s possession at the commencement of this suit.” The court refused the following instruction asked by plaintiffs: “ 3. The jury are instructed that the defendant has given no such evidence of adverse possession of the land in controversy in this case for more than twenty years prior to the commencement of this suit as is sufficient in law to constitute an adverse possession that can bar this suit.” To which refusal plaintiff excepted.
    The court gave, at the request of defendants, the following instructions: “1. If the jury find that tho land in controversy was claimed and used, under Spanish authority, by the inhabitants of Carondelet, as part of their common prior and up to the 20th day of December, 1803, and continued to be so used and claimed afterwards until the year 1813, and is in fact embraced by the survey of such common made by the authority of the United States as a part of such common, then the plaintiff can not recover, and the jury ought to render a verdict for the defendant. 2. If the jury believe that Ga-mache, without any claim as proprietor, cultivated a patch of ground within the limits of the common of Carondelet, as claimed and used in Spanish times and as surveyed by the authority of the United States, he did not by the fact of such cultivation acquire a title to such ground as against the inhabitants of Carondelet. 3. If the jury find that Gamache presented a petition to the Spanish governor, asking for a grant for cultivation of a tract whereof the land in controversy is a part, and such petition was denied on the ground that the land asked for was reserved for commons, then such denial of the petition is evidence tending to show that a subsequent cultivation of a small part of the same tract by Ga-mache was had without any rightful claim thereto as proprietor. 4. If the jury find that Gamache, prior to 1803, possessed or cultivated a piece of ground south of the common fields of Carondelet, still he did not thereby acquire any title that can avail in the present action, unless the jury are able to determine from the evidence with reasonable certainty the location of the piece of ground so cultivated or possessed. 5. If the jury find that a survey of the large tract of land called the Carondelet commons, embracing the land in controversy, was made by Rector, under the authority of the United States, and that the corners and lines of such survey were marked by visible monuments on the ground as early as the year 1817, and that the inhabitants of the town of Caronde-let from that time forward claimed the land embraced in such survey as their commons, and for more than twenty years next succeeding the 17th day of December, 1818, and up to this suit actually used the said land as commons, by felling timber and making hay thereon, and claiming the same up to the lines of said survey, and prosecuting persons for trespass thereon; the plaintiffs are thereby barred of their rights to recover in this action, and the jury will find for the defendant. 6. The act of 13th June, 1812, and the official survey read in evidence, known as Brown’s survey, constitute a title in the inhabitants of Carondelet to the land embraced in the survey as effectual as a patent.”
    The jury found a verdict for defendant.

      Whittelsey, for appellants.
    I. The certificate of confirmation issued by Conway was illegal. The act of 1824 did not authorize the recorder to take proof of common. (Dent v. Bingham, 8 Mo. 579.) Hunt issued no certificate, and Conway had no power so to do in 1834. (Gamache v. Piquinot, 17 Mo. 310; 16 How. 471.)
    II. The hearsay testimony of old inhabitants was not legal evidence to prove title to common. (1 Greenl. By. 175; 1 Stark on Bv. 2733.)
    III.. The plaintiffs were not barred by the statute of limitations, for there had been no actual, visible or adverse possession of the premises until 1843. Carondelet was not incorporated until August 20,1832 ; consequently, no prescription could run for her, as none could run against her, before that date. (Reilly v. Chouquette, 18 Mo. 220.) The acts of individual inhabitants in cutting wood did not- constitute an actual, or visible or continuous possession. (Harrison v. Cachelin, 23 Mo. 624; Menkens v. Ovenliouse, 22 Mo. 70 ; Cutter v. Waddingham, 22 Mo. 206.) The survey of Rector does not appear to have been approved until 1855. The court erred, therefore, in refusing plaintiffs’ third and in giving defendants’ fifth instruction. User does not give title to common. It must rest upon the grant of the sovereign authority.
    IY. There was no legal testimony to warrant the third instruction given at the request of defendants. The papers filed with the board were not evidence as against Gamache and those claiming under him. His signature was not proven. The petition of the inhabitants asked for an extension of their lands or common fields below the Bes Peres, and they take for limit the land of Constant, which was at the Des Peres. The petition and answer only applied to lands below the Des Peres, and did not embrace the land sued for. Historically we know that the common field reached down to the Des Peres. (Mackay v. Dillon, 4 How. -.) The land was not reserved for common by Trudeau, but to furnish wood, and that was not a grant of common. The- third instruction is also erroneous for the reason that it leaves to the jury the construction of the petition.

      L. G. Picot, for respondent,
    cited Angell on Lim. 410, 414; Gamache v. Piquinot, 17 Mo. 315; Le Bois v. Brammell, 4 How. 464.
   Scott, Judge,

delivered the opinion of the court.

The statute of limitations is made the turning point of this cause as it is presented by the record. "We can not well see how Carondelet can claim commons under the statute oi limitations, especially on a possession from the 17th March, 1818. It has been thought for some time that the statute of limitations did not operate against the town until the time of her incorporation, which took place in August, 1832. If she could not sue for the want of an incorporation, it is not obvious how she could have been sued without one. It may be if one had gone into possession under her, he might have been turned out by an ejectment brought by one holding a better title than that under which, the tenant claimed. But this does not seem important, as Carondelet, from the date of her incorporation, made claim to her commons more than twenty years before the institution of this suit. Its effect would be only to vary the terms of the instruction. How were the commons surveyed as appears from the plat of the survey ? The survey included the entire village and the private claims within its boundaries. If the instruction given at the instance of defendant is correct, then may not the village, under the statute of limitations, acquire title to all the unoccupied land within the survey by whatever title it may be held. There were valid private claims within the survey beyond all question. Woxxld the acts supposed in the fifth instruction give a title against those claims on the ground of an adverse possession in Carondelet for twenty years ? A claim for commons within the boundaries of a survey is not inconsistent with the idea of private claims existing within its limits. Then the fact is known that a claim to commons is not necessarily hostile to private claims within its limits. How then were the facts set forth in the instruction notice to any one, who had a private claim within the outboundaries of the survey, of the assertion, of a hostile right ? Would it not be strange if Carondelet, putting a tenant in possession of a village lot to which she had no claim otherwise, should be permitted to defeat the owner’s action for the recovery of the possession of it, by proving Brown’s survey and introducing a witness who would show that the plaintiff knew Rector’s corners; that Carondelet always claimed commons, and that individuals below the Barracks had cut timber and made hay 1 The instruction given does not confine the acts of ownership exercised by Carondelet to the lot in controversy, but would deprive the owner of a lot in the village under the statute of limitations because individuals were seen felling trees or making hay two or three miles below. The instruction given relieves us from the task of examining the evidence in relation to the acts of ownership exercised by Carondelet over her commons, because it states the facts- which will be sufficient to constitute an adverse possession in the opinion of the defendant.

The certificate of confirmation issued by Recorder Conway was not properly evidence in the cause. The recorder of land titles, under the act of 26th May, 1824, had no authority to take any proof in relation to the extent or boundary of the commons, or of their use or occupation; consequently his certificate could not be evidence of title.

As there was no attempt to establish a right to commons by parol evidence as a ground of defence, the plaintiff could not have been affected by evidence to that effect.

The first instruction given for the defendant did not place the claim to commons on user, but on the confirmation and survey, and no objection was made to those documents.

The third instruction is not obnoxions to the objections urged against it. The jury were the proper judges of the inferences of fact to be drawn from the papers. The legal effect of papers is to be determined by the court, but when documents are offered in evidence as the foundation of an inference of fact, whether such inference can be drawn from them is a question for the jury. The most authentic documents, when offered for such a purpose, become no more than mere letters or a written correspondence, which, when offered in evidence to prove a fact, are always to be interpreted by the jury. When documents are offered for such a purpose, they, like a written correspondence, may be explained by extrinsic evidence. The petition of Gama che, whether on behalf of himself or the inhabitants of the village, being made the foundation of an official act, it, together with the act, was evidence for the jury, to have such weight as, under all the circumstances, they might deem it entitled to.

The judgment is reversed and the cause remanded;

the other judges concurring.


text:
    Missouri Institute for the Education of the Blind, Respondent, v. How et al., Appellants.
    1. A clear intention to dedicate is necessary to constitute a dedication of land to the public.
    2. To authorize the presumption of an intention to dedicate land to the public as a street, there must be either an acquiescence by the owner for twenty years in the free use and enjoyment of such land as a public street, or such clear, unequivocal and decisive acts as will amount to an explicit manifestation of his will to make a permanent abandonment and dedication thereof to the public.

      Appeal from St. Louis Land Court.

    This was an action in the nature of an action of trespass quaere clausum fregit, instituted September 26, 1856, to recover damages for an alleged wrongful entry upon certain premises described as block No. 3 in. N. P. Taylor’s addition to St. Louis. The defendants, in their answer, pleaded, substantially, not guilty; that plaintiff had no property in the locus in quo; and that the premises were a part of a public street, dedicated to public use prior to the alleged trespass by plaintiff and those under whom he claims. The gist of the defence is that the public had a right of way over the premises.
    The premises in controversy formerly belonged to William Christy. N. P. Taylor acquired title under said Christy in 1837. In the deed of said Christy the land conveyed was described as lot No. 29 in the “ plan of apportionment” of his property among his children. Taylor subdivided said lot No. 29 into lots, and it formed part of “ N. P. Taylor’s addition to St. Louis.” The said lot 29 was designated as block No. 3 in the plat of said partition. In 1838 Taylor conveyed said block to Ruland. Ruland dying in 1850, the title passed to his heirs, under whom the plaintiff acquired title through various mesne conveyances in the year 1854. When Ruland purchased in the year 1838, he took possession and made enclosures, but did not enclose the portion (about 25 feet) on the west side of the block, which is the subject of controversy in this suit. During the same year, Ruland employed Cozzens (a surveyor) to survey the property in order to ascertain its true location. Cozzens made the survey, and informed Ruland that his lot (block 3) extended about 24J feet further west than he (Ruland) had supposed or had enclosed. Ruland, however, thought he had enclosed the ground he had purchased from Taylor, but said he was entitled to 218 feet on Morgan street through to Franklin avenue. He insisted that he was entitled to 218 feet, and said that if any one claimed of him on the east, he should claim his quantity on the west. The same surveyor surveyed the premises again in 1846, with the same result. At the time Taylor laid out his addition, and up to the year 1856, the premises were without the limits of the city of St. Louis. At the time of the alleged trespass they were within said limits’. After the plaintiff acquired title, in the years 1855 and 1856, the plaintiff put up a new fence enclosing about 24 feet on the west that had not been previously enclosed. It is upon this piece of land that the defendants, How and Ruggles, entered, and removed this fence. Said How was, at the time, mayor of the city of St. Louis. Ruggles acted under and by orders of said mayor.
    The deeds constituting plaintiffs’ chain of title (executed by various parties since the death of Ruland) describe the property substantially alike, viz : As lots 1 to 14 inclusive, in block No. 3, in N. P. Taylor’s addition, fronting 218 feet on Morgan street, extending to Franklin avenue, bounded north by Franklin avenue, east by Swearingen, south by Morgan street, and west by Twentieth, sometimes called Nineteenth street. When division was made among the children of Christy and when Taylor acquired title to lot 29 in 1837, there was no street named or known on the west side of said lot, nor did Taylor, in making or platting his addition, name or recognize any street on the west of his addition. There was evidence tending to show that there was a street thirty feet wide on the west side of said block No. 3. There was some evidence tending to show that the public had used the locus in quo as a public street or thoroughfare. The evidence on this point was conflicting.
    The court, at the instance of plaintiff, gave the following instructions: “ 1. Unless the jury find from the evidence that the present or former proprietor of the premises in question did some affirmative act showing an intention to dedicate the same to public use as a highway, then the said premises have not become a highway, and the public have not acquired the right of way over the same. 2. Although the jury may find from the evidence that the defendant John How, at the time of the alleged trespass, was mayor of the city of St. Louis, and acted in his official capacity as such mayor in all that he did in respect to entering the premises in question; and although his co-defendant, in all that he did in respect to said premises, acted under and in obedience to the orders and directions of said mayor, yet they are liable to this action if the plaintiff was in possession and the defendants entered upon said premises against the consent of the plaintiff and tore down and removed the fence, unless there was at the time of the alleged entry a public road, street or public way over said premises ; and the burthen of showing that there was such a public road, street or public way rests on the defendants.”
    At the. instance of the defendants, the court gave the following : “ 3. That if the fence erected by the plaintiff was located in a public street, then the defendant, John How, as mayor of the city, had a right to cause the same to be removed. 4. That if the jury believe from the evidence that General Ruland, or those who claim under him, dedicated the land, upon which plaintiff erected the fence, to the public use, they will find for the defendants. 5. That no particular form is necessary in the dedication of land to the public use; all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the persons so dedicating it. 6. That to deter mine whether or not Ruland, or any person claiming under him, ever assented to the dedication of Nineteenth alias Twentieth street to the public use, the jury have a right to take into consideration all the facts and circumstances of the case in proof. 7. In order to constitute trespass by the defendants, it is necessary that the plaintiffs show themselves in possession of the land west of the original fence made by Ruland; and if the plaintiffs have failed to show title to the ground or possession of the ground west of the original fence, they will find for the defendants.”
    Defendants asked the following instructions, which were refused : “ 1. If the jury believe from the evidence that Gen. Ruland caused lot No. 29 to be surveyed and directed the surveyor to commence in the centre of Twelfth street and run west, and caused the ground to be enclosed so as to embrace all he claimed of said lot, and that the fence removed by the authorities was outside of such survey and in a street called and known as Twentieth, alias Nineteenth street, they will find for defendant. 2. If the jury believe from the evidence that the street in controversy was used by the public with the assent of General Ruland, and that the deed from Ruland’s heirs to Greene’s trustees, and from Greene’s trustees to Greene, and the deed from Greene to Morrison, and from Mori’ison to plaintiff, calls for Twentieth alias Nineteenth street as a western boundary, then they are estopped and precluded from asserting any ownership to the ground, on which plaintiff erected the fence, inconsistent with the right of the public to use the same. 3. That if the jury believe from the evidence that General Ruland permitted the ground lying west of the west fence to be used by the public as a street or highway, and that the same has been since used as a public street or highway up to the time that the plaintiff erected a fence thereon, then it is such a dedication of the said ground to the public as to preclude the plaintiff from recovering in this action. 4. If the jury believe from the evidence that the ground on which the plaintiff erected a fence, the removal of which is alleged as a trespass, was used as a public highway, and had been previously used by the public as a street, and that the plaintiff erected a fence thereon, and that plaintiff had no possession of said ground until the erection of said fence, and that the city authorities immediately after the erection of said fence caused the same to be removed, then the possession of the plaintiff was not such a possession as will entitle them to recover in this action.”
    The jury found for the plaintiff.
    Bay, for appellants.
    I. The court erred in giving the first instruction in behalf of plaintiff. No particular form is required in dedicating a street or highway to the public use. A mere acquiescence in the use of the land by the public is sufficient to authorize a jury to presume a dedication. (Angelí on Highways, 113; Gould v. Glass, 19 Barb. 195 ; Regina v. Petrie, 30 Eng. Law & Eq. R. 207; Jarvis v. Dean, 3 Bing. 417 ; Pritchard v. Atkinson, 4 N. H. 1; 11 East. 375; 6 Peters', 440.) The court also erred in refusing the instructions asked by the defendants.

      Krum & Harding, for respondent.
   Scott, Judge,

delivered the opinion of the court.

The defendants have failed to establish any justification for the trespass with which they are charged. Their defence rested on the ground that there had been a dedication of the land to the public as a street.

The vital principle of a dedication is the intention to dedicate ; and whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has been made. (Angell on Highways, 113.) When the proprietor of town property lays it out into lots, with streets and alleys intersecting it, and sells lots with reference to the plat in which the same is so laid off, he thereby dedicates the streets and alleys to the public. There is some contrariety of opinion as to the length of time the owner must acquiesce in the use of his property by the public before it can be said that he has made a dedication of it. In relation to this matter Chancellor Kent says, “ If there be no other evidence of a grant or dedication than the presumption arising from the fact of acquiescence on the part of the owner in the free use and enjoyment of the way as a public rbad, the period of twenty years, applicable to incorporeal rights, would be required as being the usual and analogous period of limitation. But if there were clear, unequivocal and decisive acts of the owner, amounting to an explicit manifestation of his will to make a permanent abandonment and dedication of the land, those would be sufficient to establish the dedication within any intermediate period, and without any deed or other writing.” (3 Kent Comm. 451.) Angell, on the same subject, says, “ In a recent American case, it was held that, without some clear and unequivocal manifestation of an intention to dedicate, dedication would not be presumed until after the lapse of twenty years; and this seems to be the view more generally taken by the American courts.” (Angell on Highways, 116.)

The lot in controversy, it seems, was not made a part of the city until some time in 1856. It is not pretended that Ruland was a founder of cities, dedicating streets, alleys and public places with a view of enhancing the value of the rest of his property or to induce purchasers to buy. He owned but a single lot, measuring 218 feet on two streets, and of the depth of the block separating them. He had just purchased it. The land on his west was vacant and unenclosed. He had no need of an outlet. Such being the circumstances, more direct and positive evidence of facts manifesting an intention to dedicate are necessary. Strong evidence should be required to raise a presumption that the owner of a lot just purchased would abandon to the public more than one-ninth of it, when at the time there was no necessity for, nor policy in, such act. It would have been time to make the dedication when the relative situation of his lot required such an act for his own convenience. Ru-land may have pointed out Nineteenth alias Twentieth street to Moulton. But, while doing this, he was claiming that the eastern boundary of his lot should be so projected, and it was in fact so projected, as to leave uncovered by his claim the ground now in controversy. A presumption is not easily indulged that a proprietor has abandoned that of which he is not aware that he is the owner. The idea of a dedication by Ruland is inconsistent with the testimony of Cozzens, a witness introduced by the defendant himself. The witness says Ruland always claimed 218 feet, the quantity he purchased. He told Ruland his eastern fence was not properly located. Ruland insisted that it was, and asserted that if he lost the ground on the east he would have his quantity on the west. Buland, while claiming on the east, could with no propriety assert any right to any unfenced land on the west; for the quantity to which ho was entitled being definite, such a presumption would have weakened, if not destroyed, his claim on the east. If a proprietor is mistaken as to the location of his lot, and leaves a portion of it unenclosed, supposing that it is not covered by his claim, and afterwards ascertains his error, it would be hard in such a case to presume a dedication. In the case of Barraclough v. Johnson, 8 Ad. & Ellis, 99, Lord Denman said, “A dedication must be made with an intention to dedicate. The mere acting so as to lead persons into the supposition that the way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction.”

There is nothing in the record that warrants the supposition, nor is such a view of the case presented by any of the instructions, that Buland really intended to give a street on the west, and only claimed on the east in the hope of obtaining an indemnity for what he had determined to relinquish for his own convenience on the west.

If we take the entire description of the lot as contained in the several deeds under which the plaintiff claims, we will find that it furnishes no evidence in support of the pretensions of the defendant. On the contrary, it shows that there was no intention on the part of the several grantors in those deeds to relinquish any part of the lot. The circumstances relied on to show an intent to dedicate is the call for a street on the west in the deeds. But that call does not show that it was the intention that the street should be opened by lay ing it out on a portion of the lot. The contrary is clearly manifest. All the deeds refer to a plan on record. That plan shows that Euland’s lot fronted 218 feet on Morgan street, and the same number on Franklin avenue. The space between these streets was divided by an alley, thus forming two lots, one fronting on Morgan street and the other on Franklin avenue. These two lots, having a front each of two hundred and eighteen feet, were severally subdivided into seven smaller lots — one with a front of 32 feet, and the rest with 31 feet each — making the aggregate 218 feet. By laying- out the street on the lot, two of these smaller lots would be reduced into narrow slips not exceeding five or six feet in front. But it appears from the evidence that at the date of the deeds referred to, (for they were made after the death of Ruland,) there was a street west of the ground and adjoining it. This street was laid out by the commissioners appointed to make partition among the heirs of ¥m. Christy, to whom the unenclosed land on the west belonged. The street laid out according to the plat was only 30 feet, but still it was sufficient to answer the call.

According to the principles stated in this opinion as derived from able commentators on our laws, it will' not be necessary for us to determine whether acquiescence is a negative or affirmative act. The time relied on as raising a presumption of dedication from user is far short of twenty years, and there is no other circumstance in the case from which it would be warrantable to declare that there was a dedication within that period. There was no error in the first instruction given for the plaintiff, and there could have been but little cause of complaint had the law been as the defendant supposed when the instructions given on his behalf are considered in connexion with it. Notwithstanding the case of Regina v. Petrie, 30 Eng. Law & Eq. R. 217, Angelí states the American law to be as it has been assumed in this opinion.

In the refusal to give the rejected instructions asked by the defendant, there is no error. The judgment is affirmed;

the other judges concur.


author: Napton, Judge,

text:
    Watson et al., Respondents, v. Bissell, Appellant.
    1. Where the possession of land hy a party in whose fayor it is sought to invoke the presumption of a deed is entirely consistent with title in another — as where a father (in whose behalf the presumption is invoked as against his son and the son’s heirs) is in possession of land during the minority of the son, or after the death of the son, at which time the law devolved a life interest in the land of the son upon the father — such possession will not authorize the presumption of a conveyance.
    2. Declarations of a person in possession of land as a life tenant can not bo received in evidence to elevate his life estate into an estate in fee.

      Appeal from St.- Louis Land Court.

    This was an action to recover possession of three fifty-fifths of a tract of land confirmed to Leon N. St. Cyr. There was a recovery had as to one fifty-fifth of said tract of land in behalf of Yirginia Christy, one of the plaintiffs. The other plaintiffs were cut off by the rulings of the court on the statute of limitations. With respect to said Yirginia, it was admitted that if she was entitled to recover she was entitled to recover one fifty-fifth part. It appeared that Yir-ginia Christy was a daughter of Israel Reed Christy, who was a son of William Christy, who died in 1839 ; that said William and his wife Constance had five children including said Israel, all of whom survived their mother, who died in 1822 or 1823 ; that said Yirginia was the only surviving child of said Israel, and was ten years old at the time of the trial. Said Constance, the mother of Israel, was the daughter of Hyacynth St. Cyr, who had twelve children, one of whom was Leon N. St. Cyr, who was born in 1787, and who about the year 1809 went away and was never heard of again, and was supposed to have been drowned in the Mississippi river. The father and mother of said Leon N. St. Cyr died in 1826. Israel Reed Christy was born in 1816 and died in 1851. Constance, wife of William Christy, was born in November, 1785, and was married in 1807. The land sought to be recovered was confirmed to said Leon N. St. Cyr. It appeared in evidence that Hyacynth St. Cyr was in possession of this land from about 1800 or 1802 until 1817, when he conveyed the same to Joseph Brazeau, from whom defendant has a regular chain of title. The defendant offered to prove that Hyacynth St. Cyr (the father) claimed the land in question as his own and publicly declared that it belonged to him from 1802 to 1817, when he sold to Brazeau. The court excluded this testimony.
    It is deemed unnecessary to set forth the instructions given and refused. The court refused to give certain instructions asked by defendant authorizing the jury to presume title in Hyacynth St. Cyr at the date of the deed to Brazeau.

      Krum & Harding, for appellant.
    I. A state of facts was shown in evidence from which a deed to or title in fee in Hyacynth St. Cyr might have been presumed by the jury. The instructions based hypothetically on these facts should have been given. (16 Pick. 137 ; 17 id. 255 ; 1 Harr. & Jo. 527; Dessaunier v. Murphy, 22 Mo. 95; 2 Swan, 27, 109 ; 7 Rich., S. C., 353; 13 Ired. 262; 2 Strobh. 141; 2 Rich. 19; 7 Ired. 135; 1 Turn. & Rus. 107 ; 2 Taunt. 156 ; 5 J. J. Marsh! 545 ; 3 Johns. Oh. 129; 20 Ohio, 231; 3 Strobh. 598, 501; 9 Yerg. 455; 5 Dev. & Bat. 407.)
    II. The evidence excluded was competent.

      Breckinridge & Page, for respondent.
    I. The instruction given stated the law properly to the jury. (Geyer’s Dig. 474, 478; 2 Am. State Papers, 455-6 ; 2 id. 298 , 8 Mo. 528; Hogan v. Page, 22 Mo. 63 ; Mercier v. Letcher, 22 Mo. 66 ; Berthold v. McDonald, 24 Mo. 133 ; 15 Mo. 87; 1 Terr. Laws, p. 129, 401; 5 Humph. 117; 1 R. C. 1855, p. 692 ; R. C. 1825, tit. Limitations, § 2 & 3.)
    II. This was no case for the presumption of a deed. The instructions asked by defendant were properly refused. They asked the court to advise the jury to presume a deed from acts of ownership by a father over the property of a minor son in the first place, and afterwards by a life-tenant and his grantee. The facts from which such presumption is asked to be drawn are perfectly consistent with plaintiff’s title. (1 G-reenl. Ev. § 46, 17; 1 Phil. Ev. 161-2; 1 Cow. & Hill’s Notes, 356, 365; Dessaunier v. Murphy, 22 Mo. 105 ; Cowp. 214; Sumner v. Child, 2 Conn. 615; 19 Mo. 360.) The other instructions were properly refused.
    III. The court properly excluded the declarations of Hy-acynth St. Cyr. (9 Mo. 797 ; 21 Mo. 522 ; 16 Mo. 242.)
   Napton, Judge,

delivered the opinion of the court.

We can not perceive any thing in the circumstances of this case which would warrant a court or jury in presuming a deed from Leon N. St. Cyr to the father Hyacynth St. Cyr. On the contrary, such a presumption would neither consist with the facts proved or admitted relative to possession, or with the deed from the elder St. Cyr to Brazeau. The acts of ownership exercised by Hyacynth St. Cyr during the life and minority of his son, and whilst his son lived with him, are entirely consistent with the title of the son, and the possession and ownership after the death of Leon in 1809 were also consistent with his own title. He had a life estate in the land. The deed to Brazeau in 1817 is totally inconsistent with the existence of a conveyance from Leon to Hy-acynth previous to 1809, since the deed itself refers to no such conveyance, and the title conveyed is not pretended to have been derived in that way, but by the death of Leon without issue in 1809. As this deed to Brazeau was a conveyance under the statute of uses, which could only convey such title as the grantor had, it did not create a forfeiture of the life estate. (Cruise Dig. —.) Consequently, until the death of Hyacynth St. Cyr in 1826, there was no possession adverse to the rights of the brothers and sisters of Leon St. Cyr, whose title never accrued until that time. If then coverture or infancy or other disability prevented the running of the statute of limitations, as the jury under the instructions have found, the plaintiff was entitled to recover. In our examination of the doctrine of presuming deeds we have not observed any case in which a court would permit a deed to be presumed where the ancient possession proved was entirely consistent with the title papers in evidence, and the adverse possession had not run long enough to bar it. (Waggoner v. Waggoner, 4 Mon. 547.)

The evidence offered by the defendants of declarations of Hyacynth St. Cyr, whilst in- possession, intended to elevate his life estate into a fee simple, were properly rejected. (Belden v. Turner, 9 Mo. 797.)

The instructions on the subject of proving the ouster were also properly refused. (Peterson v. Laik, 24 Mo. 641.) The judgment is affirmed.